Terms of Service
- We deliver only under our following sales, delivery and payment conditions, even if no explicit reference to this is made subsequently in the case of continuing business relations. A customer's contradictory conditions have no validity for us; lack of response to contract confirmations that refer to a customer's differing terms and conditions is not to be seen as consent.By accepting our delivery the customer declares himself to be in agreement with the exclusive validity of our sales, delivery and payment conditions.
- All offers made by us are without obligation. Orders are only counted as accepted when they have been confirmed by us in writing. Our order confirmation is binding for the content of the contract if we have not received a written objection within 14 days after the date of our order confirmation; this does not apply if the order confirmation differs so far from the order that the consent of the customer cannot be reckoned with.
- All agreements reached for the execution of the contract are to be made in writing.
- Where INCOTERMS are agreed for foreign business, the definitions laid down and published for conclusion of contract by the International Chamber of Commerce in Paris shall apply.
B. Prices and Payments
- Our prices are to be understood ex our works at Gommiswald, including packaging. In Switzerland turnover tax shall be added to the agreed prices in the respective statutory amount.
- Except when an order confirmation states otherwise, our invoices are to be paid strictly net within 30 days after the invoice date. Repairs and wage labour are in all cases to be paid immediately strictly net.
- For deliveries to customers based outside Switzerland or for deliveries destined for export out of the aforementioned areas, we have the right to require the supplying of an irrevocable letter of credit from a Swiss bank registered in Switzerland as a guarantor for debts and excise duty and to deliver the goods only against the supplying of a letter of credit.
- Cheques will only be accepted for purposes of payment. All costs and charges for discounting or collection of the cheque shall be borne by the customer.
- Should we become aware of circumstances which call the creditworthiness of the customer into question, all our outstanding accounts will immediately become due for payment. In this case we have the right to demand cash payment against return of the cheques without regard to the period of validity of accepted cheques. Our statutory rights are not affected.
- The customer is not entitled to exercise or offset a right of retention with respect to our outstanding accounts insofar as the counterclaims are not explicitly recognised by us or determined without further legal recourse.
C. Delivery and Acceptance
- Shipping is always done at the expense and risk of the customer. Deliveries are only insured against transport damage on the explicit wish of the customer and at his expense.
- The risk devolves on the customer as soon as the delivery item leaves our works, including in the case of part deliveries. In the case of collection by the customer the risk devolves as soon as notice of readiness for dispatch is given.
- Delivered items, even if they show negligible defects, are to be accepted by the customer without prejudice to his rights in section F of these sales, delivery and payment conditions.
D. Delivery Time
- The observance of the times for deliveries or services (delivery times, i.e. delivery deadlines and schedules) presupposes the fulfilment of the customer's contractual duties and obligations. Delivery schedules therefore begin only once our order confirmation has been received by the customer, but not before the supplying of the documents, information etc. to be provided by the customer, and likewise not before receipt of an agreed guarantee; delivery schedules are deferred commensurately in these cases. Changes or amplifications of the original delivery or service scope agreed after conclusion of a contract proportionately extend or defer the original delivery schedules or deadlines.
- The delivery time has been adhered to if by its expiry the delivery item has left our works or readiness to despatch has been communicated. Partial deliveries are admissible.
- Delivery and service disruptions due to force majeure or as a result of labour disputes, official intervention, operating trouble, difficulties in material procurement or energy supply or other unforeseeable, unusual and non-culpable circumstances, irrespective of whether these circumstances occur in our company or with our subcontractors, extend the delivery time by the duration of the hindrance. Not included in this are cases in which we have entered into our commitments in spite of the foreseeability of these circumstances or have not taken possible and reasonable measures to prevent or avert the impairment of performance, or in which the hindrance itself is our fault. In accordance with the aforementioned clauses, neither are the circumstances mentioned our responsibility if they arise during an already existing delay. We can only invoke these clauses if we immediately inform the customer of the occurrence and foreseeable duration of such disturbances.
- If damage accrues to the customer because of a delay which is our responsibility, he is entitled to compensation. The level of compensation is limited to 1% for every full week of delay - single days taken as fractions - to a maximum of 10% of the contractual value. This does not affect our liability under section G, Nos. 2 and 3 of these sales, delivery and payment conditions.
E. Reservation of Ownership
- The delivery item remains our property (reserved item) until full payment of all demands arising from the business relationship with the customer.
- The customer must insure the reserved item against loss until ownership is transferred. The customer as of now cedes to us all his rights from the pertinent insurance contracts and his claims against their insurers. We accept the cession.
- The customer may neither pawn the reserved item nor pledge it as security. The customer must immediately inform us in the case of attachment or seizure or other orders. In the case of conduct contrary to contract by the customer, in particular default, we are entitled to take back the reserved item after dunning. This also applies if the customer is over-indebted or has ceased payments, the opening of insolvency proceedings on his assets is applied for, or there otherwise occurs a fundamental worsening of his economic circumstances.The exercise of reservation of ownership or attachment of the reserved item by us do not count as withdrawal from the contract.
- The customer is entitled to resell the reserved item in a proper transaction under his normal conditions. In the case of resale the outstanding accounts of the customer from resale are as of now ceded to us in the amount of our invoice value (including turnover tax). We hereby accept the cession. The customer is empowered to collect these outstanding accounts even after the cession. If the customer defaults in payment, an application will be made to open insolvency proceedings; if the customer has over-indebtedness, ceases payments or experiences any other fundamental worsening of his economic circumstances, the right to resell and power to collect expires. In this case we can furthermore make use of our still unaffected power to collect the ceded outstanding accounts ourselves, and require the customer to inform his debtors of the cession. Regardless of this we can at any time require the customer to disclose to us the ceded outstanding accounts and their debtor, provide all the information necessary for the collection and hand over the associated documents.
- Processing or alteration of the reserved item by the customer is always undertaken for us. If the reserved item is processed with other items not belonging to us, we acquire the joint ownership of the new article in the proportion of the value of the reserved item to the other processed items at the time of processing. Apart from this, the same applies to the article created through processing as for other reserved items (see above).
- If the reserved item is combined with other items not belonging to us in such a way that it becomes a fundamental component of a homogeneous article, we acquire the joint ownership of the new article in the proportion of the value of the reserved item to the other combined items at the time of combining. If the combining is done in such a way that the customer's article is to be seen as the main article, it counts as agreed that the customer transfers joint ownership to us proportionately. The customer holds the joint property thus created in safekeeping for us. The clauses on combining apply correspondingly in the case of amalgamation or mixing. Apart from this, the same applies to the new articles created through amalgamation, mixing or combining as for other reserved items (see above).
- We undertake to authorise the securities falling to us to the extent that their value exceeds that of the outstanding accounts to be secured by more than 20%.
- The customer must carefully check the delivery item immediately after receipt and where necessary send us a written notice of defects immediately after recognising them.
- In the case of defective delivery or service the customer has a claim, at our discretion, to the remedying of the defect or the delivery of a non-defective article / manufacture of a new piece of work (supplementary performance). If the supplementary performance is refused by us, fails, is unacceptable to the customer or does not take place within an appropriate period determined by him, the customer can at his discretion claim a price reduction or withdraw from the contract. Withdrawal is excluded if the defect is negligible. Apart from that we are liable only under section G of these of these sales, delivery and payment conditions.
- Claims for defects are excluded for natural wear and tear or if the delivery item has been altered without authorisation, in particular through the incorporation of extraneous parts, and it cannot be discounted that the defect is ascribable to this.
- Claims for defects expire after 12 months.
- We can refuse to remedy defects as long as the customer is in default in his obligations. The right of retention in connection with any delivery defects up to the double value of the cost of remedying the defects is not affected by this.
- Damage claims by the customer arising from all violations of duty from the obligatory relation and from unlawful acts are excluded, in particular with regard to consequential damages (including loss of profit).
- Our liability remains unaffected for damages from injury to life, body or health, for claims under the product liability law, for guarantees (excepting defect-engendered consequential harm outside the guarantee) as well as for all foreseeable damages in which intent or gross negligence is imputed to us. We are liable for property damage resulting from ordinary negligence insofar as we are in a position to receive cover under our existing liability insurance.
- We are also liable for culpable violation of fundamental contractual obligations in the case of ordinary negligence, although only for foreseeable, typically occurring damage and only up to the amount of the limit of liability of our liability insurance
H. Place of Fulfilment, Place of Jurisdiction and Applicable Law
- The exclusive place of fulfilment for both contracting parties is our corporate headquarters at CH-8737 Gommiswald. The state courts have exclusive jurisdiction. Insofar as our customers are traders in the sense of the code of commercial law or legal entities under public law, St. Gallen is agreed as the exclusive place of jurisdiction. This does not apply to the order for payment procedure. We are however also entitled to assert claims at any other legal place of jurisdiction.
- Legal relations with our customers are subject exclusively to Swiss law with the exception of the UN sale of goods law.
I. Alterations, Invalidity Clause
- Rules on the burden of proof favouring the customer are not affected by these sales, delivery and payment conditions.
- Alterations of these sales, delivery and payment conditions or other contractual understandings are to be made in writing.
- Should individual parts of these sales, delivery and payment conditions be inapplicable through law or individual contract, this does not affect the validity of the remaining clauses.
Updated (Wednesday, April the 13th 2016 at 09:30 AM)