General Offer and Delivery Conditions
The following terms and conditions of offer and delivery shall apply to all offers and orders of ELESTA GmbH (hereinafter referred to as ELESTA). Deviations from these must be agreed in writing if they are to be valid. Verbal and telephone agreements are only valid if they have been confirmed by us in writing. The purchaser’s terms and conditions of purchase shall not be binding on us unless they have been accepted by us in writing.
2. Offers, documents and drawings
Our quotations are subject to change. Documents and drawings remain our property and may not be made available to third parties, in particular competitors, without our written consent. Copyright and intellectual property rights are to be respected. Infringements shall result in liability for damages.
3. Conclusion of contract
The contract shall be deemed to have been concluded when we have confirmed acceptance of an order in writing or when the customer declares acceptance of our unaltered offer in writing and in good time.
4. Data protection
The customer 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 execution of the contract and on the basis of the data protection regulations.
5. Type and scope of delivery
The order confirmation shall be decisive for the type, scope and execution of the delivery. Services not included therein must be agreed in writing and additionally compensated.
6. Delivery period
Our delivery periods are not binding without mutual agreement. The delivery period shall commence on the date of the written order confirmation. The delivery period shall not commence or shall be reasonably extended,
- if we do not receive the necessary technical and commercial documents in good time or if these are subsequently changed by the customer with our consent;
- if our suppliers are in default of delivery;
- if, through no fault of our own, events of any kind occur which affect the orderly progress of work on our part for the execution of the order;
- if the customer is in arrears with work to be carried out by him or is in default with the fulfilment of his contractual obligations, in particular if he does not comply with the terms of payment.
If the non-observance of a delivery date is not due to our exclusive fault, the customer shall not be entitled to withdraw from the contract or to claim damages. A penalty for delay can only be claimed if a corresponding agreement has been made. Force majeure shall release us from the delivery obligations entered into without any further claims on the part of the customer.
We reserve the right to deliver 10% more or less than the ordered quantity.
Our prices are net ex delivery works and, unless otherwise stated, do not include value added tax and other charges, transport and packaging, insurance, assembly, installation, commissioning and subsequent application support. Even for current orders, we reserve the right to increase the price proportionately if, for example, energy costs, material prices or wages increase after conclusion of the contract. In the event of currency fluctuations or other changes in import/export costs, we reserve the right to adjust our prices accordingly.
8. Transfer of benefit and risk
The transfer of benefit and risk shall pass to the customer on the basis of the Incoterm (Incoterms 2020) agreed with the customer. If nothing has been agreed, benefit and risk shall pass to the customer at the latest when the goods leave the delivery works (this shall also apply in the case of delivery franco domicile). If dispatch is delayed or made impossible for reasons for which we are not responsible, we shall be entitled to store the goods at our premises or at the premises of a third party for the account and at the risk of the customer.
9. Force majeure
The delivery date shall be postponed and the delivery period extended appropriately in the event of force majeure or other unforeseeable events (e.g. operational disruptions of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lock-outs, shortage of labour, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure of suppliers to deliver or to deliver correctly or on time) for which ELESTA is not responsible.
The aforementioned circumstances shall also not be the responsibility of ELESTA if they arise during an already existing delay. ELESTA shall inform the customer of the beginning and end of such hindrances within a reasonable period of time.
In the event of hindrances of temporary duration, the delivery periods shall be extended or the delivery dates shall be postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the customer cannot reasonably be expected to accept the delivery as a result of the delay, he may withdraw from the contract by immediate written declaration to ELESTA.
If such events make delivery considerably more difficult or impossible for ELESTA, ELESTA shall be entitled to withdraw from the contract. Such events are among others:
- war and armed conflicts
- military or other seizure of power
- lawful or unlawful official acts
- Prolonged breakdown of means of transport
- Currency and trade restrictions
- Embargo / sanctions
- Human rights violations, labour protection, child labour
- environmental offences
Assembly and commissioning shall be at the expense of the customer. The customer shall bear the costs for working time, travel time, transport, board and lodging of our personnel. Auxiliary personnel shall be made available upon request. Services of third parties which are necessary for the assembly of our equipment shall be borne by the customer.
11. Inspection and notification
The customer shall inspect the delivery immediately after the transfer of risk with regard to quantity, identity and integrity and shall immediately notify us in writing of any defects discovered. Functional defects must be reported immediately upon detection (qualified error message).
12. Terms of payment
Our invoices are payable to our domicile within 30 days of the invoice date, strictly net, without discount or other deductions, in the currency stated on the invoice, at our free disposal. Any unauthorised deductions will be charged subsequently. Payments by cheques will not be accepted. The withholding or reduction of payments due to complaints or the offsetting of counterclaims is not permitted.
If payment deadlines are exceeded, we shall charge interest on arrears at the rate applicable to unsecured bank loans at our domicile, but at least 5%.
For defects in the delivery which are due to material or manufacturing faults, we shall provide a warranty for a period of 12 months from the transfer of risk by repairing or replacing defective parts or issuing a corresponding credit note at our discretion. We shall only bear the costs incurred by the repair or replacement of the defective parts in our factory.
If the products are not repaired or replaced in our works, all additional costs arising therefrom shall be borne by the customer.
If the complaint turns out to be unjustified, all costs shall be borne by the customer. Defects caused by natural wear and tear, inadequate maintenance, inadequate storage, inadequate further processing, disregard of our assembly, operating and maintenance instructions, excessive use, improper intervention, in particular by third parties, are excluded from the warranty.
Also excluded are defects which are due to the fact that instructions issued by us after receipt of the defect notification (e.g. immediate shutdown, production stop) are not followed. Any further claims of the customer for defective delivery beyond this warranty, in particular for damages, retention of payment, reduction or withdrawal from the contract, are excluded. Under no circumstances shall the customer be entitled to claim compensation for damage that has not arisen in the delivery item itself, such as loss of production, loss of use, loss of orders, loss of profit or other direct or indirect damage. However, these limitations do not apply to unlawful intent or gross negligence.
14. Retention of title
The goods delivered by us shall remain our property until payment has been made in full, and we shall be entitled to make an entry in the retention of title register as long as payment has not been made in full. If the retention of title is not effective in the above form according to the law of the place of destination, the customer shall cooperate in the establishment of a security right corresponding to his national law.
15. Regulations at the place of destination
If the place of destination is outside Switzerland, the customer must inform us in good time of the relevant regulations relating to execution, installation or operation. If the customer does not comply with this information or does so inadequately, any delays and adjustments shall be at his expense.
16 Validity of the general conditions
These general conditions of supply shall apply insofar as and to the extent that nothing to the contrary is stated in the offer or in the order confirmation. Any deviating conditions of the customer shall only be valid if they have been accepted by us in writing.
17. Place of performance, place of jurisdiction, applicable law
The place of performance and jurisdiction for all obligations arising from the legal relationship between the customer and us is our registered office. The legal relationship shall be governed by Swiss law.
Bad Ragaz, March 2022 / JSTE