Terms of Sales
1. General
1.1 The contract is deemed concluded upon receipt of written confirmation from the supplier that he accepts the order (order confirmation). Any offer that is not accompanied by a time limit for acceptance is without binding effect.
1.2 Relations between parties are subject to these delivery conditions when the offer or the order confirmation declares them to be applicable. The conditions of the buyer derogating from the present are only valid in the event of express and written acceptance by the supplier.
1.3 The validity of any agreement and declaration of legal significance for the parties to the contract is subject to compliance with the written form. Statements in text form, transmitted or stored by means of electronic media, are assimilated to written form if this is specifically stipulated by the parties.
1.4 If a provision of these delivery conditions proves to be ineffective in whole or in part, the parties to the contract will replace it with a provision deploying legal and economic effects as close as possible to those of the invalidated one.
2. Scope of deliveries and services
The order confirmation and any appendices exhaustively list the supplier's deliveries and services. The supplier is authorized to make any changes leading to improvements, provided that this does not result in a price increase.
3. Drawings and technical documents
3.1 Unless otherwise stipulated, prospectuses and catalogs do not bind the supplier. The indications appearing on the technical documents only commit the supplier in the event of express guarantees.
3.2 Each party retains all rights to the plans and technical documents that it sends to the other. The recipient of these acknowledges these rights and undertakes not to disclose this documentation to third parties, in whole or in part, without obtaining the written authorization of the issuer. He will only use this documentation in accordance with the purpose for which it was given to him.
4. Regulations in the country of destination and protective devices
4.1 The purchaser must draw the attention of the supplier, at the latest at the time of the order, to the prescriptions and standards applicable to the execution of the deliveries and services, to their operation, as well as to the prevention of illnesses and accidents.
4.2 In the absence of an agreement according to point 4.1, the deliveries and services will meet the requirements and standards in force at the legal domicile of the supplier. Additional or different protective devices will only be provided if they have been expressly agreed.
5. Price
5.1 Unless otherwise stipulated, prices are net, ex works, without packaging, in freely available Swiss francs, and without deductions of any kind.
All ancillary costs, such as, for example, costs for transport, insurance, export, transit and import permits, as well as other authorizations and certifications, are the responsibility of the buyer. The latter will also bear any tax, duty, contribution, customs duty and other fees and administrative costs levied in connection with the contract or its performance. To the extent that such costs, taxes, etc. are collected from the supplier or its auxiliaries, they must be reimbursed by the buyer on presentation of the corresponding documents.
5.2 The supplier reserves the right to adapt its prices in the event of a change in wages or the prices of materials between the time of the offer and that of the performance of the obligations provided for in the contract. This adjustment will be made according to the price adjustment formula annexed to these conditions.
An appropriate price adjustment also follows if
- the delivery period is subsequently extended for one of the reasons stipulated in section 8.3, or
- the type and quantity of the agreed deliveries or services have been changed, or
- the documentation delivered by the buyer does not correspond to the true conditions or is incomplete and the material or workmanship must be modified accordingly, or - the laws, directives, principles of interpretation or application have undergone a modification .
6. Terms of payment
6.1 The buyer makes payment at the domicile of the supplier, in accordance with the agreed payment terms, without deduction of discount, costs, tax, duty, contribution, customs duty and other duties. Unless otherwise stipulated, the price is paid by installments:
- a third as a deposit within the month following receipt by the buyer of the order confirmation,
- one third at the end of two thirds of the agreed delivery time,
- the balance in mes following notification from the supplier that the delivery is ready for shipment.
The obligation to pay is fulfilled insofar as the amount in Swiss francs has been made freely available to the supplier at his place of residence. When the agreement authorizes payment by bills of exchange or by letter of credit, the buyer bears the discount, tax and collection costs, i.e. the costs related to the opening, notification and confirmation of a letter of credit.
6.2 Payment deadlines must be respected, even if the transport, delivery, assembly, commissioning or acceptance of the delivery or services have been delayed or made impossible for reasons that are not attributable to the supplier, or if non-essential parts are missing, or if additional work is required which does not prevent the use of the deliveries.
6.3 If the advance payments or securities agreed upon conclusion of the contract are not provided in accordance with it, the supplier is entitled to maintain the contract or to withdraw from it, and in both cases to demand damages -interests.
If the buyer is in default for one of his payments, for whatever reason, or if circumstances subsequent to the conclusion of the contract give rise to serious fears for the supplier that the buyer will not perform in full or time, the supplier is entitled, without prejudice to the rights conferred by law, to suspend the execution of the contract and to withhold deliveries ready for dispatch, until a new agreement has been reached on the terms of payment and delivery, and that the supplier has obtained sufficient security. If such an agreement cannot be concluded within a reasonable time, or if the supplier does not obtain sufficient security, he is entitled to withdraw from the contract and to demand damages.
6.4 If the buyer does not meet the payment deadlines, he is required, without formal notice, to pay, from the agreed due date, interest calculated according to a rate corresponding either to the usual rate in in force at the buyer's domicile, or at a rate of at least 4% higher than the 3-month CHF-LIBOR if this rate is higher. The right to claim compensation for other damages remains reserved.
7. Retention of title
The supplier remains the owner of the entire delivery until full payment has been received in accordance with the contract.
Buyer is required to participate in all actions necessary to protect Supplier's title; in particular, upon conclusion of the contract, he authorizes the supplier to have the retention of title entered in the public register, books or other similar documents, in accordance with the laws of the place of destination, and to complete all the necessary formalities, at the expense of the buyer.
For the duration of the retention of title, the buyer shall keep the delivery in good condition and insure it in favor of the supplier against theft, breakage, fire, water and other risks, at its own expense. In addition, he will take all appropriate measures to prevent any infringement of the supplier's property rights.
8. Delivery time
8.1 The delivery period begins as soon as the contract has been concluded, all official administrative formalities, such as obtaining import, export, transit and payment permits, have been completed, payments and any securities required at the time of the order have been provided and that the main technical issues have been settled. The delivery deadline is respected if, on its due date, the supplier has informed the buyer that the delivery is ready for dispatch.
8.2 Compliance with the delivery time is linked to the fulfillment of the fulfillment of the buyer's contractual obligations.
8.3 The delivery period is extended by an appropriate period:
a) when the indications necessary for the execution of the contract have not been sent to the supplier in time, or when the buyer modifies them subsequently and thus causes a delay in the execution of the deliveries or services;
b) when compelling circumstances affecting the supplier, the buyer or a third party arise without the supplier being able to remove them, despite the attention required by the circumstances. By way of example, such circumstances are epidemics, mobilization, war, civil war, terrorist acts, riot, political unrest, revolutions, acts of sabotage, major disruptions in the operation of the company, accidents, labor disputes, late or defective delivery of necessary raw materials, semi-finished or finished products, scrapping of important parts, administrative actions or omissions of state bodies or supranationals, embargos, transport impediments, fires, explosions, natural phenomena;
c) when the buyer or a third party is late in carrying out the work for which it is responsible, or in fulfilling its contractual obligations, in particular if the buyer does not respect the terms of payment.
8.4 The purchaser is entitled to assert claims for late delivery, insofar as it is proven that the delay is attributable to the fault of the supplier and the purchaser can prove damage arising therefrom. No compensation is due if the buyer receives a replacement delivery.
Each full week of delay entitles you to compensation amounting to a maximum of 0.5%. The total of these compensations is limited to an accumulation capped at 5%. These rates are applied to the price agreed in the contract corresponding to the late part of the delivery. The first two weeks of delay do not entitle you to any compensation.
As soon as the compensation reaches the total capped amount, the buyer must set the supplier in writing an appropriate additional period. If this deadline is not respected for reasons attributable to the supplier, the buyer is entitled to refuse the late part of the delivery. If a partial acceptance appears economically unreasonable, he is entitled to withdraw from the contract and to claim the reimbursement of the payments already made, by offering the restitution of the deliveries already made.
8.5 When instead of a delivery period, a certain term has been agreed, this corresponds to the last day of a delivery period; Sections 8.1 to 8.4 apply by analogy.
8.6 In the event of delay in deliveries or services, the purchaser only enjoys the rights and claims expressly mentioned in point 8 of these delivery conditions. This restriction does not apply in the event of fraud or gross negligence on the part of the supplier, but it does apply to auxiliaries.
9. Packaging
The packaging is invoiced separately by the supplier and is not taken back. However, if the packaging is designated as the property of the supplier, it must be returned by the buyer carriage paid to the place of shipment.
10. Transfer of profits and risks
10.1 Profit and risk pass to the buyer at the latest when the deliveries leave the factory.
10.2 If shipment is delayed at the request of the buyer or for other reasons not attributable to the supplier, the risk shall pass to the buyer at the time originally scheduled for delivery ex works. From this moment, the deliveries are stored and insured at the expense and risk of the buyer.
11. Shipping, transport and insurance
11.1 The supplier shall be informed in good time of the special requirements relating to dispatch, transport and insurance. The buyer assumes the costs and risks of transport.
11.2 Upon receipt of the deliveries or transport documents, the buyer is obliged to notify the last carrier of any complaint relating to the shipment or transport. 11.3 The buyer is obliged to take out insurance against risks, whatever they may be.
12. Procedure for receiving deliveries and services
12.1 The supplier will check the deliveries and services, in accordance with practice, before dispatch. The buyer may only require additional verification under a specific agreement and at his own expense.
12.2 The buyer is obliged to check the deliveries and services within a reasonable time and to notify the supplier of any defects without delay and in writing. Failing this, the deliveries and services are deemed to have been accepted.
12.3 The buyer must give him the opportunity to do so, the supplier is obliged to remedy as soon as possible the defects communicated to him in accordance with paragraph 12.2. After repairing the defects, a delivery acceptance procedure will take place at the request of the buyer or the supplier, in accordance with section 12.4.
12.4 Subject to point 12.3, the implementation of an acceptance procedure, like the establishment of the conditions relating thereto, requires a special agreement. Unless otherwise stipulated, the following principles apply:
- The supplier is required to inform the buyer as soon as possible of the implementation of the acceptance procedure so that the latter or his representative can participate in it.
- An acceptance report is drawn up, duly signed by the buyer and the supplier or their respective representatives. The report records that acceptance took place and was pronounced or that it was pronounced subject to certain reservations or that the buyer refuses acceptance. In the last two cases, the report must separately indicate the defects invoked.
- In the event of faults of little importance, in particular those which do not hinder the funcctioning of deliveries or services in an essential way, the buyer cannot refuse to declare acceptance of the latter or to sign the report relating thereto. The supplier will remedy such defects without delay.
- In the event of major deviations from the contract or serious defects, the buyer will give the supplier the opportunity to remedy them within a reasonable period of time. Then, a new reception procedure is implemented.
If significant deviations from the contract or serious defects arise again, the buyer is entitled to demand from the supplier, insofar as the parties to the contract have agreed, a reduction in the price, the payment of compensation or other similar benefits. However, if during this acceptance procedure, deviations or defects are of such seriousness that they cannot be remedied within a reasonable time and that the deliveries and services cannot be used in accordance with the intended assignment, or that their use is considerably reduced, the buyer has the right to refuse to pronounce the acceptance of the defective elements or to withdraw from the contract if it is not economically reasonable to require partial acceptance from him. In this case, the supplier is only required to reimburse the sums paid for the elements concerned by the termination of the contract.
12.5 Acceptance is also deemed to have been given:
- if the buyer does not participate in the acceptance procedure despite a prior invitation;
- if the acceptance procedure could not be implemented on the scheduled date for reasons that are not attributable to the supplier;
- if the buyer refuses acceptance without right;
- if the buyer refuses to sign the acceptance report drawn up in accordance with point 12.4; - as soon as the buyer uses deliveries or services from the supplier.
12.6 Whatever the defects marring the deliveries or services, the buyer only enjoys the rights and claims expressly mentioned in paragraph 12.4 and in paragraph 13 of these delivery conditions (warranty, liability for defects).
13. Warranty, liability for defects
13.1 Duration of the guarantee
The warranty period is 12 months, respectively 6 months in the event of operations comprising more than one team. It runs as soon as the deliveries leave the factory or as soon as the assembly is completed insofar as the supplier is also responsible for this or upon receipt of any agreed deliveries and services. If the dispatch, the completion of the assembly or the implementation of the acceptance procedure are delayed for reasons which are not attributable to the supplier, the guarantee period expires at the latest 18 months after the notification informing the buyer that the delivery is ready for shipment.
A new warranty period of 6 months is applicable to replaced or repaired elements; it runs from the replacement, the completion of the repair or the reception and expires in any case at the end of a maximum period corresponding to twice the guarantee period provided for in the previous paragraph.
The right to the warranty expires prematurely if the purchaser or a third party carries out modifications or repairs or if the purchaser, in the event of a defect, does not take all appropriate measures to reduce the resulting damage and does not does not give the supplier the opportunity to remedy this.
13.2 Liability due to defects in materials, design or workmanship
Upon written notification from the buyer, the supplier undertakes, at its option, to repair or replace, as quickly as possible, all the elements of its deliveries which are proven to have become defective before the expiry date. warranty period due to poor materials, faulty design or imperfect workmanship. The replaced parts become the property of the supplier, if he does not expressly waive them. In accordance with the principle of proportionality, the supplier bears the costs resulting from the repair, insofar as these do not exceed the usual costs of transport, labor, travel and accommodation, as well as dismantling and assembly of the defective elements.
13.3 Liability due to promised qualities
Only those qualities which have been expressly described as such in the order confirmation or in the specifications are considered as promised qualities. They are guaranteed at the latest until the expiry of the guarantee period. If an acceptance procedure has been agreed, the promised qualities are deemed to have been achieved as soon as the proof of these qualities has been provided during the said acceptance procedure.
If the promised qualities are not or only partially achieved, the buyer may require the supplier to carry out the improvement without delay. Buyer will allow Supplier the time and occase necessary to do so.
If the improvement fails or is only partially satisfactory, the buyer may demand the compensation agreed for this purpose or, failing such agreement, an equitable reduction of the price. If the defect is so serious that it cannot be remedied within a reasonable time and the deliveries or services are not usable for the purpose for which they were intended, or are only usable to a considerably reduced extent, the The buyer is entitled to refuse to pronounce the acceptance of the defective elements, or to withdraw from the contract if it is not economically reasonable to require him a partial acceptance as long as he communicates it without delay. In this case, the supplier is only required to reimburse the sums paid for the elements concerned by the termination of the contract.
13.4 Exclusions of liability for defects
The supplier's warranty and liability are excluded for damage which is not proven to be the result of defective materials, faulty design or imperfect workmanship, such as damage due to natural wear and tear. , insufficient maintenance, non-compliance with the instructions for use, excessive strain, use of unsuitable operating materials, chemical or electrolytic influences, manufacturing or assembly work which does not have not been performed by the supplier, as well as to other causes not attributable to the latter.
13.5 Deliveries and services of subcontractors
For the deliveries and services of subcontractors prescribed by the buyer, the supplier assumes a guarantee only within the limits of that given by the latter.
13.6 Completeness of warranty rights
The rights and claims of the buyer due to defects affecting materials, design or manufacture, as well as those resulting from the absence of the promised qualities, are limited to those expressly mentioned in numbers 13.1 to 13.5.
If the buyer notifies a defect attributable to the supplier without however it being apparent, the buyer must reimburse the supplier for the costs related to the work as well as compensation for expenses and other costs.
13.7 Liability due to ancillary obligations
The supplier is only liable for fraud or gross negligence, when the buyer asserts claims arising from incorrect advice or data or from the breach of any other ancillary obligation.
14. Non-Performance, Imperfect Performance and Consequences
14.1 In all cases of non-performance or imperfect performance which are not expressly mentioned in these delivery conditions, in particular if the supplier without reason undertakes the performance of the deliveries and services so late that it cannot be envisaged that it will be completed on time, when it is foreseeable with certainty that the performance will be contrary to the terms of the contract due to the fault of the supplier, or if the deliveries and services have been carried out in violation of the terms of the contract by fault of the supplier, the purchaser is entitled to set the supplier a reasonable deadline for the performance of the deliveries or services concerned by threatening to withdraw from the contract in the event of non-performance. If, through the fault of the supplier, this additional period expires without having been used, the buyer is entitled to withdraw from the contract, with regard to the deliveries or services which have been carried out contrary to the terms of the contract or for which he is foreseeable with certainty that they will be, and to claim reimbursement of the payments made for these deliveries and services.
14.2 In such a case, the provisions of number 19 apply to any claims by the buyer for damages and to the exclusion of further liability, and any claim for damages is limited to 10% the price indicated in the contract for the deliveries and services affected by the termination of the contract.
15. Termination of the contract by the supplier
The contract will be adapted appropriately, when unforeseen events profoundly change the economic effects or the content of the deliveries or services, or considerably affect the activities of the supplier, or if the execution subsequently becomes impossible. If such an adjustment is not economically justifiable, the supplier is entitled to withdraw from the contract or the relevant part of the contract.
If the supplier intends to make use of his right of termination and as soon as he is able to assess the scope of the events, he will immediately inform the buyer. This rule also applies if the parties have initially agreed on an extension of the delivery time. In the event of termination of the contract, the supplier has the right to demand payment for the deliveries and services already provided. I'buyer cannot claim any compensation based on such termination of the contract.
16. Export Control
The buyer acknowledges that the deliveries may be subject to Swiss and/or foreign legal provisions and regulations on export control and that it is prohibited to sell, rent or transmit them in any way. or to use them for a purpose other than that agreed, without an export or re-export authorization from the competent authority. The buyer undertakes to comply with such provisions and regulations. He is aware that these may change and are applicable in accordance with the valid contract.
17. Data Protection
Within the framework of the execution of the contract the supplier is entitled to process personal data of the buyer. The buyer accepts in particular that in the context of the management of commercial relations, the supplier transmits such data to third parties in Switzerland or abroad.
18. Software
If the deliveries and services of the supplier also include software, the buyer benefits, unless otherwise stipulated, from the non-exclusive right to use the software in connection with the delivered object. The buyer is not entitled to make copies (except for archiving reasons, detection of defects or to replace defective data carriers) or to manipulate the software. In particular, he does not have the right, without the prior written authorization of the supplier, to disassemble, decompile, decode or reconstruct the software. In the event of an infringement, the provider has the option of revoking the right of use. For third party software, the licensor's terms of use govern. In the event of infringement, the latter can assert his right in addition to the supplier.
19. Exclusion of all other liability of the supplier
All cases of breach of contract and their legal consequences as well as all claims of the buyer, regardless of the legal basis, are settled exhaustively in these conditions. If there are claims of the buyer arising from the contract or its non-compliant execution, the entire amount of these claims is limited to the price paid by the buyer. Are excluded, in particular, all claims for compensation, price reduction, cancellation or termination of the contract, which are not expressly reserved by it. Under no circumstances can the buyer demand compensation for damage which is not caused to the very object of delivery, such as production losses, operating losses, business losses, reminder costs , loss of earnings and any other direct or indirect damage. Liability for the replacement of third-party claims, asserted against the buyer for reasons of infringement of intellectual property rights, is also without effect.
This exclusion of liability is without effect in cases of fraud or gross negligence on the part of the supplier; it does, however, apply to auxiliaries.
This exclusion of liability is without effect when it conflicts with mandatory law.
20. Right of recourse of the supplier
Where, by reason of the act or omission of the purchaser or his auxiliaries, persons are injured or things are damaged and the supplier is held liable for this reason, the latter enjoys a right recourse against the buyer.
21. Assembly
If the supplier also carries out the assembly or supervises it, the general assembly conditions of Swissmem apply.
22. Jurisdiction and applicable law
22.1 The forum for the parties is at the registered office of the supplier.
The supplier is however entitled to sue the buyer at the forum of the latter's registered office.
22.2 Swiss substantive law is applicable.