General Terms and Conditions
1. Scope of the General Terms and Conditions
The General Terms and Conditions are applicable everywhere in the world for all sales by Felsenmeer to distribution partners, OEMs and end users (hereinafter collectively referred to as the "Customer"). Felsenmeer AG shall sell or supply solely on the basis of the following terms and conditions. Amendments and supplementary agreements shall be valid only when confirmed in writing by Felsenmeer AG. If a contract is concluded and the Customer also presents general terms and conditions, any differing terms and conditions shall be seen as contradictory, and are excluded; nor shall any fulfilment by Felsenmeer AG of the purchaser’s terms and conditions which are known to differ from Felsenmeer AG’s own terms and conditions constitute acceptance of the purchaser’s provisions. These General Terms and Conditions shall apply to all business dealings between the parties to the contract at the present time and in the future, without further reference to the General Terms and Conditions being required.
2. Quotations
Brochures contain information and list prices which are not legally binding. Information provided on the telephone is not legally binding. Only written quotes sent by fax or by e-mail shall be considered legally binding. A quote is valid for 20 days, unless otherwise agreed in writing. If the purchaser requests deliveries, products or services which are not covered by the order, these shall be invoiced separately. Any samples and additional documents provided with the quotation shall remain the property of Felsenmeer AG, and must be handed over immediately at its request.
3. Conclusion of a contract
A quote is accepted when the Customer provides written confirmation by fax or e-mail. Felsenmeer AG has the right to refuse to fulfil orders which were placed without a previous quote from Felsenmeer AG within ten days of receipt of said orders.
4. Amendments/cancellation
If a Customer wishes to make an amendment to the order, Felsenmeer AG shall inform it within ten days if the amendment is possible, and what effects this will have on the delivery of the services, schedule and prices. Felsenmeer AG shall be legally bound by a quotation for amendment of the service for ten days. The amendment does not apply to products which have already been delivered. If the Customer withdraws from the contract, it shall be liable for damages resulting from non-performance. In the event of calculation or printing errors in a quote, Felsenmeer AG reserves the right to correct said errors.
5. Deadlines
Felsenmeer AG shall endeavour to deliver the agreed products to the Customer by the agreed deadlines, and the Customer agrees to accept these products and to pay for them. To comply with the delivery deadlines, the consignment need only be put in the post or handed over to the freight carrier, or, where agreed, provided to the Customer for collection.
The deadlines shall be postponed appropriately when events arise which Felsenmeer AG cannot control, such as natural disasters, mobilisation, war, riots, epidemics, accidents or illness, significant disruption of operations, industrial disputes, late or incorrect supplies or official intervention. If Felsenmeer AG misses the delivery deadlines, this does not entitle the Customer to withdraw from the contract or receive compensation. The Customer can place Felsenmeer AG in default with a written notice. If Felsenmeer AG defaults, the Customer may claim compensation as long as it can produce prima facie evidence that the default has caused it damage. The maximum compensation shall amount to twice the net worth of that portion of the total delivery which, as a result of the delay, cannot be used at the right time or in the manner stipulated in the contract. Claims for compensation by the Customer which exceed this maximum amount shall not be permitted in any case of delayed delivery, even once an extended deadline imposed on Felsenmeer AG has expired.
If the Customer is responsible for the delay in delivery, no claims for compensation shall be permitted.
6. Delivery
The confirmed order is the authoritative document for the scope and performance of the delivery. If a particular place of performance has not been arranged between the parties, or is not clear by the nature of the business, the provision of the products at the principal place of business of Felsenmeer AG shall be considered to be the delivery. Felsenmeer AG is entitled to render the service in parts.
7. Notification of defects
In cases in which no special acceptance procedure has been agreed upon, the Customer must test the products itself and provide written notice of any defects. If the Customer does not provide notice of the defect within eight days of the delivery, the products shall be deemed free of all defects.
8. Use and risks
Unless expressly agreed otherwise, the use and risks shall transfer from the sender to the Customer when the products are provided to the latter, and at the latest with the dispatch of the goods to the Customer.
9. Export regulations, EC import sales tax
The products delivered by Felsenmeer AG are intended to be used and to remain in the country of delivery agreed with the Customer. To re-export contractual products, the Customer may require authorisation, and, in some instances, such re-export, is subject to the foreign trade regulations of Switzerland, and, in the case of products imported from the USA, the export control regulations of the United States of America. The Customer must inform itself of these regulations and obtain the authorisations on its own responsibility. The Customer shall be liable to us for complying with the regulations.
If the Customer is domiciled outside of Switzerland, it is obliged to comply with the European Union regulations on import sales tax. It must furnish us with its tax ID number, and, if appropriate, changes to it, without prior prompting. If requested, it is obliged to provide information about its capacity as a business operator, the use and transport of the delivered goods, and about the statistical registration obligation.
The Customer is also obliged to compensate Felsenmeer AG for the expenses and costs which arise as a result of omitted details or inadequate detail about the import sales tax.
Felsenmeer AG shall not be liable for the consequences of inadequate or omitted Customer details relating to import sales tax unless we are accused of intent or gross negligence.
10. Prices
The prices correspond to the price lists valid on the day the order was placed and any sales agreements which may have been concluded with the purchaser. If the delivery is to take place more than three months after the conclusion of the contract, the prices which apply on the date of dispatch shall be used unless a price agreement was made when the order was placed. The Customer shall bear the costs of transport and the costs for the testing of the goods unless a written agreement to the contrary exists.
11. Terms of payment
The Customer is obliged to pay the invoice within ten bank working days of its issue, unless a written agreement to the contrary exists. If the Customer does not observe the payment deadlines, it is obliged to pay interest on late payments from the due date onwards and without notice at a rate of four percent above the respective base rate of the Swiss National Bank.
Employees and representatives of Felsenmeer AG do not have the authority to collect payments; payments are to be made directly to Felsenmeer AG, to the account specified. Payments made to employees and representatives of Felsenmeer AG do not release the Customer from its payment obligations to Felsenmeer AG.
If payments or security deposits are not made, Felsenmeer AG can withdraw from the contract even if the goods or a portion thereof have already been supplied. In this case, the supplied goods are to be returned to Felsenmeer AG immediately at the Customer’s expense.
12. Reservation of title
Felsenmeer AG is entitled to register, at any time and at the Customer’s expense, a reservation of title pursuant to Art. 715 of the Swiss Civil Code (ZGB) at the Customer’s principal place of business or at its residence if the purchase price has not been paid in full.
13. Offsetting, assignment, resale of licence rights
The Customer has an offsetting right only when its counterclaims have been established as legally binding, or have been recognised by Felsenmeer AG in written form. The Customer can exercise a right of retention only when its counterclaim is based on the same contractual relationship.
Felsenmeer AG retains the right to transfer its claims to third parties without restriction.
The transfer of the rights and/or the transfer of the Customer’s obligations arising from the sales contracts are not permitted without the written consent of Felsenmeer AG. Resale of licence rights by the Customer to third parties requires the express permission of Felsenmeer AG.
14. Patent rights and copyright
To the extent permitted by law, and unless agreed otherwise, Felsenmeer AG shall accept no liability for ensuring that the goods delivered do not infringe industrial property rights of third parties. The Customer is obliged to inform Felsenmeer AG immediately if it becomes aware of such infringements, or if a complaint is made against it for such infringement. Any legal costs are to be advanced appropriately.
Felsenmeer AG retains the proprietary rights and copyright to all products it creates. Software developed by Felsenmeer AG cannot be made accessible to third parties without written consent from Felsenmeer AG. Copying the software without the express consent of Felsenmeer AG is also prohibited. At the request of Felsenmeer AG, all copies produced are to be surrendered immediately. Felsenmeer AG shall be liable for damages resulting from the infringement of any patent or other industrial property rights only if it was known, or should have been known, that these exist, and if these mean that the purchaser finds itself in a position where it is subject to claims from third parties. In terms of the amount, the liability of Felsenmeer AG is limited to the amount invoiced for the goods.
If the delivered goods have been produced on the basis of the Customer’s designs or instructions, the purchaser must indemnify Felsenmeer AG against all claims arising from infringement of industrial property rights of third parties.
Felsenmeer AG retains all rights to all designs, all text and all graphics on its products and on its print and online media. Copying or any other form of reproduction of all of the print and online media or of parts thereof requires the written consent of Felsenmeer AG. The name Felsenmeer AG, all page headings, navigation bars, graphics and button symbols are registered trademarks or brands of Felsenmeer AG. All other trademarks, product names or company names and company logos used in the print and online media are the exclusive property of the respective beneficiaries. Felsenmeer AG retains the proprietary rights and copyright for images, drawings, descriptions, instructions, calculations and other documents. The Customer must obtain the express written consent of Felsenmeer AG before these are passed on to third parties.
15. Guarantee
Felsenmeer AG undertakes to exercise due care and shall supply products of good quality. In the event of defects, the statutory limitation period of one year from the date of delivery shall apply; written notice of these defects must be provided. In the event of defects in the delivered items, the provisions of the Swiss Code of Obligations [OR] shall apply. A reduction or cancellation shall not be permitted.
Goods used as remedy or as replacement shall be taken from current production. Products with special quality or colour features shall be manufactured only after prior written consent and payment. The value of replacements is limited to the original purchase price which is offset against the purchase price of the replacements. If the purchase price of the replacements exceeds the purchase price of the rejected goods, the additional amount must be paid. The guarantee does not cover defects and faults for which Felsenmeer AG is not responsible such as natural wear, force majeure, improper care, purchaser interference or unauthorised third party interference which has not been authorised in writing by Felsenmeer AG, excessive operational demands, servicing and/or repairs undertaken by persons with insufficient knowledge, use of non-genuine replacement parts, use of attachments and/or assembly equipment which have not been given written approval by Felsenmeer AG, inappropriate operating materials or extreme environmental influences. In the event of resale of the products by the Customer, it shall be responsible for compliance with domestic and foreign export regulations and for the provision of the operating instructions and the written guarantee. If the Customer changes the resold products, it is liable to Felsenmeer AG, the buyer or third parties for any damages resulting from these changes. To the extent permitted by law, any other liability such as for indirect damages, financial losses or lost earnings is expressly excluded.
16. Non-disclosure
Knowledge of facts and data which is neither publically known nor generally accessible, documents and all other confidential operational, business and customer data which is obtained from the solicitation and realisation of contractual relationships between Felsenmeer AG and customers must be treated with absolute confidentiality by the Customer and by its employees and any auxiliary persons called in, and is to be used only in the manner prescribed by Felsenmeer AG, and must never be revealed to third persons. The duty of non-disclosure shall continue to apply after the end of the contractual relationship.
If the Customer fails to comply with its duty of non-disclosure, it must compensate Felsenmeer AG for any resulting damages. If the Customer fails to comply with the non-disclosure clause imposed upon it, it shall owe Felsenmeer AG CHF 50,000.00 in addition to the compensation for damages.
17. Place of performance
The place of performance is the principal place of business of Felsenmeer AG, unless a specific place of performance has been agreed to by the parties in writing.
18. Applicable law
Swiss law shall be the only applicable law.
19. Place of jurisdiction
The principal place of business of Felsenmeer AG, Zurich, Switzerland, shall be the sole and exclusive place of jurisdiction. Felsenmeer AG is also entitled to bring proceedings against the purchaser at its residence or at its principal place of business.
20. Final provisions
Should individual provisions of these General Terms and Conditions be or become invalid, this shall not affect the legal effectiveness of the remaining provisions. Felsenmeer AG further reserves the right to make amendments to these General Terms and Conditions at any time.
September 2010
Wallisellen, Schweiz
Last change 29.10.2010 6:20 p.m.
The General Terms and Conditions are applicable everywhere in the world for all sales by Felsenmeer to distribution partners, OEMs and end users (hereinafter collectively referred to as the "Customer"). Felsenmeer AG shall sell or supply solely on the basis of the following terms and conditions. Amendments and supplementary agreements shall be valid only when confirmed in writing by Felsenmeer AG. If a contract is concluded and the Customer also presents general terms and conditions, any differing terms and conditions shall be seen as contradictory, and are excluded; nor shall any fulfilment by Felsenmeer AG of the purchaser’s terms and conditions which are known to differ from Felsenmeer AG’s own terms and conditions constitute acceptance of the purchaser’s provisions. These General Terms and Conditions shall apply to all business dealings between the parties to the contract at the present time and in the future, without further reference to the General Terms and Conditions being required.
2. Quotations
Brochures contain information and list prices which are not legally binding. Information provided on the telephone is not legally binding. Only written quotes sent by fax or by e-mail shall be considered legally binding. A quote is valid for 20 days, unless otherwise agreed in writing. If the purchaser requests deliveries, products or services which are not covered by the order, these shall be invoiced separately. Any samples and additional documents provided with the quotation shall remain the property of Felsenmeer AG, and must be handed over immediately at its request.
3. Conclusion of a contract
A quote is accepted when the Customer provides written confirmation by fax or e-mail. Felsenmeer AG has the right to refuse to fulfil orders which were placed without a previous quote from Felsenmeer AG within ten days of receipt of said orders.
4. Amendments/cancellation
If a Customer wishes to make an amendment to the order, Felsenmeer AG shall inform it within ten days if the amendment is possible, and what effects this will have on the delivery of the services, schedule and prices. Felsenmeer AG shall be legally bound by a quotation for amendment of the service for ten days. The amendment does not apply to products which have already been delivered. If the Customer withdraws from the contract, it shall be liable for damages resulting from non-performance. In the event of calculation or printing errors in a quote, Felsenmeer AG reserves the right to correct said errors.
5. Deadlines
Felsenmeer AG shall endeavour to deliver the agreed products to the Customer by the agreed deadlines, and the Customer agrees to accept these products and to pay for them. To comply with the delivery deadlines, the consignment need only be put in the post or handed over to the freight carrier, or, where agreed, provided to the Customer for collection.
The deadlines shall be postponed appropriately when events arise which Felsenmeer AG cannot control, such as natural disasters, mobilisation, war, riots, epidemics, accidents or illness, significant disruption of operations, industrial disputes, late or incorrect supplies or official intervention. If Felsenmeer AG misses the delivery deadlines, this does not entitle the Customer to withdraw from the contract or receive compensation. The Customer can place Felsenmeer AG in default with a written notice. If Felsenmeer AG defaults, the Customer may claim compensation as long as it can produce prima facie evidence that the default has caused it damage. The maximum compensation shall amount to twice the net worth of that portion of the total delivery which, as a result of the delay, cannot be used at the right time or in the manner stipulated in the contract. Claims for compensation by the Customer which exceed this maximum amount shall not be permitted in any case of delayed delivery, even once an extended deadline imposed on Felsenmeer AG has expired.
If the Customer is responsible for the delay in delivery, no claims for compensation shall be permitted.
6. Delivery
The confirmed order is the authoritative document for the scope and performance of the delivery. If a particular place of performance has not been arranged between the parties, or is not clear by the nature of the business, the provision of the products at the principal place of business of Felsenmeer AG shall be considered to be the delivery. Felsenmeer AG is entitled to render the service in parts.
7. Notification of defects
In cases in which no special acceptance procedure has been agreed upon, the Customer must test the products itself and provide written notice of any defects. If the Customer does not provide notice of the defect within eight days of the delivery, the products shall be deemed free of all defects.
8. Use and risks
Unless expressly agreed otherwise, the use and risks shall transfer from the sender to the Customer when the products are provided to the latter, and at the latest with the dispatch of the goods to the Customer.
9. Export regulations, EC import sales tax
The products delivered by Felsenmeer AG are intended to be used and to remain in the country of delivery agreed with the Customer. To re-export contractual products, the Customer may require authorisation, and, in some instances, such re-export, is subject to the foreign trade regulations of Switzerland, and, in the case of products imported from the USA, the export control regulations of the United States of America. The Customer must inform itself of these regulations and obtain the authorisations on its own responsibility. The Customer shall be liable to us for complying with the regulations.
If the Customer is domiciled outside of Switzerland, it is obliged to comply with the European Union regulations on import sales tax. It must furnish us with its tax ID number, and, if appropriate, changes to it, without prior prompting. If requested, it is obliged to provide information about its capacity as a business operator, the use and transport of the delivered goods, and about the statistical registration obligation.
The Customer is also obliged to compensate Felsenmeer AG for the expenses and costs which arise as a result of omitted details or inadequate detail about the import sales tax.
Felsenmeer AG shall not be liable for the consequences of inadequate or omitted Customer details relating to import sales tax unless we are accused of intent or gross negligence.
10. Prices
The prices correspond to the price lists valid on the day the order was placed and any sales agreements which may have been concluded with the purchaser. If the delivery is to take place more than three months after the conclusion of the contract, the prices which apply on the date of dispatch shall be used unless a price agreement was made when the order was placed. The Customer shall bear the costs of transport and the costs for the testing of the goods unless a written agreement to the contrary exists.
11. Terms of payment
The Customer is obliged to pay the invoice within ten bank working days of its issue, unless a written agreement to the contrary exists. If the Customer does not observe the payment deadlines, it is obliged to pay interest on late payments from the due date onwards and without notice at a rate of four percent above the respective base rate of the Swiss National Bank.
Employees and representatives of Felsenmeer AG do not have the authority to collect payments; payments are to be made directly to Felsenmeer AG, to the account specified. Payments made to employees and representatives of Felsenmeer AG do not release the Customer from its payment obligations to Felsenmeer AG.
If payments or security deposits are not made, Felsenmeer AG can withdraw from the contract even if the goods or a portion thereof have already been supplied. In this case, the supplied goods are to be returned to Felsenmeer AG immediately at the Customer’s expense.
12. Reservation of title
Felsenmeer AG is entitled to register, at any time and at the Customer’s expense, a reservation of title pursuant to Art. 715 of the Swiss Civil Code (ZGB) at the Customer’s principal place of business or at its residence if the purchase price has not been paid in full.
13. Offsetting, assignment, resale of licence rights
The Customer has an offsetting right only when its counterclaims have been established as legally binding, or have been recognised by Felsenmeer AG in written form. The Customer can exercise a right of retention only when its counterclaim is based on the same contractual relationship.
Felsenmeer AG retains the right to transfer its claims to third parties without restriction.
The transfer of the rights and/or the transfer of the Customer’s obligations arising from the sales contracts are not permitted without the written consent of Felsenmeer AG. Resale of licence rights by the Customer to third parties requires the express permission of Felsenmeer AG.
14. Patent rights and copyright
To the extent permitted by law, and unless agreed otherwise, Felsenmeer AG shall accept no liability for ensuring that the goods delivered do not infringe industrial property rights of third parties. The Customer is obliged to inform Felsenmeer AG immediately if it becomes aware of such infringements, or if a complaint is made against it for such infringement. Any legal costs are to be advanced appropriately.
Felsenmeer AG retains the proprietary rights and copyright to all products it creates. Software developed by Felsenmeer AG cannot be made accessible to third parties without written consent from Felsenmeer AG. Copying the software without the express consent of Felsenmeer AG is also prohibited. At the request of Felsenmeer AG, all copies produced are to be surrendered immediately. Felsenmeer AG shall be liable for damages resulting from the infringement of any patent or other industrial property rights only if it was known, or should have been known, that these exist, and if these mean that the purchaser finds itself in a position where it is subject to claims from third parties. In terms of the amount, the liability of Felsenmeer AG is limited to the amount invoiced for the goods.
If the delivered goods have been produced on the basis of the Customer’s designs or instructions, the purchaser must indemnify Felsenmeer AG against all claims arising from infringement of industrial property rights of third parties.
Felsenmeer AG retains all rights to all designs, all text and all graphics on its products and on its print and online media. Copying or any other form of reproduction of all of the print and online media or of parts thereof requires the written consent of Felsenmeer AG. The name Felsenmeer AG, all page headings, navigation bars, graphics and button symbols are registered trademarks or brands of Felsenmeer AG. All other trademarks, product names or company names and company logos used in the print and online media are the exclusive property of the respective beneficiaries. Felsenmeer AG retains the proprietary rights and copyright for images, drawings, descriptions, instructions, calculations and other documents. The Customer must obtain the express written consent of Felsenmeer AG before these are passed on to third parties.
15. Guarantee
Felsenmeer AG undertakes to exercise due care and shall supply products of good quality. In the event of defects, the statutory limitation period of one year from the date of delivery shall apply; written notice of these defects must be provided. In the event of defects in the delivered items, the provisions of the Swiss Code of Obligations [OR] shall apply. A reduction or cancellation shall not be permitted.
Goods used as remedy or as replacement shall be taken from current production. Products with special quality or colour features shall be manufactured only after prior written consent and payment. The value of replacements is limited to the original purchase price which is offset against the purchase price of the replacements. If the purchase price of the replacements exceeds the purchase price of the rejected goods, the additional amount must be paid. The guarantee does not cover defects and faults for which Felsenmeer AG is not responsible such as natural wear, force majeure, improper care, purchaser interference or unauthorised third party interference which has not been authorised in writing by Felsenmeer AG, excessive operational demands, servicing and/or repairs undertaken by persons with insufficient knowledge, use of non-genuine replacement parts, use of attachments and/or assembly equipment which have not been given written approval by Felsenmeer AG, inappropriate operating materials or extreme environmental influences. In the event of resale of the products by the Customer, it shall be responsible for compliance with domestic and foreign export regulations and for the provision of the operating instructions and the written guarantee. If the Customer changes the resold products, it is liable to Felsenmeer AG, the buyer or third parties for any damages resulting from these changes. To the extent permitted by law, any other liability such as for indirect damages, financial losses or lost earnings is expressly excluded.
16. Non-disclosure
Knowledge of facts and data which is neither publically known nor generally accessible, documents and all other confidential operational, business and customer data which is obtained from the solicitation and realisation of contractual relationships between Felsenmeer AG and customers must be treated with absolute confidentiality by the Customer and by its employees and any auxiliary persons called in, and is to be used only in the manner prescribed by Felsenmeer AG, and must never be revealed to third persons. The duty of non-disclosure shall continue to apply after the end of the contractual relationship.
If the Customer fails to comply with its duty of non-disclosure, it must compensate Felsenmeer AG for any resulting damages. If the Customer fails to comply with the non-disclosure clause imposed upon it, it shall owe Felsenmeer AG CHF 50,000.00 in addition to the compensation for damages.
17. Place of performance
The place of performance is the principal place of business of Felsenmeer AG, unless a specific place of performance has been agreed to by the parties in writing.
18. Applicable law
Swiss law shall be the only applicable law.
19. Place of jurisdiction
The principal place of business of Felsenmeer AG, Zurich, Switzerland, shall be the sole and exclusive place of jurisdiction. Felsenmeer AG is also entitled to bring proceedings against the purchaser at its residence or at its principal place of business.
20. Final provisions
Should individual provisions of these General Terms and Conditions be or become invalid, this shall not affect the legal effectiveness of the remaining provisions. Felsenmeer AG further reserves the right to make amendments to these General Terms and Conditions at any time.
September 2010
Wallisellen, Schweiz
Last change 29.10.2010 6:20 p.m.
Last update 2010.10.29 29:10