1. Contractual basis
The basis for contractual relations between Daetwyler (MDC Max Daetwyler AG, Bleienbach or MDC Max Daetwyler AG, Ursenbach; hereinafter: the supplier) and the customer (hereinafter: the client) is the order confirmation by the supplier, together with the integral parts thereof. Any variations from the order confirmation are binding only if they have been agreed in writing. The client’s terms and conditions of purchase are valid only if they have been expressly acknowledged as binding by the supplier in writing. The contract is not deemed to have been concluded until the supplier has issued its written order confirmation. The client must call the attention of the supplier in writing, at the latest when the order is placed, to all the specifications and standards which apply to the performance of the delivery and services, to operation, and to safety and the prevention of illness and accidents. The client has sole responsibility for obtaining official permits. Drawings, illustrations, printed matter, offers and so forth made available by the supplier remain the property of the supplier and may not be used, passed on to third parties or otherwise disclosed to third parties without the supplier’s written consent.
2. Object of the contract and delivery
The scope of delivery and service provision is definitively stated in the order confirmation. All deliveries are understood to be EXW pursuant to Incoterms 2010. The benefit and risk in the object of the contract pass to the client as soon as the object of the contract has been made available on the supplier’s works site. If dispatch is delayed or rendered impossible for reasons for which the supplier is not responsible, the object of the contract will be placed in storage for the account and at the risk of the client. Transport shall be effected for the account and at the risk of the client. Insurance of the object of the contract against damage of any kind is a matter for the client.
If necessary, the supplier shall make the necessary assembly fitters available at the rates applicable at the time when the work is performed (see MDC Service Price Rates). The client must notify the supplier of the need for fitters in good time. Working, travel and waiting times will be invoiced, together with the cost of the outward and return journey, subsistence and accommodation and tool transport costs. The client shall make the assistance needed to perform the assembly work available at its own expense.
4. Delivery times and acceptance of the objects of the contract
The delivery deadlines stated by the supplier are given for guidance only and are not binding.
To the extent that this is usual, the object of the contract will be tested by the supplier before dispatch. The client must make all the necessary material available for this purpose. If the client asks for further tests to be performed these must be agreed in writing and shall be effected at the client’s expense. Acceptance of the object of the contract by the client is set out in a report signed by both parties. The object of the contract as a whole shall be deemed to have been approved if it has no defects which make it unsuitable for use for its intended purpose or if the client waives acceptance. Should defects be found to exist in individual works components, only the works components manufactured in compliance with the contractual terms shall be deemed to be approved. The client must test the object of the contract without delay upon receipt and notify complaints of any defects in writing within eight days. If it fails to do so, the deliveries and services shall be deemed to have been approved. The supplier must be allowed a reasonable period to remedy any defects. Cancellation and reduction are not permitted. Claims for compensation are limited to cases of gross negligence and deliberate intent.
5. Price and terms and conditions
All prices are quoted net ex-works without packaging, excluding value added tax and other state charges such as taxes and customs duties. All ancillary costs, e.g. for preparatory work, packaging, deliveries, insurance, recording reservations of ownership, assembly and commissioning, training, adaptations to local and internal company specifications of the client shall be the responsibility of the client. Deliveries of up to CHF 50,000.00 net fall due for payment 30 days after issue of the invoice. 30% of the cost of deliveries with a value of more than CHF 50,000.00 net is payable net upon receipt of the order confirmation and 70% net before dispatch. Offsetting against claims of the client is prohibited. Repair work and defects do not release the client from the obligation to make payment pursuant to the order confirmation. Payments are to be made at the registered office of the supplier.
6. Reservation of title
Until payment has been made in full the object of the contract remains the property of the supplier. The supplier is authorised by the client to arrange for the reservation of title to be recorded. The object of the contract may not be pledged, encumbered or sold until payment has been made in full. The client undertakes to arrange for suitable insurance for the object of the contract, to treat it with due care and provide maintenance in compliance with the specifications. The client assigns all insurance claims arising during the reservation of title to the supplier.
The supplier guarantees the impeccable working of the object of the contract with the warranted qualities. If the client supplies auxiliary materials for the manufacture of the object of the contracts, it is responsible for ensuring that the auxiliary materials that are used satisfy the customary quality requirements. The client’s guarantee claim exists in the case of new machines, calculated from the date of final acceptance, for 2,000 operating hours, subject to a maximum period of 12 months. If final acceptance was not possible within 2 months of the transfer of benefits and risks to the client and if the supplier is not at fault in this regard the guarantee period begins to run. The guarantee period for spare parts is 3 months. Wear parts are not covered by the guarantee. The guarantee is confined to the remedy of defects in the object of the contract without charge. All further claims of the client are excluded. The guarantee lapses if the client or third parties make modifications or repairs to the object of the contract without the supplier’s written consent. The guarantee likewise expires if the client fails to take appropriate measures immediately to limit the damage when a defect occurs and fails to give the supplier an opportunity to remedy the defects. Damage caused by normal wear and tear, defective maintenance, failure to comply with operating instructions, non-professional use, excessive strain, unsuitable operating materials, chemical or electrolytic influences, construction and assembly work not performed by the supplier, replacement materials and consumables which do not comply with the supplier’s specifications and other reasons for which the supplier is not responsible, is excluded from the guarantee.
9. Exclusion of liability
The supplier accepts no liability for the selection and use of the object of the contract. Claims for compensation of all kinds are excluded unless the supplier has caused the damage by deliberate intent or gross negligence. The supplier shall under no circumstances be liable for indirect damage.
10. Severability clause
Should any particular provisions of these General Terms and Conditions of Business be invalid, that fact shall not affect the validity of the other provisions.
11. Place of jurisdiction and applicable law
The sole place of jurisdiction is the registered office of MDC Max Daetwyler AG in Bleienbach or MDC Max Daetwyler AG in Ursenbach, Canton of Berne, Switzerland. The legal relationship shall be governed by Swiss law to the exclusion of UN Convention on Contracts for the International Sale of Goods (Vienna Convention).