General Terms and Conditions
- These General Terms and Conditions shall apply to the delivery of goods and analogously also to the performance of services by Triamec Motion AG, 6340 Baar, Switzerland (hereinafter referred to as Supplier), unless the Customer and Triamec Motion AG agree otherwise in writing.
- The contract shall be concluded upon receipt of the Supplier's written confirmation that it accepts the order (order confirmation). Offers that do not contain a time limit for acceptance are not binding.
- These terms of delivery are binding if they are declared applicable in the offer or in the order confirmation. Any other terms and conditions of the customer shall only be valid if they have been expressly accepted by the supplier in writing.
- All agreements and legally relevant declarations of the contracting parties must be in writing to be valid.
- If any provision of these Terms and Conditions should prove to be invalid in whole or in part, the parties to the contract shall replace such provision by a new agreement which comes as close as possible to its legal and economic effect.
2. Scope of Deliveries and Services
- The Supplier's deliveries and services are listed conclusively 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. Technical Documentation
- Brochures and catalogs are not binding unless otherwise agreed. Details in technical documents are only binding if they are expressly warranted. The supplier expressly reserves the right to make changes.
- Each contracting party reserves all rights to plans and technical documents which it has handed over to the other party. The receiving contractual party acknowledges these rights and shall not make the documents available to third parties in whole or in part without the prior written authorization of the other contractual party or use them for purposes other than those for which they were handed over.
4. Regulations in the Country of Destination and Safety Devices
- At the latest when placing the order, the customer shall draw the attention of the supplier to the regulations and standards relating to the execution of the deliveries and services, operations, and the prevention of illness and accidents.
- Unless otherwise agreed, the supplies and services shall comply with the regulations and standards at the place of business of the customer, to which the customer has drawn the attention of the supplier in accordance with Clause 4.1. Additional or other protective devices shall be supplied to the extent that this has been expressly agreed.
- All prices are net, ex works, without packaging, without any deductions. All ancillary costs, such as for freight, insurance, export, transit, import and other permits and certifications shall be borne by the customer. Likewise, the customer shall bear all kinds of taxes, levies, fees, customs duties and the like which are levied in connection with the contract, or shall reimburse them to the supplier against appropriate evidence, if the supplier has become liable to pay them.
- The supplier reserves the right to adjust prices if exchange rates, wage rates or material prices change between the time of the offer and contractual performance. An appropriate price adjustment shall also be made if
- the delivery period is subsequently extended for one of the reasons stated in clause 8.3, or
- the nature or scope of the agreed supplies or services has changed, or
- the material or the design undergoes changes because the documents supplied by the customer did not correspond to the actual conditions or were incomplete.
6. Payment Terms
- Payments shall be made by the customer in accordance with the agreed terms of payment at the domicile of the supplier without deduction of cash discount, expenses, taxes, levies, fees, customs duties and the like.
- The payment obligation is fulfilled if Swiss francs are freely available at the domicile of the supplier for the
suppliers have been provided. If payment by bill of exchange has been agreed, the customer shall bear the bill discount,
Bill of exchange tax and collection charges.
- The payment dates shall also be met if transport, delivery, assembly, commissioning or acceptance of the supplies or services is delayed or rendered impossible for reasons for which the supplier is not responsible or if insignificant parts are missing or reworking proves necessary which does not make the use of the supplies impossible.
- If the down payment or the 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 or to withdraw from the contract and in both cases to claim damages.
If the customer is in arrears with a further payment for any reason whatsoever, or if the supplier, due to a circumstance arising after the conclusion of the contract, must seriously fear that he will not receive the customer's payments in full or on time, the supplier shall be entitled, without prejudice to his statutory rights, to suspend further performance of the contract and to withhold deliveries ready for dispatch, this until new terms of payment and delivery have been agreed and the supplier has received sufficient securities. If such an agreement cannot be reached within a reasonable period of time or if the supplier does not receive sufficient securities, he is entitled to withdraw from the contract and to claim damages.
- If the Purchaser fails to meet the agreed payment dates, he shall, without reminder, pay interest from the date of the agreed due date onwards, based on the interest rates customary at the Purchaser's domicile, but at least 4% above the respective 3-month CHF-SARON. The right to compensation for further damage is reserved.
7. Retention of Title
- The supplier remains the owner of all his deliveries until he has received payment in full in accordance with the contract.
- The customer is obliged to cooperate in measures required to protect the supplier's property; in particular, upon conclusion of the contract he authorizes the supplier, at the customer's expense, to enter or reserve the reservation of title in public registers, books or the like in accordance with the relevant national laws and to comply with all formalities relating thereto.
- The customer shall maintain the delivered items at his own expense for the duration of the retention of title and insure them in favour of the supplier against theft, breakage, fire, water and other risks. Furthermore, he shall take all measures to ensure that the supplier's claim to ownership is neither impaired nor cancelled.
- For the duration of the retention of title, the Purchaser may not pledge the Retained Goods or use them as security, and resale shall be possible only for resellers in the ordinary course of their business and only on condition that the reseller receives payment from its customer or makes the reservation that title shall not pass to the customer until the customer has fulfilled its payment obligations.
- In the event of attachments, seizures or other dispositions or interventions by third parties, the customer shall notify the supplier immediately.
8. Lead Time
- The lead time begins as soon as the contract has been concluded, all official formalities such as import, export, transit and payment permits have been obtained, the payments to be made at the time of ordering and any securities have been provided and the essential technical points have been settled. The delivery period shall be deemed to have been met if the notification of readiness for dispatch has been sent to the customer by the end of the delivery period.
- Adherence to the lead time presupposes that the customer has fulfilled his contractual obligations.
- The lead time shall be extended accordingly:
- if the supplier does not receive the information required for the fulfilment of the contract in time
or if the customer subsequently modifies them and thus causes a delay in the delivery of the
deliveries or services;
- if obstacles occur which the supplier, despite exercising due care, cannot overcome
regardless of whether they arise at his premises, at the customer's premises or at the premises of a third party.
Such obstacles are for example epidemics, mobilization, war, riots, considerable
Breakdowns, accidents, industrial disputes, delayed or faulty delivery of the necessary
Raw materials, semi-finished or finished products, rejects of important work pieces,
official measures or omissions, natural events;
- if the customer or third parties are in arrears with the work to be carried out by them or with
are in default in the fulfilment of their contractual obligations, in particular if the customer
does not comply with payment terms.
- if the supplier does not receive the information required for the fulfilment of the contract in time
- The customer shall be entitled to claim compensation for delayed deliveries if a delay can be proven to have been caused by the supplier and the customer can prove that he has suffered damage as a result of this delay. If the customer is helped out by means of a replacement delivery, the claim to compensation for delay shall lapse. For each full week of the delay, the compensation for delay amounts to a maximum of ½%, but not more than 5% in total, calculated on the contract price of the delayed part of the delivery. The first two weeks of the delay shall not give rise to a claim to compensation for delay. After reaching the maximum amount of compensation for delay, the customer shall grant the supplier a reasonable grace period in writing. If this grace period is not observed for reasons for which the supplier is responsible, the customer shall be entitled to refuse acceptance of the delayed part of the delivery. If partial acceptance is economically unreasonable for him, he shall be entitled to withdraw from the contract and to demand return of payments already made against return of deliveries already made.
- If a specific date is agreed instead of a lead time, this date is equivalent to the last day
a lead time; clauses 8.1 to 8.4 shall apply analogously.
- The customer shall have no rights and claims arising from delays in deliveries or services other than those expressly mentioned in this clause 8. This limitation shall not apply to unlawful intent or gross negligence on the part of the supplier, but it shall also apply to unlawful intent or gross negligence of auxiliary persons.
- The packaging is charged separately by the supplier and is not taken back. If, however, it has been designated as the property of the supplier, it must be returned by the customer carriage paid to the place of departure.
10. Transfer of Risks and Benefits
- Benefit and risk shall pass to the customer at the latest upon dispatch of the deliveries ex works.
- If dispatch is delayed at the request of the customer or for other reasons for which the supplier is not responsible, the risk shall pass to the customer at the time originally intended for delivery ex works. From this time on, the supplies shall be stored and insured for the account and risk of the customer.
11. Shipping, Transport and Insurance
- The supplier must be notified in good time of any special requirements regarding dispatch, transport and insurance. Transport shall be at the expense and risk of the customer. Complaints in connection with dispatch or transport must be made by the customer to the last carrier immediately upon receipt of the deliveries or the freight documents.
- Insurance against damages of any kind is the responsibility of the customer.
12. Inspection and Acceptance of the Delivery and Service
- The supplier shall inspect the deliveries and services as far as usual before dispatch. If the customer demands more extensive tests, these shall be agreed separately and paid for by the customer.
- The customer shall inspect the supplies and services within a reasonable period of time and notify the supplier immediately in writing of any defects. If he fails to do so, the deliveries and services shall be deemed to have been approved.
- The supplier shall remedy the defects notified to him in accordance with Clause 12.2 as soon as possible and the customer shall give him the opportunity to do so. After rectification of the defects, a taking-over test shall take place at the request of the customer or the supplier in accordance with Clause 12.4.
- The performance of an acceptance test as well as the determination of the conditions applicable thereto shall - subject to clause 12.3 - require a special agreement. Unless otherwise agreed, the following shall apply:
- The supplier shall notify the customer of the performance of the acceptance test in sufficient time for the customer or his representative to be able to participate.
- A protocol is drawn up on the acceptance, which must be signed by the customer and supplier or their representatives. It shall be stated in it that the acceptance has been carried out or that it has been carried out only under reservation or that the customer refuses acceptance. In the latter two cases, the claimed defects shall be individually recorded in the protocol. The customer may not refuse acceptance and signature of the acceptance protocol on account of minor defects, in particular those which do not significantly impair the functionality of the supplies or services. Such defects shall be remedied by the supplier without delay.
- In the event of substantial deviations from the contract or serious defects, the customer shall give the supplier the opportunity to remedy these within a reasonable period of grace. A further acceptance test shall then take place. If this again reveals substantial deviations from the contract or serious defects, the customer may, if the contracting parties have agreed on a price reduction, compensation payment or other services in this respect, demand these from the supplier. If, however, the defects or deviations which come to light during this inspection are so serious that they cannot be remedied within a reasonable period of time and the supplies and services are not usable for the announced purpose or are only usable to a considerably reduced extent, the customer shall be entitled to refuse acceptance of the defective part or, if partial acceptance is economically unreasonable for him, to withdraw from the contract. The supplier can only be obliged to reimburse the amounts paid to him for the parts affected by the withdrawal.
- Acceptance shall also then be deemed to have taken place,
- if the acceptance test cannot be performed on the scheduled date for reasons for which the supplier is not responsible;
- if the customer refuses acceptance without being entitled to do so;
- if the customer refuses to sign an acceptance report drawn up in accordance with Section 12.4;
- as soon as the customer uses deliveries or services of the supplier.
- The customer shall have no rights and claims on account of defects of any kind in deliveries or services other than those expressly mentioned in Clause 12.4 and Clause 13 (warranty, liability for defects).
13. Warranty, Liability for Defects
Warranty period (guarantee period)
The warranty period shall be 18 months. It shall commence with the dispatch of the supplies ex works or with the acceptance of the supplies and services, if agreed, or, if the supplier has also assumed responsibility for assembly, with their completion.
For replaced or repaired parts, the warranty period begins anew and lasts 6 months from replacement, completion of the repair or from acceptance, but at most until the expiry of a period which is twice the warranty period according to the previous paragraph.
The warranty shall expire immediately if, without the written consent of the supplier, the customer himself or a third party carries out modifications or repairs to the delivered items or if, in the event of a defect, the customer does not immediately take all suitable measures to reduce the damage and give the supplier the opportunity to remedy the defect.
If the defects caused by the intervention of the customer or a third party are repaired by the supplier, the warranty period shall not be extended or shall not run from the beginning for the replaced parts.
Liability for defects in material, construction and design
The supplier undertakes, at the written request of the customer, to repair or replace as quickly as possible, at his discretion, all parts of the supplier's deliveries which are demonstrably damaged or unusable up to the expiry of the warranty period as a result of poor material, faulty design or defective workmanship. Replaced parts become the property of the supplier.
Claims by the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, shall be excluded if the expenses increase because the object of the delivery has subsequently been taken to a place other than the customer's branch office, unless the transfer corresponds to its intended use.
Liability for warranted properties
Warranted characteristics are only those which have been expressly designated as such in the order confirmation or in the specifications. The assurance is valid at the latest until the expiry of the warranty period. If an acceptance test has been agreed, the warranty shall be deemed to have been fulfilled if proof of the relevant properties has been furnished on the occasion of this test.
If the warranted characteristics are not or only partially fulfilled, the customer shall initially be entitled to immediate rectification by the supplier. The customer shall grant the supplier the necessary time and opportunity for this. If this subsequent improvement is not successful or only partially successful, the customer shall be entitled to the compensation agreed for this case or, if no such agreement has been made, to an appropriate reduction in the price. If the defect is so serious that it cannot be repaired within a reasonable period of time and if the supplies or services are not usable for the announced purpose or are only usable to a considerably reduced extent, the customer shall be entitled to refuse acceptance of the defective part or, if partial acceptance is economically unreasonable for him, to withdraw from the contract. The supplier can only be obliged to reimburse the amounts paid to him for the parts affected by the withdrawal.
Exclusions from liability for defects
Excluded from the warranty and liability of the supplier are damages which are not demonstrably due to poor material, faulty design or poor workmanship, e.g. as a result of natural wear and tear, inadequate maintenance or incorrect handling, failure to comply with operating instructions, non-compliance with installation requirements, excessive strain, unsuitable equipment, chemical or electrolytic influences, construction or assembly work not carried out by the supplier, as well as due to other reasons for which the supplier is not responsible.
Claims for defects shall not exist in the event of only insignificant deviation from the agreed quality, in the event of only insignificant impairment of usability.
This also applies to defects which are due to material provided by the buyer. Warranty claims shall not exist in the case of damage caused by the actions of third parties, atmospheric discharges, overvoltages or non-reproducible software errors.
Supplies and services from subcontractors
For deliveries and services of sub-suppliers, which are prescribed by the orderer, the supplier assumes the warranty only within the scope of the warranty obligations of the sub-suppliers concerned.
Exclusivity of warranty claims
The customer shall have no rights and claims on account of defects in material, design or workmanship or on account of the absence of warranted characteristics other than those expressly mentioned in Clauses 13.1 to 13.5.
Liability for secondary obligations
The supplier shall only be liable for claims of the customer due to inadequate advice and the like or due to breach of any secondary obligations in the event of unlawful intent or gross negligence.
14. Non-fulfillment, bad Fulfillment and Their Consequences
- In all cases of poor performance or non-performance not expressly regulated in these terms and conditions, in particular if the supplier, without good reason, starts the execution of the deliveries and services so late that timely completion is no longer foreseeable, if an execution contrary to the contract is definitely foreseeable due to the fault of the supplier or if deliveries or services have been executed contrary to the contract due to the fault of the supplier, the customer shall be entitled to set a reasonable period of grace for the affected deliveries or services to the supplier under threat of withdrawal in the event of failure to perform. If this period of grace expires without being used due to the supplier's fault, the customer may withdraw from the contract with respect to the supplies or services which have been executed contrary to the contract or the execution of which is definitely foreseeable contrary to the contract and demand the return of the portion of payments already made which is attributable thereto.
- In such a case the provisions of Clause 16 shall apply with regard to any claim for damages by the customer and the exclusion of further liability, and the claim for damages shall be limited to 10% of the contract price of the supplies and services for which the withdrawal is made.
15. Termination of Contract by the Supplier
- If unforeseen events substantially change the economic significance or the content of the deliveries or services or have a considerable effect on the supplier's work, as well as in the case of subsequent impossibility of execution, the contract shall be adjusted accordingly. Insofar as this is not economically justifiable, Supplier shall have the right to terminate the contract or the affected parts of the contract. If the supplier intends to make use of the right to terminate the contract, he shall notify the customer thereof without undue delay after having realized the consequences of the event, even if an extension of the lead time has initially been agreed. In the event of termination of the contract, the supplier shall be entitled to remuneration for the supplies and services already provided. Claims for damages by the customer on account of such termination of the contract shall be excluded.
16. Exclusion of Further Liabilities of the Supplier
- All cases of breach of contract and their legal consequences as well as all claims of the customer, regardless of the legal grounds on which they are made, are conclusively regulated in these conditions.
In particular, all claims for damages, reduction, cancellation of the contract or withdrawal from the contract not expressly mentioned are excluded.
- Under no circumstances shall the customer be entitled to claim compensation for damages which have not occurred to the delivery item itself, such as loss of production, loss of use, loss of orders, loss of profit and other direct or indirect damages. This exclusion of liability shall not apply to unlawful intent or gross negligence on the part of the supplier, but it shall also apply to unlawful intent or gross negligence on the part of auxiliary persons. In all other respects, this exclusion of liability shall not apply if it is contrary to mandatory law.
- The information provided by the supplier regarding compliance with the ROHS and REACH directives is based on information from sub-suppliers. The supplier does not guarantee the correctness of this information.
17. Supplier's Right of Recourse
- If persons are injured or third-party property is damaged as a result of actions or omissions on the part of the customer or his auxiliary persons and if a claim is made against the supplier for this reason, the supplier shall have a right of recourse against the customer.
18. Binding Nature of the Contract
- If individual provisions of these general terms and conditions should be invalid, the validity of the remaining provisions shall not be affected. This also applies to the effectiveness of individual provisions in the contract between supplier and buyer.
- The ineffective provision shall be replaced by a legally valid and economically corresponding provision.
19 Place of Jurisdiction and Applicable Law
- The place of jurisdiction for the customer and the supplier is the supplier's registered office. However, the supplier shall be entitled to sue the customer at his place of business.
- The legal relationship is subject to Swiss substantive law.