GENERAL TERMS AND CONDITIONS
OF SALE AND DELIVERY
1 - General terms and conditions
The following terms and conditions concern all products from MOSER-BAER AG (as Seller). Only special agreements which have been confirmed by the Seller in writing are excluded. These Terms and Conditions of Sale and Delivery apply to all product orders (T's&C's). Additional or deviating conditions, in particular also general terms and conditions of the customer, are excluded. Amendments and ancillary agreements are only effective if they are confirmed in writing by the management of MOSER-BAER AG. Should a clause be or become invalid or should the contract contain a loophole, this shall not affect the validity of the remaining provisions. In place of the invalid provisions, a valid provision shall be deemed to have been agreed from the outset which comes closest in economic terms to that intended by the parties. The same shall apply in the event of a loophole.
2 - Orders
Orders are only valid with the written confirmation of the Seller. Changes and/or cancellations of orders are possible the written approval of both contracting parties only. If an order cancellation has been accepted by the Seller, the buyer shall pay all costs accrued up to 30 days after the cancellation date (including order-specific costs for possible studies, construction work, hard- and software development, etc.) according to a detailed statement of costs provided by the Seller, with a surcharge of 25% on the total amount (in Swiss francs). If an order cancellation is not accepted by the Seller no possibly made advance/downpayments will reimbursed to the buyer.
3 - Prices
The products shall be delivered at the prices applicable at the time of the order. All prices are net, ex works Sumiswald (Incoterms 2010). Prices are without packaging and without installation, assembly,
start-up etc cost. All additional costs contained in the sales contract for packaging, transport, insurance, official verifications, etc. shall be borne by the buyer.
Special packaging, cabling, labelling (tags), certificates, test reports, documentation etc., which are not contained in the standard product, are borne by the buyer.
The Seller is entitled to adjust the prices at any time without prior notice.
4 - Payment
Basically advance payment or as per written agreement. In case of payment by letter of credit (L/C) all Bank charges are borne by the party opening the letter of credit (including all charges from Swiss Bank).
5 - Deliveries, delivery dates
Deliveries shall be carried out according to the information provided by the Seller in the order confirmation. The Seller is entitled to carry out total or partial deliveries. The delivery time begins with the date of the order confirmation. The Seller shall adhere to the delivery dates as closely as possible. In the case of delays in delivery which the Seller is not responsible for, e.g. caused by sub-contractors, transport companies, accident, death or illness, the Seller cannot be sued either with conventional penalties or with an order cancellation. Should no delivery be made within 6 months after the confirmed date, it is possible to withdraw from the purchase or sales contract on request from one of the contracting parties; a delay in delivery caused by force majeure is excluded from this. Advance payments and/or deposits paid shall only be reimbursed to the buyer if the delay is caused by the fault of the Seller. Repayments are made without interest. Any additional claims against the Seller are hereby excluded.
6 - Transport risks and incoming goods inspection
In the case of deliveries ex works (EXW) Sumiswald (Incoterms 2010), all risks and expenses are for the account of the buyer from the effective delivery date EXW. The Seller can conclude a transport insurance agreement on request from the buyer. The costs for this shall be borne by the buyer. The shipment must be checked immediately after receipt by the buyer or at the stated delivery address. Possible transport damages must be reported within 1 week in writing to the transport company and to the Seller. The Seller is only responsible for transport damages if the transport insurance was covered by the Seller. The buyer is responsible for direct routings to third parties.
7 - Incoming goods inspection
All deliveries of goods must be unpacked and inspected within 1 working week after receipt by the recipient. Clear defects and failures (such as wrong product models, quantities, visible damages, colour etc.) must be reported to the Seller in writing within 1 working week. This also applies for shipments which are forwarded by the recipient directly to third parties and for shipments which are delivered by the Seller directly to the end customer on behalf of the buyer. Complaints after the expiry of this period can no longer be accepted.
8 - Return shipments
Material return materials are allowed with written approval of Seller only. In the case of a return shipment, the Seller deducts at least 10% from the original sales price from the credit note for its expenses. All transport costs and other charges for material returns must be paid by the returning party. Possible costs shall be deducted from the credit note.
9 - Guarantee
The Seller ensures a guarantee on all goods delivered for a duration of 24 months from the delivery date EXW Sumiswald, for material and construction. Time server models DTS41xx, DTS42xx and NTS are excluded. A guarantee of 36 months from delivery date EXW Sumiswald applies to these 3 model lines DTS41xx, DTS42xx and NTS. Any interventions by the Seller during the guarantee period do not result in any extension of the guarantee. The guarantee services are limited to the repair or replacement of the defective material. The Seller decides whether to repair or replace the material. Any further additional costs and expenses are excluded and shall not be assumed by the Seller. In particular, import costs in the recipient country are borne by the buyer/recipient. Material returns from the buyer to the seller for repair must be made carriage paid to Sumiswald.
The guarantee claim expires if the material is not used properly. Likewise, no guarantee is provided if the material is manipulated (e.g. clock mechanisms and hands are dismantled/assembled, clock mechanisms, master clocks and all electronic items are opened up).
For software, the Seller only provides a conformity guarantee provided that the installation is carried out according to the Seller’s requirements. If software errors arise in normal operation with the delivered product, the Seller shall deliver 1 corrected software update free of charge if the defective original software is returned to Sumiswald, carriage paid. The Seller is not liable for consequential damages which are in direct connection with the defective software. Hardware errors arising as a result of this which are remedied by the Seller free of charge during the guarantee period are excepted provided the concerned hardware is returned to Sumiswald, carriage paid. Additional costs which are incurred on the return transport from the buyer to the Seller are borne by the buyer.
10 - Guarantee extension
A guarantee extension can be purchased. The prices can be found on the current price list.
11 - Ownership
Deliveries remain under the ownership of the Seller until all payment obligations are fulfilled by the buyer according to the contract. Until all of its contractual obligations are fulfilled, the Seller must transfer the Seller’s ownership to its customers.
12 - Liability
Any liability of MOSER-BAER AG or its vicarious agents and auxiliary persons for damages arising in connection with the provision of services under the contract as well as in the deployment and use of the objects delivered or services rendered shall be excluded. Liability for indirect or consequential damages such as loss of profit, unrealised savings, additional expenses incurred by the customer, claims by third parties, loss of data, etc. is excluded in particular and not conclusively. Excluded from the seller's warranty and liability are damages that are not demonstrably the result of poor material, faulty design or defective workmanship, e.g. as a result of natural wear and tear, inadequate maintenance, disregard of operating instructions, excessive stress, unsuitable operating materials, chemical or electrolytic influences, as well as other reasons for which the supplier is not responsible. The supplier shall only be liable for claims of the purchaser due to defective advice and the like or due to violation of any secondary obligations in case of unlawful intent or gross negligence. In the event of unjustified complaints, we reserve the right to invoice the expenditure.
13 – Software
Device software and software tools are protected by copyright and may only be used as intended. Any copying or amendment as well as any interference in the software is prohibited.
14 - Intellectual property
All intangible rights to technical drawings and documents handed over to the buyer by the supplier remain the exclusive property of the supplier. Their modification, use, reproduction or disclosure is only permitted with the written consent of the supplier. The supplier or its suppliers are and remain the owners of all intellectual property rights to the goods supplied, including design rights, trademark rights and copyrights to software which forms part of the goods supplied.
15 - Place of performance and court of jurisdiction
These Terms and Conditions of Sale and Delivery and extracts from it are subject to Swiss law. The place of performance and court of jurisdiction for both parties is a Swiss court in the canton of Bern. The Seller may determine a court and the applicable law at the place of the buyers registered office.