General terms and conditions of sale Switzerland
1. INPUT
These General Terms and Conditions of Sale are an integral part of offers and order confirmations and apply even if no reference is made to them. Special or different terms and conditions of the customer require the written confirmation of SCHILLING to be valid. Contracts are considered binding for both parties and are concluded when they have been confirmed in writing by SCHILLING after receipt of the order.
2. PERFORMANCE
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 inspection of on-site services.
3. TERMS OF USE SOFTWARE
In principle, the guidelines and definitions of the VDI apply. The software, whether as a whole or in parts, may only be used in the control system of the operating system in which it was first installed. It may not be copied or modified. If a failure of the controller prevents the use of the software, it may be used temporarily in another controller 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 deemed to be third parties. The license 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 for the operation and maintenance of the control system supplied.
4. DELIVERY
Incoterm EXW Schaffhausen applies. Delivery dates are then extended,
- if the customer is in arrears with necessary customer information or has not provided this in good time or contains changes that require a suspension or extension of the delivery time. This shall also apply if third parties commissioned by the customer are responsible for this.
- if an advance payment security has been agreed, this has not been opened or has not been opened in accordance with the contract.
In such cases, the risk of accidental loss shall also pass to the customer. This shall also apply if the customer is in default of acceptance or does not have the subject matter of the contract shipped on time despite notification of readiness for transportation 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 regarding the transfer of risk must be agreed individually or in the offer.
Acceptance shall be based on the agreed acceptance provisions and shall take place in the presence of the parties. The subject matter of the contract (equipment / systems / products) is deemed to have been accepted i) if the acceptance criteria are fulfilled, and ii) it has been used by the customer for at least 1 month without acceptance, iii) the customer does not respond to written notification of readiness for acceptance by SCHILLING.
If acceptance fails, the parties shall agree a new acceptance date within 4 weeks.
5. CHANGES IN PERFORMANCE
Additional services and all subsequent changes will be invoiced separately if accepted by SCHILLING.
Any change must be notified in writing. The parties shall submit proposals for this purpose, whereby the other party shall respond to these proposals within 10 calendar days. Each change proposal must describe the change itself and the effects on timelines, costs and specifications. The parties shall discuss this proposal after submission and then decide by mutual agreement in accordance with the purpose of the contract.
Any subsequent amendment to the contract or recorded amendment must be made in writing and with the agreement of both parties.
6. PRICES AND TERMS OF PAYMENT
Payments must 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 from 01.10.2017 2. Prices are net ex works. All shipping costs (packaging, freight, insurance, customs, permits) as well as fees or taxes of any kind shall be borne by the customer.
7. DELAY
If a delay on the part of SCHILLING was caused by the customer or by circumstances that are not within SCHILLING’s area of responsibility (e.g. export), this delay is not to be remedied by SCHILLING and SCHILLING is entitled to payment on the originally notified payment dates. This also applies in the event of disputed non-acceptance.
In the event that SCHILLING is not solely responsible for a delay, the schedule must be adjusted accordingly to the new time conditions. SCHILLING is entitled to compensation for the additional costs incurred as a result.
8. WARRANTY
8.1 ACCEPTANCE
The warranty period shall be 24 months and, if acceptance has been agreed or if it is a contract for work and services, shall commence upon acceptance, but at the latest upon commissioning or use if no acceptance has been carried out. The start of the period must be specified in writing. In the event that acceptance or the preparatory work required for this is delayed for reasons for which SCHILLING is not solely responsible, the warranty then begins 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.
8.2 PARTS
In the event of a warranty claim for parts deliveries, the parts will be replaced, repaired or refunded free of charge at SCHILLING’s discretion. For spare parts or service material, the warranty expires at the original deadlines of the replaced parts. Replaced parts become the property of SCHILLING.
8.3 GENERAL
Travel times, waiting times through no fault of SCHILLING, travel and transportation costs of SCHILLING’s service personnel shall be borne by the customer, insofar as these are not to be borne by SCHILLING as provided by law.
The warranty does not extend to parts that are subject to natural wear and tear. All warranty claims must be reported to SCHILLING in writing within the warranty period.
A warranty claim is limited in all cases and, as far as legally restrictable, only to direct damage. Consequential damages are excluded insofar as these are not based on the absence of warranted characteristics and were foreseeable. In this case, the damage shall be limited to the price of the subject matter of the contract. Defects, insofar as these are not significant, do not entitle the customer to withhold payments due.
No guarantee or assurance is given that the subject matter of the contract fulfills 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 subcontractors apply to the delivery of third-party materials. In this respect, SCHILLING assumes no warranty 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 such changes to previously supplied parts or devices.
10. INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
The parties shall not disclose any confidential information exchanged to any third party for a period of 5 years after the effective date of an order. Furthermore, the customer shall not disclose or make available to any third party any publication or other confidential content relating to this contract without SCHILLING’s prior written consent.
Existing industrial property rights, drawings and work materials shall remain the property of the respective party and shall not be affected in any way by this contract.
Inventions, ideas, know-how or other results become the exclusive property of SCHILLING, insofar as they do not relate directly to customer know-how, and may be used by SCHILLING without restrictions. SCHILLING grants the customer a simple, non-exclusive license to use these, insofar as contractual use requires such a license.
11. TERMINATION
The contract may be terminated by either party if there is a material breach of contract that makes adherence to the contract unreasonable and such a breach of contract has not been remedied within a reasonable period of time, whereby the length of the period depends on the circumstances of the individual case and the technical circumstances. The parties are aware that termination is the last resort and must also be commercially reasonable for SCHILLING due to SCHILLING’s advance performance. The parties will therefore strive for a consensus procedure before any termination and will weigh up all aspects and circumstances in order to achieve an adjustment to the contract.
Such termination must always be made in writing by registered letter.
SCHILLING may terminate an order if the customer has not opened an agreed advance payment security within the period set in accordance with the agreed terms.
In the event of termination for which SCHILLING is not solely responsible, the following applies:
- SCHILLING will cancel all outstanding orders with its suppliers and attempt to have all deliveries returned and, in the case of material that has already been bindingly ordered or is on site, to use it elsewhere.
In each case of termination by one of the two parties, all additional costs and expenses remaining to SCHILLING are to be reimbursed or, at SCHILLING’s discretion, these are to be calculated at a flat rate of 40% of the order volume, whereby SCHILLING has the right to choose to prove the specific costs and expenses.
12. LIMITATION OF LIABILITY
The liability of SCHILLING and all companies affiliated with SCHILLING for the breach of material contractual obligations (warranted characteristics) is limited to 80% of the product value paid by the customer up to the time of the liability event.
SCHILLING is not liable insofar as SCHILLING complies with the technical standards agreed in this contract and insofar as the reason for liability relates to the information, specifications or other requirements provided by the customer.
Indirect and consequential damages (e.g. loss of production etc.) are, as far as legally possible, excluded against SCHILLING and all companies affiliated with SCHILLING. This also includes claims for loss of profit, contractual penalties and liquidated damages.
Unless otherwise stipulated by law, the limitation of liability applies to all liability and legal grounds.
13. PLACE OF 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 execution of this contract is subject to export or import regulations or is subject to other official or customs restrictions. The parties therefore agree that they will not act contrary to such regulations and will act in accordance with them at all times. Insofar as permits or other official measures are required for this purpose, these must be obtained by the customer.