Purchasing terms and conditions
of ELESTA GmbH
CH- 7310 Bad Ragaz
(hereinafter referred to as "ELESTA")
- scope of application
- The following terms of procurement apply to the delivery of fungible and unreasonable goods. The following conditions apply to services, which also include repairs, service work, consulting, programming work, instruction activities, etc. with the exception of clauses 5 and 6; the relevant statutory provisions apply here.
- These procurement conditions apply exclusively. Any terms and conditions of the Supplier that conflict with or deviate from ELESTA's procurement terms and conditions shall only be recognised by ELESTA if ELESTA expressly agrees to their validity in writing. The terms and conditions of procurement shall also apply if ELESTA accepts or pays for the delivery/service in the knowledge of the contractor's conflicting or deviating terms and conditions.
- The procurement conditions also apply to all future transactions with the contractor, insofar as these are similar transactions.
- placing of orders
- An order is only binding if it has been placed in writing, by fax or e-mail; orders placed by telephone are only binding if they are subsequently confirmed in writing by ELESTA. An order confirmation by the contractor is not required. Verbal agreements require subsequent written confirmation by ELESTA, whereby a fax or e-mail suffices.
- Quotations are binding. Payments for visits, the preparation of offers, projects, etc. or cost estimates are not granted unless expressly agreed otherwise. The same applies to the preparation of drafts, calculations, calculations, offers, etc.
- If the contractor does not accept the order within 5 working days, ELESTA shall be entitled to revoke it. Call-offs within the framework of an order and call-off planning shall become binding if the contractor does not object within two working days of receipt.
- agreement on prices
- The price stated in the order is binding. Unless otherwise agreed in writing, the price includes delivery "free domicile" including packaging. Value added tax is not included.
- Changes due to subsequent cost increases are excluded, unless otherwise agreed.
- ELESTA must be notified immediately in writing of any additional or reduced price resulting from changes in design. In order to become binding, it must be confirmed in writing by ELESTA before the ordered item is manufactured or delivered.
- terms of payment
- Unless otherwise agreed, the payment shall be made within 14 days after delivery and receipt of invoice with 3% discount or within 30 days after delivery and receipt of invoice net.
- The supplier's invoice must include the ELESTA order number, the ELESTA material number, the country of origin and the statistical goods number. If these details are missing or if they are incorrect, ELESTA reserves the right to return the invoice unpaid to the contractor for completion or correction. In this case, the payment period begins only after receipt of the amended or corrected invoice.
- ELESTA shall be entitled to set-off and retention rights to the extent permitted by law.
- terms of delivery
- The ordered item must be delivered to the ELESTA factory specified in the order in accordance with INCOTERMS "CIP" (Carriage and Insurance Paid to). If the contractor delivers from abroad, the Incotherm condition "DDP (Delivered Duty Paid)" applies. Delivery shall be made in accordance with the applicable provisions.
- Transfer of Risk / Place of Performance
- The risk of accidental loss or accidental deterioration shall pass to ELESTA upon delivery of the ordered item or acceptance at the ELESTA plant specified in the order or other shipping address.
- Place of performance is the registered office of the ELESTA plant specified in the order.
- The delivery periods and dates stated in the order are binding. The delivery date stated in the order means the delivery date to ELESTA.
- If circumstances arise or become apparent to the contractor from which it becomes apparent that the agreed deadline cannot be met, the contractor is obliged to inform ELESTA of this immediately in writing, stating the reasons and the expected duration of the delay in delivery.
- The contractor may only invoke the absence of necessary documents to be supplied by ELESTA if he has not received these documents within a reasonable period despite a written reminder.
- If the contractor is in default, ELESTA shall be entitled to assert the statutory claims and, in particular, to demand damages instead of performance and rescission after the fruitless expiry of a reasonable period. If ELESTA demands damages, the contractor shall be entitled to prove to ELESTA that it is not responsible for a breach of duty.
- Description of the ordered item
- Insofar as the contractor receives technical specifications, technical delivery specifications, drawings, samples, information or other regulations from ELESTA, these alone shall be decisive for the type, quality and execution of the ordered item or the service to be rendered. If ELESTA requires reference samples or initial samples, series production may only be started after ELESTA has approved the samples or the sample series in writing. Concerns of the contractor against ELESTA specifications must be communicated to ELESTA in writing immediately before the start of series production. In such cases, series production may only be started after a further written instruction from ELESTA.
- ELESTA may also demand changes to the delivery item after conclusion of the contract, insofar as this is reasonable for the contractor. With this amendment to the contract, the effects on both sides, in particular the additional and reduced costs as well as the delivery dates, must be adequately taken into account.
- The contractor shall only be entitled to make partial deliveries or partial performances with the written consent of ELESTA.
- defect claims
- ELESTA shall be entitled to claim for defects in full.
- The contractor is informed that the ordered item can also be installed in the safety technology (communication modules that are operated in or with safety-relevant products, among other things) and therefore the unrestricted functionality of the ordered item must be guaranteed. If the contractor has not manufactured the ordered item himself, he must inform the manufacturer or sub-supplier of this.
- The agreed specification is part of the order and can only be changed with mutual agreement. A specification is any binding description of the scope of delivery or a drawing.
- It is agreed that functionality in the sense of the above conditions only exists if the relevant accident prevention regulations are also observed.
- ELESTA shall notify the Contractor immediately in writing of any obvious defects in the delivery/service as soon as they are determined according to the circumstances of a proper and ELESTA-usual course of business.
- In particular, ELESTA shall be entitled, at ELESTA's option, to demand that the contractor remedy the defect or deliver a new item. The right to damages, in particular the right to damages in lieu of performance, is expressly reserved.
- The limitation period granted by the contractor shall apply to claims for defects, but at least 36 months. In the absence of an agreed period of limitation, the statutory provisions shall apply.
- For repaired or newly delivered parts, the limitation period shall recommence at this time, unless the contractor has expressly and appropriately reserved the right to do so only as a gesture of goodwill or to avoid disputes.
- In urgent cases, in particular to avert acute risks or avoid major damage, ELESTA shall be entitled to remedy the defect itself or have it remedied by third parties at the expense of the contractor unless the contractor commences remedying the defect immediately upon ELESTA's request.
- The contractor undertakes to take out liability insurance cover for the duration of the contract (including limitation periods for claims based on defects) at conditions customary in the industry (minimum sum insured CHF 1.5 million per damage event). This must be proven to ELESTA upon request.
- Product liability/REACH regulation/area of application
- Insofar as the contractor is responsible for product damage, he is obliged to indemnify ELESTA against claims for damages by third parties upon first request if the cause lies within his sphere of control and organisation and he himself is liable in the external relationship.
- In this context, the contractor is also obliged to reimburse any expenses arising from or in connection with a recall campaign carried out by ELESTA. ELESTA shall inform the Contractor of the content and scope of the recall measures to be implemented - to the extent possible and reasonable - and give him the opportunity to comment. Other legal claims remain unaffected.
- The contractor undertakes to maintain product liability insurance with a lump sum coverage of CHF 10 million per personal injury / property damage. If ELESTA is entitled to further claims for damages, these shall remain unaffected. Upon request, the contractor shall send ELESTA a copy of the valid insurance contract.
- The provisions of the REACH regulation are to be guaranteed by the contractor with regard to substances manufactured, imported and used by him or purchased from his suppliers. We require confirmation that all substances contained in the products supplied by the customer are registered for our uses in accordance with the requirements of the REACH Regulation.
- The products supplied by the supplier are used in safety technology (safety switchgear and programmable safety controllers), among others. If the supplier is not a manufacturer himself, he must inform his sub-supplier.
- Third party rights, industrial property rights
- No industrial property rights of third parties within the Federal Republic of Germany may be infringed by the delivery and its exploitation by ELESTA. ELESTA shall inform the contractor of any claims asserted by third parties. ELESTA will not acknowledge such claims on its own initiative. In this respect, ELESTA authorises the contractor to take over the dispute with the third parties in and out of court.
- In the event of culpable infringement of third party property rights, the Contractor shall defend against claims of third parties at its own expense which third parties raise against ELESTA for infringement of property rights due to the Contractor's deliveries and services. The contractor shall indemnify ELESTA against all claims arising from the use of such industrial property rights, provided that the contractor is responsible for them.
- If the exploitation of the delivery by ELESTA is impaired by existing industrial property rights of third parties, the contractor must either acquire the corresponding approval or modify or replace the affected parts of the delivery at his own expense in such a way that the exploitation of the delivery no longer conflicts with the industrial property rights of third parties and at the same time corresponds to the contractual agreements.
- All information that the contractor receives from ELESTA during the execution of the contract must be treated as confidential without restriction. In particular, the contractor is obliged to maintain silence about new developments or changes to ELESTA products of which he becomes aware in the course of the execution of the order until he receives a different instruction from ELESTA.
- The contractor is obliged to ensure that third parties, insofar as they are within his sphere of influence, also maintain silence.
- The contractor is obliged to observe the legal provisions of data protection. In particular, the employees of the contractor are to be bound by the data protection secrecy.
- ELESTA reserves ownership rights and copyrights to all documents provided to the contractor in connection with the order, e.g. calculations / calculations, drawings etc. The Contractor undertakes not to disclose or make available these documents to third parties, unless ELESTA gives the Contractor its express written consent thereto. They are to be used exclusively for production on the basis of ELESTA's order. The documents shall be returned to ELESTA without delay if the Supplier does not accept the order within the period specified in Clause 2. If the order is accepted, the documents must be returned to ELESTA without request at the latest when the order is processed.
- The obligation of secrecy shall also apply after the execution of this contract. It expires if and to the extent that the manufacturing knowledge contained in the illustrations, drawings, calculations and other documents provided has become generally known.
- The supplier is hereby informed that ELESTA collects, stores, processes and, if necessary, transmits its data to third parties to the extent necessary for the execution of the contract and on the basis of data protection regulations.
Place of Jurisdiction, Applicable Law
- All agreements made between the parties for the purpose of executing this contract are laid down in this contract. Oral collateral agreements do not exist. Amendments or changes to this contract - including this written form clause - must be made in writing.
- The exclusive place of jurisdiction for all disputes arising from this contract is the nearest court for ELESTA, located in the Canton of St. Gallen. However, ELESTA shall also be entitled to sue the Contractor at the place of jurisdiction of its place of business.
- Swiss law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
- Should one or more provisions of these terms and conditions or contractual clauses be or become wholly or partially invalid or should this contract contain gaps, this shall not affect the validity of the remaining provisions and clauses. The parties undertake to replace the ineffective clause by another clause which comes as close as possible to the economic purpose of the ineffective or missing provision and is itself effective.
- The contract language is German.
Bad Ragaz, May 2018