The conditions of delivery shall apply if the Parties expressly or tacitly accept them. Amendments shall only be effective if the Supplier confirms them in writing.
The Parties shall communicate with each other verbally, in writing or via electronic data communication.
Letters, records, drawings, plans, telefax, email and other forms of transmission which provide evidence through text or image are considered to be writing. ‘Signed’ means that a handwritten signature or an appropriately qualified electronic signature is required.
The confirmation of order or, in the absence of such a confirmation, the quotation of the Supplier shall be the decisive criterion for the extent and execution of the delivery.
Changes to the confirmation of order are permissible if the products perform the same functions or the services fulfil the same purposes. However, the Supplier is under no obligation to make changes of this kind to products and services which have already been manufactured or supplied.
Provided no specific place of performance has been agreed upon or results from the nature of the business, delivery shall be construed to mean provision at the registered place of business of the Supplier.
The Customer shall duly inform the Supplier of any specific technical prerequisites as well as any statutory, official and other regulations at the place of destination which are of significance.
The Customer is entitled to receive one copy of the user documentation in the usual execution of the Supplier format. The Supplier may invoice additional copies or documentation which is not available in existing languages separately.
Deviations in the documentation, particularly in the descriptions and illustrations, are permissible if the documentation fulfils its purposes.
The Customer may use the provided software, the work results, the know-how, the data carriers and documentation within the scope of the existing licence conditions. In the absence of such conditions, and if the extent of the rights of use cannot be inferred from the purpose of the transfer, the Customer and the Customer's end customers shall only have the right of use for the respective corresponding products, but not for the independent sale, distribution, reproduction, extension or change.
The ownership and the right of further use shall remain with the Supplier or the Supplier's licensors, even if the Customer subsequently changes the computer programs, work results or know-how records. The Customer shall take the measures required to protect computer programs, work results and documentation from unauthorised access or improper use by unauthorised parties.
The Customer may make the requisite back-up copies. The Customer shall label them appropriately and keep them separately in a safe place.
The Customer is responsible for the installation and use of the products as well as combining them with other products. In this respect, the Customer shall take the necessary care and comply with the instructions of the manufacturer and the Supplier.
The Customer shall pass on any information relevant for security to the users in an appropriate form.
The Customer shall dispose of the supplied products after use at the Customer's expense or impose this duty of disposal on the Customer's end customers.
The Customer shall exempt the Supplier from any duties of disposal, particularly from any take-back obligation, as well as from any disposal costs and the respective claims of third parties.
These exemption and acceptance obligations shall not come under the statute of limitations until two years after use of the products has been discontinued.
Only deadlines guaranteed in writing shall be binding. Such deadlines can be appropriately extended within reason
a) if the Supplier does not receive specifications in due time which the Supplier requires for the execution, or if the Customer changes them retrospectively;
b) if the Customer is behind schedule with the work assigned to the Customer or is in default with the performance of the Customer's contractual obligations, especially if the Customer does not comply with conditions of payment;
c) if impediments occur which are beyond the area of responsibility of the Supplier, such as natural phenomena, mobilisation, war, civil commotion, epidemics, accidents and sickness, significant operational disruptions, labour disputes, belated or incorrect shipments from subcontractors as well as official measures. The Supplier can make partial deliveries.
Unless a specific acceptance procedure has been agreed upon, the Customer shall check all the products and services.
The Customer shall check the supplied products with respect to the identity, quantity, damage caused in transit and accompanying documents immediately after receipt. The Customer shall also inspect the products and services for further deficiencies as soon as possible.
Products and services are deemed to have been accepted if a notification of defects is not received within ninety days after delivery, or if products and services are used commercially for more than twenty working days.
The Customer shall report defects of any kind in writing immediately after discovery.
The Supplier gives assurance that the Supplier will exercise the requisite due care, and that the Supplier's products and services comply with the warranted characteristics. Moreover, the Supplier is liable for the suitability to the extent that the Customer informed the Supplier about the use in writing before conclusion of the contract.
Errors and malfunctions which are not the fault of the Supplier, such as natural wear and tear, force majeure, inappropriate handling, interventions by the Customer or third parties, excessive stress, unsuitable operating equipment, malfunctions caused by other machines and installations, unstable power supplies, particular climatic conditions or abnormal environmental influences, shall be excluded from the liability for defects.
The Customer shall not assert any claims on account of an insignificant defect. In particular, defects are insignificant if they do not adversely affect the use of products and services.
In the case of significant defects, the Customer shall grant the Supplier a reasonable extension of time for remedial action (rectification of the defects complained of or replacement delivery). At the Supplier's discretion, the Supplier shall rectify the defects at the Supplier's premises or at the Customer's, who must allow the Supplier unrestricted access for this purpose. The costs for disassembly and assembly, transport, packaging, travel and lodging are payable by the Customer. Any replaced parts shall become the property of the Supplier.
The warranty and limitation periods shall be twelve months. These periods shall not be interrupted by the acknowledgement or remedying of a defect.
If the repair of the defect fails, the Customer shall be entitled to a reasonable price reduction. The Customer can only terminate the contract if the acceptance of the products or services is unreasonable.
If the Supplier is demonstrably to blame for the defect, the Customer shall be entitled to compensation for the actual damage, but to no more than twenty percent of the value of the defective delivery, notwithstanding the repair of the defect, price reduction or termination of the contract. Compensation for lost profit and other pecuniary losses is wholly excluded.
The Supplier shall be liable within the scope of the Supplier's public liability insurance for other personal injury and material damage suffered by the Customer which are demonstrably the fault of the Supplier. Further claims, especially for the conduct of auxiliary persons, shall be excluded.
Unless stated otherwise, the prices are quoted in Swiss francs without VAT, fees, customs duties, transport, packaging, insurance, approvals, certifications, installation, commissioning, training or application support. They are due for payment net within thirty days of invoicing.
If the Customer causes delays in the performance of contract, the Supplier may adjust the prices accordingly.
The Customer may only offset with counterclaims with the signed agreement of the Supplier.
If the Customer does not comply with the due date of payment, the Customer shall pay interest on arrears of eight percent per year from the date of the payment becoming due without a reminder being issued.
In the case of default in payment, the Supplier may set a reasonable extension of time and terminate the contract and demand the return of the supplied products and services if the Customer does not pay the total amount due within this period of time.
Neither of the Parties shall disclose any information relating to the area of operations of the other Party which is neither generally accessible nor generally known to third parties, and they shall make every effort to prevent third parties from obtaining access to such information. On the other hand, either party may make further use of knowledge acquired during the course of the business processes in its core areas of activity.
The Parties shall also impose this obligation to secrecy on its associates, employees and authorised representatives.
The Customer is responsible for compliance with all the applicable national and international export regulations. 16. Internet We refer to our websites at www.phoenix-mecano.ch and www.phoenix-mecano.com for further information.
This legal relationship is governed by Swiss law.
The legal venue is Stein am Rhein. The Supplier may also may also seek redress in the court at the place of business of the Customer.