General Terms and Conditions of Sale and Delivery

Schmalz GmbH
Eigentalstrasse 1
CH-8309 Nürensdorf

Version: July 2019

1. General Information

1.1 The contract is concluded exclusively with the issuance of the Supplier’s written confirmation that he accepts the order (order confirmation). Offers without order confirmation are non-binding, unless the contrary is expressly stated. The issuance of an acknowledgment of receipt for an order received does not result in the conclusion of a contract. Likewise, offers that do not contain an acceptance period are non-binding.

1.2 These terms of delivery are binding if they are declared applicable in the offer or order confirmation. Any other terms and conditions of the Purchaser shall only be valid if expressly accepted by the Supplier in writing.

1.3 All agreements and legally relevant declarations of the contracting parties must be made in writing to be valid.

2. Scope of deliveries and service

The Supplier’s deliveries and services are listed exhaustively in the order confirmation, including any enclosures thereto. The Supplier is authorized to make changes which lead to improvements, provided that these do not result in a price increase.

3. Plans and technical documentation

3.1 Brochures and catalogs are not binding unless otherwise agreed. Specifications in technical documents are only binding if expressly warranted.

3.2 Each contracting party reserves all rights to plans and technical documentation which it has handed over to the other contracting party. The receiving party acknowledges these rights and will not, without the prior written authorization of the other party, make the documents available in whole or in part to third parties or use them for purposes other than those for which they were handed over. 

4. Prices

4.1 Unless otherwise agreed in writing, all prices are quoted net, ex works, excluding packaging and shipping costs, plus statutory value-added tax. If the net order value is less than CHF 100, a minimum quantity surcharge of CHF 20 will be charged.
All additional costs, such as freight, insurance, export permits, transit permits, import permits, other permits, and notarizations, shall be borne by the Purchaser. The Purchaser shall also bear all types of taxes, duties, charges, customs duties and the like levied in connection with the contract or refund them to the Supplier upon corresponding proof that the Supplier has become liable for them.
4.2 Samples produced at the request of the Purchaser shall be invoiced to and paid by the Purchaser on the basis of unit costing if the contract is not concluded. 

4.3 Any increases in materials, prices, and wages occurring after the order has been placed and confirmed, including price increases by upstream suppliers, shall entitle the Supplier to invoice the Purchaser for the additional costs thereby incurred if the goods are to be delivered more than four months after conclusion of the contract (receipt of the written order confirmation by the Purchaser) at the Purchaser’s request.

5. Terms of payment

5.1 Payments shall be made by the Purchaser in accordance with the agreed terms of payment at the Supplier’s registered office without deduction of cash discount, expenses, taxes, levies, fees, customs duties, and the like.
Unless otherwise agreed or indicated on the invoice, the invoice is to be paid by the Purchaser within 10 days of receipt.

5.2 If any down payment or any securities to be provided upon conclusion of the contract are not provided in accordance with the contract, the Supplier shall be entitled to adhere to the contract and provide the Purchaser with a grace period, or to withdraw from the contract, whereby the Supplier may claim damages in both cases. If the Purchaser is in arrears with any further payment for any reason whatsoever, or if the Supplier is seriously concerned that payments by the Purchaser will not be received in full or on time as a result of any circumstance occurring after conclusion of the Contract, the Supplier shall be entitled, without prejudice to its statutory rights, to suspend further performance of the Contract and to withhold deliveries ready for dispatch until payment has been made by the Purchaser or new terms of payment and delivery have been agreed and the Supplier has received sufficient security. The Supplier is also entitled to withdraw from the contract and to claim damages.

5.3 If the Purchaser does not comply with the agreed payment dates, he shall pay interest at 5% from the agreed due date without reminder. The right to claim compensation for other damages remains unaffected.

6. Retention of title

The Supplier shall remain the owner of all its deliveries until it has received payment in full from the Purchaser in accordance with the contract. The Purchaser shall be obliged to cooperate with any measures necessary to protect the Supplier’s property; in particular, upon conclusion of the contract, the Purchaser shall authorize the Supplier to enter or reserve the retention of title in public registers or similar at the Purchaser’s expense in accordance with the relevant national laws and to comply with all relevant formalities. The Purchaser is obliged to maintain the delivered items in good condition at his own expense for the duration of the retention of title and to insure them for the benefit of the Supplier against theft, breakage, fire, water, and other risks, insofar as the Supplier demands this from the Purchaser. Any claims arising from an insurance contract shall be assigned by the Purchaser to the Supplier in advance. Furthermore, the Purchaser must take all necessary measures and ensure that the Supplier’s unrestricted claim to ownership is neither impaired nor revoked. The risk of loss of or damage to the goods shall also be borne by the Purchaser for the duration of the retention of title. In all other respects, the Supplier reserves all rights resulting from the legally valid retention of title vis-à-vis the Purchaser or any third Party. 

7. Delivery period

7.1  The delivery period, if any, shall commence upon receipt of the Supplier’s order confirmation by the Purchaser. The delivery period is calculated according to the number of business days indicated on the order confirmation. The delivery period shall be deemed to have been observed if the delivery or at least the notification of readiness for dispatch has been made to the Purchaser by the expiration of the delivery period.

7.2 Compliance with the delivery period presupposes the fulfillment of the contractual obligations by the Purchaser.

7.3 The delivery period shall be extended appropriately if:

     a) the Supplier does not receive the information required for the fulfillment of the contract in good time or if the Purchaser subsequently changes this information and thus causes a delay in the deliveries or services.

     b) obstacles arise which the Supplier cannot avert despite exercising due care, irrespective of whether they arise at the premises of the Supplier, Purchaser, or a third party. In particular, such obstacles include unforeseeable delays in delivery by the Supplier's own suppliers; epidemics; mobilization; war; riots; considerable operational disruptions; accidents; industrial disputes; delayed or defective delivery of the necessary raw materials, semi-finished or finished products; actions by authorities or the failure thereof; and natural phenomena.

     c) the Purchaser or third parties are in arrears with the work to be carried out by them or with the fulfillment of the contractual obligations, in particular if the Purchaser does not comply with the terms of payment.

In addition, the Supplier shall be entitled to withdraw from the contract for the reasons stated in a) to c) above. This exempts the Supplier from delivery, subsequent delivery, compliance with delivery periods, and claims for damages. The Supplier also reserves the right to make a partial delivery.

7.4 The Supplier shall be entitled to make partial deliveries, whereby he shall notify the Purchaser thereof in writing in good time.

7.5 Compensation claims due to delayed delivery are excluded.

7.6 If a specific date has been agreed instead of a delivery period, this date shall be equivalent to the last day of a delivery period. Sections 7.1 to 7.4 apply accordingly.

8. Transfer of benefit and Risk

8.1 Benefit and risk shall pass to the Purchaser upon dispatch of the delivery ex works of the Supplier at the latest. This also applies to partial deliveries or if the Supplier has agreed to additional services, e.g. shipping costs or delivery and installation of the goods.

8.2 If dispatch of the delivery is delayed for reasons for which the Purchaser is responsible, the risk shall pass to the Purchaser at the time originally scheduled for delivery ex works in accordance with the notification of readiness for dispatch. From this point on, the deliveries shall be stored and insured by the Supplier at the expense and risk of the Purchaser. In the event of delay, the storage fee shall amount to half a percent for each full week of delay, but not more than a total of five percent of the value of the part of the total delivery which was not accepted on time or in accordance with the contract as a result of the delay. The Supplier shall be entitled, after setting and expiration of a reasonable deadline, to otherwise dispose of the delivery item and to supply the Purchaser with reasonably extended deadlines, provided that the goods originally ordered continue to be available.

9. Shipping, transport, and insurance

9.1 The Supplier must be informed of special requests regarding dispatch, transport, and insurance in good time. Transport shall be at the expense and risk of the Purchaser. Complaints in Connection with dispatch or transport must be addressed to the final carrier by the Purchaser immediately upon receipt of the deliveries or freight documents.

9.2 Insurance against damage of any kind is the responsibility of the Purchaser. At the Purchaser’s request, the Supplier shall insure the consignment against theft, breakage, transport, fire, water damage, and other insurable risks at the Purchaser’s expense.

9.3 Devices are delivered disassembled to the extend required by the mode of shipment and the transport risk.

10. Inspection and acceptance of deliveries and services

The Purchaser shall inspect the supplies and services for completeness upon receipt and notify the Supplier immediately in writing of any defects, otherwise the supplies and services shall be deemed approved and accepted. Immediately upon arrival of the goods, the Purchaser shall check the goods for any transport damage and immediately notify the carrier and the Supplier thereof.

11. Warranty and liability for defects

11.1. Defects detected within the warranty period must be reported to the Supplier in writing immediately after their discovery.

11.2 Hidden defects that already existed at the time of acceptance, but which could not be discovered even with due care, must also be reported to the Supplier in writing immediately after their discovery.

11.3 If the Purchaser Fails to report defects in good time, the deliveries and Services shall be deemed approved and the Purchaser forefeits his Claims under the material warranty.

11.4 The Supplier shall remedy the defects reported to him in due time in accordance with paragraph 11.2. as quickly as possible and the Purchaser shall give him the opportunity to do so.

11.5 Should it be necessary to remedy the defect, the defective parts must be returned to the Supplier after prior consultation with prepaid freight.

11.6 The warranty period is six months for one-shift operation (8 hours daily operating time), three months for two-shift operation (16 hours daily operating time), and two months for three-shift operation (24 hours daily operating time). It begins with the dispatch of the delivery ex works or, if the Supplier has also taken over responsibility for assembly, with the completion thereof. If dispatch or assembly is delayed for reasons for which the Supplier is not responsible, the warranty period shall end no later than 12 months after the notification of readiness for dispatch. The warranty shall expire prematurely and immediately if the Purchaser or third parties make improper changes or repairs to the delivered item, or if the Purchaser, if a defect has occurred, does not immediately take all suitable measures to minimize the damage and give the Supplier the opportunity to remedy the defect.

11.7 The right of the Purchaser to withdraw from the contract (rescission) or reduce the purchase price (reduction) shall be superseded by the right of the Supplier, at its option and expense, to repair the defective goods or replace them with new goods. The associated transport, travel, labor, and material costs shall be borne by the Supplier. This obligation to bear the costs shall not apply to the extent that these expenses are increased due to relocation of the purchased item after delivery to a place other than the Purchaser’s original place of delivery. If the subsequent improvement fails, the Purchaser has the right to cancellation or reduction.

11.8 No warranty and liability of the Supplier shall exist for defects or damage arising after the transfer of risk, in particular due to unsuitable or improper use, faulty assembly or commissioning by the Purchaser or third parties, defective maintenance, excessive strain, non-compliance with operating instructions, natural wear and tear, faulty or negligent handling, unsuitable operating materials, chemical, electrochemical, or electrical influences, insofar as they are not contractually presupposed and cannot be attributed to fault on the part of the Supplier, and as a result of other reasons for which the Supplier is not responsible.

11.9 For deliveries and services of subcontractors prescribed by the Purchaser, the Supplier shall only assume warranty within the framework of the warranty obligations of the subcontractors concerned.

11.10 Liability for claims for damages as a result of defects that have not occurred in the delivery item itself, such as claims for reimbursement of costs and loss of profit due to loss of production (so-called consequential damages) or liability for other indirect damages of any kind is excluded to the extent permitted by law.

11.11 The Purchaser has no rights and claims due to defects of any kind in deliveries or services other than those expressly mentioned in paragraph 11.

12. Right of recourse of the Supplier

If persons are injured or objects of third parties are damaged as a result of actions or omissions on the part of the Purchaser or his auxiliary persons and if for this reason a claim is made against the Supplier, the Supplier is entitled to a right of recourse against the Purchaser.

13. Assembly

If, in addition to the delivery, the Supplier also undertakes assembly or assembly supervision, this shall be carried out and regulated by the Supplier under a separate service contract independent of the delivery. The specific written assembly instructions apply to this service contract.

14. Severability clause

These Terms and Conditions of Sale and Delivery shall remain binding even if individual provisions are legally invalid.

15. Place of jurisdiction and applicable law 

15.1 The place of jurisdiction for the Purchaser and the Supplier shall be the registered office of the Supplier. However, the Supplier shall be entitled to sue the Purchaser at the Purchaser’s place of business.

15.2 The legal relationship shall be subject to Swiss law, excluding conflict of laws provisions and the Vienna Sales Convention.