These General Terms and Conditions of Delivery apply to all previous and future deliveries of goods and by analogy to the provision of services unless they have been amended by the parties by means of an express written agreement. The offer, the acceptance of the offer, the order confirmation or the sale and the delivery or performance are subject to these terms and conditions. All conditions or contract modifying provisions of Buyer are herewith conclusively contradicted; such conditions are only effective against Seller if it accepts these modifications in writing. These terms and conditions are the basis for all purchasing and delivery transactions between Buyer and Seller; they apply to the exclusion of all other agreements. Seller will amend this General Terms and Conditions of Delivery from time to time, in particular to correct any mistakes attributable to error that may be contained in Seller’s sales brochures, price lists, tender documents or other documentation. Seller shall not be liable for any damages arising of such errors. Incoterms as amended shall apply to these Terms and Conditions of Delivery. These General Terms and Conditions of Delivery apply exclusively to business people.
2. Order and offer documentation
Seller shall be deemed to have accepted orders submitted by Buyer only if they are accepted in writing by Seller or its representative/agent within 21 days following their submission. All sales documentation, specifications and price lists shall be treated as strictly confidential information and must not be disclosed to any third party. The Ordering Party is responsible for the accuracy of the order. Furthermore, the Ordering Party shall provide Seller with all required information concerning the ordered goods within a reasonable period of time so that the order can be executed in accordance with the contract. If Seller manufactures or otherwise processes or machines the goods and if the Ordering Party has provided specifications in this respect, then the Ordering Party shall hold Supplier harmless from any loss, damages, costs or other expenses that may arise to Supplier or that Supplier may be prepared to pay on the grounds of a violation of a patent, copyright, trademark or other property right of a third party as a consequence of Seller’s adherence to the specifications of the Ordering Party in processing or machining the goods as instructed in the contract.
3. Purchasing price
Seller’s offers are entirely free; conclusions and other agreements, in particular those departing from these conditions, are binding only if and when confirmed in writing. The purchasing price shall be the price quoted by Seller or the price valid at the time of the order as quoted in Seller’s current price lists. In the absence of any information to the contrary in the offer or in the sales lists and in the absence of any written agreement to the contrary between Seller and Buyer, all prices quoted by Seller shall be understood to be ”ex works” prices. If Seller is prepared to deliver the goods at another location, Buyer shall bear the costs for transportation, pack aging and insurance. The disposal of the supplied equipment is not included in the price. It is the customer´s responsibility to make appropriate arrangements for the disposal of the equipment and to pay the disposal costs. All prices are quoted without value added tax, it being understood that Buyer is responsible for the payment of value added tax to Seller if VAT is applicable.
4. Terms and conditions of payment
In the absence of agreements to the contrary, 50% of the purchasing price shall be payable 3 days after the buyer received the order confirmation. The remaining 50% of the purchasing price shall be payable at the latest within 30 days from the date of the invoice without any deduction. All payments should be made exclusively by bank transfer or by credit card; payments by means of a bill of exchange are not recognized as performance of the payment obligation. All expenses associated with the transfer of money shall be borne by Buyer. Should the parties have agreed the opening of a documentary letter of credit, Buyer shall open an irrevocable confirmed letter of credit with a first class bank. The letter of credit shall be opened in accordance with the General Guidelines and Practices for Documentary Letters of Credit, Revision 1993, ICC Publication No. 500. All costs of the letter of credit including those for opening the letter of credit shall be borne by Buyer. Should Buyer fail to meet its payment obligation on the due date, Seller may choose any of the following actions without prejudice to any other rights and claims it may be entitled to:
- termination of the contract and suspension of further deliveries to Buyer; or
- charging of interest on the outstanding amount at a rate of 5% p.a. above the applicable EURIBOR until final and full
payment shall have been made. Payments shall be made exclusively to SOTHIS. Our commercial representatives and other agents are not entitled to accept payment without a special authorization in writing.
5. Delivery of goods
The delivery of the goods should be effected as follows: Buyer takes receipt of the goods in Seller’s premises during normal business hours as soon as Seller shall have notified Buyer that the goods are ready to be picked up or, if another place of delivery has been agreed with Seller, by delivery of the goods to that place. In this case, the stated delivery deadlines are not of a binding nature, and any disadvantages as a result of an exceeded deadline are irrelevant. If Seller should not deliver punctually, Buyer shall set Seller a reasonable period of grace in writing. Upon expiry of this period of grace, Buyer may terminate the agreement. This applies not only, but also to all cases of Force Majeure that are beyond Seller’s control. Force Majeure shall include any shutdown and failure not caused by Seller, even in the event of a strike. Buyer can only assert damages on the grounds of nonperformance if the delay in delivery is attributable to Seller’s intent or gross negligence or if Seller has violated an important contractual obligation due to (simple) fault. No delay of acceptance by Buyer shall affect Buyer’s obligation to pay the purchasing price. In such cases, Seller shall store the goods at Buyer’s risk and cost. At Buyer’s request, Seller shall insure the goods at Buyer’s cost.
6. Passage of risk
The risk of damages or the loss of goods shall pass to Buyer as follows:
- if the goods are not delivered in Seller’s premises/forwarding warehouses, at the time of delivery to the forwarding agent or, if Buyer is in default in accepting the delivery of the goods, at the time when Seller offers delivery;
- If the goods are delivered in Seller’s premises/forwarding warehouses (”ex works”, Incoterms), at the time when Seller notifies Buyer that the goods are ready to be picked up.
Transport damages, if they are assignable to Seller’s scope of responsibility, shall be considered only if Buyer shall have specified the type and scope of the damages on the original freight note.
7. Retention of title
Without prejudice to the delivery and the passage of risk or other provisions in these Terms and Conditions of Delivery, the title in the goods shall not pass to Buyer until the purchasing price has been paid in full. As long as the purchasing price has not been paid in full, Seller may reclaim the goods, pick up the goods from Buyer, sell the goods otherwise or dispose of the goods in any other way. If Buyer is in default with its payment, Buyer shall - upon Seller’s request - keep the goods for sale in a fiduciary capacity and store the goods separately from its own property and that of third parties. Buyer shall store the reserved property properly, secure and insure the reserved property, identify/label it as Seller’s property and provide proof thereof at Seller’s request. Should Buyer fail to meet its obligation to insure the reserved property and provide proof thereof, Seller may insure the goods at the expense of the Ordering Party/Buyer in its favor. Until full payment has been made, Buyer may use the goods for normal business operations or resell the same, but it shall hold any consideration (including insurance payments, if applicable) for Seller and keep the funds separately from its own assets and those of third parties. In this case, Buyer shall assign all claims against its clients including all ancillary rights to Seller at the time of the conclusion of the contract. Nevertheless, Buyer is entitled to collect the claim as long as it is not in default vis à-vis Seller. Seller may notify Buyer’s clients of the assignment and/or request the ordering party to enter an assignment note in its books. Additionally, the client shall provide Seller with all documentation and information required for the assertion of Seller’s rights. If such an assigned invoice amount should end up with a third party, client must reclaim this amount from the third party and surrender the same to Seller. If goods are processed and if they are combined or compounded with other parts or components in which the conditional seller does not have any ownership, then the conditional seller acquires an appropriate co-ownership in the combined or compounded product. The same applies if Seller’s goods should be mixed with those of a third party. Any good so processed is title-retained property for the purposes of these terms and conditions. In the event of a seizure or other intervention of a third party, Buyer shall notify Seller immediately. If Seller fails to meet this obligation, it shall be liable for all resulting damages. Upon Buyer’s request, Seller undertakes to release the securities it is entitled to insofar as the realizable value of the securities exceeds Seller’s claims. The choice of the securities to be released is Seller’s privilege. In the event of the prevention of the performance of Seller’s rights of segregation pursuant to the relevant paragraphs of the Fiscal Code and of the Bankruptcy Law, the client shall neither dispose of the title-retained goods nor of receipts of payment from their resale, but it shall deposit them in a separate account about which information shall be provided to the conditional seller at any time.
8. Warranty and disclaimer of liability
Buyer shall verify that the delivered goods are complete, correct and free from other defects immediately upon their receipt; any complaints shall be raised forthwith. Seller does not accept any responsibility for the fitness or suitability of the goods for a certain use or purpose unless it has expressly confirmed such liability. The Seller rejects liability for any of the following:
- for defective/faulty goods if the defect or fault is attributable to a description of goods or specification of Buyer;
- for defects of the goods if the payable purchasing price is still outstanding on the due date;
- for parts, materials or other equipment manufactured by Buyer or on its behalf, unless the manufacturer of such parts assumes the responsibility vis-à-vis Seller.
The warranty does not extend to product defects arising as a result of faulty installation or use, misuse, negligence or other reasons. Unless agreed otherwise, the term of warranty shall be six months counting from the date of the passage of risk. In the absence of any contradicting agreement, the term shall commence at the latest upon complete delivery to the ordering party. If dispatch is delayed without Seller’s fault, the warranty shall expire at the latest 6 months after the passage of risk. In the absence of any written agreement to the contrary, the term of warranty for delivered spare parts is 6 months counting from the date of the passage of risk. No separate warranty is granted for components integrated for the purpose of rectifying defects. The warranty for such components is tied to the term of warranty for the object of the delivery. If the purchased item does have a defect for which Seller is responsible and if Seller is notified of such defect, Seller may choose whether it wishes to deliver a replacement free of charge or remove the defect. Buyer waives all claims exceeding the scope of the aforesaid warranty, and in particular Buyer waives any and all claims for damages unless caused by gross negligence or intent. Unless Seller expressly accepts a more ample scope of responsibility in writing, in connection with services to be provided it shall be liable for defects attributable to companies chosen by it but contracted in the name of the ordering party only and exclusively insofar as Seller can be accused of bad selection with respect of the choice of the relevant companies.
No warranty is granted for disturbances or damages caused by any of the following reasons:
- inappropriate or inexpert use or negligent treatment of the object of delivery,
- faulty assembly or commissioning of the object of delivery by the client or a third party,
- improper work on the object of delivery by the client or a third party,
- Failure to observe the operation manual or the prescribed operation data or failure to carry out the service and maintenance actions described in the operation manual,
- use of unsuitable operating resources,
unless the reasons are attributable to Seller’s culpable behavior. Furthermore, all wear parts and consumables contained in the delivery object are excluded from the warranty.
Seller may modify or improve the goods without any notification requirement to Buyer provided that such modification or improvement as aforesaid does not result in any lasting negative effect or deterioration concerning the form or function of the goods. Without the written consent of the other parties, these terms and conditions shall not be disclosed to any third party. Buyer expressly approves that all data Seller gains or shall gain knowledge of in the course of transacting business with Buyer and that are required for the performance of the contract will be saved in and processed by means of automated data processing systems.
10. Applicable law; venue
This agreement is subject to Swiss law. Both parties confirm that the Commercial Court of Zürich is exclusively competent for all matters or disputes arising out of or in connection with this agreement . In addition, Seller is entitled to take legal action in the court with competence for the Buyer or in any other court that may be competent in accordance with national or international law.