General conditions of business and terms of delivery for retail sales of
Leister Technologies AG, CH-6056 Kaegiswil, Switzerland
1.1 These current General Terms and Conditions ("General Conditions") are valid, should no other written agreement exist, for all sales and deliveries made by the company Leister Technologies AG, 6056 Kaegiswil/OW, Switzerland ("LTAG") or its affiliates. LTAG is in no way bound by the conditions of business and terms of delivery of the Purchaser or by any other documentation of the Purchaser, which is intended to replace or modify these General Conditions.
1.2 For LTAG distributors or resellers, the following provisions shall also apply and all references to a "Purchaser" shall refer to such distributor or reseller. In the case of discrepancy between a distribution agreement and these General Conditions, the terms of the distribution agreement shall prevail.
2. Acceptance of orders
2.1 Purchaser will order Products with a binding order, by using the valid LTAG article number and according to the prices valid when placing the order.
2.2 All purchase orders shall contain the following:
- model numbers of Products;
- quantity of Products to be purchased;
- shipping point (LTAG's manufacturing facility or LTAG's European shipping point) and special shipping instructions, if any;
- requested delivery schedule, which shall be within the next succeeding six (6) months, and which shall conform to the minimum lead times for such Products as published by LTAG;
- billing address if different from address listed above; and
- the net price for the Products at the time of ordering.
2.3 Orders become valid only after written confirmation has been given by LTAG.
2.4 LTAG shall use reasonable commercial efforts to notify Purchaser of the acceptance or rejection of a purchase order within fifteen (15) days of receipt of the purchase order. Purchaser shall be solely responsible for obtaining all import licenses for the import of all Products.
2.5 Purchaser may not cancel, delay or reduce the quantity of Product(s) after ordering without LTAG's prior written approval granted in each instance in LTAG's sole discretion, and subject to a fifteen percent (15%) cancellation charge.
3. Description of the Products
3.1 All details contained in offers, leaflets, drawings and photographs etc. are based on the specifications that are valid at the time of the offer being made. Such details are intended to serve merely for closer orientation and are in no way intended to be understood as guaranteed features or properties of the Products in question. The Purchaser makes use of such data and information at his own risk.
3.2 The instructions of use of LTAG and the warnings as well as all amendments relating thereto must be immediately forwarded by DISTRIBUTOR to his customers.
3.3 At any time prior to delivery, the Products are subject to alterations and modifications in respect of construction and design that in no way impair the correct functioning of the product or the application intended by the customer at the time the agreement was entered into. Such alterations or modifications do not represent cause for complaint or entitle the customer to cancel an order.
3.4 Drawings, illustrations and descriptions for offers, installations, tools, machinery and accessories remain the property of LTAG. They may not be used for the manufacture by other parties of the objects illustrated or described. Moreover, the objects delivered may themselves not be used for the preparation of workshop drawings or for the manufacture by other parties of the objects in question.
4.1 The prices quoted in accordance with the written quotation are DAP named place of destination (as indicated on the order confirmation). They do not include customs formalities or duties.
4.2 LTAG reserves the right to alter prices in the event of increases in customs tariffs, exchange rates, transport or insurance tariffs, import duties and sales taxes or should new taxes and charges be introduced for which LTAG is not responsible or in the event of improvements having been made to the Products in question between the date when the order is placed and the date of delivery.
5. Terms of Payment
5.1 Payments shall be made in (CHF). The purchase price is to be paid net without set-off or deductions of any kind. Should the time limit for payment be exceeded, the Purchaser is in default, no notice or reminder from LTAG being necessary.
5.2 When the Purchaser is in default, default interest shall apply from the due date at the level of the current CHF 3 months Libor rate of the Swiss National Bank plus 5% and a processing fee of 3%. This shall not affect the right of LTAG to require compensation for any further loss due to this delay.
5.3 The non-delivery of insignificant parts of an order or any claims under the terms of the warranty vis-à-vis LTAG do not entitle the Purchaser to postpone or withhold due payments.
5.4 In the event of delay in acceptance on the part of the Purchaser, the entire purchase price or the remainder thereof becomes due for immediate payment.
5.5 The Purchaser is expressly prohibited from setting off payment against counter-claims unless such counter-claim has been recognized by LTAG or has been finally adjudicated by a competent court of law or arbitral tribunal.
5.6 If a Purchaser has been in default with payments in the past, LTAG may request that Purchaser procures a bank guarantee, L/C or similar instrument (subject to approval by LTAG) to secure the payment prior to shipment of the deliverables.
6. Delivery and terms of delivery
6.1 The delivery time quoted by LTAG in the order confirmation is intended merely as an approximation unless a delivery date is expressly indicated as being binding.
6.2 LTAG undertakes commercially reasonable efforts to meet all agreed delivery dates. However, a delay in delivery does not entitle the Purchaser to refuse acceptance of the goods, to cancel the order and / or to claim any form of compensation.
6.3 LTAG is entitled to effect partial deliveries and to invoice for these separately.
7. Assumption of risk
The Purchaser assumes all risks as soon as the goods in question have arrived at the place of destination according to the order confirmation.
8. Reservation of property
All tools, products, goods etc. that are supplied by LTAG remain the property of LTAG until receipt of the full payment. The Purchaser herewith empowers LTAG to have the reservation of property recorded in the appropriate official register at the expense of the Purchaser.
Exporting the products to other member-states of the EC or to countries outside the EC requires the written consent of LTAG, it being understood the Purchaser is solely responsible to ascertain compliance of the Products with export regulation and with the laws and regulations of the destination country.
The warranty of LTAG for the delivered Products applies exclusively in accordance with the following terms:
10.1 LTAG warrants that Products delivered by LTAG are free from defects in material and workmanship in accordance with the respective state-of-the-art at the time of delivery. Alterations in construction or version, generally undertaken by us, prior to delivery of an order do not entitle the purchaser to deem the goods faulty.
10.2 Complaints for defects have to be notified to LTAG in writing within 14 days of the receipt of the Products, or with respect to hidden defects which could reasonably not have been detected upon receipt of the Products within 14 days of the detection of such hidden defect.
10.3 If nothing to the contrary has been agreed in writing, a warranty period in accordance with the statuary /country specific regulations (period of statutory limitation for warranty claims) after announcement of readiness to dispatch applies.
10.4 Subject to timely notice, the warranty is fulfilled at the discretion of LTAG by a replacement delivery or elimination of the fault at no charge. To that effect, the purchaser has to return to LTAG the defective items in their original condition in adequate packaging carrying the invoice number. In agreement with the customer, he can carry out the repair himself, with LTAG providing the necessary parts and compensating him with a lump sum for the necessary labor. Claims for rescission of the contract or price reduction are not permitted, unless the fault cannot be repaired or further attempts at improvement are unreasonable for the customer.
10.5 No warranty applies in the case of repair work or alterations to the delivered Products not authorized or made by LTAG. Heating elements are excluded from any warranty.
All rights to the products, particularly trademark rights and copyright, as well as rights of publication, reproduction, processing and utilization shall remain the property of LTAG and shall not be affected by this contract. The products are distributed under the worldwide registered and protected brand «Leister». No rights to the brand name of any kind arise therefrom to the Purchaser. The rights to the brand name, in particular trademark rights and copyrights, as well as rights of publication, reproduction, processing and utilization remain the property of LTAG and shall not be affected by this contract. Any alterations to the brand name are expressly forbidden. In particular, no logos or type plates on the appliances or the packing or on other documents or products of LTAG may be removed, pasted over or otherwise altered. Only the patterns and logos of LTAG may be used.
These General Conditions set forth the exclusive remedy of Purchase for defects of the delivered Products. LTAG's liability is limited to the purchase price of such Products. Any claims on the part of the Purchaser for compensation of damages which are not expressly granted in the above sections, irrespective of the sort of claim or its basis in law, particularly claims arising from violation of accessory contractual obligations, for loss and damage in transit, from positive breach of contract, for consequential loss or damage arising from defects (in as much as these are not covered by contractual warranty), from Purchaser's claims of recourse resulting from product liability, from Purchaser's claims for commercial material damages due to defective products, etc., are excluded, unless these are the result of unlawful intent or gross negligence by LTAG.
Neither LTAG nor anyone else who has been involved in the creation, production or delivery of Products shall be liable for any direct, indirect, consequential or incidental damages (including damages for loss of business profits, business interruption, loss of business information and the like) arising out of the use of or inability to use such Products, subject to the compelling product liability law.
13. Amendments to the General Conditions
All amendments to these General Conditions together with any contradictory or supplementary agreements must be made in writing.
14. Precedence of the German-language version
These General Conditions are available in both German and English, In the event of discrepancies between the two versions; the German-language version of the General Conditions shall take precedence.
15. Law governing this agreement
The legal relationship existing between LTAG and the Purchaser is subject exclusively to Swiss law. The application of the United Nations convention on the international sale of goods (Vienna Convention) is hereby excluded.
16. Jurisdiction and place of performance
16.1 The place of jurisdiction for all disputes arising from the relationship between LTAG and the Purchaser in respect of the supply of goods or provision of services is Zürich, Canton Zürich, Switzerland. The Purchaser hereby expressly waives any and all rights to his ordinary place of jurisdiction.
16.2 The place of performance for the supply of the goods in question and for payment is CH-6056 Kägiswil, Canton Obwalden, Switzerland.
CH-6056 Kägiswil, 17.01.2013