of ELESTA GmbH
CH-7310 Bad Ragaz
(hereinafter referred to as “ELESTA”)
1. Scope of application
- The following terms and conditions of procurement shall apply to the supply of fungible and non-fungible goods. For services, which also include repairs, service work, advice, programming work, instruction activities and the like, the following conditions shall apply with the exception of clauses 5 and 6; here the relevant statutory provisions shall apply.
# These terms and conditions of procurement shall apply exclusively. ELESTA shall only recognise terms and conditions of the contractor which conflict with or deviate from ELESTA’s terms and conditions of procurement 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 conflicting or deviating terms and conditions of the contractor.
- The terms and conditions of procurement shall also apply to all future transactions with the contractor, insofar as similar transactions are concerned.
2. Placing of orders
- An order shall only be binding if it has been placed in writing, by post or by e-mail; orders placed by telephone shall only be binding if they are subsequently confirmed in writing by ELESTA. An order confirmation by the contractor is not required. Oral agreements shall require subsequent written confirmation by ELESTA, whereby an e-mail shall suffice.
- Cost estimates are binding. Remuneration for visits, the preparation of offers, projects, etc. or cost estimates shall not be granted unless expressly agreed otherwise. The same shall apply to the preparation of drafts, calculations, quotations etc.
- If the contractor does not accept the order within 5 working days, ELESTA shall be entitled to revoke them. Delivery call-offs within the scope of an 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. 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 shall be notified immediately in writing of any increase or decrease in price resulting from changes in execution. In order to become binding, it requires written confirmation by ELESTA before manufacture or delivery of the ordered item.
4. Terms of payment
- Unless otherwise agreed, the remuneration shall be paid within 14 days after delivery and receipt of the invoice with a 3% discount or within 30 days after delivery and receipt of the invoice net.
- The ELESTA order no., the ELESTA material no., the country of origin and the statistical goods number must be stated on the contractor’s invoice. If these details are missing or incorrect, ELESTA reserves the right to return the unpaid invoice to the contractor for completion or correction. In this case, the payment period shall only begin after receipt of the supplemented or corrected invoice.
- ELESTA shall be entitled to rights of set-off and retention to the extent provided by law.
5. Delivery conditions
- Unless otherwise agreed, the ordered goods shall be delivered in accordance with INCOTERMS 2020 “FCA” (free carrier) to the place of delivery specified in the order. 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. ELESTA shall be entitled to determine the carrier and the mode of transport.
6. Transfer of risk / Place of performance
- If acceptance is provided for by law or agreed, the risk of accidental loss and accidental deterioration shall pass to ELESTA at the time of acceptance, otherwise upon receipt of the respective delivery at the place of performance.
- Place of performance is the delivery address stated in the order.
- The delivery periods and dates stated in the order are binding. The delivery date stated in the order means the date of delivery to ELESTA.
- If circumstances occur or become apparent to the contractor which indicate that the agreed date cannot be met, the contractor is obliged to inform ELESTA of this in writing without delay, 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 compensation for damages, instead of performance and withdrawal 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 specifications, drawings, samples, indications or other regulations, these alone shall be decisive for the type, quality and execution of the ordered item or the service to be provided. If ELESTA requests reference samples or initial samples, series production may only be started after ELESTA has approved the samples or the sample series in writing. Any reservations of the contractor against ELESTA specifications shall be communicated to ELESTA in writing without delay before the start of series production. In such cases, series production may only be started on the basis of a further written instruction by ELESTA.
- ELESTA may request changes to the delivery item even after conclusion of the contract, provided this is reasonable for the contractor. In the case of this change to the contract, the effects on both sides, in particular the additional and reduced costs as well as the delivery dates, shall be taken into account appropriately.
- 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 shall be entitled to claims for defects in full.
- The Contractor is advised that the ordered item can also be installed in safety technology (communication modules which are operated in or with safety-relevant products, among other things) and that the unrestricted functionality of the ordered item must therefore be guaranteed. If the Contractor has not manufactured the ordered item himself, he shall inform the manufacturer or upstream supplier of this.
- The agreed specification is part of the order and can only be changed with mutual consent. Any description of the scope of delivery or a drawing to be regarded as binding shall be deemed to be a specification.
- It is agreed that functional capability in the sense of the above conditions only exists if the relevant accident prevention regulations are also complied with.
- ELESTA shall immediately notify the contractor in writing of any open defects in the delivery / service as soon as they are discovered in the normal and ELESTA-standard course of business.
- In particular, ELESTA shall be entitled to demand from the Contractor, at ELESTA’s discretion, the removal of the defect or the delivery of a new item. The right to compensation for damages, in particular the right to compensation for damages instead of performance, is expressly reserved.
- The period of limitation granted by the contractor shall apply to claims for defects, but at least 36 months. In the absence of an agreed limitation period, the statutory regulation shall apply.
- For repaired or newly delivered parts, the limitation period shall start anew at this point in time, unless the contractor has expressly and accurately reserved the right to do so only as a gesture of goodwill or to avoid disputes during subsequent performance.
- Insofar as the contractor does not begin to remedy the defect immediately after being requested to do so by ELESTA, ELESTA shall be entitled in urgent cases, in particular to avert acute dangers or to avoid major damage, to carry this out itself or have it carried out by third parties at the contractor’s expense.
- The contractor undertakes to take out liability insurance cover for the duration of the contract (including limitation periods for claims for defects) with conditions customary in the industry (minimum sum insured CHF 1.5 million per damage event). Proof of this must be provided to ELESTA on request.
10 Product liability / REACH / RoHS regulation / Field 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 in relation to third parties.
- Within this framework the Contractor shall also be obliged to reimburse any expenses arising from or in connection with a recall action carried out by ELESTA. ELESTA shall inform the Contractor about the content and scope of the recall measures to be carried out – as far as possible and reasonable – and give him the opportunity to comment. Other legal claims shall remain unaffected.
- The contractor undertakes to maintain 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. The Contractor shall provide ELESTA with a duplicate of the valid insurance contract upon request.
- The provisions of the REACH/RoHS Regulation are to be guaranteed by the contractor with regard to the substances manufactured, imported and used by him or purchased from upstream suppliers. We require confirmation that all substances contained in the products supplied by the contractor 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 technology (safety switchgear and programmable safety controllers). If the supplier is not a manufacturer himself, he must inform his pre-supplier of this.
11. Rights of third parties, 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 inform the contractor of any claims by third parties. ELESTA shall 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 a culpable infringement of industrial property rights of third parties, the contractor shall, at his own expense, ward off claims of third parties which third parties assert against ELESTA due to infringement of industrial property rights on the basis of the contractor’s deliveries and services. The contractor shall indemnify ELESTA against all claims arising from the use of such property rights insofar as 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 shall at his own expense either acquire the relevant authorisation or modify or replace the affected parts of the delivery in such a way that the exploitation of the delivery no longer conflicts with any industrial property rights of third parties and at the same time complies with the contractual agreements.
- All information which the contractor receives from ELESTA in the course of the execution of the contract shall be treated as confidential without restriction. In particular, the contractor shall be obliged to maintain secrecy about new developments or changes to ELESTA products of which he becomes aware in the course of executing the order until he receives other instructions 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 contractor’s employees are to be bound to data protection secrecy.
- ELESTA reserves the property rights and copyrights to all documents provided to the contractor in connection with the order, e.g. calculations, drawings, etc. The contractor undertakes not to disclose or make accessible these documents to third parties unless ELESTA gives its express written consent to this. The contractor undertakes not to disclose or make these documents accessible to third parties unless ELESTA gives the contractor 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 contractor accepts the order within the period specified in clause 2. If the order is accepted, the documents shall be returned to ELESTA unsolicited at the latest upon completion of the order.
- The confidentiality obligation shall also apply after the execution of this contract. 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 shall comply with the requirements of the Code of Conduct and maintain consistently high standards of integrity in its business relationships.
- Without prejudice to any other rights or remedies available to ELESTA under the Contract or otherwise, ELESTA may terminate the Contract and any Purchase Order placed under the Contract without liability if the Supplier materially breaches the Code of Conduct.
- Material breaches include, but are not limited to, incidents of forced labour or child labour, corruption and bribery, and failure to comply with the environmental protection requirements set out in the Code of Conduct.
14. Data protection
- The Supplier is hereby informed that ELESTA collects, stores, processes and, if necessary for this purpose, transmits to third parties his data to the extent necessary for the performance of the contract and on the basis of the data protection regulations.
15. Place of jurisdiction, applicable law
- All agreements made between the parties for the purpose of executing this contract are set out in this contract. There shall be no verbal collateral agreements. Supplements or amendments 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 shall be the nearest court for ELESTA, located in the Canton of St. Gallen. ELESTA shall, however, also be entitled to sue the contractor at the place of jurisdiction of his 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 contractual 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 invalid clause with another clause which comes as close as possible to the economic purpose of the invalid or missing provision and which is itself valid.
- Contractual language is German.
Bad Ragaz, June 2023