General Terms and Conditions of Delivery and Service for AMTec Swiss AG
A. General part
Terms and conditions applicable to all legal relationships between AMTec Swiss AG (hereinafter referred to as "AMTec") and the customer
(1) The following terms and conditions shall apply to all deliveries and services of AMTec Swiss AG to the customer if the customer is domiciled in Switzerland at the time of conclusion of the contract and shall be deemed part of the contract concluded between AMTec Swiss AG (hereinafter referred to as "AMTec") and the customer. The customer's own terms and conditions shall not become part of the contract.
There shall be no verbal ancillary agreements to concluded contracts. Ancillary agreements and amendments to contracts must be in writing or in the form in which the contract was concluded to be amended or supplemented in order to be valid. This formal requirement may not be waived or set aside either orally or tacitly.
(3) The legal relationship between AMTec and the customer shall be governed exclusively by Swiss law, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) and Swiss private international law.
(4) The place of jurisdiction for all disputes between the customer and AMTec shall be the registered office of AMTec, unless a different mandatory legal jurisdiction exists. AMTec reserves the right to file suit at any other legally permissible place of jurisdiction.
The customer shall only have the right to withhold payments or other own services or to offset them against counterclaims insofar as his right of retention or his counterclaims are undisputed or have been legally established. The customer is not entitled to the defence of non-performance of the contract.
AMTec shall be entitled to make technical changes at any time, provided they serve to improve the product.
(7) The buyer agrees that AMTec may store, process and transmit the data of the goods and payment transactions with the buyer for the purpose of order processing.
II. Time of Delivery/Performance, Impediments to Performance
The delivery/performance time shall result from the agreements between AMTec and the customer. It shall only be binding as a fixed date if this has been expressly agreed. AMTec's compliance with the delivery/performance time requires that all commercial and technical details of the contract have been conclusively clarified between the contracting parties and that the customer has fulfilled all obligations incumbent upon it, such as special acts of cooperation, provision of materials, or down payments. If this is not the case, the delivery/performance time shall be extended accordingly. In the event of changes to the scope of delivery/service that become necessary subsequently or are requested by the customer, the delivery/service time shall also be extended appropriately.
(2) If a delay in delivery/service is due to unforeseeable circumstances for which AMTec is not responsible, AMTec shall not be liable for the delay; the delivery/service time shall be extended accordingly. This shall also apply in the event of defective or untimely delivery by third parties, provided that AMTec - to the extent possible and economically reasonable - has made an equivalent covering purchase and is not at fault for the defective or untimely delivery by third parties. AMTec shall notify the customer of the beginning and end of such circumstances as soon as possible.
If unforeseeable circumstances for which AMTec is not responsible, as defined in section II, 2, make it difficult for AMTec to fulfil the contract for an unforeseeable period of time or for a period of time that endangers the purpose of the contract, and if the obstacle to performance cannot be overcome by AMTec at reasonable expense, AMTec shall have the right to withdraw from the contract. In such cases, AMTec shall be obligated to inform the customer immediately about the circumstances that impede performance and, after exercising the right of withdrawal, to immediately reimburse the customer for any consideration already received. Any claims of the customer beyond the claims for reimbursement shall be excluded.
III. Terms of dispatch, terms of payment, prices
(1) For the shipment of goods (overland) from AMTec to the customer, the INCOTERMS shipping clauses in their most current version shall be deemed contractually included. Unless otherwise agreed, all shipping deliveries organised by AMTec shall be made according to the INCOTERMS shipping clause "DAP (Delivered at Place) or "DDP" (Delivered Duty Paid), otherwise the ICOTERMS shipping clause EXW (ExWorks) shall apply. Everything else requires a separate agreement.
Unless otherwise agreed, all invoices issued by AMTec shall be payable within 20 days of receipt by the customer without deduction to the account specified by AMTec. The date of the credit entry on the account of AMTec shall be decisive for the timeliness of the payment (bank confirmation).
AMTec reserves the right to demand advance payment or a deposit from the customer.
Unless otherwise stated, the agreed prices are net prices excluding any statutory value added tax, sales tax or similar tax in the amount applicable at the time of delivery or performance.
IV. Retention of title
AMTec shall retain title to the object of the purchase contract, contract for work and materials, or contract for work and services until all payment obligations - including for any additional ancillary services owed - under the respective contract have been fulfilled in full. AMTec shall be entitled to have the object of the purchase contract entered in the retention of title register.
The customer may not sell, pledge or assign by way of security the item subject to retention of title until all payment obligations have been met in full.
In the event of seizure, confiscation or other dispositions by third parties, the customer shall immediately notify AMTec thereof.
(4) If the customer acts in breach of the contract, in particular in case of default of payment, AMTec shall be entitled to take back the item after having withdrawn from the contract and the customer shall be obliged to surrender the item. In this case, AMTec may, at its own discretion, demand that the customer deliver the item to the registered office of AMTec at its own expense and risk or allow AMTec to pick up the item on site. If AMTec chooses to collect the item, the customer shall allow AMTec unhindered access to the location and access to the item for the duration of the de-installation and collection and shall remove any obstacles to the collection at its own expense. AMTec may demand reimbursement of the costs of uninstallation and collection from the customer in addition to compensation for other damages.
V. Claims due to defects ("Warranty")
1. insofar as defects already exist in the object of purchase or in the work performance at the time of the transfer of risk, AMTec shall provide a warranty and shall be liable, to the exclusion of further claims, but subject to liability for damages pursuant to section VI, only in accordance with the following provisions:
1.1 AMTec shall, at its own discretion, repair all defective parts of the contractual object free of charge or replace them free of defects ("subsequent performance"). In doing so, AMTec shall choose the form of supplementary performance that is appropriate under consideration of the overall circumstances and proportionate with regard to the associated costs. In the event of a replacement delivery, the customer shall compensate AMTec for the use of the replaced original delivery item to the extent that the reduced value of the replaced delivery item exceeds the wear and tear caused by the intended use.
1.2 The place of performance for the supplementary performance shall be the agreed place of destination of the contractual object in Germany. AMTec reserves the right to carry out repair work, if necessary, at the factory of AMTec. AMTec shall bear the expenses of the supplementary performance as a rule, including the transport, travel, labour and material costs to the place of performance of the supplementary performance. If the object of the contract was taken to another location by the customer and the expenses for subsequent performance increase as a result, the difference shall be borne by the customer. Insofar as additional costs incurred abroad are to be borne by the customer, these shall be based on the charging rates applicable in the respective country.
1.3 The customer shall only be entitled to withdraw from the contract or to reduce the contract price due to a defect if AMTec - subject to the statutory exceptions - has allowed a set reasonable deadline for the rectification or replacement delivery to expire fruitlessly or if the supplementary performance has repeatedly failed and the customer cannot reasonably be expected to make another attempt at supplementary performance. In these cases, the right to withdraw from the contract is limited to defects that restrict the usability.
1.4 Claims for damages may only be asserted in accordance with Section VI.
1.5 Normal wear and tear of components within the scope of intended use shall not constitute grounds for claims for defects.
1.6 The assertion of claims for defects shall be excluded if the defect is based on the fact that the customer did not follow the installation or operating instructions, or the defect was caused after the time of the transfer of risk (unless the defect was caused by AMTec), or if the customer failed to carry out the required maintenance of the object of the contract or did so contrary to the maintenance instructions (operating instructions). Original AMTec spare and wear parts must always be used for maintenance.
1.7 Insofar as the subject matter of the contract violates industrial property rights or copyrights of third parties in Germany (i.e. in the country in which AMTec has its registered office), AMTec shall, at its own expense, procure the right for the customer to continue using the subject matter of the contract or modify the subject matter of the contract in a manner reasonable for the customer in such a way that the violation of property rights no longer exists. If this is not possible under economically reasonable conditions or within a reasonable period of time, both the customer and AMTec shall be entitled to withdraw from the contract.
The aforementioned obligations of AMTec shall be conclusive - subject to section VI - in the event of an infringement of property rights or copyrights. They shall only exist insofar as a) the customer has not contributed to an increase of the damage by a delayed notification of the asserted property right or copyright infringements,
b) the customer supports AMTec to a reasonable extent in the defence against the asserted claims and enables AMTec to carry out the modification measures in accordance with the preceding paragraph,
c) AMTec reserves the right to take all defensive measures, including out-of-court settlements, and d) the defect of title or the infringement of rights is not based on a cause set by the customer itself, in particular on a specification of the customer or on the fact that the customer has modified the subject matter of the contract on its own authority or has used it in a manner not in accordance with the contract.
1.8 The provisions in Section IX shall apply additionally to software.
1.9 The customer shall inspect the services of AMTec immediately. AMTec must be notified immediately in writing of any recognisable defects. Defects that cannot be detected must be reported to AMTec in writing immediately after their discovery. If the complaint is not made in due time, the warranty rights shall lapse unless the defects were fraudulently concealed by AMTec.
(2) If the customer, with the required consent of AMTec, performs actions to remedy defects itself, which AMTec would be obligated to perform according to the above provisions, the customer shall not be deemed a vicarious agent of AMTec in this respect. AMTec shall only be liable for the consequences of self-performance if the customer has acted in accordance with AMTec's instructions. AMTec shall reimburse the customer for the costs of self-performance up to the amount of the expenses that AMTec would have had to bear without self-performance by the customer.
3. liability for defects is excluded in the case of the purchase of used goods, unless otherwise agreed.
4. claims of the customer due to fraudulently concealed defects or due to a quality or durability guarantee assumed by AMTec shall always remain unaffected, whereby in the event of deviations from quality or durability guarantees, the notice periods pursuant to section V.1.9 shall apply.
VI Liability for damages
(1) AMTec shall only be liable for consequential harm caused by a defect and other damage that did not occur to the subject matter of the contract itself, irrespective of the legal grounds:
- in the case of intent, or
- in the event of gross negligence, or
- in the event of culpable injury to life, limb, health, or
- in case of defects that AMTec has fraudulently concealed, or
- within the framework of a guarantee commitment, or
- to the extent that liability for personal injury or property damage is mandatory under the Product Liability Act.
2. the liability of AMTec shall be excluded in particular in the following cases, unless AMTec is responsible for them: Unsuitable or improper use, faulty assembly or commissioning by the customer or third parties, normal wear and tear, faulty or negligent handling, improper maintenance, unsuitable operating materials, faulty construction work, unsuitable building ground, chemical, electrochemical or electrical influences. If the customer or a third party performs improper repairs, AMTec shall not be liable for the resulting consequences. The same shall apply to modifications of the object of purchase/service without prior approval by AMTec.
3. the provisions under section VII shall apply to the limitation period for the customer's claims for damages based on defects in the object of purchase/service.
4. the provisions under section IX shall apply additionally to software.
VII Warranty period, other limitation periods
1. claims due to defects, irrespective of the legal grounds, shall become statute-barred upon expiry of twelve months, unless agreed otherwise
a) from delivery (in case of purchase without obligation of AMTec to bring in or set up the subject matter of the contract),
b) as of acceptance of the subject matter of the contract (cf. section VIII.5.) by the customer (in the case of a purchase with an obligation of AMTec to bring in or install the subject matter of the contract, cf. section VIII, as well as in the case of work performances that do not involve the erection of a building).
Insofar as AMTec renders services for subsequent performance, the limitation period for defect claims shall only start anew if AMTec has unconditionally acknowledged the obligation for subsequent performance. An acknowledgement of the obligation for subsequent performance made by AMTec shall cause the limitation period to recommence only with respect to the acknowledged defects. Any supplementary performance provided by AMTec as a gesture of goodwill shall not constitute an acknowledgement of the notified defects that would cause the limitation period to recommence.
All other claims of the customer against AMTec - regardless of the legal grounds - shall become statute-barred twelve months after the customer has become aware of them or should have become aware of them without gross negligence. Excluded from this are the limitation periods, which are governed by Articles 127 and 128 of the Swiss Code of Obligations.
In addition, the provisions of the following pages shall apply to certain deliveries and services.
B. Special Part
VIII. General provisions for software
1. insofar as software is included in the scope of delivery of an installation, the customer is granted a non-exclusive right to use the software for use on the specific subject matter of the contract. Use of the software on more than one system is prohibited.
The customer undertakes not to use the software for any purpose other than for the intended use on the specific subject matter of the contract. In particular, the customer undertakes not to decompile the software or use other methods to convert the object code into source code. The inalienable rights pursuant to Art. 21 URG shall remain reserved. The customer undertakes not to remove manufacturer's information - in particular copyright notices - or to change them without the prior express consent of AMTec.
IX. General provisions for services
In addition to the above sections, the following provisions shall apply to all services, maintenance, repair or installation services ordered by the customer on the basis of a separate contract, including consultations, training, expert opinions, machine conversions (hereinafter uniformly referred to as: "services"), unless AMTec is obligated to provide such services for other reasons, in particular on the basis of claims for defects by the customer pursuant to section V.
1.1 Maintenance dates shall be agreed upon between the customer and AMTec usually at least four weeks before the desired maintenance date. Maintenance does not include repair services. Repair services, which are otherwise subject to the following paragraph IX.2, shall be invoiced separately to the customer on the basis of AMTec's prices valid at the time of performance, which shall be communicated to the customer in advance upon request. A separate maintenance contract shall be concluded for this purpose.
1.2 For the duration of the maintenance work, the maintenance personnel must have free access to the machine; the machine is not available for production work during this time.
2. repair and assembly services:
2.1 If the customer has not obtained the repair/assembly item directly from AMTec, the customer shall point out any existing industrial property rights or copyrights with respect to the item; provided AMTec is not at fault, the customer shall indemnify AMTec against any claims of third parties arising from industrial property rights or copyrights.
2.2 The customer shall be obligated to accept the repair/assembly service as soon as it has been notified of its completion and any agreed upon testing of the repair/assembly item has taken place, unless the repair/assembly service has a defect that restricts its usability. If the acceptance owed by the customer is delayed through no fault of AMTec, it shall be deemed to have taken place at the latest upon expiration of two weeks after notification of the completion of the repair/assembly. Acceptance shall also be deemed to have taken place as soon as the customer puts the repair/assembly item into operation for production purposes.
2.3 Insofar as necessary for the performance of a repair/assembly, the repair/assembly item - including any packaging and loading - shall be transported to AMTec or delivered to AMTec at the customer's expense and transported back to the customer or collected by the customer after the performance of the repair/assembly. The customer shall bear the transport risk. For the duration of the repair/assembly at AMTec, the customer shall provide insurance coverage for the repair/assembly item against the usual risks at its own expense. If the customer delays in taking back the repair/assembly item, AMTec may charge storage costs for the storage or store the item elsewhere at AMTec's discretion. The costs and risk of storage shall be borne by the customer.
2.4 In the event of repair/assembly services on the customer's premises, the customer shall create all legal and technical prerequisites within its sphere of responsibility at its own expense in due time and shall support AMTec in the execution thereof. Insofar as the customer has the technical equipment (crane, lifting device, transport rollers, industrial truck, commodities and materials, etc.) as well as operating personnel required for the execution of the repair/assembly, it shall provide these free of charge to support the repair/assembly according to AMTec's instructions. The customer shall take the special measures necessary to protect persons and property on site. The customer shall inform AMTec about current and future safety regulations, insofar as these are relevant for the repair/assembly. The customer shall also be responsible for:
a) Provision of heating, lighting, operating power, water, including the necessary connections,
b) Provision of necessary, dry and lockable rooms for the storage of the tools of the repair personnel,
c) Protection of the repair/assembly site and materials from harmful influences of any kind d) Cleaning of the repair site, e) Transport of the assembly parts at the assembly site.
If the customer does not comply with its support obligations, AMTec shall be entitled, but not obligated, to perform the actions incumbent upon the customer in its place and at its expense after setting a deadline.
2.5 For the duration of the repair/assembly work, the repair/assembly personnel must have free access to the machine; the machine is not available for production work during this time.
3. training courses:
Travel and accommodation expenses (in the case of on-site training, those of the instructor) shall be borne by the customer. For expressly agreed training courses that are not attended within three years from delivery of the subject matter of the contract, the customer's claim for performance shall lapse. If AMTec has removed the product for which the customer has ordered training from the delivery programme after the expiration of the confirmed training date without the customer having taken advantage of the training, the customer's training claim shall be converted into a claim for equivalent training on another item of the current AMTec delivery programme.
4. hourly rates, material prices, travel costs:
Services and material costs of materials used for services (spare parts, wear parts, printing material) shall be invoiced according to AMTec's prices valid at the time of service, which shall be communicated to the customer in advance upon request, and shall be shown separately in the invoice in each case.