General terms and conditions of sale, delivery and warranty
applicable to goods supplied on the basis of a purchase order, factory contract or other DIVIDELLA AG contract (hereinafter designated «the contract»)
1. Introduction
These terms and conditions form an integral part of the contract between DIVIDELLA AG (hereinafter referred to as the manufacturer) and its contracting partner, (hereinafter referred to as the customer). The parties hereto may conclude agreements which deviate from these General Terms and Conditions by joint agreement in writing.
The contract is deemed to have been concIuded as soon as the manufacturer has con- firmed his acceptance in writing on receipt of the contract (order confirmation).
2. Prices
In the absence of agreement to the contrary, prices are quoted in Swiss Francs fot factory excluding VAT and packing costs. Transport and transport insurance, insofar as these are arranged by the manufacturer on the customer's behalf, shall be added. The manufacturer accepts no taxes on the invoice. All taxes shall be paid by the customer. lf the consignment is cif, the prices for transport and transport insurance shall be charged on the basis of the rates applicable.
3. Terms of Payment
Payment shall be made without deduction at the address of the manufacturer. In principle, payments shall be made as follows:
- One-half at the time of order;
- The balance by irrevocable and confirmed Letter of Credit to be opened with a Swiss bank when placing the order.
Other terms of payment may be agreed jointly according to the type of business. The agreed due dates shall remain valid even if carriage, delivery, assembly, commissioning or transport of the goods from the manufacturer's works take place subject to delay or are rendered impossible for any reason whatsoever which is not attributable to the manufacturer. Any retention or reduction in payment by the customer due to defects, claims or credits is not permissible. Set¬offs are excluded. Payments are due even if parts which are missing are not absolutely necessary and if their absence does not render utilisation of the goods impossible, and if further processing of the goods is to be undertaken, or if final modifications have to be carried out after delivery.
In the case of delayed payment, the customer shall, from the due date and without any special prior request, pay interest on the basis of the interest rate customary at the customer's location, but at least 4% above the discount rate set by the Swiss National Bank. However, this rule shall not apply if a higher interest rate has been agreed.
lf, as a result of cancellation or non-fulfilment of the contract, the manufacturer has for any reason to reimburse pre-payments, this shall take place in Swiss Francs without added interest and without exchange rate losses for the manufacturer. This reimbursement shall be reduced by appropriate compensation to which the manufacturer may have a claim as a result of cancellation or non-fulfilment of the contract.
lf, after conclusion of the contract, it is established that the customer is in a difficult financial position, the manufacturer reserves the right to demand guarantees or to withdraw from the contract without any indemnification.
4. Technical documents
Technical documents such as drawings, descriptions, reproductions, price lists, specifications, etc. contain only approximate values. These are binding for the contracting par- lies only if the contract refers to one or more precisely defined elements.
The technical documents may be used only for the purpose for which they have been handed over. They remain the intellectual property of the manufacturer and shall not be reproduced or made available in any manner to third parties.
5. Testing and acceptance
The goods shall be tested by the manufacturer during fabrication in the manner customary within this industrial sector. lf the customer demands special tests, these must be laid down in a written agreement and charged to the customer.
The customer must inspect the goods and notify immediately any defects in writing. Otherwise the goods shall be deemed to have been accepted.
6. Delivery
Delivery times depend on the availability of raw materials and the fabrication resources existing at the time of the quotation. lf conditions change between the quotation and placing of the order, the manufacturer reserves the right to specify a new delivery time on placing of the order. The delivery times apply from the date of order confirmation and receipt of down-payment to the dispatch of the goods from the manufacturer's works. In cases of force majeure, these delivery times may be extended.
The manufacturer shall make every effort to comply with the indicated delivery times. In the event of delayed delivery the customer may neither withdraw from the contract nor demand compensation.
The manufacturer is obliged to make delivery within the specified times only if the above mentioned payments have been made regularly and if the customer provides the information promised to the manufacturer as weil as the necessary testing materials within the agreed time limits.
Furthermore, the manufacturer reserves the right to cancel an order in whole or in part if fabrication or delivery is rendered impossible for unforeseeable reasons. In this case he is obliged neither to provide compensation nor to make subsequent delivery.
7. Transport and insurance
Unless otherwise explicitly agreed, the manufacturer shall arrange transport and insurance at the customer's costs and risks. insurance against damage is the customer's responsibility. However, it may be concluded by the manufacturer on behalf of the customer. In cases of damage, the customer must take the necessary steps to enforce his rights.
8. Transfer of title and risk
The title and risk of the goods are transferred to the customer on dispatch thereof from the works at the latest, even in the case of cif or fob transport, or if assembly is included. lf dispatch is delayed or rendered impossible for reasons which are not attributable to the manufacturer, the goods will be stored at the costs and risk of the customer.
9. Retention of title
Until full payment has been made, the goods remain the property of the manufacturer. During this period, the customer is obliged to insure and maintain them and shall not change their location without the manufacturer's written consent. lf retention of title is possible only by entry in the appropriate register or through the application of other legal provision, the customer undertakes to take all steps necessary for retention and not to oppose retention of title in any manner whatsoever. Any costs arising from these steps shall be borne by the customer.
10. Local regulations
The customer shall notify the manufacturer of all legal, administrative, technical and other regulations applicable to delivery and shall request that they are listed in the confirmation of the order.
11. Safety equipment
The machines are equipped with the customary safety equipment. However, the customer is obliged to insure that the specific safety equipment required by law in his country is fitted. On special request the latter will be provided by the manufacturer at the customer's costs.
12. Spare parts
Spare and replacement parts and repair costs shall be invoiced at net prices without deduction. Costs of packing, transport and insurance are invoiced separately. Spare parts are manufactured to the greatest possible accuracy to avoid any special adaptation work. However, should such work prove necessary, the costs of adaptation shall be borne by the customer.
13. Assembly, start-up and instruction
The costs of assembly, start-up and personnel instruction shall be paid by the customer in Swiss Francs. They include in particular:
a) normal working hours (according to Swiss law), waiting and travelling time; b) overtime;
c) night, Sunday and holiday work;
d) per diem allowance for food and lodging (Sundays and holidays included) fixed by the manufacturer, and costs of transportation from hotel to place of work;
e) the normal working days and the per diem allowance for every working day during which the erectors, technicians or instructors are unable to work for reasons beyond their control;
f) travelling expenses (train first class; or air ticket for travel abroad), plus transportation for luggage and tools;
g) taxes and charges paid abroad by the manufacturer's erectors, technicians or instructors, as well as all other expenses involved in foreign travel (visas, vaccination, etc.).
The customer undertakes at his risk to take the necessary measures to facilitate the work of erectors, technicians or instructors and shall provide the latter, without cost to the manufacturer, with the following aids:
- lifting equipment and all assistance for unpacking, cleaning, and setting-up of the machines;
- a sufficiently solid foundation for erection of the machine; -adequate electrical installation;
- a qualified electrician for connection and start-up of the machine;
- personnel capable of working materials and equipment for setting up the machine and training the personnel.
These measures shall apply even if, by written agreement, the installation costs are to be borne by the manufacturer. Statements or promises of Dividella AG's employees are not binding on the manufacturer.
14. Warranty and liability
For our products we offer in the case of single-shift operation a 12 month warranty, in the case of two-shift operation 6 months and in the case of three-shift operation 3 months or 2000 hours of operation, subject however to a maximum period of 12 months.
In the case of wearing parts, the warranty is 6 months in single-shift operation, 3 months in two¬shift operation and 11/2 months in three-shift operation.
The warranty period commences on the date of the acceptance in the Grabs factory. lf acceptance by the customer does not take place, the date of internal acceptance by Dividella shall apply. For the duration of the warranty period all defects attributable to defects in materials, manufacture or assembly shall be rectified. The warranty includes both materials and labour (Travel, hotel and subsistence costs will be charged on to the customer in each case).
The warranty becomes null and void:
-if the agreed payment terms are not observed;
-if the products or packaging are sued which do not correspond to the specification in the order for supply;
-if the customer or third parties carry out modifications or repairs without the manufacturer's written consent;
-if the customer does not immediately reprove the defects and take appropriate measures without delay to prevent further damage.
Any liability for any consequential damage whatsoever which arises from the use of a machine supplied by the manufacturer is expressly excluded.
15. Validity
These General Terms and Conditions are binding if they are stated to be applicable in the quotation or in the order confirmation. Deviating conditions are valid only after the manufacturer's confirmation in writing.
16. Jurisdiction and applicable Iaw
In the event of disputes which may arise in connection with the performance and interpretation of the contract, Swiss law shall apply exclusively. The place of jurisdiction is Grabs/SG. The Vienna Convention is not applicable. The German-language original version shall take precedence. However, the manufacturer is entitled to sue the customer at his commercial domicile.
The customer states that he is acquainted with these General Terms and Conditions and that he is in agreement therewith.
DIVIDELLA AG, CH-9472 Grabs/SG (Switzerland)
Updated: May 1997
