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Terms and Conditions of de Sede AG

§ 1 General

(1)

Our following Terms and Conditions of Business govern the rights and obligations of both contracting parties. They are valid for all current and future contractual relationships even in cases where they might differ from the customer’s written order and/or from the customer’s own general terms of sale and delivery, unless we have expressly recognised the terms of the other party in writing.

(2)

Any divergence from these Terms and Conditions of Business shall only be valid if agreed in writing with the customer in an individual contract. This applies in particular to any agreement to waive the necessity for changes and modifications to be made in writing.

(3)

Should any provision contained in our Terms and Conditions of Business prove invalid or be rendered invalid, the validity of the remainder of the terms and conditions contained therein shall remain unaffected. The contracting parties undertake herewith to replace any such invalid provision by a valid clause corresponding to the invalid clause or reflecting the commercial spirit of the replaced clause as closely as possible.

 

§ 2 Content of contract

All offers we make are nonbinding. An order is deemed to be valid only when confirmed by us in writing or when the items ordered are supplied and invoiced. Oral agreements are only deemed to be valid for us if we also confirm them in writing. All prices quoted by us exclude any form of governmental sales taxes unless the contrary is specifically stipulated.

Information, advice on technical and applicational questions, etc. are all given without liability on our part. All patterns and samples submitted to the other party are not binding in terms of the properties and characteristics they display unless such properties and characteristics are guaranteed by us in writing.

Sales are only effected in accordance with specific delivery deadlines, quantities and qualities. This provision is binding upon both contracting parties.

 

§ 3 Supply and delivery

(1)

Unless otherwise agreed, goods are supplied from our dispatch warehouse or from our manufacturing works. We charge for supplementary packing – should this be required by the customer – at cost. No credit will be afforded for returned packing materials. We reserve the right to choose the method of shipment and routing; in so doing, however, we undertake to select as far as possible an inexpensive means of transport and to comply with any special requests made by the customer. Any additional costs thus entailed – even in the case of deliveries that have been agreed as carriage paid – shall be borne by the customer.

(2)

In the event of incidents of force majeure – these include situations and events that cannot be avoided through the exercise of the due care and diligence of ordinary business operations – industrial disputes, governmental measures and any disruptions to operations not of our own making that have lasted for a week or are likely to last, the contractual obligations of both parties shall be suspended for the duration of the disruption and for the extent of its impact, but for a maximum term of five weeks plus the additional time then needed for delivery. This extension period comes into effect as soon as we have informed the customer of the reason for the delay, which we shall do immediately we become aware that we are unable to meet the delivery deadline. If the cause for delay has lasted more than five weeks and the customer is not informed immediately on request that delivery or collection will be effected on time, the customer is entitled to withdraw from the contract and cancel his order. Any further claims, particularly claims for any form of compensation, are specifically excluded in the event of the aforementioned circumstances.

(3)

On expiry of the delivery period, a new delivery deadline shall immediately come into effect without notification on our part which will run for 22 working days subsequent to the original deadline. On expiry of this second delivery period, withdrawal from the contract shall be deemed valid, whereby all claims for compensation of any nature are expressly excluded. The customer is not entitled to withdraw from the contract should he advise us during the second delivery period that he insists on performance of the contract. We are however freed of our obligation to deliver should the customer not respond to our enquiry during the second delivery period stating that he insists on performance of the contract.

(4)

Fixed-date transactions must be expressly designated as such in our written order confirmation.

(5)

The customer is entitled to claim compensation instead of performance of the contract should he give us a deadline of four weeks in which to fulfil our obligations, after which period he will refuse to accept performance of the contract. This period shall run from the day on which the advice from the customer is sent by means of registered mail. This provision shall be valid in the case of Paragraph 3 above instead of the withdrawal described therein only if the customer informs us of his intention to withdraw from the contract after the new deadline if this occurs within our second delivery period.

(6)

All claims on the part of the customer for any form of compensation for delayed delivery are excluded before expiry of the second delivery period.

 

§ 4 Payment

(1)

Our invoice is rendered on the day of delivery or on the day when the goods are ready for dispatch. Any postponement of the date on which payment falls due is expressly excluded.

Invoices are to be settled in accordance with the terms contained in the order confirmation and the invoice. In the event of no terms of payment being agreed upon, the following terms of payment shall be effective:

Payment net within 30 days after date of invoice and dispatch of the goods – from the 31st day, payment shall be deemed to be in arrears.

(2)

If we accept a bank draft in payment instead of cash, cheque or bank transfer, a supplement of 1 % of the amount of the draft will be charged for the period until the draft is discounted after the net deadline of the 31st day following the invoice date and dispatch of the goods.

(3)

Payments received will in all cases be deemed to be in settlement of the oldest outstanding amounts due plus any accrued interest on arrears.

(4)

The date deemed to be effective for the date of payment is in all cases the date of the postmark. In the case of bank transfers, the date of payment is deemed to be the day before the amount is credited to our bank account.

(5)

In the event of payment after the due date, interest on arrears will be charged at a rate of 8% over the base interest rate prevailing at the time.

(6)

Before outstanding invoices are settled in full including any interest on arrears that may be due, we are under no obligation to make delivery of any goods covered by any other current contract. This in no way affects our entitlement to claim compensation for overdue settlement.

(7)

In the event of the customer not effecting payment at the due time or should there be the threat of insolvency or other substantive deterioration in the customer’s financial circumstances, we are entitled to set an extended deadline of ten working days for the dispatch of any outstanding shipments from any current contract, after which we may require cash payment or withdraw from the contract or claim for compensation should the deadline for payment not be met.

(8)

The customer is only entitled to offset other payments with invoice amounts that are due or to withhold payment of such amounts in the case of claims that are undisputed or that have been legally established. All other deductions are inadmissible.

 

§ 5 Transfer of risk

Unless agreed otherwise, all risk of accidental destruction becomes the responsibility of the forwarder or transporters, while risk of accidental deterioration or damage to the goods becomes that of the customer from the time the goods change hands. The transfer of risk is also effective should the customer be in delay in accepting the goods.

 

§ 6 Retention of ownership

(1)

The goods supplied remain our property until such time as full payment has been effected. The customer is however entitled to dispose of or process the goods within the framework of his proper business activities. Any pledge or transfer of ownership by way of security of these goods in favour of third-parties is excluded unless we have given approval for such. In the event of these goods being pledged via third-parties, the customer must advise us accordingly without delay.

(2)

In the event of processing and subsequent disposal, the following supplementary provisions shall apply:

  1. The goods supplied remain our property until all our claims have been settled in full.
  2. The entitlement of the customer in the course of his proper business activities to process and dispose of goods subject to retention of ownership ceases should payment be suspended or if insolvency proceedings are opened in respect of his assets or if an out-of-court conciliation procedure to avert insolvency proceedings should result in failure. In this case, the customer is obliged to release the unprocessed goods at our first demand. We undertake to credit the customer in this case with the proceeds that he would realise with the best possible sales conditions. Our demand for the release of the unprocessed goods does not entitle the customer to withdraw from the purchase agreement.
  3. Pledging or transferring ownership by way of security of goods subject to retention of ownership or the assignment of claims to third-parties is inadmissible.
  4. Processing goods subject to retention of ownership does not give the customer ownership of the new item in accordance with § 950 BGB. Processing is performed by the customer on our behalf, without our thereby incurring any liabilities. When the goods are processed, we acquire joint-ownership of the new item to the value of the invoice amount for the original goods that have been processed to create the new item.
  5. The customer hereby assigns the claim arising from the onward sale of the goods subject to retention of ownership to us to the extent to which the goods have been processed. This assignment is limited to the value of the invoice amount for the goods that have been processed to create the new item.
  6. We will not call in assigned claims as long as the customer meets his payment obligations. The customer is however obliged on request to transfer third-party debtors to us and to inform these of the assignment of their claims. As long as the customer meets his payment liabilities, he is entitled to call in the claims himself.
  7. Retention of ownership continues to apply if individual claims on our part are suspended in a current account and the balance is drawn and recognised; unless the balance is settled.
  8. We undertake to release as we see fit collateral accruing to us to the extent that the value, taking into account value added by the customer, exceeds by 10 % the claims to be secured.
  9. We must be informed immediately in the event of items being pledged and be given full details of the pledge.
  10. The customer or the trustee in the event of the customer’s insolvency is obliged as soon as he ceases payment to notify us immediately that payment has been ceased with a list detailing the goods subject to retention of ownership that are still available, the extent to which they have been processed and a list of claims on third-party debtors together with accounting credits.

(3)

In the event of our taking on contingent liabilities in the interests of the customer – payment by cheque or draft – the extended and expanded retention of ownership shall remain in effect until such time as we are completely free of these liabilities.

 

§ 7 Delay in taking delivery

(1)

In the event of the customer ignoring or expressly refusing payment and/or acceptance of our deliveries, we are entitled after giving written warning in advance and the given contractual deadline having expired without result to withdraw from the contract and/or to demand compensation for non-performance.

(2)

Should the customer’s delay in taking delivery last more than a month, we are entitled to charge the customer for warehousing expenses. We are also entitled to make use of the warehousing facilities of a forwarder in these circumstances.

(3)

As compensation for the customer’s non-performance by not taking delivery in accordance with Para. 1, we are entitled to demand that the customer pay 20 % of the purchase price without deductions, unless he can prove that we have suffered no loss at all or that the loss suffered is less than this flat-rate figure. Equally, we retain the right in the event of particularly high loss, for example in the case of special custom-made items, to claim higher documented compensation instead of the flat-rate compensation mentioned above.

 

§ 8 Complaints

(1)

Any complaints must be received by us in writing within 10 working days after receipt of the goods.

Once processing of the goods delivered has commenced, complaints concerning defects or shortcomings are expressly excluded.

(2)

Should we find a complaint to be justified, we reserve the right to rectify the defect or to supply alternative items without defects within 30 working days after receipt of the goods returned to us. In this case, we shall bear the costs of transportation. If we are unable to rectify the problem, the customer is entitled only to demand a reduction in price or to withdraw from the contract.

On expiry of the above-mentioned deadline of 30 working days, the customer only has the right to demand a reduction in the purchase price or to withdraw from the contract. All further entitlements, particularly claims for some form of compensation, are expressly excluded.

(3)

The customer is obliged to notify us in respect of complaints concerning concealed defects or deficiencies immediately they are discovered. Having notified us of the problem in good time, the customer is only entitled to demand a reduction in the purchase price or to withdraw from the contract provided that the deadline for complaints stipulated in Paragraph 1 above has expired.

(4)

The customer is not entitled to make complaints concerning minor deviations in quality, colour, dimensions or weight of the goods or design that are technically unavoidable. The same is true in respect of those deviations that are normal in trade and commerce, unless we have given a written guarantee to supply goods precisely in compliance with a sample or pattern in advance.

(5)

de Sede AG grants a warranty on its products as laid down in the valid warranty provisions that are enclosed with the product in question.

 

§ 9 Compensation

(1)

We accept liability in cases of wilful intent or gross negligence or for a representative or a person employed in performing our obligations to the extent prescribed by appropriate legislation. Over and above this, we only accept liability in accordance with product liability legislation, in respect of injury to life, limb or health or in respect of the culpable infringement of major contractual obligations. Entitlement to compensation in respect of culpable infringement of major contractual obligations is however limited to such damage as can be foreseen under the terms of such a contract. Our liability is also limited in cases of gross negligence to such damage as can be foreseen under the terms of such a contract provided that none of the cases of exception described in the second sentence of this Paragraph apply.

(2)

Liability in the event of damage caused by the goods delivered to legal possessions belonging to the customer or to third-parties, for example damage to other items, is expressly excluded in all respects. This does not apply in the event of wilful intent or gross negligence or in the case of injury to life, limb and health.

(3)

The stipulations contained in Paragraphs (1) and (2) above apply equally to compensation in addition to fulfilment of the terms of the contract, as well as to compensation in lieu of fulfilment, irrespective of the legal basis. This holds true in particular for defects, infringement of rights arising from the relationship of indebtedness or from unauthorised action. The stipulations are also valid in respect of claims for reimbursement for wasted expenditure.

 

§ 10 Other provisions

(1)

Place of performance and of jurisdiction for all claims arising from this contract is always – as far as this is admissible – the headquarters of de Sede AG CH-Klingnau and the district court of CH-Zurzach. We are additionally entitled if we so wish to proceed against the customer before the court at his own domicile.

(2)

All business transactions and legal relations between the customer and ourselves are subject to Swiss law without any legal provisions and stipulations that might conflict with this. In particular, the application of the UN agreement on international contracts for the sale of goods (CISG) is expressly excluded.

(3)

We undertake that all data necessary for the performance of business transactions will be stored in accordance with relevant legislation concerning data protection.