1. General information
The following terms and conditions of sale are decisive for all offers and order acceptances as well as for all deliveries by us. They also apply to all future business relations between us and the customer. Other conditions than these, in particular the buyer's conditions of purchase, do not apply, even if they are not expressly rejected in any other form. By accepting the goods, the customer waives the application of his own terms and conditions of business, even if these claim exclusivity. Verbal agreements or assurances are invalid without our written confirmation. Insofar as these terms and conditions of sale do not contain any deviating regulations, the general terms and conditions of delivery for products and services of the electrical industry shall apply in addition.
All prices are net ex warehouse Wangen plus the valid VAT plus shipping and packing costs/freight insurance. On explicit instruction (in writing) the goods will be delivered to SVS/RVS prohibition customers without insurance. The dispatch calculation is carried out at the list prices valid on the day of dispatch.
3. Terms of payment
Payment 14 days net. If the payment deadline is exceeded, the customer is in default without a reminder. We are entitled to charge interest of at least 5% above the respective discount rate of the Swiss National Bank from the due date. We expressly reserve the right to assert further damage caused by default. In the event of default of payment by the customer, we can also demand immediate payment of all outstanding claims, irrespective of agreed payment targets, and/or withdraw from all existing delivery contracts, including those for which there is no delay in payment, or, at our discretion, demand compensation for non-performance. The buyer is only entitled to offset, withhold or reduce payment, even if notices of defects or counterclaims are made, if the counterclaims have been legally established. All payments are generally credited against the oldest debt, irrespective of any other provisions of the buyer. Partial deliveries and partial services can be invoiced separately.
Unless other written instructions have been given, shipment shall be effected at our discretion by DHL, freight forwarder or post at the expense and risk of the customer.
EXSYS strives to deliver all orders immediately. If EXSYS for reasons, which EXSYS does not have to represent, is not able to the distribution, the buyer commits itself to grant EXSYS an appropriate respite. This respite amounts to at least four weeks, if nothing else is agreed upon. If no supply takes place within this respite, the buyer can withdraw from the contract. Partial deliveries and partial performances are permissible and are considered as independent performance.
6. Default of acceptance
If the customer does not accept individual deliveries or partial deliveries or refuses to accept them, we can set the customer a reasonable deadline for acceptance. If the buyer has not accepted the goods within the period set, we shall be entitled to withdraw from the contract or to claim damages for non-performance. In this case, the buyer must compensate for the entire damage including transport. In this case, we can either prove our damage or demand a flat rate of 30% of the net value of the non-accepted delivery plus cash expenses as compensation without proof. The amount of damages shall be set higher or lower if we prove a higher damage or the customer proves a lower damage.
7. Reservation of title
All deliveries are made under extended reservation of title. The delivered goods shall remain our property until all claims arising from the business relationship, including all subsidiary claims (in the case of payment by cheque or bill of exchange, until they have been honoured) have been paid in full. The customer may neither pledge the goods subject to retention of title nor assign them as security. The customer must inform us immediately by telegraph of any access by third parties to the goods delivered under reservation of title. If the customer is in arrears with payments to us, we are entitled to take back the goods subject to retention of title and to enter the premises for this purpose. The customer is entitled to combine the goods subject to retention of title with goods of third parties in the course of normal business transactions. In this case, we acquire co-ownership of the new items created by the combination in the ratio of the value of the combined or newly produced items in accordance with §94/IBGB. If the customer sells the combined or newly manufactured items to which we have co-ownership, the customer hereby assigns to us as security his purchase price claim against his customer in proportion to the value of our co-ownership and hereby authorises us to collect the claim in his own name. If the value of the securities exceeds the outstanding claims by more than 20%, we shall release the amount of the securities in excess of this at the request of the customer. The buyer is entitled to sell the goods in the ordinary course of business. He already assigns to us today all his claims against the purchaser from the resale as our security. The buyer is authorised and obliged to collect the claims as long as we do not revoke this authorisation. The buyer's authorisation to collect the receivables shall expire without any express declaration on our part if the buyer ceases to make payments. We will not make use of our collection authority as long as the buyer meets his payment obligations.
8. Defects and liability for damages
Defects that are due to improper handling (force, short circuit) are excluded from exchange/credit. Goods which, at the time of the transfer of risk, have manufacturing or material defects which cancel or reduce the value or suitability for normal use or use presupposed under the contract, shall be repaired or replaced free of charge at our discretion, excluding other claims, provided that the customer has examined the goods immediately and has notified us of the defects in writing immediately after they have been discovered. Rejected goods are to be returned to us only upon request. Transport and insurance costs associated with the repair or replacement shall be borne by the customer. Since we have no influence on the use of our goods by the customer and are usually not aware of the intended purpose, we are not liable for the suitability of our goods for the intended purpose or for damages resulting from lack of suitability, unless otherwise agreed in writing between the parties. Any other claims are excluded, regardless of their legal basis, in particular consequential damages caused by defects. The client may demand a reduction in payment or withdrawal from the contract if three attempts at rectification have failed or the replacement delivery is again defective. The assertion of warranty claims requires the complete settlement of all our due claims against the customer. Rights of retention and offsetting against our claims are excluded unless they have been legally established or are undisputed.
9. Limitation of liability
Claims for damages from impossibility of performance from positive breach of contract, from culpa in contrahendo and from tortious acts are excluded both against us and against our vicarious agents, unless intentional or grossly negligent conduct is involved.
10. Return shipment
If we have expressly agreed to take back standard products as good as new, we must charge 20% of the value of the goods as costs for unpacking, checking and repacking to protect the next buyer. Returns of EXSYS products will only be accepted with complete contents and in original packaging. Products in special design (i.e. not catalogue-like) cannot be taken back. Customer-specific special designs are excluded from exchange/return. Reimbursement of costs (goods credit note) is exclusively on goods, not on shipping costs.
Insofar as programs are part of the scope of delivery, the customer is granted a simple, unrestricted right of use for these, i.e. he may neither copy them nor allow others to use them. A multiple right of use requires a special written agreement. In the event of violation of this right of use, the customer shall be liable in full for the resulting damage. Further claims for damages due to slight negligence, in particular those due to indirect damage (e.g. loss of information and data, four-incidents, business interruptions) are excluded.
12. Partial invalidity
Should individual provisions of these terms of sale be or become invalid, the validity of the remaining provisions shall not be affected. The invalid provisions shall be replaced by the legally permissible provision or handling which corresponds or comes closest to the intended economic purpose.
13. Place of performance - Place of jurisdiction
Place of performance and jurisdiction is Zurich for all liabilities arising in connection with our deliveries. Zurich is also the place of jurisdiction for claims in summary proceedings based on documentary evidence, bills of exchange and cheques as well as in dunning proceedings. The same place of jurisdiction in Germany has, after conclusion of the contract his domicile or usual place of residence at the time of the filing of the action is not known. We are, however, entitled at our own discretion to sue the customer at any other place of jurisdiction justified for him. The parties agree that the domestic law of the Federal Republic of Germany shall apply exclusively.
In accordance with § 26(1) of the Data Protection Act, we point out that all customer and supplier-related data is stored and processed by us with the aid of electronic data processing. Excerpts / reprints / copies from our catalogue only with written permission.