General Terms and Conditions of Sale and Supply

1.1

All offers and deliveries are subject to the following conditions. Other terms and conditions of the customer shall only be valid if expressly acknowledged by us in writing.

1.2

All agreements and legally relevant statements of the contracting parties must be in writing in order to be valid.

1.3

Should a provision of these general conditions of supply prove to be wholly or partly invalid, the contracting parties shall jointly seek an arrangement which has a legal and economic effect as similar as possible to the invalid provision.

2.

Scope of supplies and services

The supplies and services of the supplier are specified in the order acknowledgement and in appendices thereto. The supplier shall be entitled to make any changes which lead to improvements provided such changes do not result in a price increase.

3.

Plans and technical documents

3.1

Unless otherwise agreed, brochures and catalogues are not binding.  Data in technical documents shall only binding if they have been expressly stipulated as such.

3.2

All weight information shall be deemed as only approximate.

3.3

Each contracting party retains all rights to plans and technical documents provided to the other. The contracting party receiving such documents recognises these rights and, without previous written consent of the other contracting party, shall not make these documents available to any third party, either in whole or in part, nor use them for purposes other than those for which they were handed over.

4.

Regulations in force in the country of destination and safety devices

At the latest when placing the order, the customer shall draw the attention of the supplier to the standards and regulations applicable to the execution of the supplies and services, to the operation of the plant as well as to the health and safety of personnel.

5.

Prices

5.1

Unless otherwise agreed, all prices shall be deemed to be net ex works, excluding packing, in Swiss francs without any deductions whatsoever Any and all additional charges, such as, but not limited to, freight charges, insurance premiums, fees for export and import and other permits, as well as for certifications, shall be borne by the customer. Likewise, the customer shall bear any and all taxes, fees, levies, customs duties which are levied out of or in connection with the contract or its fulfilment or shall refund them to the supplier against adequate evidence in case the supplier is liable for them.

5.2

The supplier reserves the right to adjust the prices in case the wage rates or the raw material prices vary between the submission of the tender and the contractually agreed performance.  An appropriate price adjustment shall apply in case
- the delivery time has been subsequently extended due to any reason stated in Clause 8.3, or
- the nature or the scope of the agreed supplies or services has changed, or
- the material or the execution has undergone changes because any documents furnished by the customer were not in conformity with the actual circumstances, or were incomplete.

6.

Terms of payment

6.1

Payments shall be made by the customer at the supplierÕs domicile according to the agreed terms of payment, without any deduction for cash discount, expenses, taxes, levies, fees, duties, and the like.

6.2

The dates of payment shall also be observed if transport, delivery, installation, commissioning or taking over of the supplies or services is delayed or prevented due to reasons beyond supplierÕs control, or if unimportant parts are missing, or if post-delivery work is to be carried out which does not prevent the supplies from being used.

6.3

If the advance payment or the contractually agreed securities are not provided in accordance with the terms of the contract, the supplier shall be entitled to adhere to or to terminate the contract, and shall in both cases be entitled to claim damages. If the customer, for any reason whatsoever, is in delay with a further payment, or if the supplier is seriously concerned that he will not receive payments in total or in due time because of circumstances having taken place since entering into the contract, the supplier, without being limited in his rights provided for by law, shall be entitled to refuse further performance of the contract and to retain the supplies ready for dispatch until new terms of payment and delivery will have been agreed and until the supplier will have received satisfactory securities. If such an agreement cannot be reached within a reasonable time, or if the supplier does not receive adequate securities, the supplier shall be entitled to terminate the contract and to claim damages.

6.4

If the customer does not adhere to the agreed terms of payment, he shall be liable, without reminder, for interest with effect from the agreed date on which the payment was due at a rate depending on the terms prevailing at the customerÕs domicile, but not less than 4 per cent over the current discount rate of the Swiss Central Bank. The right to claim further damages is reserved.

7.

Reservation of title

The supplier shall remain the owner of all supplies until he has received the full payments in accordance with the contract. The supplier is entitled to register the reservation of title.

8.

Delivery time

8.1

The delivery time shall start as soon as the contract is entered into, all official formalities such as, but not limited to, import, export, transit and payment permits have been completed, payments due with the order have been made, any agreed securities given and the main technical points settled. The delivery time shall be deemed as only approximate. Delays in delivery shall not give the customer the right to cancel the contract or claim for damages.

8.2

Compliance with the delivery time is conditional upon the customerÕs fulfilment of his contractual obligations.

8.3

The delivery time can be extended by the supplier:
a) if the information required by the supplier for the performance of the contract is not received in time, or if the customer subsequently changes it thereby causing a delay in the delivery of the supplies or services;
b) if hindrances occur which the supplier cannot prevent despite exercising the required care, regardless of whether they affect the supplier, the customer or a third party. Such hindrances include, but shall not be limited to, epidemics, mobilisation, war, riots, serious breakdown in the works, accidents, labour conflicts, late or deficient delivery by subcontractors of raw materials, semi-finished or finished products, the need to scrap important work pieces, actions or omissions by any authorities, natural catastrophes;
c) if the customer or a third party is behind schedule with work he has to execute, or with the performance of his contractual obligations, in particular if the customer fails to observe the terms of payment.

9.

Packing

Necessary packing is invoiced according to the resulting costs. Returned packing material is not refundable.

10.

Passing of benefit and risk

10.1

The benefit and the risk of the supplies shall pass to the customer by the date of their leaving the works at the latest.

10.2

If dispatch is delayed at the request of the customer or due to reasons beyond supplierÕs control, the risk of the supplies shall pass to the customer at the time originally foreseen for their leaving the works. From this moment on, the supplies shall be stored and insured on the account and at the risk of the customer.

11.

Forwarding, transport and insurance

The supplier shall be notified in good time of any special requirements regarding forwarding, transport and insurance. Transportation shall be at the customerÕs expense and risk. Objections regarding forwarding or transport shall be immediately submitted by the customer to the last carrier upon receipt of the supplies or of the shipping documents.  The customer shall be responsible for taking out insurance against damage of any kind.

12.

Inspection and taking-over of the supplies and services

12.1

As far as being normal practice, the supplier shall inspect the supplies and services before dispatch. If the customer requests further testing, this has to be specially agreed upon and paid for by the customer.

12.2

The customer shall inspect the supplies and services within a reasonable period of time and shall immediately notify the supplier in writing of any deficiencies. If the customer fails to do so, the supplies and services shall be deemed to have been taken over.

12.3

Deficiencies of any kind in supplies or services shall not entitle the customer to any rights and claims other than those expressly stipulated in Clause 13 (guarantee, liability for defects).

13.

Guarantee, liability for defects

13.1

Guarantee period
The guarantee period is 12 months and it starts when the supplies leave the works or at any agreed taking-over of the supplies and services, or, if the supplier undertakes the installation, upon completion thereof. If dispatch, taking-over or installation are delayed due to reasons beyond supplierÕs control, the guarantee period shall end not later than 18 months after supplierÕs notification that the supplies are ready for dispatch. The guarantee expires prematurely if the customer or a third party undertakes modifications or repairs or if the customer, in case of a defect, does not immediately take all appropriate steps to mitigate the damage and give the supplier the possibility to remedy the defect.

13.2

Liability for defects in material, design and workmanship
Upon the written request of the customer, the supplier may choose to repair or replace as quickly as possible any parts of the supplies which, before the expiry of the guarantee period, are proven to be defective due to bad material, faulty design or poor workmanship. Replaced parts shall become the supplierÕs property. The supplier shall bear the costs for remedying the defective parts in its works. If repair cannot be carried out in the works of the supplier, all related costs that exceed the customary costs of transport, personnel, travelling, accommodation, dismantling and reassembly of the defective parts shall be borne by the customer.

13.3

Liability for express warranties
Express warranties are only those which have been expressly specified as such in the order acknowledgement or in the specifications. An express warranty is valid until the expiry of the guarantee period at the latest. If a taking-over test has been agreed, the warranty shall be deemed to have been fulfilled as soon as the test results prove the relevant characteristics.

13.4

Exclusions from the liability for defects
All deficiencies which cannot be proven to have their origin in bad material, faulty design or poor workmanship, e.g. those resulting from normal wear, improper maintenance, failure to observe the operating instructions, excessive loading, use of any unsuitable material, influence of chemical or electrolytic action, building or installation work not undertaken by the supplier, or resulting from other reasons beyond supplierÕs control are excluded from the supplierÕs guarantee and liability for defects.

13.5

Supplies and services of subcontractors
For supplies and services of subcontractors requested by the customer, the supplier assumes the guarantee and liability for defects, only to the extent of the subcontractorsÕ guarantee and liability obligations.

13.6

Exclusivity of guarantee claims
With respect to any defective material, design or workmanship as well as to any failure to fulfil express warranties, the customer shall not be entitled to any rights and claims other than those expressly stipulated in Clauses 13.1 to 13.5.

13.7

Liability for additional obligations
The supplier is only liable for unlawful intent or gross negligence for claims arising out of inadequate advice and the like or out of breach of any additional obligations.

14.

Termination of the contract by the supplier

The contract shall be adapted appropriately, if unforeseen events considerably change the economic effect or the content of the supplies or services or considerably affect the activities of the supplier, or if performance subsequently becomes impossible. If such an adaptation is economically not justifiable, the supplier shall be entitled to terminate the contract or the parts affected thereby. If the supplier wishes to terminate the contract he shall, after having recognised the consequences of the event, immediately inform the customer, and this applies even if an extension of the delivery time has been agreed beforehand. In case of termination of the contract, the supplier shall be entitled to payment of those parts of the supplies and services which have already been carried out. Claims for damages on the part of the customer because of such termination are excluded.

15.

Exclusion of further liability on the supplierÕs part

All cases of breach of contract and the relevant consequences as well as all rights and claims on the part of the customer, irrespective on what ground they are based, are exhaustively covered by these general conditions of supply. In particular, any claims not expressly mentioned for damages, reduction of price, termination of or withdrawal from the contract are excluded.  In no case whatsoever shall the customer be entitled to claim damages other than compensation for the costs of remedying defects in the supplies. This in particular refers, but shall not be limited, to loss of production, loss of use, loss of orders, recall costs, loss of profit and other direct or indirect or consequential damage.  This exclusion of further liability does not apply to unlawful intent or gross negligence on the part of the supplier This exclusion of liability does not apply as far as it is contrary to compulsory law.

16.

Right of recourse of the supplier

If personal injury or damage to the property of third parties occurs through actions or omissions of the customer or of persons employed or appointed by him to perform any of his obligations, and if a claim is made against the supplier, then the latter shall be entitled to take recourse against the customer.

17.

Jurisdiction and applicable law

17.1

The place of jurisdiction for both the customer and the supplier shall be at the registered office of the supplier. The supplier shall, however, be entitled to sue the customer at the latterÕs registered address.

17.2

The contract shall be governed by Swiss substantive law.