General Terms & Conditions
These general terms and conditions of sale and delivery apply for the sale and the delivery of machines and technical products through Studer Maschinenbau AG (ʺSupplierʺ) and are binding provided that they are stated to be applicable in the offer or in the order confirmation or if the parties have agreed to them in writing or in another way. Other conditions of the Orderer are only valid insofar as they have been expressly accepted by the Supplier in writing.
All agreements made within the framework of the contract and legally relevant statements of the contract parties require the written form in order to be valid.
Offers and conclusion of contract
The contract comes into force when it is signed by both parties with retrospective effect on the date of the written confirmation of the order, provided that the necessary official approvals as well as the agreed payment securities are submitted.
2.2 Offers without deadlines are non-binding.
Extent of deliveries and services; technical documents
For the extent and the execution of the deliveries and services, only the purchase contract, including documents which are referred to here, are authoritative. Deliveries and services going beyond this shall be charged in addition. Technical improvements or further developments can be undertaken by the Supplier at any time, provided that these do not lead to price increases.
Prospectuses and catalogues are not binding, unless otherwise agreed. Statements in plans, drawings and technical documents, as well as data in software are only binding insofar as these form an integrative part of the contract.
If drawings, plans, software or other technical documents are handed out, the Orderer recognises the ownership and other rights of the Supplier connected to them. All such documents are to be treated confidentially and may not be made accessible to third parties without the prior written consent of the Supplier. They may only be utilised for the purpose for which they were handed out, and only to the extent necessary for the fulfilment of the contract. After the termination of the contract they are to be returned or destroyed on request from the Supplier.
If the deliveries also include software, the Orderer shall be issued with the non-exclusive and non-transferable right to use the software for the agreed purpose with the contract. The Orderer is not entitled to produce copies (unless for archiving purposes, troubleshooting or to replace defective data carriers) or to update, upgrade or otherwise add to the software. The Orderer may not disassemble, decompile, encode or retrogress the software without the prior written consent of the Supplier. If the Orderer breaches one of these conditions, the Supplier is entitled to revoke the right to use the software without notice.
Regulations in the country of destination
The Orderer is to point out to the Supplier in writing the regulations and norms of the country of destination at the latest with the order, insofar as they effect the deliveries and services and safe operation and/or sickness and accident prevention. Otherwise the deliveries and services conform to the regulations applicable at the Supplier’s registered seat.
Unless otherwise agreed, the prices are net, ex works according to the Incoterms valid at the time of the conclusion of the contract, without packaging in disposable Swiss Francs and without any discounts. Ancillary costs incurred to process the contract such as for insurance, transport, official approvals, taxes, customs duties, certifications or other charges are to be carried by the Orderer.
Taxes, including value-added tax, charges, fees, national insurance contributions and the like, which the Supplier or his employees are to pay in connection with the contract or its fulfilment, in particular with deliveries and services outside of Switzerland, as well as the administrative costs connected with this, will be charged to the Orderer. Insofar as taxes, including value-added tax, charges, fees, national insurance contributions or the like are collected from the Supplier or administrative costs are incurred, these are to be reimbursed by the Orderer within 30 days after presentation of a copy of the appropriate documents.
If the costs underlying the calculation increase between the conclusion of the contract and performance according to the contract, the Supplier is entitled to adjust the prices stated in the order confirmation accordingly.
Terms and conditions of payment
The payment deadline in each case amounts to 30 days from the invoice date. Unless otherwise agreed, a third of the price is due on conclusion of the contract, a third when reporting readiness for shipment, and the final payment when the delivery is made. The payment obligation is satisfied insofar as the Supplier has disposal of Swiss Francs or the agreed foreign currency at his domicile. If payment by letter of credit is agreed, the Orderer carries the costs for opening, notification and confirmation.
The payments are to be made to the Supplier’s domicile for his free disposal without deductions of cash discounts, expenses, taxes or fees of any kind.
The Orderer may neither retain nor reduce payments on the basis of complaints, claims or counter-claims not recognised in writing by the Supplier.
The payment deadlines are therefore also to be observed if the shipping, transport, possible assembly or start-up or the acceptance of deliveries is delayed or becomes impossible for reasons which the Supplier is not responsible for, or if immaterial parts of the delivery are missing or reworking proves necessary, which do not make the use of the deliveries impossible.
If the first instalment or the securities to be paid are not paid according to the contract, the Supplier is entitled to adhere to the contract or to rescind the contract, and in any of these cases to demand compensation for damages, including compensations for lost profits. If the Orderer is in arrears with a further payment for whatever reason, or if the Supplier must be seriously concerned that he will not receive the Orderer’s payments in full or on time on the basis of circumstances arising after the conclusion of the contract, the Supplier is entitled, notwithstanding his remaining claims, to suspend the further performance of the contract and to retain deliveries ready for shipment until new terms and conditions for payment and delivery are agreed and the Supplier has received sufficient securities. If such an agreement cannot be made within a suitable period or if the Supplier does not receive sufficient securities, the Supplier is entitled to rescind the contract and demand compensation for damages, including compensation for lost profits.
In the case of payment default the Supplier is entitled to claim interest for default of 6 % p.a. under the condition of making further claims without special reminders. The obligation to pay according to the contract remains.
Retention of ownership
Until full payment the Supplier remains the owner of his entire deliveries. The Orderer is obligated to take necessary measures to protect the Supplier’s property at his costs (e.g. maintenance, insurance) and ensure that the Supplier’s ownership claim is not infringed. In particular the Orderer is obligated to have the necessary record made in a public register in his country of domicile for the valid establishment of the Supplier’s retention of ownership at his own costs. The Orderer shall be fully liable to the Supplier if this is omitted.
The delivery period begins after the conclusion of the contract and the receipt of the payments to be made at this time, the settlement of official formalities and the resolution of material technical matters.
The delivery period is observed if the Supplier has sent the notification of readiness for shipment to the Orderer by its expiry.
To observe the delivery period it is required that all contractual and non-contractual obligations of the Orderer vis-à-vis the Supplier are fulfilled.
If the delivery is delayed through an event which the Supplier cannot prevent in spite of taking the necessary care or is not responsible for, or if the delivery is delayed through the actions or omission of the Orderer, or through non-performance or late performance of his contractual duties, or if there is a case of force majeure such as natural disasters, epidemics, war, mobilisation, political unrest, embargo, employment conflict, accident, delayed or defective supply of raw materials, semi-finished or finished goods, proved rejections of important work-pieces, official measures or omissions, or another event which the contract parties cannot prevent in spite of taking the necessary care, the delivery period extends accordingly.
The Orderer is to accept the delivery during the delivery period through the last carrier. If the Orderer defaults in accepting the delivery, the Supplier can set the Orderer a suitable period of grace and if it is unused after the expiry, either declare the rescission of the contract within a suitable period and demand compensation for damages (positive or negative interest in the contract) or continue to demand the acceptance.
If a particular delivery date is agreed instead of a delivery period, this has the same significance as the last day of a delivery period; Article 8.1 to 8.5 as well as Article 9 apply analogously.
For delayed deliveries, from the 3rd week of delay the Orderer can demand damages for default of at the most 1/2% for each full week of the delay up to a maximum of 5% of the contract price for the delayed part of the delivery, insofar as a delay was probably caused through the Supplier and he cannot help the Orderer with a replacement delivery.
If the maximum compensation for delay is reached, the Orderer is to set the Supplier a suitable period of grace in writing. If this period of grace is not used for reasons which the Supplier is responsible for, the Orderer can refuse the delayed delivery. If part acceptance is economically unreasonable for the Orderer, he can rescind the contract and demand repayment of the payments made for the parts of the deliveries affected by the rescission against their return. The Supplier is under no further duties besides the repayment of the corresponding payments against return of the corresponding deliveries.
Because of or in connection with delays in the performance of the contract, the Orderer is entitled expressly and conclusively to the rights and claims mentioned in Articles 8 and 9. Right or claims of the Orderer going beyond this or other rights and claims are excluded. This limitation of liability does not apply in the case of gross negligence or illegal intent on the part of the Supplier.
Packaging, transport and insurance
Packaging is carried out through the Supplier at the costs of the Orderer and shall not be taken back, insofar as nothing else has been agreed. If the packaging has however been described as the property of the Supplier, it must be returned by the Orderer prepaid to the point of departure.
Transportation is carried out at the cost and risk of the Orderer. For complaints, the Orderer is to report to the last carrier as soon as he has received the deliveries or carrier documents.
It is for the Orderer to insure the deliveries and services against damages of any kind at his costs, also if they can be concluded by the Supplier in express agreements.
Transfer of use and risk
Use and risk transfer to the Orderer at the latest with the dispatch of the deliveries ex works according to the Incoterms valid at the time of the conclusion of the contract.
If shipping is delayed for reasons which the Supplier is not responsible for, the risk transfers to the Orderer at the time of the original planned delivery ex works, and the deliveries shall be stored and insured from this point at the costs and risk of the Orderer.
Checking and accepting the delivery
Insofar as it is customary, the Supplier checks the deliveries and services before shipping. If the Orderer demands further checks, e.g. an acceptance check, these are to be agreed in writing and reimbursed by the Orderer.
The Orderer checks the deliveries and services immediately after receiving them and is to report any defects to the Supplier immediately in writing. If he omits to make such a report, the deliveries and services are considered approved.
Insofar as the Supplier is responsible for the defects reported, he will remedy these as quickly as possible. The Orderer is to give him sufficient opportunity to do this. After the defects are remedied, an acceptance check will be made on request from the Orderer or the Supplier provided that such has been agreed according to Article 12.1.
If an acceptance check according to Article 12.1 was agreed, the following applies unless otherwise agreed: The Supplier informs the Orderer in good time about the carrying out of the acceptance check, so that the latter or his representative can take part in this. A record of the acceptance will be drawn up, which is to be signed by the Orderer and the Supplier or their representatives. It will be recorded there that the acceptance has been carried out or that it is only carried out conditionally, or that the Orderer refuses the acceptance. In the two latter cases, the defects determined are to be recorded in detail in the acceptance record. The Orderer may not refuse acceptance and to sign the acceptance record for slight defects, in particular such which do not significantly impair the serviceability of the deliveries. The Supplier shall remedy such defects immediately. In the case of serious defects, the Orderer will give the Supplier the opportunity to remedy these within a suitable period of grace. Thereupon a new acceptance check shall be made. If this again shows serious defects, the Orderer can claim the compensation agreed for this case or, if such an agreement has not been made, can claim a suitable price reduction. If however the defects which arise in this check are so serious that they cannot be remedied within a suitable period and the deliveries are not useful for the agreed purpose or are only useful to an extent which is significantly reduced, the Orderer is entitled to refuse acceptance of the defective part. If participation is economically unreasonable for the Orderer, he can rescind the contract and demand repayment of the payments made for the parts affected by the rescission against their return. Apart from the repayment of the corresponding payments against return, the Supplier is not subject to any other duties.
Acceptance is also considered made if the Orderer or his representatives do not participate in the possible acceptance check; if the possible acceptance check is not carried out on the scheduled date for reasons which the Supplier is not responsible for; if the Orderer refuses to sign the acceptance report; as soon as the Orderer puts the deliveries into operation or implicitly approves in another way; or if the Orderer refuses acceptance without being authorised to do so.
The Orderer has no further claims and rights due to or in connection with defects of any kind in deliveries or services, except those explicitly mentioned in this Article 12 and the following Article 13. Rights or claims of the Orderer going beyond this are excluded. This limitation of liability does not apply in cases of gross negligence or illegal intent of the Supplier.
Liability for defects; warranty period
The proper warranty period amounts to 12 months (6 months in the case of 24 hour operation) and begins to run with the dispatch of the deliveries ex works. In the case of delay of the shipment for reasons which the Supplier is not responsible, the warranty period runs at the longest for 18 months after notification of readiness for shipment from the Supplier. For parts which are replaced or repaired during the warranty period, the warrant period runs anew and lasts 6 months from the repair of the defect or acceptance, but at the most up to expiry of a period which is double the proper warranty period.
If the Orderer or third parties undertake inappropriate repairs or changes to the deliveries without the prior consent of the Supplier, the warranty period expires prematurely. The warranty period also expires prematurely if the Orderer does not immediately take all necessary measures to reduce the damage upon the defect arising, or if the Orderer does not give the Supplier the opportunity to remedy the defect immediately.
Upon written reports of defects immediately after discovery of the defect and after or at the same time as written request from the Orderer, the Supplier is obligated to replace or repair, as he chooses, parts of his deliveries which become provably defective or unusable as a result of bad materials, defective construction or production during the warranty period, as quickly as possible. The Orderer is to give the Supplier sufficient opportunity for this. The Supplier can take back replaced parts and these shall in this case be his property. The Supplier carries costs arising in his factory for remedying defects. If the defect is remedied on request from the Orderer outside the factory, costs caused through this, such as transport costs, travel and accommodations costs, as well as taxes, charges and fees incurred outside Switzerland are charged to the Orderer.
Promised properties are only those which are explicitly described as such in the contract or accompanying specifications. The promise applies at the longest up to the expiry of the warranty period. The promised properties are proven in the possible acceptance check. If the promised properties are not satisfied, or only partly, the Orderer initially has only one claim for remedy of the defect by the Supplier and offers the Supplier the opportunity for this. If the defect is not or is only partly remedied the Orderer can claim the compensation agreed for this case or, if such an agreement has not been made, can claim an appropriate price reduction. In the case of serious defects which cannot be remedied within an appropriate period and which significantly reduce the usability of or make impossible the use of the deliveries or services for the agreed purpose, the Orderer can refuse to accept the defective part. If it is not economically reasonable for the Orderer to accept part or the delivery, he can rescind the contract and demand repayment of the payments made for the parts affected by the rescission against their return. Apart from the repayment of the corresponding payments against return, the Supplier is not subject to any other duties.
The warranty and liability of the Supplier are excluded for defects and damages which are attributable to natural wear and tear, defective repair, disregard of company rules, excessive demands, unsuitable equipment, chemical or other environmental influences, work not carried out by the Supplier or other reasons which the Supplier is not responsible for.
For deliveries and services from subsidiary companies which are ordered by the Orderer, the Supplier assumes the warranty exclusively within the framework of the warranty obligations of the subsidiary company concerned.
In the case of poor advice and the like or breach of any ancillary duties, the Supplier is liable vis-à-vis the Orderer exclusively in the case of gross negligence or illegal intent.
The Orderer has no further claims and rights from warranty, liability for defects or the lack of promised features than those explicitly mentioned in this Article 13 and the following Article 14. More far-reaching or other rights or claims of the Orderer are excluded. This limitation of liability does not apply in the case of gross negligence or illegal intent of the Supplier.
General limitation of liability and exclusion of further liability of the Supplier
For all cases of non-performance or bad performance which are attributable to the fault of the supplier not explicitly mentioned in these terms and conditions, the Orderer is to set the Supplier an appropriate period of grace to perform the contract. If this elapses unused because of the fault of the Supplier, the Orderer can rescind the contract for the deliveries and services concerned. If a part acceptance is not economically reasonable for the Orderer, he can rescind the contract and demand repayment of the payments made against return of part deliveries made. If the Orderer provably incurs damages, the claim for compensation for damages is limited to 10% of the price for the deliveries and services affected by the rescission of the contract. Furthermore, in the case of a rescission the terms and conditions of the following Article 14.2 apply accordingly. Apart from this the Supplier is subject to no further obligations.
Unless otherwise agreed, all cases of breaches of contract and their legal consequences as well as all claims and rights of the Orderer, irrespective of their legal basis, are conclusively regulated in these general terms and conditions of delivery. All other claims or claims going beyond them are waived. All claims for compensation for damages, price reductions or termination/rescission of contract not explicitly mentioned are therefore excluded. The Orderer in no way has a claim to compensation of consequential losses such as loss of production, limited use, loss of third party orders, claims by third parties (e.g. for contract penalties), lost profits, other direct or indirect damages, or damages to the deliveries which have not arisen themselves, regardless of the legal basis upon which such damages are claimed. The Supplier’s liability from or in connection with the contract or its poor fulfilment is overall limited to the price paid by the Orderer for the deliveries carried out. This exclusion of liability does not apply insofar as no binding law opposes this.
Express reservations of the Supplier’s staff regarding orders, instructions or measures of the Orderer or regarding the actual relationship can be made in writing or orally and are considered as a warning through the Supplier which releases the Supplier from any liability.
Supplier’s right of recourse
If people are injured or things belonging to third parties are damaged through actions or omissions of the Orderer or his auxiliary persons, and if claims are made against the Supplier for this reason, the Supplier is entitled to a right of recourse against the Orderer.
16. Termination of the contract by the Supplier
If unforeseen events occur which significantly change the economic significance or the content of the deliveries, or significantly impact on the performance of the contract by the Supplier, or the carrying out of the deliveries retrospectively proves to be wholly or partly impossible, the contract shall be amended appropriately. Insofar as the Supplier is not economically responsible, he is entitled to the right to terminate the contract or the part of the contract concerned.
If the Supplier intends to terminate the contract, he is to inform the Orderer of this immediately after realising the extent of the event, and therefore also if initially an extension of the delivery period was agreed. In the case of termination of contract, the Supplier can claim remuneration for the deliveries made. Claims for compensation of damages by the seller are waived.
The Orderer recognises that the deliveries can be subject to Swiss and/or foreign statutory rules and regulations regarding export control, and may not be sold, leased or in another way transferred or used for a purpose other than that agreed without export or respectively re-export permits from the responsible authorities. The Orderer is obligated to observe such rules and regulations. He takes note that these can change and are applicable to the contract in the particular valid wording. The deliveries may not be used either directly or indirectly in any way connected with the construction, manufacture, use or storage of chemical, biological or nuclear weapons or carrier systems.
The Supplier is authorised to process personal data of the Orderer within the framework of processing the contract. The Orderer agrees in particular that the Supplier will also pass on such data to third parties in Switzerland and abroad in order to process and maintain the business relationship.
Changes to the contract, including this Article 19.1 require the written form in order to be effective.
Should a provision of these terms and conditions prove to be wholly or partly ineffective, the validity of the remaining provisions shall not be affected by this. The parties are obligated to replace this provision with a new permissible agreement which comes as close as possible to its legal and economic result.
Jurisdiction and applicable law
The exclusive court of jurisdiction is at the registered seat of the Supplier, provided that no compulsory court of jurisdiction opposes this jurisdiction. The Supplier is however also entitled to claim against the Orderer at his registered seat.
The contractual relationship is subject to Swiss substantive law, to the exclusion of the law of conflict. The UN Convention on Contracts for the International Sale of Goods of 1 April 1980 (the so-called “Vienna Convention”) does not apply.