of ELESTA GmbH
CH-7310 Bad Ragaz
(hereinafter referred to as “ELESTA”)
- The following procurement conditions apply to the delivery of fungible and non-fungible goods. For services, which also include repairs, service work, consultations, programming work, instruction work, etc., the following conditions apply with the exception of clauses 5 and 6; the relevant statutory provisions apply here.
# These procurement conditions apply exclusively. ELESTA shall only recognise conditions of the contractor which contradict or deviate from the procurement conditions of 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 that the contractor’s terms and conditions conflict with or deviate from them.
- The terms and conditions of procurement shall also apply to all future business transactions with the contractor, insofar as such transactions are of the same type.
2. Placing of order
- 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 is sufficient.
- Estimates are binding. Remunerations 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, quotations, etc.
- If the contractor does not accept the order within 5 working days, ELESTA shall be entitled to revoke it. Delivery call-offs within the framework of order and call-off planning shall become binding if the contractor does not object within two working days of receipt.
3. Price agreement
- The price stated in the order is binding. In the absence of a written agreement to the contrary, 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 shall be notified immediately in writing of any additional or reduced price arising as a result of changes in the execution of the order. In order to become binding, it must be confirmed in writing by ELESTA prior to manufacture or delivery of the ordered item.
4. Terms of payment
- Unless otherwise agreed, payment shall be made within 14 days of delivery and receipt of invoice with 3% discount or net within 30 days of delivery and receipt of invoice.
- The invoice of the contractor must state the ELESTA order number, the ELESTA material number, the country of origin and the statistical goods number. If these details are missing or incorrect, ELESTA reserves the right to return the invoice unpaid to the contractor for amendment or correction. In this case, the payment period shall not commence until the amended or corrected invoice has been received.
- ELESTA shall be entitled to set-off and retention rights to the extent permitted by law.
5. Terms of delivery
- Unless otherwise agreed, the ordered item must be delivered to the ELESTA factory specified in the order in accordance with INCOTERMS 2010 “FCA” (free carrier). If the Contractor delivers from abroad, the Incoterm condition “DAP” (delivered at place) shall apply. Delivery shall be made in accordance with the applicable provisions.
6. Transfer of Risk / Place of Performance
- The risk of accidental loss or accidental deterioration shall pass to ELESTA when the ordered item is handed over or accepted at the ELESTA works specified in the order or at a different shipping address.
- Place of performance shall be 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 delivery date to ELESTA.
- If circumstances arise or if it becomes apparent to the contractor that the agreed delivery date cannot be met, the contractor is obliged to inform ELESTA immediately in writing, stating the reasons and the expected duration of the delay in delivery.
- The contractor can 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 claim damages instead of performance and rescission after the fruitless expiry of a reasonable period. If ELESTA claims damages, the contractor shall be entitled to prove to ELESTA that he is not responsible for a breach of duty.
8. Description of the ordered item
- Insofar as the contractor receives from ELESTA technical specifications, technical delivery instructions, drawings, samples, information or other regulations, these shall be solely decisive for the type, quality and execution of the ordered item or the service to be rendered. If ELESTA requests failure samples or initial samples, series production may only commence after ELESTA has approved the samples or sample series in writing. ELESTA must be notified in writing of any objections to ELESTA’s specifications by the contractor immediately before the start of series production. In such cases, series production may only commence on the basis of a further written instruction by ELESTA.
- ELESTA may demand changes to the delivery item even after conclusion of the contract, provided that this is reasonable for the contractor. In the event of such changes to the contract, the effects on both parties, in particular the additional and reduced costs as well as the delivery dates, shall be reasonably taken into account.
- The contractor shall only be entitled to make partial deliveries or render partial services with the written consent of ELESTA.
9. Claims for defects
- ELESTA is entitled to all claims for defects.
- The contractor is informed that the ordered item can also be installed in safety technology (communication modules which are operated in or with safety-relevant products) and that the unrestricted functionality of the ordered item must therefore 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 the mutual consent of both parties. Any binding description of the scope of delivery or a drawing shall be deemed to be a specification.
- 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 immediately notify the contractor in writing of any obvious defects in the delivery / service as soon as they are discovered in the ordinary course of ELESTA’s business.
- In particular, ELESTA shall be entitled to demand from the Contractor, at ELESTA’s option, either remedy of the defect or delivery of a new item. ELESTA expressly reserves the right to claim damages, in particular the right to claim damages instead of performance.
- The limitation period granted by the contractor applies to claims for defects, but at least 36 months. In the absence of an agreed period of limitation, the statutory regulation shall apply.
- For repaired or newly delivered parts, the limitation period begins to run anew at this point in time, unless the contractor has expressly and appropriately reserved the right to do this only as a gesture of goodwill or to avoid disputes.
- Insofar as the contractor does not begin to remedy the defect immediately upon ELESTA’s request to remedy the defect, ELESTA shall be entitled in urgent cases, in particular to avert acute risks or avoid major damage, to do so itself or have it done by third parties at the contractor’s expense.
- The contractor undertakes to take out liability insurance for the duration of the contract (including limitation periods for claims based on defects) under conditions customary in the industry (minimum coverage of CHF 1.5 million per damage event). This must be proven to ELESTA upon request.
10. Product Liability / REACH / RoHS Regulation / Area of Application
- Insofar as the contractor is responsible for product damage, he shall be obliged to indemnify ELESTA against claims for damages by third parties on first demand if the cause lies within his sphere of control and organisation and he himself is liable externally.
- In this context, the contractor is also obliged to reimburse any expenses arising from or in connection with a recall action carried out by ELESTA. As far as possible and reasonable, ELESTA shall inform the contractor of the content and scope of the recall measures to be carried out and give him the opportunity to comment. Any other statutory claims shall remain unaffected.
- The contractor undertakes to maintain a product liability insurance with a sum insured of CHF 10 million per personal injury / property damage – lump sum. If ELESTA is entitled to further claims for damages, these shall remain unaffected. Upon request, the contractor shall provide ELESTA with a copy of the valid insurance contract.
- The provisions of the REACH / RoHS Regulation must be guaranteed by the contractor with regard to the substances manufactured, imported and used by him or purchased from 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 / RoHS regulation.
- The products supplied by the supplier are used among other things in safety engineering (safety switchgear and programmable safety controls). If the supplier is not a manufacturer himself, he must inform his sub-supplier of this.
11. Third party rights, industrial property rights
- The delivery and its exploitation by ELESTA shall not infringe any industrial property rights of third parties within the Federal Republic of Germany. ELESTA shall notify the contractor of any claims asserted by third parties. ELESTA shall not acknowledge such claims on its own initiative. In this respect ELESTA authorizes the contractor to take over the dispute with the third parties in and out of court.
- In the event of a culpable infringement of industrial property rights of third parties, the contractor shall at his own expense defend against claims of third parties which third parties assert against ELESTA for infringement of industrial property rights due to the deliveries and services of the contractor. The contractor shall indemnify ELESTA against all claims arising from the use of such industrial property rights insofar as he is responsible for them.
- If ELESTA’s exploitation of the Supplies is impaired by existing industrial property rights of third parties, the Supplier shall, at its own expense, either acquire the appropriate approval or modify or exchange the affected parts of the Supplies in such a way that the exploitation of the Supplies no longer conflicts with industrial property rights of third parties and at the same time complies with the contractual agreements.
- All information received by the contractor from ELESTA during the performance of the contract shall be treated as confidential without limitation. In particular, the contractor shall be obliged to maintain secrecy about new developments or modifications to ELESTA products of which it becomes aware in the course of the execution of the order until it receives another instruction from ELESTA.
- The contractor shall be obliged to ensure that third parties, insofar as they are within its 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 obligated to data protection secrecy.
- ELESTA reserves all property rights and copyrights to all documents handed over to the contractor in connection with the order, such as calculations, drawings, etc.. The Supplier undertakes not to disclose or make available these documents to third parties unless ELESTA gives the Supplier its express written consent to do so. They shall be used exclusively for production on the basis of ELESTA’s order. The documents shall be returned to ELESTA without delay unless the Supplier accepts the order within the period specified in Clause 2. If the order is accepted, the documents shall be returned to ELESTA without being requested to do so at the latest when the order is processed.
- The obligation to maintain secrecy shall also apply after this contract has been completed. It shall expire if and to the extent that the manufacturing knowledge contained in the illustrations, drawings, calculations and other documents provided has become generally known.
13. Code of Conduct
- The supplier acknowledges that ELESTA has a code of conduct. This Code of Conduct can be found on the ELESTA website. The supplier meets the requirements of the Code of Conduct and maintains consistently high standards of integrity in its business relationships.
- Without prejudice to other rights or remedies available to ELESTA under the Contract or otherwise, ELESTA may terminate the Contract and any Order placed under the Contract without liability if the Supplier materially breaches the Code of Conduct.
- Material violations include, but are not limited to, incidents of forced or child labor, corruption and bribery, and non-compliance with the environmental requirements set forth in the Code of Conduct.
14. Data protection
- The supplier is hereby informed that ELESTA collects, stores, processes and, if necessary, transfers to third parties its data to the extent necessary for the execution of the contract and on the basis of data protection regulations.
15. Place of jurisdiction, applicable law
- All agreements made between the parties for the purpose of executing this contract are set forth in this contract. Verbal collateral agreements do not exist. Amendments or changes to this contract – including this written form clause – must be made in writing.
- Exclusive place of jurisdiction for all disputes arising from this contract is the next 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 the Contractor’s 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 invalid in whole or in part, or should this contract contain loopholes, this shall not affect the validity of the remaining provisions and clauses. The parties undertake to replace the ineffective clause by another that comes closest to the economic purpose of the ineffective or missing regulation and is effective on their part.
- The contract language is German.
Bad Ragaz, January 2019