Conditions & Terms
1.1 These General Conditions of Sale ("GCS") are applicable to all current and future supplies and to all service and maintenance services of Ascolite AG ("ASC").
1.2 Amendments and additions to these GCS will only be valid if they have been accepted by ASC in writing. Customers' General Purchasing Conditions and contractual provisions deviating from these GCS are hereby expressly rejected.
2. Offers and Prices
2.1 Offers from are basically without engagement and are only binding when they are expressly indicated as such or when they include a time stated for acceptance.
2.2 The commitment of ASC shall be dictated solely by the content of the Offer or the Confirmation of Order by ASC, as well as by these GCS.
2.3 Details in Price Lists and other publications from ASC, such as drawings and technical documents, for example, shall only be binding if they are expressly confirmed in writing.
2.4 Unless agreed otherwise, ASC 's prices shall be understood as being net ex-works from ASC ("EX WORKS", according to Incoterms 2010), exclusive of Value Added Tax, installation and instruction.
3. Conditions of Payment and Prohibition of Transfer
3.1 Invoices from ASC are due for payment within 30 days of the date of the invoice, without deducting discount, expenses, taxes and fees of any kind. For export business, the conditions agreed in the individual case shall apply (e.g. advance payment or by letter of credit).
3.2 If the Customer fails to meet the date of payment, he will have to pay a default interest of 1% per month, with effect from the due time, and without a demand for payment. The Customer will be obliged, in addition, to pay any costs incurred in connection with a demand for payment and with recovering the debt.
3.3 ASC will be entitled to demand of the Customer prepayment of part or all of the purchase price. This will apply in particular to the customer-specific manufacture of products or advance deliveries on the part of ASC.
3.4 The Customer will not be entitled to offset potential claims against ASC against any amount owed by the Customer to ASC.
4. Delivery and Transfer of Benefit and Risk
4.1 Delivery periods and delivery dates are rough guide-values. Their observance is dependent on the receipt in good time of all the details and permits required for the delivery, as well as observance of the duty of cooperation by the Customer.
4.2 In the event of a delay in delivery, the Customer shall grant ASC a suitable extension of at least four (4) weeks. If this is exceeded, for reasons for which ASC are responsible, the Customer will be entitled to refuse to accept the delayed part of the supply
4.3 Claims by the Customer for damages on the grounds of late delivery shall be precluded, except in cases of intent or gross negligence on the part of ASC.
4.4 Delivery periods will be extended appropriately if the Customer fails in his duty to cooperate or if obstacles occur which are beyond the control of ASC, such as, for example, war, strikes, breaks in production, accidents, supplier problems, official measures or force majeure.
4.5 Unless agreed otherwise, delivery shall be ex-works from ASC ("EX WORKS", according to INCOTERMS 2010). Benefit and risk shall be transferred to the Customer when the delivery leaves the works.
4.6 If despatch or take-over of the supplied item by the Customer is delayed or is rendered impossible, for reasons for which ASC are not responsible, the delivery will be stored at the cost and risk of the Customer.
4.7 ASC is entitled to hold back deliveries as long as the purchaser is in default with payments for overdue invoices.
5.1 The Customer will not be entitled to cancel orders without the agreement of ASC.
5.2 Returns of goods delivered are only allowed with written consent of ASC and only in perfect complete condition and in original package. Goods produced specifically for the Customer are excluded from any exchange.
5.3 ASC will be entitled to withdraw from the Purchasing Contract if the Customer is in arrears with payment of the purchase price.
6. Transfer of Ownership
ASC shall remain owner of the supply until the Customer has paid the purchase price in full. The Customer shall authorise ASC to cause the reservation of ownership to be entered in the official register and shall undertake not to do anything which could endanger the reservation of ownership of ASC.
7.1 ASC warrant that the supplied item is free from material defects and defects in manufacture.
7.2 With regard to software provided by ASC, ASC shall warrant only that it basically conforms to the specifications listed in the software documentation. ASC shall not, on the other hand, warrant that the Customer can use the software continuously. Insofar as the software is supplied together with an End User Licence Agreement, this will apply exclusively.
7.3 ASC shall warrant that Service and Maintenance Services are provided professionally.
7.4 For supplied items not produced by ASC (outsourced equipment), ASC shall undertake a warranty only within the framework of the Subcontractor's warranty.
7.5 The warranties in paras. 7.1 to 7.4 are conclusive, and all other warranties are precluded.
7.6 The Customer shall undertake to inspect the supplied item within an appropriate period following receipt, but by the latest within 10 calendar days. Any defects must be complained about in writing and in detail immediately after they are detected. Should the Customer fail in his duty to complain, his rights regarding defects will be forfeited.
7.7 If the supplied item is defective, ASC will be obliged, during the warranty period, to repair the defective supplied item or to replace the defective parts, at his own choice and at his own expense. ASC will also be entitled to refund the purchase price to the Customer, against the return of the defective supplied item. The Customer undertakes to bear all costs incurred by ASC through the supplied item being removed to a location different from the original place of delivery.
7.8 In the case of servicing and maintenance work, ASC shall, during the warranty period, repeat the defective servicing and maintenance work or will undertake to improve or replace, at the choice of ASC, all parts improved by a repair or by the replacement of parts, which have demonstrably again become defective or unserviceable due to poor material, faulty design or defective execution. The above-mentioned Customer's rights concerning defects (paras. 7.7 and 7.8) are understood as excluding other rights concerning defects, such as a change or reduction of the purchase price and compensatory damages (para. 8).
7.9 The warranty period shall be 12 months from delivery of the supplied item and, for repair and maintenance work, three months from execution of the work concerned. Customers' claims shall lapse in accordance with the warranty periods.
7.10 A repair or substitute delivery shall not lead to an extension of the original warranty period or statutory limitation period.
7.11 Defects which are attributable to normal wear and tear (especially wearing parts), defective maintenance, disregard of operating specifications, excessive stress, unsuitable operating resources, chemical or electrolytic influences or integration into the Customer's environment, shall be excluded from the warranty. The warranty shall lapse if the Customer or a third party undertakes modifications to the supplied item, without written consent from ASC.
8. Liability Exclusion
Claims by the Customer against ASC are conclusively settled by these GCS. The liability of ASC vis-à-vis the Customer, both for direct and indirect damage, such as, for example, loss of production, loss of data or loss of profit, regardless of the legal grounds, is precluded. Exclusion from liability shall not apply in the case of intent or gross negligence on the part of ASC. Exclusion from liability will also apply in the event of the enlistment of assistance by ASC.
9. Regulations at Place of Destination
The Customer must draw the attention of ASC to the legal, official and operational safety and other regulations in force at the place of destination of the supply, insofar as they relate to delivery, assembly, operation and certification.
10. Intellectual Property and Confidentiality
10.1 The Customer shall not, through the purchase of supplied items or the licensing of software, acquire any patent rights, copyright or trademark rights or other intellectual property rights to the supplied items, plans, drawings or software. This shall also apply in the event of ASC undertaking specific adjustments to the supplied items or to the software for the Customer.
10.2 The Customer undertakes to treat all information and documents received from ASC confidentially, insofar as they are not known publicly.
11. Export Controls
The Customer must bear in mind that supplied items or software may be subject to the export control regulations of the USA, Switzerland, as well as the import and export regulations of other countries. The Customer undertakes to comply with these regulations and acknowledges that it is his duty to obtain the requisite permits for export, re-export and import of supplied items, should such be required. The Customer undertakes to indemnify ASC against any claims arising from the infringement of export control regulations by the Customer.
The Customer shall dispose of the supplied items delivered by ASC on his own responsibility and at his own expense, in accordance with the relevant statutory regulations in force.
Should a provision in these GCS be totally or partly ineffective, it must be replaced by an effective provision coming as close as possible to the economic purpose of the ineffective provision.
14. Place of Execution, Jurisdiction and Law Applicable
14.1 The place of execution and exclusive place of jurisdiction shall be Zürich. ASC will nevertheless also be entitled to call upon the Court competent at the registered office of the Customer.
14.2 The legal relationship between ASC and the Customer will be subject to Swiss law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
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