General Terms and Conditions of Supply (GTC)
of Heiniger AG, Herzogenbuchsee, Switzerland
(Version October 2015)
1.1 These General Terms and Conditions of Supply (hereafter GTC) shall apply to all contracts of sale and/or supply concluded between Heiniger AG (the Supplier) and the Customer (the Buyer). In placing an order the Buyer acknowledges these GTC as a binding constituent element of the contract.
1.2 The contractual relationship between the Supplier and the Buyer shall be based in the following order of preference on (1) the written contract of sale (if available), (2) the order confirmation, (3) the present GTC of the Supplier and (4) the Swiss Code of Obligations.
1.3 Declarations by the parties shall only be binding if made in writing. Unless agreed otherwise, text that is transmitted or captured electronically (such as fax or email) shall be treated as equivalent to writing.
1.4 Any terms and conditions of the Buyer shall only be valid if they have been expressly approved in writing in advance by the Supplier. In the event of any discrepancy, these GTC shall take precedence.
2. Order, order confirmation and changes to orders
2.1 A contract shall be deemed to have been concluded upon written confirmation by the Supplier to the Buyer of acceptance of an order received (binding order confirmation).
2.2 The scope and implementation of services and supplies shall be determined with reference solely to the order confirmation including any documents to which it refers. Any materials or services not stated in the order confirmation shall be charged separately to the Buyer.
2.3 The Supplier reserves the right to alter or refuse orders without stating reasons. In the event that the order is changed, the order confirmation shall be deemed to be binding unless the Buyer objects to the order confirmation in writing to the Supplier within 5 working days of dispatch of the order confirmation.
2.4 Subsequent changes to the order or cancellations by the Buyer shall only be binding on the Supplier insofar as it has stated its written acceptance thereof. Any costs arising in relation to a change to an order shall be borne by the Buyer.
2.5 Technical improvements or developments and design changes may be implemented by the Supplier at any time, provided that they do not result in price increases. Materials may be replaced by the Supplier at any time by other materials of equivalent value.
3.1 The Buyer is obliged to pay the price stated in the order confirmation in Swiss francs (CHF) plus value added tax and any other costs stated in the order confirmation.
3.2 Unless agreed otherwise, prices are stated net ex works (without packaging).
3.3 Any ancillary costs arising in relation to the performance of the contract such as e.g. for insurance, transportation, official permits, taxes, customs duties or other charges shall be borne by the Buyer.
3.4 In the event that the costs on which the calculation is based change between the conclusion of the contract and contractual performance, the Supplier shall be entitled to adjust the prices specified in the order confirmation accordingly.
4. Payment terms
4.1 The payment deadline amounts to 30 days from the invoice date (due date).
4.2 Payments shall be made in full without any deduction for discounts, expenses, taxes or duties or any type into the account specified by the Supplier in the invoice.
4.3 In the event of payment default the Supplier reserves the right to discontinue outstanding services and supplies immediately and to cancel the order. The Buyer shall also be obliged to pay statutory default interest of 5% on payments that are not made within 30 days of the invoice date. The foregoing shall be without prejudice to the right to claim further damages.
4.4 Payments shall be made by the due date at the latest even in the event of delays after departure of the supply from the plant due to reasons beyond the control of the Supplier. The Buyer shall also be obliged to make timely payment in full in the event that it exercises or intends to exercise warranty claims against the Supplier or claims or intends to claim credit notes from the Supplier in relation to returns. Payments shall be made by the due date also in the event that parts are lacking, provided that they do not make it impossible to use the goods, or if remedial work is necessary.
4.5 It is not permitted to offset claims against counterclaims not recognised by the Supplier.
4.6 Above an order volume determined at its reasonable discretion, the Supplier reserves the right to render acceptance of the order dependent upon agreement to a reasonable advance payment, which shall be invoiced by the Supplier upon confirmation of the order and shall fall due for payment immediately.
5. Reservation of title
5.1 The Supplier shall retain ownership of all goods supplied until payment has been made in full.
5.2 In countries in which a register for retention of ownership (or a comparable register) is kept, the Supplier shall be entitled to arrange for the reservation of title to be recorded with the competent register without any requirement for the involvement of the Buyer and to take out insurance against all risks for the duration of this period at the cost of the Buyer.
5.3 The Buyer shall be obliged to carry out all acts and to take all steps that are necessary in order to uphold the ownership rights of the Supplier. In the event of any encroachments on the ownership rights of the Supplier (e.g. by pledge), the Buyer shall immediately inform the Supplier.
6. Illustrations, characteristics and technical specifications
The technical information, illustrations, dimensions, standard schemata and/or weights stated in the documentation of the Supplier may be altered by it at any time and shall be non-binding in respect of the Buyer, unless they are expressly referred to in the order confirmation.
7. Intellectual property
All rights over technical drawings and documentation issued to the Buyer shall remain vested exclusively in the Supplier. Any alteration, usage, reproduction or disclosure thereof is only permitted with the written approval of the Supplier. The Supplier or its component suppliers are and shall continue to be vested with all intellectual property rights over the goods delivered, including trade mark rights and any copyright over software that constitutes an integral part of the goods supplied.
8. Provisions applicable in the country of destination
8.1 The services and supplies of the Supplier are compliant with the provisions applicable at its registered office in Switzerland. The Supplier warrants to the Buyer exclusively that the goods and their labelling are compliant with applicable provisions in Switzerland. The Supplier goes not provide any further warranty in relation to the goods.
8.2 The Buyer shall inform the Supplier of any contrary and/or supplementary provisions or standards in the country of destination at the latest at the time the order is placed. Any adjustments to the goods to be delivered in line with the provisions and standards applicable in the country of destination shall be borne by the Buyer.
9. Delivery terms
9.1 The delivery period shall be determined in accordance with the delivery deadline specified in the order confirmation. The delivery period specified is stated according to best expectations, but cannot however be guaranteed by the Supplier. Delivery deadlines shall only be binding if expressly so agreed. The deadline shall be deemed to have been complied with in the event that the Supplier gives notice to the Buyer prior to expiry of the period that the shipment is ready for dispatch.
9.2 If shipment is delayed (i) by an event that the Supplier is unable to prevent despite exercising all due care, or (ii) by an act or omission on the part of the Buyer or (iii) by non-compliance or late compliance by the Buyer with its contractual duties, or in the event of (iv) a force majeure occurrence such as a natural peril, epidemic, war, mobilisation, political unrest, embargo, labour dispute or accident, or (v) any other occurrence that the contractual parties are unable to prevent despite exercising all due care, the delivery period shall be extended accordingly.
9.3 Unless agreed otherwise in writing, the Supplier shall not bear any liability for losses or costs arising on account of delays.
9.4 In the event that the goods ordered are not accepted by the Buyer on the agreed delivery date, the Supplier shall be entitled to charge the Buyer for the goods and, where necessary, to store the goods at the cost of the Buyer.
10. Packaging, transportation and insurance
10.1 The goods shall be packaged by the Supplier at the cost of the Buyer. The packaging used shall be that deemed to be appropriate by the Supplier.
10.2 Transportation shall occur on the account of and at the risk of the Buyer. The means of transport used shall be those deemed to be appropriate by the Supplier.
10.3 Claims relating to damage caused during transit must be raised immediately upon receipt of the goods by the Buyer with the railway or postal authorities or with the freight forwarder.
10.4 The insurance of services and supplies against damage of any type shall be a matter for the Buyer and shall be taken out at its cost, even if it is to be concluded by the Supplier.
10.5 The Buyer is obliged to report promptly to the Supplier any special requests relating to transportation, packaging and shipment (e.g. express or partial deliveries, special arrival times, special means of transport, packaging or place of destination etc.) and to bear the additional costs thereby arising. The Supplier shall not be obliged to take special requests into account against its wishes.
10.6 Unless agreed otherwise, packaging will not be taken back.
11. Transfer of benefit and risk
11.1. Benefit and risk shall transfer to the Buyer at the latest upon departure of the shipment from the Supplier's plant.
11.2 If shipment is delayed due to reasons beyond the control of the Supplier, risk shall transfer to the Buyer at the time when dispatch from the plant was originally planned. From this point onwards, the goods shall be stored and insured on the account of and at the risk of the Buyer.
12. Examination and acceptance of the delivery
12.1 The Supplier shall examine the goods prior to shipment in line with ordinary practice.
12.2 The Buyer shall examine the delivery carefully within 5 working days of receipt and shall give prompt written notice to the Supplier of any defects. If it fails to make such a claim, the goods delivered shall be deemed to be fault-free and to have been approved, subject to any latent defects.
12.3 Any defects coming to light at a later date that were not established by the Buyer upon receipt of the goods and could not have been established even in the event of a proper inspection carried out with all due care in accordance with clause 12.2 must be intimated in writing by the Buyer to the Supplier as soon as they are discovered.
12.4 Any defects that are raised in a timely manner and accepted by the Supplier shall be rectified by the Supplier as quickly as possible. The Buyer shall provide it with the opportunity to take such action.
12.5 The Buyer shall not acquire any rights or claims in relation to defects of any type in the services or supplies other than those expressly referred to in clause 12.4 and clause 13 (Liability for defects; warranty period).
13. Liability for defects; warranty period
13.1 The warranty period amounts to 24 months and shall commence upon departure of the shipment from the plant. In the event that dispatch of the shipment is delayed due to reasons beyond the control of the Supplier, the period shall end at the latest 30 months after intimation by the Supplier that the shipment was ready for dispatch.
13.2 The warranty period for replaced or repaired parts shall amount to 6 months from their replacement or the conclusion of the repair, in the event that the warranty period in accordance with clause 13.1 above for the object or objects delivered expires in advance of that time.
13.3 The warranty shall expire early in the event that the Buyer or a third party carries out alterations or repairs to the goods delivered without the prior written approval of the Supplier or, in the event that a defect has come to light, if the Buyer fails to take all appropriate measures promptly in order to reduce the damage and provides the Supplier with the opportunity to rectify the defect.
13.4 The Supplier shall be obliged at its choice to replace or repair as quickly as possible any parts of its deliveries that become defective during the warranty period on account of poor quality material or deficient construction or manufacture. The Supplier may take back any parts replaced; ownership of such parts shall pass to it.
13.5 Warranted characteristics shall only be those expressly designated as such in the Contract or in the related specifications or statement of mandatory characteristics. The commitment shall apply at the latest until expiry of the warranty period. If the characteristics warranted are not present, the Buyer shall in the first instance only be entitled to require remedial performance by the Supplier. The Buyer shall grant the Supplier the necessary time and opportunity for such action. If remedial performance is inadequate or only partially adequate, the Buyer shall be entitled to demand a reasonable reduction of the price. If the defect is so serious that it cannot be rectified within a reasonable period, and if the supply or services cannot be used for the stated purpose or can only be used to a significantly restricted extent, the Buyer shall be entitled to refuse to accept the defective part of the delivery or, if partial acceptance is not economically reasonable for it, to withdraw from the Contract (in which case the goods delivered shall be returned). In such an eventuality, the Supplier shall only be obliged to reimburse the amounts that were paid to it in respect of the parts affected by the withdrawal.
13.6 Any warranty or liability on the part of the Supplier shall be excluded in particular for defects and losses attributable to natural wear and tear, deficient maintenance, non-compliance with operating instructions, excessive use, unsuitable operating materials, chemical or other environmental influences, work not carried out by the Supplier or any other reasons beyond the control of the Supplier.
13.7 The Buyer shall not acquire any rights or claims in relation to defective material, construction or workmanship or the absence of a warranted characteristic other than those specified in clause 12.4 and in this clause (13).
14. Exclusion of further liability
Any claims of the Buyer other than those expressly specified in these GTC arising on any legal basis whatsoever, including in particular any claims to damages, reduction of the price, revocation of the Contract or withdrawal from the Contract that have not been expressly specified shall be excluded. The Buyer shall not under any circumstances be entitled to claim compensation for losses that were not caused to the object or objects delivered, such as production stoppage, loss of use, loss of orders, lost profit or other direct or indirect losses. This exclusion of liability shall not apply in cases involving gross negligence or wilful action in breach of the law or insofar as precluded by mandatory legal provisions.
15. Compliance with export control regulations
15.1 The obligation of the Supplier to comply with the Contract shall apply subject to the proviso that compliance may not constitute a breach of any restrictions imposed by the provisions of national or international law on foreign trade, including in particular export control regulations or any embargoes or other sanctions.
15.2 The Buyer shall hold the Supplier fully harmless against any claims brought by the authorities or other third parties against it on account of the failure by the Buyer to comply with the obligations referred to above imposed by the law on export controls and undertakes to make good to the Supplier all losses and expenses arising in this regard.
16. Jurisdiction and applicable law
16.1 The courts at the registered office of the Supplier shall have exclusive jurisdiction for both parties over any disputes arising out of or in relation to this Contract. The Supplier shall however be unilaterally entitled to sue the Buyer also at its registered office.
16.2 This Contract is governed by Swiss law, with the exception of the provisions of private international law and the United Nations Convention of 11 April 1980 on Contracts of International Sale of Goods ("CISG").