General Terms and Conditions Delivery Machines & Installations

1. General information

1.1 The contract is concluded upon receipt of the supplier's written confirmation that it accepts the order (order confirmation). Offers that do not contain an acceptance period are non-binding.

1.2 These contractual terms and conditions are binding if they are declared applicable in the offer or in the order confirmation. Any other terms and conditions of the Purchaser shall only be valid if they have been expressly accepted by the Supplier in writing.

1.3 All agreements and legally relevant declarations of the contracting parties must be made in writing to be valid. Declarations in text form which are transmitted or recorded by electronic media shall be deemed equivalent to the written form if the parties have specifically agreed to this.

1.4 Should a provision of these contractual terms and conditions prove to be wholly or partially invalid, the contracting parties shall replace this provision with a new agreement that comes as close as possible to its legal and economic purpose.

2. Scope of deliveries and services

The deliveries and services of the supplier are exhaustively listed in the order confirmation, including any enclosures thereto. The supplier is authorised to make changes that lead to improvements, provided that these do not result in a price increase.

3. Plans and technical documents

3.1 Brochures and catalogues are not binding unless otherwise agreed. Details in technical documents are only binding if they are expressly warranted.

3.2 Each contracting party reserves all rights to plans and technical documents that it has handed over to the other. The receiving contracting party recognises these rights and shall not make the documents available to third parties in whole or in part or use them for purposes other than those for which they were handed over without the prior written authorisation of the other contracting party.

4. Regulations in the country of destination and protective devices

4.1 The Purchaser shall draw the Supplier's attention to the regulations and standards relating to the execution of the deliveries and services, the operation and the prevention of illness and accidents at the latest when placing the order.

4.2 In the absence of an agreement pursuant to Clause 4.1, the deliveries and services shall comply with the regulations and standards at the supplier's registered office. Additional or other protective devices shall be supplied to the extent that this has been expressly agreed.

5. Prices

5.1 Unless otherwise agreed, all prices are quoted net, ex works, without packaging, in freely available Swiss francs, without any deductions. All ancillary costs, e.g. for freight, insurance, export, transit, import and other authorisations and certifications, shall be borne by the customer. The customer shall also bear all types of taxes, duties, fees, customs duties and the like as well as the associated administrative costs that are levied in connection with the contract or its fulfilment. Insofar as such costs, taxes, etc. are levied on the Supplier or its auxiliary persons, these shall be reimbursed by the Purchaser upon presentation of the relevant documents.

5.2 The Supplier reserves the right to adjust prices if wage rates or material prices change between the time of the offer and the contractual fulfilment. In this case, the price adjustment shall be made in accordance with the enclosed sliding price formula. An appropriate price adjustment shall also be made if - the delivery period is subsequently extended for one of the reasons stated in Clause 8.3, or - the nature or scope of the agreed deliveries or services has changed, or - the material or the design has changed because the documents supplied by the customer did not correspond to the actual circumstances or were incomplete, or - laws, regulations, principles of interpretation or application have changed.

6. Terms of payment

6.1 Payments shall be made by the Purchaser in accordance with the agreed terms of payment at the Supplier's domicile without deduction of discounts, expenses, taxes, levies, fees, customs duties and the like. Unless otherwise agreed, the price shall be paid in the following instalments: - one third as a down payment within one month after receipt of the order confirmation by the Purchaser, - one third upon expiry of two thirds of the agreed delivery period, - the remaining amount within one month after notification of readiness for dispatch by the Supplier. The payment obligation shall be deemed to have been fulfilled if Swiss francs have been made freely available to the supplier at the supplier's domicile. If payment by bill of exchange or letter of credit has been agreed, the Purchaser shall bear the discount on the bill of exchange, bill of exchange tax and collection charges or the costs of opening, notifying and confirming the letter of credit.

6.2 The payment dates shall also be observed if transport, delivery, assembly, commissioning or acceptance of the supplies or services are delayed or rendered impossible for reasons for which the supplier is not responsible, or if minor parts are missing or if reworking proves necessary which does not render the use of the supplies impossible.

6.3 If the advance payment or the securities to be provided upon conclusion of the contract are not made in accordance with the contract, the Supplier shall be entitled to adhere to the contract or to withdraw from the contract and in both cases to claim damages. If the Purchaser is in arrears with a further payment for any reason whatsoever, or if the Supplier must seriously fear that it will not receive the Purchaser's payments in full or on time due to circumstances occurring after conclusion of the contract, the Supplier shall be authorised, without limiting its statutory rights, to suspend further performance of the contract and to withhold deliveries ready for dispatch until new terms of payment and delivery have been agreed and the Supplier has received sufficient security. If such an agreement cannot be reached within a reasonable period of time or if the supplier does not receive sufficient securities, the supplier shall be entitled to withdraw from the contract and claim damages.

6.4 If the customer does not meet the agreed payment deadlines, he must pay interest without reminder from the agreed due date, which is based on the usual interest rates at the customer's domicile, but is at least 4% above the respective 3-month CHF LIBOR. The right to compensation for further damages remains reserved.

7. Reservation of title

The supplier shall remain the owner of all its deliveries until it has received payment in full in accordance with the contract.

The Purchaser is obliged to cooperate in measures necessary to protect the Supplier's property; in particular, upon conclusion of the contract, the Purchaser authorises the Supplier to enter or reserve the reservation of title in public registers, books or the like in accordance with the relevant national laws at the Purchaser's expense and to fulfil all formalities in this respect.

The Purchaser shall maintain the delivered items at its own expense for the duration of the retention of title and insure them in favour of the Supplier against theft, breakage, fire, water and other risks. It shall also take all measures to ensure that the Supplier's title is neither impaired nor cancelled.

8. Delivery period

8.1 The delivery period shall commence as soon as the contract has been concluded, all official formalities such as import, export, transit and payment authorisations have been obtained, the payments to be made at the time of ordering and any securities have been provided and the main technical points have been settled. The delivery deadline shall be deemed to have been met if the notification of readiness for dispatch has been sent to the customer by the time the deadline expires.

8.2 Compliance with the delivery period requires the fulfilment of the contractual obligations by the customer.

8.3 The delivery period shall be extended accordingly:

a) if the supplier does not receive the information required for the fulfilment of the contract in good time, or if the customer subsequently changes it and thus causes a delay in the deliveries or services;

b) if hindrances occur which the Supplier cannot avert despite exercising due care, irrespective of whether they occur at the Supplier, at the Customer or at a third party. Such obstacles are, for example, epidemics, mobilisation, war, civil war, acts of terrorism, riots, political unrest, revolutions, sabotage, significant operational disruptions, accidents, labour disputes, delayed or faulty delivery of the necessary raw materials, semi-finished or finished products, rejection of important workpieces, measures or omissions by authorities, state or supranational bodies, embargoes, unforeseeable transport obstacles, fire, explosion, natural disasters;

c) if the customer or third parties are in arrears with the work to be carried out by them or are in default with the fulfilment of their contractual obligations, in particular if the customer does not comply with the terms of payment.

8.4 The customer shall be entitled to claim compensation for delayed deliveries if the delay was demonstrably caused by the supplier and the customer can prove damage as a result of this delay. If the purchaser is assisted by a replacement delivery, the claim for compensation for delay shall lapse.

The compensation for delay shall amount to a maximum of 0.5% for each full week of delay, but not more than 5% in total, calculated on the contract price of the delayed part of the delivery. The first two weeks of delay do not entitle the customer to any compensation for delay.

Once the maximum compensation for delay has been reached, the Purchaser shall grant the Supplier a reasonable grace period in writing. If this grace period is not complied with for reasons for which the Supplier is responsible, the Purchaser shall be entitled to refuse acceptance of the delayed part of the delivery. If partial acceptance is economically unreasonable for him, he shall be entitled to withdraw from the contract and to reclaim payments already made against return of deliveries made.

8.5 If a specific date is agreed instead of a delivery period, this shall be equivalent to the last day of a delivery period; Clauses 8.1 to 8.4 shall apply analogously.

8.6 The customer shall have no rights and claims for delay in delivery or performance other than those expressly stipulated in this Clause 8. This restriction does not apply to unlawful intent or gross negligence on the part of the Supplier, but it does apply to auxiliary persons.

9. Packaging

The packaging shall be invoiced separately by the Supplier and shall not be taken back. However, if it has been labelled as the property of the supplier, it must be returned by the customer carriage paid to the place of dispatch.

10. Transfer of benefit and risk

10.1 Benefit and risk shall pass to the customer at the latest upon dispatch of the deliveries ex works.

10.2 If dispatch is delayed at the request of the Purchaser or for other reasons for which the Supplier is not responsible, the risk shall pass to the Purchaser at the time originally intended for delivery ex works. From this time onwards, the deliveries shall be stored and insured at the expense and risk of the Purchaser.

11. Shipping, transport and insurance

11.1 The Supplier must be notified in good time of any special requests regarding dispatch, transport and insurance. Transport shall be at the expense and risk of the customer.

11.2 Complaints in connection with the dispatch or transport must be addressed by the customer to the last carrier immediately upon receipt of the deliveries or the freight documents.

11.3 Insurance against damage of any kind is the responsibility of the customer.

12. Inspection and acceptance of deliveries and services

12.1 The Supplier shall inspect the deliveries and services prior to dispatch as far as is customary. If the Buyer requests further inspections, these shall be agreed separately and paid for by the Buyer.

12.2 The customer shall inspect the supplies and services within a reasonable period of time and notify the supplier immediately in writing of any defects. If he fails to do so, the deliveries and services shall be deemed approved.

12.3 The Supplier shall remedy the defects notified to it in accordance with Clause 12.2 as quickly as possible, and the Purchaser shall give it the opportunity to do so. After the defects have been remedied, an acceptance test in accordance with Clause 12.4 shall take place at the request of the Purchaser or the Supplier.

12.4 Subject to Clause 12.3, the performance of an acceptance test and the determination of the conditions applicable thereto shall require a special agreement. Unless otherwise agreed, the following shall apply:

• The Supplier shall notify the Purchaser of the performance of the acceptance test in good time so that the Purchaser or its representative can attend.
• A record of the acceptance shall be drawn up and signed by the customer and the supplier or their representatives. It shall state that acceptance has taken place or that it has only taken place with reservations or that the customer refuses acceptance. In the latter two cases, the defects claimed must be recorded individually in the report.
• The Buyer may not refuse acceptance and signature of the acceptance report due to minor defects, in particular those that do not significantly impair the functionality of the deliveries or services. Such defects shall be remedied by the Supplier without delay.
• In the event of significant deviations from the contract or serious defects, the customer must give the supplier the opportunity to rectify these within a reasonable period of grace. A further acceptance test shall then take place.

If this inspection again reveals significant deviations from the contract or serious defects, the customer may demand a price reduction, compensation or other benefits from the supplier if the contracting parties have agreed on these. If, however, the defects or deviations revealed by this inspection are so serious that they cannot be remedied within a reasonable time and the supplies and services cannot be used for the stated purpose or can only be used to a considerably reduced extent, the customer shall be entitled to refuse acceptance of the defective part or, if partial acceptance is economically unreasonable for him, to terminate the contract. The supplier can only be obliged to refund the amounts paid to him for the parts affected by the cancellation.

12.5 Acceptance shall also be deemed to have taken place,

• if the customer does not participate in the acceptance despite prior request;
• if the acceptance test cannot be carried out on the scheduled date for reasons for which the supplier is not responsible;
• if the customer refuses acceptance without being authorised to do so;
• if the customer refuses to sign an acceptance report drawn up in accordance with Clause 12.4;
• as soon as the customer utilises the supplier's deliveries or services.

12.6 The customer shall have no rights and claims for defects of any kind in deliveries or services other than those expressly stated in Clause 12.4 and Clause 13 (Warranty, liability for defects).

13. Warranty, liability for defects

13.1 Warranty period 

The warranty period shall be 12 months, or 6 months in the case of multi-shift operation. It begins with the dispatch of the deliveries ex works or with the possibly agreed acceptance of the deliveries and services or, if the supplier has also taken over the assembly, with its completion. If dispatch, acceptance or assembly are delayed for reasons for which the supplier is not responsible, the warranty period shall end no later than 18 months after notification of readiness for dispatch.

For replaced or repaired parts, the warranty period begins anew and lasts 6 months from replacement, completion of the repair or acceptance, but at most until the expiry of a period that is twice the warranty period according to the previous paragraph. The warranty shall expire prematurely if the customer or third parties carry out modifications or repairs or if the customer, if a defect has occurred, does not immediately take all appropriate measures to minimise the damage and give the supplier the opportunity to remedy the defect.

13.2 Liability for defects in material, design and workmanship 

The supplier undertakes, at the written request of the customer, to repair or replace as quickly as possible, at the supplier's discretion, all parts of the supplier's deliveries which are demonstrably defective or unusable as a result of poor material, faulty design or poor workmanship before the expiry of the warranty period. Replaced parts shall become the property of the supplier, unless the supplier expressly waives this right. The supplier shall bear the costs of rectification within the scope of proportionality, insofar as they do not exceed the usual transport, personnel, travelling and accommodation costs as well as the usual costs for the installation and removal of the defective parts.

13.3 Liability for warranted characteristics 

Warranted characteristics are only those that have been expressly designated as such in the order confirmation or in the specifications. The warranty is valid until the expiry of the warranty period at the latest. If an acceptance test has been agreed, the warranty shall be deemed to have been fulfilled if proof of the relevant properties has been provided during this test.

If the warranted characteristics are not or only partially fulfilled, the Purchaser shall initially be entitled to immediate rectification by the Supplier. The Purchaser shall grant the Supplier the necessary time and opportunity to do so.

If this rectification is not successful or only partially successful, the customer shall be entitled to the compensation agreed for this case or, if no such agreement has been made, to an appropriate reduction of the price. If the defect is so serious that it cannot be remedied within a reasonable period of time and if the supplies or services cannot be used for the stated purpose or can be used only to a considerably reduced extent, the customer shall be entitled to refuse acceptance of the defective part or, if partial acceptance is economically unreasonable for him and he gives notice thereof without delay, to rescind the contract. The supplier can only be obliged to refund the amounts paid to him for the parts affected by the cancellation.

13.4 Exclusions from liability for defects

Excluded from the Supplier's warranty and liability are damages which cannot be proven to have arisen as a result of poor material, faulty design or poor workmanship, e.g. as a result of natural wear and tear, inadequate maintenance, disregard of operating instructions, excessive strain, unsuitable operating materials, chemical or electrolytic influences, construction or assembly work not carried out by the Supplier, or as a result of other reasons for which the Supplier is not responsible.

13.5 Deliveries and services from subcontractors

For deliveries and services of subcontractors specified by the customer, the supplier shall only assume the warranty within the scope of the warranty obligations of the subcontractors concerned.

13.6 Exclusivity of warranty claims 

The Purchaser shall have no rights and claims for defects in material, design or workmanship or for the absence of warranted characteristics other than those expressly stated in Clauses 13.1 to 13.5. If the Purchaser has given notice of a defect and no defect is found for which the Supplier is responsible, the Purchaser shall owe the Supplier the remuneration for the work as well as compensation for further expenses and costs.

13.7 Liability for ancillary obligations 

The Supplier shall only be liable for claims of the Customer due to inadequate advice and the like or due to breach of any ancillary obligations in the event of unlawful intent or gross negligence.

14. Non-fulfilment, poor fulfilment and their consequences

14.1 In all cases of defective performance or non-performance not expressly provided for in these Terms and Conditions, in particular if the Supplier without any reason starts the performance of the supplies and services so late that timely completion can no longer be foreseen, if performance contrary to the terms of the contract is definitely foreseeable due to the Supplier's fault or if supplies or services have been performed contrary to the terms of the contract due to the Supplier's fault, the Purchaser shall be entitled to set the Supplier a reasonable extension of time for the supplies or services concerned, threatening to terminate the contract in case of default. If this grace period expires unused due to the fault of the Supplier, the Purchaser may withdraw from the contract with regard to the deliveries or services that have been performed in breach of contract or whose performance in breach of contract is definitely foreseeable and reclaim the proportion of payments already made in this respect.

14.2 In such a case, the provisions of Clause 19 shall apply with regard to any claim for damages by the customer and the exclusion of further liability, and the claim for damages shall be limited to 10% of the contract price of the deliveries and services for which the cancellation is made.

15. Cancellation of the contract by the supplier

If unforeseen events significantly change the economic significance or the content of the deliveries or services or have a significant impact on the supplier's work, as well as in the event of subsequent impossibility of performance, the contract shall be adjusted accordingly. If this is not economically justifiable, the supplier shall be entitled to terminate the contract or the affected parts of the contract.

If the supplier wishes to make use of the cancellation of the contract, he must inform the purchaser immediately after realising the consequences of the event, even if an extension of the delivery period has initially been agreed. In the event of cancellation of the contract, the Supplier shall be entitled to remuneration for the deliveries and services already provided. Claims for damages by the Purchaser due to such cancellation of the contract are excluded.

16. Export control

The customer acknowledges that the deliveries may be subject to Swiss and/or foreign statutory provisions and regulations on export control and may not be sold, leased or otherwise transferred or used for any purpose other than the agreed purpose without an export or re-export licence from the competent authority. The customer undertakes to comply with such provisions and regulations. He acknowledges that these may change and are applicable to the contract in the respective valid wording.

17. Data protection

The Supplier is authorised to process personal data of the Purchaser within the framework of the execution of the contract. In particular, the Customer agrees that the Supplier may also disclose such data to third parties in Switzerland and abroad in order to process and maintain the business relationship between the parties.

18. Software

If the deliveries and services of the Supplier also include software, the Purchaser shall be granted the non-exclusive right to use the software together with the delivery item, unless otherwise agreed. The Purchaser is not authorised to make copies (except for archiving purposes, for troubleshooting or to replace defective data carriers) or to process the software. In particular, the Purchaser may not disassemble, decompile, decrypt or reverse engineer the software without the prior written consent of the Supplier. In the event of infringement, the Supplier may revoke the right of use. In the case of third-party software, the terms of use of the licensor shall apply, who may assert claims in addition to the Supplier in the event of infringement.

19. Exclusion of further liability of the supplier

All cases of breach of contract and their legal consequences as well as all claims of the customer, irrespective of the legal grounds on which they are based, are conclusively regulated in these terms and conditions. In the event that the customer should have claims arising from or in connection with the contract or its improper fulfilment, the total amount of these claims shall be limited to the price paid by the customer. On the other hand, all claims for damages, reduction in price, cancellation of the contract or withdrawal from the contract not expressly mentioned are excluded. Under no circumstances shall the customer be entitled to claim compensation for damages that have not occurred to the delivery item itself, such as loss of production, loss of use, loss of orders, recall costs, loss of profit or other direct or indirect damages. Liability for compensation for third-party claims asserted against the customer for infringement of intellectual property rights is also excluded.

This exclusion of further liability of the Supplier shall not apply to unlawful intent or gross negligence on the part of the Supplier, but shall apply to auxiliary persons. Otherwise, this exclusion of liability shall not apply insofar as it conflicts with mandatory law.

20. Right of recourse of the supplier

If persons are injured or third-party property is damaged as a result of actions or omissions by the Purchaser or its auxiliary persons and if a claim is made against the Supplier for this reason, the Supplier shall have a right of recourse against the Purchaser.

21. Assembly

If the Supplier also undertakes the assembly or the supervision of assembly, Swissmem's General Terms and Conditions of Assembly shall apply.

22. Place of jurisdiction and applicable law

22.1 The place of jurisdiction for the Purchaser and the Supplier shall be the Supplier's registered office. However, the Supplier shall be entitled to sue the Purchaser at the latter's registered office.

22.2 The legal relationship is subject to substantive Swiss law.