Sales and delivery conditions
1. GENERAL
All sales, deliveries and services of Swiss Eco Line AG (hereinafter refer- red to as “SEL”) are affected exclusively on the basis of the following International Sales and Delivery Conditions. General terms and conditi- ons of the buyer are hereby contradicted and are deemed to remain contradicted throughout the entire relationship between SEL and the buyer, even in case SEL does not expressly contradict them again after their receipt. These International Sales and Delivery Conditions are considered to have been accepted by the buyer at the latest upon receipt of the order confirmation from SEL.
All contracts, orders and agreements – particularly those purporting to change the conditions set out herein – shall only become binding if expressly accepted by SEL in writing.
2. CONCLUSION OF CONTRACT – WRITTEN FORM
The offers of SEL are non-binding, unless otherwise agreed in writing.
An order is only accepted by SEL when it has been confirmed in writing and the order confirmation has been sent to the buyer. All agree– ments, declarations and other information are required to be in writing in order to become effective.
3. CONDITIONS OF DELIVERY – TRANSFER OF RISKS
The delivery of goods shall be made “Ex Works” (EXW – INCOTERMS 2020) warehouse SEL unless otherwise agreed and stated on the order confirmation.
Any cost as duties, charges, taxes etc. imposed in connection with the sale, delivery and import of the goods shall be borne by buyer.
The risk of loss – including accidental loss – or accidental deterioration of the goods is transferred to the buyer when the goods are handed over to the commissioned freight forwarder or carrier but no later than the time of leaving the respective work or warehouse of SEL, unless otherwise provided for in the corresponding order confirmation. Delivery of goods notified as ready for dispatch must be requested immediately, otherwise, at its own discretion, SEL shall be entitled to store them at the expense and risk of the buyer and invoice them as delivered ex works. If dispatch is delayed for reasons for which SEL is not responsible, then instead of the point in time according to Section above the particular date of indication of readiness for dispatch applies.
SEL may arrange, upon buyer’s request, for insurance at buyer’s cost against damage arising in connection with the storage, delivery or shipment of goods ordered by buyer.
4. DELIVERY PERIOD, DELAYS IN DELIVERY
The stated delivery period is non-binding, unless it is specifically agreed in writing to be binding.
The delivery period begins with the sending of the order confirmation to the buyer. It has been met when, by its expiry, the object of the delivery has left SEL’s particular works or the buyer has been informed of the order’s readiness for dispatch.
In the event of the occurrence of unforeseeable or inevitable events (force majeure) and in the case of operational stoppages of any kind, in particular damage to machinery, strikes and employment disputes, delayed supplies to us of important operating media and input ma- terials or administrative measures, SEL is entitled to withdraw from the contract of sale either wholly or in part or to extend the delivery period appropriately, taking into consideration a start-up period. SEL shall inform the buyer about any such event in writing.
In cases of delay of delivery, the buyer can, following the abortive expiry of an appropriate final deadline, withdraw from the contract. All claims of the buyer for compensation for dam-ages resulting from a delay of delivery, including but not limited to any consequential damages, are – with reservation of the regulation in the below section – excluded; the same applies to the buyer’s claim for the reimburse- ment of expenses.
The exclusion of liability regulated in section above does not apply
in the case of damages caused by wilful intent or gross negligence on SEL’s part. Subject to mandatory law, SEL’s liability shall in any case be limited to the contractually typical, foreseeable damage and shall never exceed the amount of the respective order.
Unless otherwise agreed in writing, SEL is entitled to make partial deliveries.
5. PRICES, PAYMENT, DEFAULT
SEL’s prices are based on the respective price lists for one piece
valid at the date of the order confirmation. Unless other longer-term payment terms have been agreed between SEL and the customer, the payment terms set out in the order confirmation shall apply. If
any payment is overdue, interest on the outstanding amount shall
be payable at the applicable commercial bank rates but not less
than 6 percent p.a.
For export orders, advance payment shall be made at the time the order is placed unless otherwise agreed.
In the case of buyer’s payment default, insolvency or the debts being jeopardized through deterioration of the buyer’s credit worthiness, SEL shall be entitled to demand immediate settlement of all debts falling due at the time and in the future or the provision of sufficient collateral. SEL shall also be entitled to only make outstanding deliveries if they are paid for in advance or sufficient collateral is provided. If this cannot beestablished by buyer within a reasonable period of time, SEL has the right (but not the obligation) to withdraw from the contract of sale.
6. DELAY IN CALLING GOODS
If the specific quantities of goods ordered by the purchaser are not called off for delivery within the agreed period, SEL shall be entitled to invoice the goods. Corresponding storage costs shall be charged to the purchaser per week of storage time and by volume. Claims for damages by the purchaser are inadmissible.
7. PACKAGING
Unless otherwise agreed, the goods shall be delivered in standard packa- ging. The buyer will be charged for any special packaging agreed.
8. STORAGE OF GOODS
The buyer undertakes to store the goods professionally and properly. In particular, electronic components must be protected from dust and humidity and stored in dry storage rooms (max. relative humidity of
65 % at temperatures between 10 to 25 degrees Celsius).
9. DEFECTIVE GOODS (WARRANTY)
In general, the statutory warranty of two (2) years shall apply. In the event of a late call-off of goods, the warranty period shall commence at the time the goods are placed in storage at SEL.
The buyer must inspect the goods immediately after delivery and re- port any transport damage to the bearer and SEL within three (3) days. Any defects discovered elsewhere must be notified to SEL in writing within ten (10) days of receipt. Otherwise, the goods purchased shall be deemed to have been accepted and all claims for defects against SEL shall be abandoned and excluded.
If defects are involved that were not identifiable in the course of a normal inspection, these defects must be reported immediately upon discovery. Otherwise, the purchased goods shall be deemed to have been accepted in respect of these defects and all claims for defects against SEL shall be abandoned and excluded.
Buyer undertakes to make the defective goods or the defective part of the goods available to SEL for a reasonable time immediately after discovery of the defect, in unaltered condition, so that the defect can be checked. This obligation does not, however, release the buyer from his burden of substantiation and proof of the presence of a defect. Provided the goods that have been professionally and duly stored, maintained and used by the buyer, are proven defective and buyer has notified the defects as set out here in above, SEL, at its own choice and discretion, shall be entitled to subsequently fulfil its obligations by repairing the defective goods or by supplying replacements free of cost. Should one or both of these types of subsequent fulfilment turn out to be impossible or not reasonable, SEL is entitled to decline them. SEL can also decline subsequent fulfilment for as long as the buyer does not, or not entirely, fulfil his payment obligations.
Should the subsequent fulfilment according to section above be declined by SEL or not have been successful, the buyer has the choice either of demanding a corresponding, adequate reduction of the purchase price (price reduction) or of withdrawing from the contract in accordance with the applicable legal provisions (withdrawal). Defect claims are subject to a period of limitation of one (1) year after delivery of the goods to the buyer.
Defect claims are conditioned upon buyer’s prior performance of any and all of buyer’s own obligations. Any claims based on defects of the goods are subject to the limitations of liability named in section 10.
The above provisions apply as well if other goods or smaller quantities are delivered instead of those agreed.
10. LIABILITY OF SEL
Unless otherwise specified and agreed, any claims of the buyer against SEL for whatever legal reason, in particular claims arising from infrin- gement of principal and subsidiary contractual obligations, the reim- bursement of expenses or tort are excluded. In particular, the exclusion includes claims for damages other than to the purchased goods, claims for loss of profit and claims which do not result from a defect
of the delivered goods.
The exclusion of liability in the section above does not apply to dama- ge resulting from culpable injury of life, body or health, from wilful intent or gross negligence. It also does not apply in cases where mandatory liability exists in accordance with product liability laws for products supplied for private use. Subject to mandatory law, in other cases as set out in above section SEL’s liability shall in any case be limited to the contractually typical, foreseeable damage and shall never exceed the amount of the respective order.
11. RETENTION OF TITLE, COLLATERAL
SEL shall retain ownership of the goods supplied until full payment of the agreed purchase price and the fulfilment of all other outstanding debts owed by the buyer to SEL has been affected (hereinafter “Retai- ned Goods”). Buyer shall take all necessary measures for the protec- tion of the ownership rights of SEL.
The buyer processes the Retained Goods for SEL as manufacturer but without any obligation on the latter’s part. The processed Goods are still deemed to be Retained Goods.
Should the buyer process, combine and mix the Retained Goods with other goods, SEL shall become part owner of the new product in the proportion of the invoice value of the Retained Goods to the invoice value of the other goods used. Should SEL’s ownership cease as a result of combination or mixing, the buyer hereby agrees to transfer
its ownership of the new product in
the amount of the invoice value of the Retained Goods to SEL. SEL’s part ownership shall be deemed to be Retained Goods.
The buyer is only entitled to resell the Retained Goods in the normal course of business and subject to his standard terms and conditions.
At the time of the conclusion of the sales contract with SEL, the buyer assigns to SEL all claims which base or will base on the resale of the Retained Goods. The assigned claims shall be deemed to be collateral for the Retained Goods. The buyer shall not be entitled to otherwise assign the claims. Insofar as a continuous account relationship is agreed between the buyer and his customers, the assignment refers to the balance at the time. The buyer is still entitled to collect these resale claims from his customers or third parties after they have been assig- ned; SELs’ authority to collect the claims remains unaffected by this.
SEL is entitled to request that the buyer informs SEL about the as-signed claims and their debtors, gives SEL all information in writing which is necessary for collection, surrenders to SEL the relevant documents
and informs the debtors in writing about the assignment of the claims. However, SEL does undertake not to collect the claims or request the above-mentioned information as long as the cases specified in section 5 do not occur.
In the cases specified in section 5 and if the buyer fails to meet the obligations of section 11 SEL shall also be entitled to forbid the proces- sing and the resale of the Retained Goods with immediate effect. A declaration of withdrawal from the contract by SEL is also deemed to be a withdrawal of the authorization to resell and to collect the resale claims. In these cases, SEL shall also be entitled to demand the imme- diate return of the Retained Goods at the expense of the buyer and with exclusion of a right of retention. In the above-mentioned cases, the buyer hereby authorizes SEL or its agent presenting written autho- rization to enter its business premises on foot or in vehicles in order to repossess the Retained Goods.
To the extent that retention of title cannot be agreed with the buyer
in accordance with the applicable law, a lien on the goods or on the processed goods or on the purchase price claims of the buyer resulting from the resale of the goods shall be deemed to be agreed. A lien means that the goods serve as a collateral for SEL until the purchase price is paid entirely and that the buyer is therefore entitled to process or resell the goods only with the agreement of SEL.
If the value of the collateral due to SEL exceeds the claims to be se- cured by more than 20 %, SEL is obliged, upon request of the buyer, to proportionally release the collateral of SEL’s choice which exceeds the above-mentioned excess cover.
12. RE-EXPORT
SEL explicitly draws attention to the fact that SEL products are protec- ted by various intellectual property rights in other countries. Buyer has therefore to seek advice from SEL prior to planned exports.
The onward delivery of the goods and any product documentation, including but not limited to the product descriptions and the instal- lation guidelines, is expressly prohibited and requires the prior written permission of SEL.
13. PROHIBITION OF ASSIGNMENT AND OFFSETTING
The buyer shall only be entitled to assign rights and debts arising from contracts of sale to third parties with the prior written consent from SEL. The buyer is not entitled to offset counter-claims against the purchaseprice claim, unless in the case of an undisputed or legally (in a final judgement) established claim.
The buyer is not entitled to retain the purchase price on the basis of any counter-claims which do not result from the delivery contract concerned.
14. PLACE OF PERFORMANCE, JURISDICTION
Place of performance for all obligations resulting from the sales con- tract shall be the principal place of business of SEL in Chur, Switzerland. Place of jurisdiction for any dispute arising in connection with the contract of sale shall be the Cantonal Court of Graubünden in Chur, Switzerland.
The sales contract is subject to the applicable laws of Switzerland, in particular the Swiss Code of Obligations. The application of the UN Convention for the International Sale of Goods (“Vienna Sales Con- vention”) is expressly excluded.
15. SEVERABILITY
The invalidity or unenforceability of any provisions of the conditions above shall not affect the validity or enforceability of any other provision of these conditions.
March 2023