General Terms and Conditions of Sale Switzerland
These general terms and conditions of sale are part of the offers and order confirmations and apply even if they are not referred to. Special or different conditions of the customer require written confirmation from SCHILLING to be valid. Contracts are binding for both parties and are concluded if they have been confirmed in writing by SCHILLING after receipt of the order.
Services of the SCHILLING group of companies are provided exclusively in accordance with the specifications of the offer. Packaging will be charged additionally. The customer is responsible for the execution and review of on-site services.
Basically, the guidelines and definitions of the VDI apply. The software, whether in whole or in part, may only be used to control the operating system in which it was first installed. It may not be copied or modified. If a failure of the control prevents the use of the software, it may temporarily be used in another control supplied or approved by SCHILLING. The customer may not make the software available to third parties in any form, either in whole or in part. Persons who exercise a right of use on behalf of the customer are not considered third parties. The licence rights transferred to the customer are not to be understood exclusively. All programs developed by SCHILLING, including the associated know-how, remain the intellectual property of SCHILLING. The software documentation provided may only be used to operate and maintain the controller supplied.
Incoterm EXW Schaffhausen applies. Delivery dates are extended
- if the customer is in default with the necessary customer information or has not provided it in time or these contain changes that require a suspension or extension of the delivery time. This also applies if third parties commissioned by the customer are responsible for this.
- if a deposit security has been agreed, this was not opened or not opened in accordance with the contract.
In such cases, the risk of accidental loss is also transferred to the customer. This also applies if the customer is in default of acceptance, or fails to ship the subject of the contract in good time despite notification of readiness for transport or is in default of payment.
Otherwise the transfer of risk is determined according to the above Incoterms. SCHILLING retains title until the agreed contract price has been paid in full.
Special provisions with regard to the transfer of risk are to be agreed individually or in the offer.
An acceptance is based on the agreed acceptance provisions and takes place in the presence of the parties. The subject of the contract (equipment / systems / products) is deemed to have been accepted i) if the acceptance criteria are met, and ii) it has been used by the customer for at least 1 month without acceptance, iii) the customer does not respond to SCHILLING's written notification of readiness for acceptance.
If an acceptance fails, the parties will agree on a new acceptance date within 4 weeks.
5. SERVICE CHANGES
Additional services and all subsequent changes will be billed separately if accepted by SCHILLING.
Every change must be reported in writing. To this end, the parties have to submit proposals, and the other party will decide on these proposals within 10 calendar days. Each change proposal has to describe the change itself and the effects on timelines, costs and specifications. The parties will discuss this proposal after it has been submitted and then decide by mutual agreement in accordance with the purpose of the contract.
Any subsequent changes to the contract or recorded changes must be made in writing and with the consent of both parties.
6. PRICES AND TERMS OF PAYMENT
Payments are to be made in accordance with the offer. Interest on arrears may be charged on late payments Schilling Engineering Schweiz GmbH - General Terms and Conditions of Sale and Delivery - valid as of 01.10.2017. The prices are net ex works. All shipping costs (packaging, freight, insurance, customs, permits) as well as fees or taxes of any kind are borne by the customer.
Insofar as a delay on the part of SCHILLING was caused by the customer or due to circumstances for which SCHILLING is not responsible (e.g. export), this delay cannot be remedied by SCHILLING and SCHILLING is entitled to payment within the originally advised payment terms. This also applies to a disputed non-acceptance.
In the event that SCHILLING is not solely responsible for a delay, the schedule must be adapted accordingly to the new time conditions. SCHILLING is entitled to reimbursement of the additional costs incurred as a result.
The warranty period is 24 months and begins, insofar as acceptance has been agreed or there is a contract for work and services, with acceptance, but at the latest with start-up or use, if no acceptance has been carried out. The start of the period must be specified in writing. In the event that the acceptance or the necessary preparatory work is delayed for reasons for which SCHILLING is not solely responsible, the warranty shall then begin to run from the scheduled acceptance date. In any case, however, the warranty ends in the event of such a delay 24 months after SCHILLING's written notification of readiness for acceptance.
In the case of a warranty case for parts deliveries, the parts will be replaced, repaired or reimbursed free of charge at SCHILLING's choice. For spare parts or service material, the warranty will expire on the original deadline for the replaced parts. Replaced parts become the property of SCHILLING.
Travel times, waiting times for which we are not responsible, travel and transport costs for SCHILLING's service personnel are borne by the customer, unless they are to be borne by SCHILLING as required by law.
The warranty does not extend to parts that are subject to natural wear and tear. SCHILLING must be informed in writing of all warranty claims within the warranty period.
A warranty case is limited in all cases and, as far as can be restricted by law, only to direct damage. Consequential damage caused by defects is excluded insofar as this is not due to the lack of guaranteed properties and was foreseeable. In this case, the damage is limited to the price of the subject of the contract. Defects, insofar as these are not essential, do not entitle the holder to withhold payments due.
No guarantee or assurance is given that the subject matter of the contract fulfils a purpose intended for the customer or is commercially exploitable, unless SCHILLING has explicitly confirmed such a purpose.
9. THIRD PARTY MATERIALS
The terms and conditions of our sub-suppliers apply to the delivery of third-party materials. In this respect, SCHILLING assumes no guarantee or liability. At the customer's request, and as far as legally possible, SCHILLING can assign rights from the subcontract with the supplier to the customer.
SCHILLING reserves the right to make design changes at any time, but without any obligation to make changes to parts or devices that were delivered earlier.
10. INDUSTRIAL PROPERTY RIGHTS AND CONFIDENTIALITY
The parties will not disclose exchanged confidential information to any third party for a period of 5 years after the effective date of an order. Furthermore, the customer will not disclose or make accessible any publication or other confidential content to third parties in relation to this contract without SCHILLING's prior written consent.
Existing industrial property rights, drawings and work materials remain the property of the respective party and are in no way affected by this contract in their legal status.
Inventions, ideas, know-how or other results become the exclusive property of SCHILLING, unless they relate directly to customer know-how, and may be used by SCHILLING without restrictions. SCHILLING grants the customer a simple, non-exclusive licence to use, insofar as contractual use requires such a licence.
The contract can be terminated by either party if there is a significant breach of contract that makes adherence to the contract unreasonable and when such a breach of contract has not been remedied within a reasonable period, the length of the period being based on the circumstances of the individual case and the technical circumstances. The parties are aware that termination is the last resort and, due to the advance payments made by SCHILLING, it must also be commercially reasonable for SCHILLING. The parties will therefore strive for a consensus procedure before each termination and weigh up all aspects and circumstances in order to achieve an amendment to the contract.
Such termination must in any case be made in writing by registered mail.
SCHILLING can cancel an order if the customer has not opened an agreed deposit security within the period set for the agreed provisions.
In the event of termination for which SCHILLING is not solely responsible, the following applies:
- SCHILLING will terminate all outstanding orders with its suppliers and will try to return all deliveries and to use them elsewhere for material that has already been bindingly ordered or is on site.
In the event of termination by one of the two parties, all remaining additional costs and expenses are to be reimbursed for SCHILLING or, at SCHILLING's option, these are to be calculated at a flat rate of 40% of the order volume, whereby SCHILLING has the right to choose to provide evidence of the specific costs and expenses.
12. LIMITATION OF LIABILITY
The liability of SCHILLING and all companies affiliated with SCHILLING for the breach of essential contractual obligations (warranted properties) is limited to 80% of the product value that has been paid by the customer up to the point in time of the liability case.
SCHILLING is not liable insofar as SCHILLING adheres to the technical standards agreed in this contract and insofar as the reason for liability relates to the information, specifications or other requirements made available by the customer.
Indirect and consequential damage (e.g. loss of production, etc.) to SCHILLING and all companies affiliated with SCHILLING are excluded as far as legally possible. This also includes claims for lost profit, contractual penalties and lump-sum damages.
The limitation of liability applies, unless otherwise required by law, and includes all liability and legal grounds.
13. JURISDICTION AND PLACE OF PERFORMANCE
These terms and conditions are subject to Swiss law. The place of jurisdiction and place of performance is Schaffhausen, or, at SCHILLING's discretion, the customer's registered office.
14. EXPORT COMPLIANCE
Insofar as an export takes place, the parties are aware that the implementation of this contract is subject to export or import regulations or is the subject of other official or customs restrictions. The parties therefore agree that they will not act contrary to such provisions and act in accordance with them at all times. If approvals or other official measures are necessary for this, these must be obtained from the customer.