This is a translation from the German original for your convenience. The English
translation is of no legal significance. For legal purposes please always refer to the
original text in German.
Standard Terms and Conditions Agreement
1 General terms
1.1 The legal relationship between the Supplier and the Customer is based on each order via a written agreement. Where no individual agreement has been made, the initial transaction and all subsequent transactions will be governed by the Standard Terms and Conditions for HighStep Systems AG. Other business or purchase conditions of the Customer are therefore valid only if and when they are expressly accepted by the Supplier in writing. If the Customer cannot agree to these terms, s/he must contact the Supplier in writing within eight (8) calendar days following receipt of the order confirmation. In the case of a written contradiction to the terms by the Customer, the Supplier reserves the right to withdraw the tender/offer without any threat of claims against the Supplier. The formal notice of a Customer’s standard
terms and conditions which are contrary to the Supplier’s standard terms and conditions is expressly prohibited.
1.2 All legal agreements and declarations of the parties must be submitted in writing to ensure their validity. Accordingly, this requirement can only be waived by a written agreement between the parties.
1.3 Should any of these provisions and conditions be deemed invalid or should they become invalid, this shall not affect the validity of the remaining provisions in the agreement. In such a case, the invalid provision shall be renegotiated, redefined, and resubmitted so as to reach a modified binding financial and legal agreement.
2 Offer and Contract Conclusion
2.1 All services rendered by the Supplier are clearly defined in the Order Confirmation. The Supplier is hereby authorized to make any technical improvement(s) to its products and services without prior consultation with the Customer as long as such technical improvements have no impact which raises the contract price.
2.2 The Contract will be considered to be complete upon written confirmation of the Supplier.
2.3 The scope of delivery is defined and confirmed in the Order Confirmation. Additional services which lie outside the scope the Order Confirmation and which are requested by the Customer will be charged separately.
3.1 Unless otherwise agreed, prices are quoted excluding cost of subcontractors (EXW in accordance with Incoterms 2000), without packaging, without loading, and without VAT in the currency specified in the tender minus any potential deductions.
3.2 Prices are quoted at the time of the order. These prices are valid under the condition that the Product is ordered in the quality and quantity outlined in the Contract Offer.
3.3 Subsequent reduction of the order quantity or subsequent reduction in the number of items ordered is generally not permitted. In the case of such subsequent changes, the Supplier will explain the impact in terms of unit pricing and/or additional retrofitting and start-up costs.
3.4 All utilities: i.e. cost of packaging, loading, freight, insurance, taxes of all kinds, duties, levies, fees, export costs, transit, import, and other permits, certifications, etc., are not included in the Contract Price and therefore must be incurred in whole by the Customer/Purchaser.
3.5 Contracts with an agreed delivery period surpassing three months may incur substantial changes due to shifts in various cost drivers: in particular the cost of raw materials, other materials, energy, freight, and wage increases, amongst others. In such cases, the contract price may be adjusted proportionally by the Supplier to accommodate pricing shifts.
3.6 The Supplier expressly reserves the right to require a security deposit or an advance payment in order to accommodate the execution of an Order.
4 Delivery time
4.1 Delivery dates stated in the Contract Offer which have no subsequent Contract Confirmation are offered as a guideline. The indication of a delivery date is made to the best of the Supplier’s knowledge but is offered without guarantee. Damages for the failure of the Supplier to observe a delivery date may be determined on a case-by-case basis.
4.2 The delivery period begins on the date of receipt of the unconditional Order Confirmation by the Customer and shall be deemed complete when the products specified in the Contract are shipped by the end of the Supplier’s work period or when the message has been sent through the Supplier’s dispatch to the Customer.
4.3 Adherence to the date of delivery, however, requires the Customer has confirmed, for example, any further specifications, delivery instructions, has made a Security Deposit/Down Payment, etc. If this requirement is not met, the Supplier is entitled to extend the waiting period for delivery.
4.4 The period of delivery might also be extended by the Supplier in the case of unforeseen obstacles beyond the control of the Supplier: in particular in the case of violence, force majeure, material or energy shortages, loss of important plant machinery which implies scrapping production runs and procurement of an alternative supplier so as not to result in further delays in the production of contract items. If, in case of an above-mentioned circumstance, the delivery or service is unacceptable or impossible, the Supplier cannot be held responsible to complete the delivery according to the original Delivery Conditions. In such cases, the Customer may make no claims for compensation against the Supplier.
5 Transfer of use and risk/Packaging and shipping
5.1 Use and risk inherent in product shipment transfers to the shipping carrier at the latest when the goods are dispatched from the factory to the Customer, regardless of who takes over the transport and its related costs. The product is transferred on the account and the liability of the Customer.
5.2 If shipment is delayed or made impossible beyond the control of the Supplier, then liability for delivery will be assumed by the Customer.
5.3 Barring any special agreement regarding packaging and shipping, details surrounding delivery will be arranged at the discretion of the Supplier.
6 Order on demand
6.1 For long-term contracts with continuous deliveries, the Supplier must be notified of the monthly number of items to be delivered at least thirty (30) days before the desired delivery date. In the absence of such notification (i.e. quantity), the Supplier is entitled, at its own discretion, determine the content of the delivery.
6.2 The Customer, unless otherwise agreed, shall have thirty (30) days from the agreed release date to place an order. If this deadline expires, the Supplier is entitled, at its discretion, to immediately charge and store the goods until they are called at the expense of the Customer and/or to demand damages for a redundant order.
7 Inspection and acceptance of supplies and services
7.1 The Customer is obligated to check the delivery immediately upon receipt for its completeness and for shipping damage. The Customer must inform the Supplier about any shortages or transit damage—regardless of who is responsible for the damage—within five (5) days. Deliveries with obvious transport damage are to be accepted by the customer subject to change. The Customer must inform the delivery/shipping representative of the damage and must immediately issue a statement to the shipping form which must be delivered to the Supplier immediately.
7.2 The Customer is obliged to review the condition of the delivered goods—as long as such a technical/functional review/assessment is possible. Any defects in the goods delivered must be identified and reported in writing by the Supplier immediately – and no later than ten (10) calendar days after receipt of the delivery.
7.3 Defects which, despite careful examination within the 10-day inspection period, are not able to be detected (so-called latent defects), must be reported to the Supplier in writing and in detail immediately following their detection.
8 Terms of Payment
8.1 Payments are to be by the Customer in accordance with the order confirmation without deduction of discounts, expenses, taxes, levies, fees, duties, etc. detailed in the invoice. Payments must be made in the agreed currency to the account specified in the invoice. Payments made in other currencies will be charged at the appropriate currency exchange day rate. The Supplier only controls for payments credited to the bank account which is specified on the invoice.
8.2 Unless otherwise agreed, Supplier invoices are due within thirty (30) days from the invoice date.
8.3 If the Customer defaults on a payment, the amount due will, without further notice, be charged interest from the due date at a rate of four percent (4%) above the discount rate of the Swiss National Bank. Payment of the default interest rate does not eliminate the contractual obligation of the original Payment.
9 Retention of Title
9.1 All products remain the sole property of the Supplier until all delivery criteria are fulfilled by the Customer.
9.2 The Customer is required to protect the Supplier’s property while situated in the Customer’s country. The Customer authorizes the Supplier to reserve the title, and, at its own expense, to register the title in public records, once the contract has been completed. The Customer commits to maintain all related formalities necessary to fulfill the first request.
9.3 The Customer is required to maintain the property during the period of title retention. Due care must be taken to insure the property against all risks: in particular against theft, breakage, fire, and water damage.
9.4 During the period of contract processing, combining, and merging, cars and other services with objects which do not belong to the Supplier, a newly-created co-ownership is established between the parties in proportion to the value of the goods situated in each respective country at the time of contract processing.
10 Rights/Technical Documents
10.1 All trademarks, patents, models and other property rights are the exclusive property of the Supplier. It is not permitted to use them without express permission of the Supplier.
10.2 All technical documents, drawings, plans, layouts, etc. remain the intellectual property of the Supplier and may not be used either for personal use nor may be brought to the attention of a Third Party. Likewise, the Supplier will share neither customer information nor customer intellectual property with any Third Party.
11.1 The Supplier warrants for the intended use of the delivered items and for their use within the product specifications. A guarantee of promised features is only available in the case of a written agreement. Supplier recommendations are liable only insofar as they facilitate willful misconduct.
11.2 Upon written request of the customer, the Supplier will either undertake part of the delivery which is demonstrably due to faulty design, use of poor materials, insufficient manufacturing, or, in case the product is or will become defective or unusable. Otherwise, the Supplier will repair the product as soon as possible free of charge, replace it with perfect goods, or pay for the invoiced value of goods, provided that the defect (a) occurs at least at the point in time when risk transfers, (2) occurs within the warranty period, and was (3) disclosed to the Supplier immediately. Replaced parts become property of the Supplier.
11.3 Unless otherwise specifically agreed upon, the warranty period is twelve (12) months from shipment date. The warranty period begins even if the transportation or delivery for reasons which the Supplier is not responsible is delayed or prevented. In such cases, the warranty will proceed in a state of readiness.
11.4 The warranty expires prematurely if the delivered goods are modified or repaired by a Third Party without the written consent of the Supplier or the Customer. In the event of a defect, the Supplier must be informed without delay in order to correct the deficiencies.
12.1 Excluded from the warranty and liability are all damages which are not able to be linked/incurred as a result of defective design and/or production, use of poor materials, or the delivery items themselves. No liability is accepted for defects or damage caused by the following: incorrect, inappropriate, improper, or careless use; incorrect assembly or commissioning by the Customer or Third Party; natural wear and tear of parts; failure to follow operating instructions; failure to abide by maintenance standards; use of improper equipment and / or replacement parts; defectiveness of the buildings and construction teams who assemble the products; excessive mechanical, physical, chemical, electronic, or electrical effects, external force, and all other circumstances for which the Supplier is not responsible.
12.2 Any claims by the Customer other than those described in Paragraph 11 above, regardless of the grounds upon which the claim is made–in particular change, reduction, and replacement of deficiencies and consequential damages—are expressly excluded, unless they are included within the mandatory legislative provisions.
12.3 Mandatory statutory provisions exist in any case, whether contractual or tort claims by the Customer for compensation not caused to the object of delivery itself. This includes production, loss of use, loss of contracts, unrealized savings, lost profits, or any other direct or indirect damage.
12.4 The rejection of any liability also expressly applies to claims and establishes a non-contractual nature, which, due to the acts or omissions of the Supplier, require representation: the enlistment or nomination of officers, employees, and support staff.
13 Cancellation of orders
Cancellation of orders is possible only with the written consent of the Supplier. Costs already incurred, or price increases already due based on the order reduction remain the sole responsibility of the Customer.
In the case of any acts or omissions on the part of the Customer which results in property damage – be it by the Customer himself, by an appointed representative, or by a commissioned Third Party—and endeavors to file a claim based on these grounds, the Supplier is entitled to a right of recourse.
The venue for disputes is the Headquarters of the Supplier in Zürich, Switzerland.
16 Jurisdiction and applicable law
16.1 For all contractual disputes, even those which relate to the effectiveness of the contract or these general conditions are always referred to, but are not limited to, the local legal courts near the Supplier headquarters. The Supplier is therefore free to operate or to prosecute the Customer at any other legal venues endorsed by law.
16.2 Swiss Substantive Law (to the exclusion of the Convention of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980) governs all disputes arising from or in connection to a contractual relationship.