Terms by ETRIX AG
1. General provisions
These “General Terms and Conditions of Delivery and Business” apply to all contractual agreements of ETRIX AG, Regensdorf (hereinafter referred to as ETRIX AG for short), in particular to purchase contracts, contracts for work and services, delivery contracts and orders. By concluding a contract, the customer accepts these without restriction and unconditionally. All mandatory statutory provisions and any contractual deviations in individual cases remain reserved. Any deviating terms and conditions of the customer are excluded unless they are expressly accepted in writing by ETRIX AG.
2 Conclusion of contract and scope of services
2.1. In principle, contracts can be concluded verbally or in writing. The risk of incorrect performance of the contract, which results from the orality of the conclusion of the contract, shall be borne by the customer.
2.2. The scope of services and deliveries of ETRIX AG is conclusively defined in the order confirmation. If no order confirmation is issued, the scope of performance and delivery shall be based on the documents provided by the customer. Further services of all kinds will be charged separately. Insofar as ETRIX AG submits an offer, this offer is not binding with regard to price, terms of payment, delivery period and all technical documents and information until ETRIX AG has definitively confirmed the order, unless otherwise notified. ETRIX AG is released from any duty and obligation to check the information provided by the customer (in particular the technical information). ETRIX AG is authorised to independently make changes to the scope of performance or delivery insofar as this leads to an improvement in the product or service and does not result in a price increase.
2.3. Amendments to the contract of any kind by the Purchaser must be made in writing. ETRIX AG is not bound by verbal changes to the contract by the customer.
2.4. At any stage of the legal transaction, the customer is obliged to inform ETRIX AG immediately in writing if he becomes aware that the delivery items or parts thereof are or could be used for purposes that entail increased risks (nuclear, medical, aeoro area and the like). In such a case, ETRIX AG reserves the right to issue binding instructions even after conclusion of the contract. The customer further undertakes not to misuse the contractual objects or to put them to such use.
3. Technical documentation
ETRIX AG is entitled to the unrestricted ownership and copyright of all technical documents, drawings, drafts, disposition plans, solution concepts, cost estimates and other documents of this type, which are created within the scope of the conclusion or fulfilment of the contract. These documents may not be used by the customer for any purpose and may only be made accessible, handed over or otherwise brought to the attention of third parties with the written consent of ETRIX AG.
4. Performance of the contract by ETRIX AG
4.1. ETRIX AG undertakes to comply with the contractually agreed delivery and fulfilment dates in principle. The delivery period shall commence as soon as any down payments or advance payments or any securities have been made and all technical points relating to product manufacture or processing have been settled. ETRIX AG shall be released from the contractually agreed delivery dates in particular if information or documents necessary for the fulfilment of the contract are not received in time or if such information or documents are subsequently changed, if the customer makes subsequent changes to the scope of delivery or service, or if obstacles of any kind occur which ETRIX AG cannot avert despite exercising due diligence, irrespective of whether they occur at ETRIX AG, the contracting partner or at third parties (significant operational disruptions, accidents, natural events, warlike or similar events, labour disputes, late or defective delivery of raw materials required for production or repair, semi-finished or finished products and the like). (significant operational disruptions, accidents, natural events, warlike or similar events, labour disputes, delayed or defective delivery of raw materials, semi-finished or finished products required for production or repair and the like). In such cases, the delivery period shall be extended accordingly. Withdrawal from the contract by the customer due to delay in delivery or performance is only possible if ETRIX AG has previously been put in default in writing and a grace period of at least 60 days has been set. If ETRIX AG is unable to meet this grace period, the customer is entitled to declare its withdrawal from the contract by registered letter. The customer expressly waives the assertion of compensation for delay and claims for compensation of all kinds, which are to be attributed to a delay in delivery and performance and a possible withdrawal from the contract.
4.2. The agreed delivery dates oblige ETRIX AG to make the subject matter of the contract available at the agreed time at its headquarters in Re-, gensdorf at the place of final production or repair or at another agreed place or to hand it over to a transport agent. The delivery modalities shall be governed by Incoterms 2000 for purchase and delivery contracts, subject to special contractual agreements. Unless otherwise agreed, the collection clause EXW. In any case, the packaging will be charged at cost price and will not be taken back. If the order includes assembly work, the place of assembly shall be deemed to be the place of performance only with regard to the assembly services. Insurances of all kinds (transport etc.) as well as the fulfilment of formalities of all kinds are in any case the responsibility of the customer. These costs as well as costs of other additional services are to be borne by the customer.
4.3. In the case of delivery on call, ETRIX AG may invoice the goods to the customer after the expiry of 1 month from the agreed date of readiness. In the event of default of acceptance, ETRIX AG is entitled to invoice the entire order quantity. ETRIX AG shall not be liable in any case for damage of any kind to the stored material.
4.4. If the provision of the service of ETRIX AG subsequently becomes objectively impossible without its fault or if the contractual obligations of ETRIX AG otherwise undergo unforeseen significant changes, the parties undertake to adapt the content of the contract appropriately. If an adjustment does not appear to be economically justifiable, ETRIX AG is entitled to withdraw from the contract or parts thereof. In the event of dissolution or partial dissolution of the contract, ETRIX AG is entitled to remuneration for the services already provided. Claims for damages of the customer are excluded in any case.
5. acceptance by the orderer
5.1. The purchaser must check the goods for completeness and functionality immediately after acceptance or receipt. Defects must be notified in writing within 10 working days of receipt of the goods at the latest. Late notifications of defects will not be recognized. The purchaser’s obligation to inspect shall also apply to the extent stated above if the goods are handed over to a third party for processing, transport, storage or the like on the instructions of the purchaser.
5.2. Due to defects of any kind in the delivery or service, the customer has no further rights or claims than those under para. 6 expressly mentioned.
5.3. In the case of orders on call, successive delivery contracts, framework agreements or transactions of a similar nature, the Purchaser shall be obliged in all cases, in particular also in the case of premature termination of the contract, to take over the entire order quantity and to pay for it in full.
Returns of faulty deliveries for which the customer is responsible will only be accepted after prior agreement. The return must be made within 10 days of receipt, carriage paid Regensdorf. The corresponding credit note is issued with a handling deduction of 10% of the return value.
7. guarantee (warranty) and liability
7.1. For all goods and services supplied by ETRIX AG or are rendered, there is an obligation from the date of delivery or a warranty period of 24 months from the end of the service provision with regard to material and labour. In the case of repairs, the warranty only applies to the repair and to the new parts used for this purpose. After expiry of the period, there is no longer any warranty obligation. ETRIX AG undertakes, at the written request of the customer, to replace or repair at its expense all parts of the delivery that have demonstrably become defective or unusable within the warranty period as a result of poor material, faulty design or defective workmanship. ETRIX AG alone decides on replacement or repair. The customer has no right to withdraw from the contract. ETRIX AG shall decide on the execution of the rectification work. The warranty extends exclusively to the replacement or repair of the defective material, but not to further claims such as removal and installation costs and the like. Under no circumstances shall the customer be entitled to compensation for damage that has not occurred to the delivery item itself, such as loss of production, loss of use, loss of orders, loss of profit or other direct or indirect damage. Within the scope of the warranty obligation, ETRIX AG provides the additional services deemed necessary for its own account. ETRIX AG reserves the right to order the performance of the work for the fulfilment of the warranty obligation at ETRIX AG’s place of business or at another place designated by ETRIX AG. Furthermore, the replacement delivery is reserved. If the repair cannot be carried out at ETRIX AG’s works, the customer shall bear all consequential costs insofar as they exceed the usual transport, personnel, travel and accommodation costs as well as the costs for the installation and removal of the defective parts. Warranted characteristics are only those which have been expressly designated as such in the order confirmation or in another contractual document. In the case of batteries, at least 70% of the nominal capacity is guaranteed until the end of the warranty period.
7.2. Excluded from the warranty obligation are damages that can be traced back to natural wear and tear, inadequate maintenance, disregard of operating and installation instructions as well as operating instructions, use of unsuitable media (oils etc.), chemical, mechanical or electrolytic influences, consequences of accidents or other reasons for which ETRIX AG is not responsible. Also excluded from the warranty obligation are all damages which can be traced back to inaccurate information of any kind provided by the customer. Also excluded from the warranty obligation are all damages that have occurred to or can be traced back to components that have been handed over to ETRIX AG by the customer or a person commissioned by the customer for use, installation or processing. ETRIX AG has no inspection duties or obligations with regard to such components and is in no case liable for damages of any kind which are directly or indirectly attributable to defects in components or raw material. For deliveries and services of sub-suppliers prescribed by the customer, ETRIX AG assumes the warranty only within the scope of the warranty obligation of the sub-supplier.
7.3. The warranty obligation expires immediately if the customer or a third party processes, modifies, disassembles, repairs or improperly installs or removes products produced or processed by ETRIX AG without the consent of ETRIX AG. It shall also lapse immediately if the delivered goods continue to be used even though a defect exists or the presumption of the existence of such exists or should exist or if, in the event of the existence of such a defect, all appropriate measures are not immediately taken to minimise the damage.
7.4. All cases of breach of contract and their legal consequences, irrespective of the legal grounds on which they are based, are conclusively regulated in these terms and 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 damage that has not occurred to the delivery item itself, such as loss of production, loss of use, loss of orders, loss of profit or other direct or indirect damage. This exclusion of liability does not apply to unlawful intent or gross negligence on the part of ETRIX AG, but to unlawful intent or gross negligence on the part of auxiliary persons. Furthermore, this exclusion of liability shall not apply insofar as it is contrary to mandatory law.
7.5. Any further contractual and non-contractual liability of ETRIX AG shall, insofar as under para. 7.1. to 7.4 above is not expressly stipulated otherwise. If persons are injured or third party property is damaged by actions or omissions of the customer or its auxiliary persons and if a claim is made against ETRIX AG for this reason, ETRIX AG shall have a full right of recourse against the customer. The exclusion of liability also includes damage resulting from the improper use or operation of delivered, processed or installed goods or components, from breach of contract or other negligent or intentional unlawful acts of the contractual partner (incl. environmental damage and the like) or otherwise attributable to the goods and components delivered, processed or installed by ETRIX AG. Finally, ETRIX AG is not liable for damages of the customer or third parties that are attributable to force majeure. Force majeure is anything that leads to non-performance or partial performance of the contract due to an impediment beyond the control of ETRIX AG, without ETRIX AG being reasonably expected to consider the impediment at the time of conclusion of the contract or to avoid or overcome the impediment and its consequences.
8. prices and terms of payment
8.1. For the prices, ETRIX AG refers to the last valid price list. ETRIX AG reserves the right to make any price changes that may have occurred in the meantime Until the agreed purchase price, including any default interest and costs, has been paid in full, the subject matter of the contract, including all components and accessories, remains the property of ETRIX AG. The customer expressly authorises ETRIX AG to enter the retention of title in accordance with Art. 715 ZGB in the responsible retention of title register. For the duration of the retention of title, the customer may not sell, pledge or lend the subject matter of the contract. In the event of any seizure, retention, arrest or confiscation etc. of the subject matter of the contract, the customer must refer to ETRIX AG’s retention of title and inform ETRIX AG immediately of such restrictions on disposal. The contracting partner undertakes to notify ETRIX AG of a change of domicile or residence at least 14 days in advance for the duration of the existence of a retention of title.
8.2. The contractually agreed compensation (purchase price, remuneration for work, contract fee, etc.) is based on the conditions valid at the time of the conclusion of the contract. In the event that a change in the conditions of third parties occurs prior to the delivery of the subject matter of the contract (increase in list prices, raw material prices and the like), which also apply to the subject matter of the contract, ETRIX AG reserves the right to adjust the agreed compensation. ETRIX AG also reserves the right to adjust prices due to changes in construction or other changes resulting from new legal regulations or official requirements.
Unless expressly agreed otherwise, the agreed compensation shall be understood to be strictly net (without packaging, shipping costs, advance final delivery charge and the like) and without cash discount or any other discount. All ancillary costs are owed in addition. The price shall be paid by the customer to the exclusion of any counterclaims as well as any defences of retention or set-off in accordance with the contractual payment date or the payment date communicated with the invoice. Deposits and advance payments do not bear interest.
8.3. The customer’s default in payment shall occur upon expiry of the agreed payment period or the payment period stated on the invoice without a reminder. In the event of late payment, the contracting party shall pay interest on arrears in the amount of 10% of the invoice value as well as a respective processing fee of Fr. 50.– to be paid. In the event of default in payment or default by the customer in the fulfilment of its contractual obligations or other contractual obligations, ETRIX AG is entitled to the legal remedies pursuant to Art. 97 et seq. OR. The customer must have any delay credited as fault. If the customer is already in default with the fulfilment of his contractual obligations before the handover of the subject matter of the contract, he is obliged, in the event of ETRIX AG withdrawing from the contract, to pay compensation of 20 % of the agreed compensation without ETRIX AG having to provide evidence of damage (contractual penalty). ETRIX AG is entitled to demand higher compensation from the contracting partner if it can prove higher damages. In any case, ETRIX AG reserves the right to demand performance of the contract in addition to compensation payments. In the event of withdrawal from the contract by ETRIX AG after handover of the subject matter of the contract, all rights of use and enjoyment of the customer expire immediately. In this case, he is obliged to keep the subject matter of the contract ready immediately. All expenses and expenses incurred in connection with the repatriation incl. any repair costs for damage and the like shall be borne by the customer. The customer is not entitled to any right of retention.
9 Choice of law and place of jurisdiction
9.1. All contractual agreements between ETRIX AG and the customer, in particular purchase, work and delivery contracts as well as orders, are subject to Swiss law.
9.2. The place of jurisdiction for the assessment of all disputes arising from contractual agreements with the supplier is the registered office of ETRIX AG, subject to mandatory statutory provisions. The customer waives any alternative jurisdiction. However, ETRIX AG is entitled to prosecute the customer at its registered office or another place of jurisdiction.