General Terms and Conditions
Terms of Payment and Delivery of GEZE Schweiz AG, as of: 05/2013
I. Quotation, Conclusion of Contract and Subject Matter of Contract
1. All contracts made with us are concluded exclusively on the basis of the following conditions. Any deviating purchasing conditions of the ordering party shall be applicable only upon our written consent.
2. Our quotations are always subject to change. The contract shall come into effect only upon our written confirmation and in accordance with the subject matter thereof or by means of delivery. Undertaking, subsidiary agreements and additional deliveries, which are not expressly listed in our order confirmation as well as any amendments made to the contract, shall be invalid unless they are made in writing.
3. Specifications of dimensions, quantity and services given in the quotation are only approximate. Deviations from those specifications are possible and must be tolerated. Drawings and descriptions attached to the quotation serve to convey information. We reserve the right to make changes to the contractual object without prior notice during the delivery time if the contractual object and its appearance does not experience any changes that are unreasonable to the ordering party. Especially technical changes, improvements in accordance with the state of the art in science and technology, improvement in the design and material selection are considered as reasonable changes.
4 Partial deliveries are admissible.
II. Prices and Terms of Payment
1. Following items shall be calculated in addition to the confirmed prices for deliveries and work that are expressly listed:
a) Additional charges of the assembly work, storage and material management costs in the event of unexpected interruptions as a result of construction-related delays;
b) Overtime surcharges and surcharges for night, holiday and Sunday work that is requested by the ordering party or his/her representative;
c) Additional deliveries that are not listed in the order confirmation;
d) The statutory value-added tax (VAT);
e) Packages and insurance.
2. The invoice amount for goods and services are obtained from our price list or the assembly and service rates that are valid at the time.
3. Our prices are, unless agreed upon otherwise, calculated in Swiss Francs excluding value added tax. The prices shall be quoted ex-factory including loading; however, packing, transport and insurance costs are excluded.
4. Our receivables shall become due immediately upon receipt of the invoice. We are entitled to demand advance payments in the amount of the value of partial services already provided, especially assembly services and goods deliveries. The same shall apply if the ordering party has delayed in accepting the delivery of goods.
5. Bills of exchange and cheques shall be considered as payment only when they have been credited. Bills of exchange shall be accepted as conditional payment only upon written agreement and provided that they are eligible for discount. Discount charges will be calculated from the due date of the invoice amount. Discount and other exchange costs shall be borne by the ordering party. Cash discount is excluded for bills of exchange.
6. Our general terms of payment are 30 days net. Discounts, cash discount and other deductions are only admissible if they have been agreed upon in writing. Unjustifiable deductions shall be charged subsequently.
7. Retaining payments owing to potential counterclaims of the ordering party or offsetting them is admissible only if the counterclaim is legally established or not disputed by us.
8. If there is a substantial deterioration in the financial circumstances of the ordering party after conclusion of the contract, we shall be entitled to demand advance payments or security within a reasonable period and refuse providing service until this demand has been satisfied. If the ordering party refuses to comply or if the grace period is lapsed, then we shall be entitled to withdraw from the contract and demand compensation for damages on grounds of non-fulfilment.
III. Default of Payment, Deferment of Payment
1. Upon maturity of the receivable, the ordering party shall be in default without any reminder. In case of late payment or deferment of payment, irrespective of the assertion of a proven default damage, we are entitled to demand a default interest of 5 %.
2. If the ordering party defaults on payment, we can cease further work on current orders and demand immediate advance payment of all receivables including those that are not yet due along with bills of exchange and deferred amounts or corresponding securities.
IV. Delivery time, Deliveries
1. The delivery period to be agreed upon especially begins on the day the order confirmation is dispatched; however, not before the complete presentation of all documents, approvals, clearances to be provided by the ordering party, and not before receipt of any agreed upon advance payment.
2. The delivery time is complied with if the goods have left the factory / warehouse at the time agreed upon or, if shipment is not possible, readiness for shipment has been notified to the ordering party. A reasonable grace period must be granted for the delivery.
3. The delivery period shall be reasonably extended if we have been prevented from fulfilling our obligations due to force majeure, intervention of third parties or events that we could not avoid despite taking precautions that are reasonable in the circumstances. If the above mentioned events make delivery or providing service impossible, we will be released from the service obligation and the ordering party shall not be able to withdraw from the contract or demand substitute performance from a third-party or demand compensation for damages. If the abovementioned hindrances occur on the ordering party’s part, the same legal consequences shall apply to his/her purchasing obligation. The contracting parties are obliged to inform each other immediately about the hindrances of the types mentioned above or reasons that may hinder a concrete and timely fulfilment of the contract.
4. If there is a delay in delivery, the ordering party shall provide us with notice of default in writing. Taking the circumstances into consideration, he/she must grant us a reasonable period of grace that must be at least three weeks. Once this period has expired without use, the ordering party has the choice to insist on performing the contract or to withdraw from the contract with a written declaration and to refuse receiving the service. In any case, all further claims of the ordering party, such as damages due to delayed fulfilment, consequential damages, coincidence, etc., are excluded to the extent admissible by law.
V. Delivery, Shipment, Passing of Risk and Acceptance
1. Delivery shall be carriage forward and uninsured ex-factory.
2. In case of sale by delivery to a place other than the place of fulfilment, the risk is passed to the ordering party at the latest with the shipment of delivery parts, even if partial deliveries are carried out and we have taken charge of other services, e.g. the shipment costs or carriage and set-up. On request of the ordering party, the consignment shall be covered by transport insurance at his/her expense.
3. If the goods are ready for shipment and the shipment or space allocation or acceptance is delayed for reasons for which the ordering party is responsible, then the risk shall pass to the ordering party upon receipt of notification of readiness for shipment.
4. If the shipment is delayed by order of the ordering party or his/her agent, then we shall be entitled to charge the costs resulting from storage, which amount to 1 % of the invoice value per month. Clause II.4. shall apply with regard to our entitlement to demand advance payments.
5. The ordering party must ensure that the delivery of goods and the performance of services can take place without any hindrances.
We reserve all rights, especially property and intellectual property rights over designs, illustrations, drawings, descriptions of machines and processes, instructions and other documents. Forwarding or disclosing such documents to third-parties shall not be allowed without our written consent.
VII. Assembly, Commissioning, Acceptance
1. The assembly/ commissioning/ acceptance of the machines and equipment may be carried out only by GEZE or a person authorised by GEZE.
2. Within 30 days after delivery and assembly of the machines and equipment, the ordering party must arrange an appointment with GEZE for the acceptance / commissioning. For the acceptance / commissioning, the ordering party shall fulfil proper requirements in accordance with our checklist with regard to on-site services. Costs that arise due to incorrect information, shall be borne by the ordering party.
VIII. Retention of Title
1. The delivered goods shall remain our property until full payment of all our receivables, especially until the redemption of all bills of exchange as well. Processing or modification of the goods shall always be carried out by us as the manufacturer, but without any obligation. We are entitled to enter the retention of title in the register provided for the same and if necessary and appropriate, make it public. If the ownership of the seller and entrepreneur over the delivered goods expires due to mixing, incorporation or combining, the seller shall receive the right to be able to register a lien for craftsmen and entrepreneurs in the title register for the entire purchase and work price. The buyer and ordering party shall admit the registration claim in the amount of the purchase and work price stipulated in the contract and give his/her consent for registration in the builder’s lien. He/she can prevent the registration by providing adequate security for the receivable.
2. The buyer of the goods is not entitled to process, sell, pledge or as a precaution, assign the goods before complete payment of the purchase and work price. He/she shall be obliged to notify all third parties of the retention of title and to refrain from and avoid everything that jeopardises the entitlements of the owner. Any receivables arising from violating this provision shall be assigned by the buyer to the owner in their entirety.
3. We are obliged to release any sureties provided to us to cover our receivables, which exceed unpaid liabilities by more than 20 % at our discretion.
4. In the event of a buyer’s behaviour being contrary to the terms of the contract, especially with regard to payment delays, we are entitled to take the delivered goods back or if required, demand that the buyer transfers his/her claim for return against a third party to us. Taking the reserved goods back as well as their seizure, does not mean a withdrawal from the contract on our part. All costs of redemption and realisation of the contractual objects shall be borne by the ordering party. The realisation costs will be of 5 % of the realisation proceeds including VAT. The costs must be calculated as higher or lower if we prove them to be higher or the ordering party proves them to be lower. The proceeds shall be credited to the ordering party after deducting the costs plus any other receivables that due to us.
1. A joint acceptance/commissioning of the work must be carried out by the parties within 30 days after delivery and assembly of the goods. On the occasion of acceptance, the goods must be checked by the ordering party and possible defects, especially in terms of type, quality, quantity and processing of the goods and functional suitability, must be reported. Acceptance means that the goods and the work are considered as approved with reservation of the defects reported. If hidden defects occur later, they must immediately be reported in writing; however, not later than ten days after their discovery and within the warranty period. If no acceptance/commissioning takes place within the period, then the goods and work are considered as approved with reservation of hidden defects.
2. If the delivered goods are defective or lack their warranted characteristics, then we shall - at our own choice and excluding further warranty claims - repair or replace the goods. If the repair or replacement is unsuccessful, the ordering party may withdraw from the contract or demand a reduction in the price, provided that any liability is excluded as far as legally admissible.
3. We shall be liable for defects that are reported in good time as follows:
a) All parts whose usability turns out to be unserviceable or whose serviceability turns out to be significantly impaired due to circumstances which have originated prior to the passing of risks - particularly due to defects in construction, bad building materials, or poor design - shall, at our discretion, be repaired or newly delivered. Multiple attempts at repairing or new deliveries are admissible. Replaced parts shall become our property.
b) We shall not assume any warranty for defects that occur due to improper or incorrect use, faulty assembly or commissioning by the ordering party or a third party, natural wear and tear, incorrect or careless handling or maintenance, unsuitable operating materials, substitute materials, faulty assembly work, chemical, electronic or electric effects. We shall not assume warranty obligation if improper changes are made or maintenance work is carried out by the ordering party or by a third party without our prior consent. It expires in particular in the event of non-compliance with our valid assembly and installation guidelines or the installation guidelines of suppliers whose products are connected to ours or if third parties change the settings without authorisation.
c) All other claims of the ordering party including the compensation for damages and any liability are - in so far as legally permissible - excluded.
4. The warranty obligation for machines that are assembled or commissioned by us, is 24 months from the time of acceptance / commissioning and maximum 27 months from the date of invoice. Upon conclusion of a GEZE maintenance contract, the guarantee obligation can be extended for at least two years within three months of acceptance/commissioning, and in this case, a maximum of 36 months from the time of acceptance/commissioning.
5. The warranty obligation for deliveries of goods and spare parts is 24 months from the time of delivery.
X. Other Compensation Claims, Liability
1. Our technical application advice, both verbal and written, is intended only to provide the ordering party with a description of the optimal use of our products. It does not release the ordering party from its duty to ensure by means of its own testing that the suitability of our products for their intended purposes is given. The ordering party shall be obliged to ensure that our oral and written technical application advice is passed on to the individuals who are ultimately responsible.
2. In any case, not only for the period before conclusion of the contract, for example with regard to consultation, planning or briefing, but also in the context of the contract fulfilment, any liability for us and our agents, with the exception of further claims from the ordering party, is limited to the extent specified in the contract and these provisions, where any liability is excluded as far as legally permissible.
3. If the work cannot be realized or will be stopped for reasons which we are not responsible for, the customer shall pay for the work that has already been carried out and the goods delivered and, in the event of fault on part of the ordering party, the ordering party shall also pay for the positive contract interest and damages.
Our fitters or third parties commissioned by us to carry out the assembly of goods are not authorised to make binding statements against us in case of complaints. Neither are they authorised to accept verbal orders to carry out any work.
XII. Place of Performance and Place of Jurisdiction
1. These terms and conditions and the contracts that are concluded on the basis of these terms and conditions are subject to Swiss law with the exclusion of United Nations Convention on Contracts for the International Sale of Goods (CISG) Place of jurisdiction is Olten.