General Terms and Conditions
1. Validity of Conditions
The general terms and conditions (GTC) are based on Swiss law and are applicable in all countries, in as far as the parties have expressly or tacitly acknowledge them. Should a contract be concluded and the other party also submits its own terms and conditions, the terms and conditions SWISSCAVE shall nevertheless apply. Deliveries, services and offers of SWISSCAVE shall be made exclusively on the basis of these terms and conditions, even if they are not expressly agreed. By ordering the goods or services, these conditions shall be deemed accepted. General conditions of purchase are hereby rejected. Deviations from these terms and conditions, changes, and subsidiary agreements are only effective if they are confirmed in writing by SWISSCAVE. These Conditions shall apply indefinitely, as long as they have not been changed by the parties in a written agreement. Incidentally, the terms and conditions of Swiss Code of Obligations (OR) (Sect 184 ff. OR) and the other Swiss laws and conditions apply to the purchase agreement. Should a provisions of this contract be/become ineffective or unenforceable, or contain any loopholes, the effectiveness of this contract shall not be affected by it (severability clause). Instead of the invalid provisions, an effective provision that comes closest to the intention of the parties shall be deemed agreed upon from the outset. This also applies in the case of an omission in these conditions.
Price lists and brochures contain non-committal information and recommended prices. The information in our sales documents (drawings, illustrations, dimensions, weights and other such data) are intended as a guide only, and are not assurances of particular features, unless they are expressly designated in writing as binding. Telephone inquiries have no long-term validity, unless it is clearly just an offer with a particular validity date. Offers that are made in writing, by phone in a personal call, fax or email shall be deemed authentic. If one party requires deliveries, products or services not listed, they will be charged additionally. An offer is valid for 30 days, unless otherwise agreed in writing. All offer documents and samples delivered with the offer remain the property of SWISSCAVE. Information which are referred to by the parties as a benchmark, are not binding and should only be used for estimating dimensions. An offer is accepted by the buyer indicating this in an online shop order, in writing, per telephone, fax, e-mail or in personal conversation. The seller confirms acceptance in writing, by fax or email within the specified time or as agreed. If the customer requires an amendment of the confirmed order, the Seller informs him within two weeks whether the change is possible and what effect it will have on the carrying out of the services, the dates and the prices. The seller is bound for two weeks to an offer to amend a service. Such change shall not apply to products that have already been provided or delivered.
Dates and deadlines are not binding unless expressly agreed otherwise in writing. The indication of deadlines and delivery times by SWISSCAVE is subject to the correct and timely delivery to SWISSCAVE by suppliers and manufacturers. However SWISSCAVE agrees to provide the buyer with the agreed products within its capacity to deliver on the dates provided, while the buyer agrees to pay for these products on the predetermined payment dates and to take delivery on the predetermined delivery dates. The appointments shall be advanced if obstacles arise which are outside the control of the seller, such as natural disasters, mobilization, war, riots, epidemics, accidents and illness, serious breakdown, labor conflicts, late or faulty deliveries, as well as governmental measures. In other unreasonable delays, the buyer may:
1. renounce further deliveries (of which he shall notify the seller immediately);
2. require partial deliveries if possible (which must be agreed upon immediately);
3. set an appropriate time limit to the seller for subsequent performance (should the seller not meet the expiry period, the purchaser may waive the subsequent performance or withdraw from the contract, provided that he declares it immediately).
The seller must inform the buyer delays as soon as possible of any compensation is calculated according to sect. 191 OR. For contracts that include the delivery to the curbside of the customer, the customer is responsible for providing a phone number timeously and in advance, where the customer is easily accessible for notification. The delivery company shall deliver the goods on the agreed date. On the day of delivery the buyer must be reachable at the phone number, also, inter alia, to discuss the exact transfer point and time with the delivery company. If the delivery company cannot deliver the goods, because the buyer was not reachable by phone during the agreed handover period and/or no one was present to take delivery of the goods, the buyer shall have to pay for the associated costs or the repeated delivery. SWISSCAVE supplies all parcels and pallets (if part of the contract) to the curbside. Floor deliveries can be offered by contract or can be ordered.
Conditions in case of floor delivery:
Public entrance to the receiving area must be guaranteed. Access to the place where the device will be used must be free and large enough (no cranes operating, no expanding doors, no spiral staircases, etc.). No installations or on-site changes (for example, no installation of fixed power connection in walls without socket).
4. Fulfillment of contract
The order confirmation/invoice is binding on the scope and execution of delivery. The seller delivers the products as prescribed in the order. Unless a specific place of delivery is agreed upon by the parties or unless it is apparent from the nature of the transaction, the place where the goods shall be delivered will be deemed to be the location of the seller (INCOTERMS 2010: EXW [ex works]). Unless expressly agreed otherwise, the benefits and risks shall pass to the buyer once the shipment has been handed over to the person performing the transport. If the shipment is delayed without the seller being at fault or if shipping becomes impossible, the risks shall pass to the buyer with the notification of readiness for shipment. If, in exceptional cases, SWISSCAVE may agree to take over the transport costs, this shall not affect the transfer of risk. Unless specific acceptance procedure has been agreed, the buyer shall check the products themselves and shall point out any defects immediately. Visible differences in quantity must be reported in writing within 5 days after the receipt of goods to SWISSCAVE and the transporter/parcel service. Complaints regarding damage, delay, loss or poor packaging must be notified:
1. if parcel deliveries: immediately (the latest on the following day) after receipt of the SWISSCAVE package to the parcel service in written form
2. if deliveries by carrier: at the time of the actual delivery of the purchased goods by means of opening the packaging and checking the goods and registering it in written form on the delivery note or electronic device. If the buyer fails to point these out after delivery, the products shall be deemed free of defects in all functions, and the delivery shall be deemed approved, concealed defects excluded. The buyer shall then be obliged to make payment, if it has not already done so in advance. If, after a period of grace had been granted, the buyer refuses or declares that he does not want to accept the goods, Swisscave shall be entitled to refuse to fulfill the contract and to claim damages for non-performance. SWISSCAVE shall be entitled either to demand as compensation either a flat 30% of the agreed purchase price or the replacement of the effective damage from the buyer. A general right of return shall not apply, unless this has been agreed upon in writing (in EU states, our cancellation policy applies to natural persons in deviation from this). In a case where goods are returned 30% of the purchase price shall be charged as a handling fee plus diverse duties and taxes (except for warranty claims). Returns are only accepted if palletized and lashed in original or equivalent packaging (as delivered). Scratches or other damage caused by the purchaser or carrier (due to insufficient packaging) shall be repaired at the expense of the purchaser. Even with only purely visual damage equipment can only be sold at a discount. This shall be borne by the buyers who are returning the goods.
5. Prices and Payment Agreements
The prices are determined in the offer / order confirmation / invoice. Unless if required otherwise by law, VAT shall be included. Regarding cost transfer, the delivery terms are clearly defined with INCOTERMS of 2010. The buyer is compelled to pay within the agreed period for payment without deduction. The same applies for commission expenses. If payment is not complied with, the seller is entitled:
1. to demand sureties for all outstanding collateral receivables;
2. and/or to make outstanding deliveries against prepayment only.
Should security benefits or payments not be paid yet, even after a reasonable grace period, the seller may withdraw from the contract, even if the goods or part thereof have already been delivered. If the buyer does not meet the terms of payment, the seller is entitled to claim damages. If the buyer fails to produce payment on the due dates, he shall pay a default interest, of 5% per annum. After the second reminder a handling fee of CHF 100.00 per reminder shall be charged. Already delivered goods shall remain the property of SWISSCAVE until full payment has been received.
The seller shall undertake to care for and deliver the products in a good condition. He shall be committed to the careful selection, training and performance of craftsman-like work by employees and to supervising them. The guarantee in accordance with the following regulations amounts to 2 years for natural persons, unless expressly agreed otherwise in writing. The manufacturer's warranty is also 2 years (for distributors 1 year spare parts warranty). The warranty or guarantee period begins with the delivery or availability date. Should our operating or maintenance instructions not be followed, products be altered, parts be replaced, or consumables be used which do not meet the original specifications, the warranty/guarantee shall be revoked. This also applies if a defect can be attributed to improper use, storage or handling of equipment, or to external intervention or the opening of equipment. Also excluded from the warranty/guarantee are damages caused by force majeure, excessive strain, time of the signing of the maintenance contract the equipment is free of defects. unsuitable equipment or extreme environmental influences. Insignificant deviations of guaranteed properties of the product as well as small scratches or stains on side walls, panels, door frames, inaccuracies in the digital display, temperature values, humidity levels etc. shall not constitute claims under this warranty. Our guarantee is that for justified complaints of constituents due to material or manufacturing defects we shall, at our option, replace or repair any defects of the delivered goods at our factory or on site. Basically, a repair shall be carried out with multiple modifications, if necessary. Compensation, price reduction, or rescission cannot be claimed. Costs exceeding the replacement costs, and damages of any kind are not covered. Maintenance contracts/warranty extensions can be agreed at the time of purchase of the device. If maintenance agreements are subsequently concluded, an independent service contractor shall state in writing that the device is in faultless condition before maintenance contract becomes valid. In addition, a waiting period of 3 months applies. The device must not be more than 24 months old at the time the maintenance contract is signed. An extension of the maintenance is possible until the 4th year. A liability for normal wear and tear, as well as consumables / accessories / enclosed batteries / accumulators is excluded. Only the direct purchaser is entitled to the warranty coverage against SWISSCAVE and the coverage is not transferable. If the buyer resells the products, he shall be responsible for compliance with domestic and foreign export regulations. Should the buyer modify the resold products, he shall be liable to the seller, the purchaser or third parties for the resulting damages. The provisions of the product liability law shall remain reserved. For returns it is required that the part or device, packed in the original packaging together with a copy of the invoice with which the device was delivered, be posted or delivered to SWISSCAVE for repair. The shipping costs shall be borne by the buyer (not applicable in the case of legal warranty - in this case, SWISSCAVE will cover the costs of the most favorable form of delivery offered). When parts, assemblies or whole devices are replaced, no new warranty periods shall apply. The warranty is limited solely to the repair or replacement of damaged delivery items. When sending in the equipment to be repaired, the buyer shall ensure that the information/data contained in the parcel is backed-up by copies, as documentation may be lost during repair procedures. Furthermore, our General Maintenance Contract apply where applicable in the context of warranty/guarantee.
7. Obligation to be informed
The parties shall mutually and timeously take note of particular technical requirements as well as legal, governmental and other regulations regarding the use and application of the products. The parties shall also take note of any obstacles that may impede the fulfillment of the contract or lead to unsuitable solutions.
Recorded information. When calling up web pages, the Internet address should be provided as a prerequisite for accessing the data. Likewise, the provider and the presenter of the usage count evaluate the access data to this page. This is data transmitted through your browser. No further data will be shared, unless recorded in SWISSCAVE Contact in individual cases. In such cases SWISSCAVE may require information, for example to correspond to the prospective customers. With the explicit transmission of such information, e.g. e-mail address, mailing address or phone number, the party providing this information agrees to make available the data in individual cases to an annual customer satisfaction survey, to evaluate the anonymous information provided by the supplier and the provider of the usage count. The data is stored exclusively for business use, for contact, if commissioned with advisory services for the implementation of appropriate counseling. Redistribution and use by SWISSCAVE shall only be carried out in compliance with the law.
9. Final Provisions
Jurisdiction shall exclusively be seated in the head office of SWISSCAVE in Freienbach, Switzerland. The parties will endeavor to settle any disputes arising from the execution of this contract, in an amicable way.
1.2019 / SWISSCAVE AG, 8808 Freienbach, Switzerland