General Terms of Sale and Delivery(valid with effect from 1.11.2008)
1.1 These General Terms of Sale and Delivery apply to all our sales and deliveries. We shall not be bound by the Customer's terms to the contrary, even if such terms are taken as a basis for an order.
1.2 Our General Terms of Sale and Delivery also apply to all follow-up transactions, even if attention is not repeatedly drawn to our terms upon conclusion of such follow-up transactions.
1.3 Subsidiary agreements, amendments and supplementary information pertaining to the contract and our General Terms of Sale and Delivery shall only be deemed valid if confirmed in writing by us.
2.1 Our offers are subject to change without notice at all times.
2.2 We reserve the right to improve or alter the type or design of our goods.
2.3 Our cost estimates, drawings or other tender documents shall remain our property. Solely our company shall be entitled to copyright utilisation rights stated in such documents. These may neither be duplicated nor forwarded without our approval, and are to be returned to us at our request as soon as they are no longer needed by the Customer in conjunction with the respective project.
2.4 The Customer is to draw our attention to the statutory, official and user-specific provisions that are to be observed in executing the order.
3. Conclusion of contract
3.1 The contract shall only be deemed concluded if we have confirmed acceptance of the order in writing - or if the Customer has declared in writing and in good time that he accepts our unchanged offer.
4.1 Our prices are to be construed as being stated in Swiss francs, including packaging, ex Münsingen works and without VALUE ADDED TAX.
4.2 In the case of deliveries and partial deliveries which, as per agreement, are to be carried out later than four months following the date of the confirmation of order, the sales price valid at the time of delivery shall be deemed applicable.
4.3 In the event that the price is stated in a foreign currency, and the exchange value of such a currency is devalued compared with the Swiss franc following the confirmation of order, the price shall be increased relative to the devaluation.
5. Delivery dates, partial delivery
5.1 If the delivery date is stated as a period of time (and not a date), it shall commence on the date of the written confirmation of order or receipt of order in accordance with the unchanged offer. Any delivery date shall be extended accordingly if we are not provided in good time with details or documents, if the Customer subsequently amends these with our approval or if an advance payment is received late.
5.2 If non-compliance with a delivery date is not caused by a fault that is solely attributable to us, the Customer shall neither be able to derive a right to withdraw from the contract, to relinquish delivery nor to claim for damages in such a case.
5.3 In the event of force majeure or other extraordinary circumstances that are not our responsibility and which render deliveries impossible or considerably complicate deliveries, we may restrict or discontinue deliveries for the period of obstruction or withdraw from the contract without the Customer being entitled to consequently claim for damages.
5.4 Partial deliveries are permitted. In the case of continuing delivery contracts any partial delivery shall be deemed a separate business transaction. It is expressly stated that the impossibility or delay of a partial delivery shall not entitle the Customer to withdraw from the entire contract or claim for damages.
6. Acceptance of goods by the Customer
6.1 The risk shall pass to the Customer or a representative commissioned by him (forwarding agent, carrier etc.) on acceptance by the Customer of the packed goods at the Münsingen works. If acceptance is delayed or impossible for reasons that are not our responsibility, we shall be entitled to put the goods into storage on our or a third-party premises on the account and at the risk of the Customer. In doing so we shall have honoured our obligations.
6.2 If the Customer does not provide us with his arrangements in good time, packaging shall be carried out in view of transport by rail.
7.1 All invoices are payable in accordance with the terms and conditions of payment printed on the invoice.
7.2 Payments may only be effected in the agreed currency. Cheques shall only be accepted on account of payment and shall only constitute payment once they have been cashed.
7.3 The setting off of any kind of counter claims is excluded insofar as counter claims are disputed or are not res judicata.
7.4 In the case of several outstanding claims we shall be entitled to determine which claims are settled by the Customer's payment.
7.5 Following expiry of the term of payment, interest on payments in arrears shall fall due without a reminder in line with practice that is customary in the trade - at least, however, in the sum of 3% above the discount rate of the Swiss National Bank.
7.6 Payments may only be held back or reduced on the grounds of objections following our approval.
8.1 If the Customer does not comply with the agreed terms of payment, and in particular if he defaults, either wholly or in part, on one payment, all amounts from existing obligations to pay us, including those from other contracts, shall fall due immediately. The same applies if the Customer discontinues his payments, if an application is filed to institute court probate or bankruptcy proceedings regarding his assets, or if such action is ordered, and if other circumstances become known that lessen his creditworthiness. Payment via bills of exchange is excluded.
8.2 In the case of default in payment on the part of the Customer we may, irrespective of our other statutory rights, refuse to carry out additional deliveries from this contract or from another, or render deliveries subject to an advance payment or the provision of security.
9.1 The warranty period is 12 months.
9.2 The warranty granted by us on our delivery items shall only come into force if the following conditions have been met:
a) The Customer has honoured all his payment obligations.
b) The operating and installation instructions have been followed.
9.3 If the delivered goods contain a defect for which we are responsible we shall, within 6 months as from the passing of risk, at our discretion deliver a replacement free of charge or carry out subsequent improvement or grant an appropriate price reduction. If the replacement or subsequent improvement is faulty, the Customer may demand an appropriate reduction in price. Further-reaching claims on the part of the Customer are expressly excluded; in particular for compensation or the rescission of contract and regarding damage that occurs as a result of the use or installation of the goods irrespective on whichever legal basis such claims are asserted.
9.4 In this respect we shall carry the costs incurred as a result of repairing or replacing faulty parts at our workshops. Costs incurred for dismantling, assembling, transporting and insurance with regard to returning faulty or useless parts to us, or from us to the Customer, shall be borne by the Customer. If faulty or useless parts cannot be repaired or replaced at our workshops for reasons that are not our responsibility, all additional costs incurred for such reasons shall be borne by the Customer. The warranty shall be deemed inapplicable if the Customer carries out alterations or repairs without our written approval.
9.5 We are to be informed in writing without delay of faulty goods. In the case of obvious defects notification is to be provided within one week following receipt of the consignment - in the case of hidden defects within one week after such defects have been identified. Any warranty shall be excluded if such notification is not provided.
9.6 Objections to partial deliveries shall not entitle the Customer to refuse to execute the entire contract.
9.7 We shall not assume liability for infringement of patents, registered designs or trademarks caused by the delivered goods.
10. Development orders
10.1 In the case of orders that require special development work, the Customer shall not acquire any inventor's rights to the developed items or to the facilities to manufacture these items even if he has carried part of the development and/or manufacturing costs.
11.1 In the event that one or more provisions of these General Terms of Sale and Delivery are or become invalid, this shall not affect the validity of the remaining provisions. The invalid provision is, at this point in time, hereby deemed replaced by a new and valid provision, which, as far as possible, serves the same legal and economic purpose.
12. Place of performance, place of jurisdiction, law
12.1 Münsingen, Bern, is deemed the place of performance for performance on the part of the Customer and the Seller.
12.2 SCHLOSSWIL, BERN, (CH), IS DEEMED THE PLACE OF JURISDICTION IN THE CASE OF DISPUTES, ALSO IN CASE THEY APPLY TO THE VALIDITY OF THE CONTRACT OR OF THESE GENERAL TERMS OF SALE AND DELIVERY.
12.3 The legal relations between the Customer and us are solely subject to Swiss law by way of the exclusion of other possible national laws. These General Terms of Sale and Delivery shall not affect rights to which we are entitled on the basis of the legal provisions.