General Terms and Conditions NBS AG
The General Terms and Conditions of NBS AG shall be deemed to be an integral part of the contract. For acceptance as an integral part of the contract, reference to these terms and conditions in offers, order confirmations, technical interpretations, etc. is sufficient for the relevant contract and all subsequent contracts of the same contracting party.
Insofar as the contract (including these General Terms and Conditions) does not contain any conditions, Swiss law shall apply, but to the exclusion of the so-called "Vienna Sales Convention" (United Nations of 11.4.1980). Should the application of any of these conditions be declared null and void by a competent jurisdiction, the remaining conditions and the contract shall remain in force mutatis mutandis. The place of jurisdiction shall be determined by the supplier. However, the Supplier shall also be entitled to bring an action against the Purchaser at the latter's place of business. All amendments and additions to the contract and the conditions must be made in writing and must be signed by both parties in order to be valid.
The offers are non-binding and serve as a basis for orders. The offers, the technical documents as well as plans, data carriers, methods, systems, manufacturing processes, formulas etc. are subject to the obligation of secrecy. The recipient (purchaser) is liable in this duty of secrecy for his employees, sub-suppliers, persons and companies with whom he is in contact or for whom an interest in corresponding information for the supplier can be proven. The passing on of such information and documents may only take place with the written assurance of the supplier. The information and documents remain the property and intellectual property of the supplier. They shall be returned to the Supplier upon first request. (Federal law against unfair competition).
The supplier is not obliged to check the information on technical boundary conditions, functionality, planned use of the goods, etc.
Conclusion of contract
The supply contract shall be deemed concluded as soon as receipt of an order is confirmed in writing and thus accepted. At this point in time, the supplier does not assume any cost consequences or guarantee for dimensions, technical data and information; corresponding adjustments can be made without prior notice and confirmation. The signing of the technical data sheet and plan or the acceptance of the prototype is considered as technical clarification and is binding. (Commencement of the delivery period provided that the agreed securities/payments have been made). The delivery period may be reasonably extended by subsequent changes with or without cost consequences.
The order confirmation is authoritative for the scope of delivery. The supplier may additionally invoice for services not listed in the order confirmation (e.g. transport, engineering, assembly, expert opinions, commissioning, acceptance, troubleshooting, maintenance, etc.). The supplier's standard rate applicable at the time of performance of the contract shall be decisive in this respect.
Fulfilment of contract / Transport
Benefit and risk shall pass to the Purchaser upon dispatch of the goods (handover to the first carrier such as forwarding agent, railway, post office, etc.), even if the assembly is carried out by the Supplier or the transport is assumed by the Supplier.
The insurance of the transport is the responsibility of the carrier and therefore falls under the responsibility of the party who has the transport in the contract. The purchaser must notify any wishes regarding packaging, dispatch and means of transport in good time, otherwise no complaints can be justified. The supplier shall not be liable for any damage or consequential damage resulting from delays in delivery for whatever reason, unless an appropriate penalty is agreed as part of the contract. Claims for damage, loss, etc. shall be made by the Purchaser immediately upon receipt of the delivery or the shipping documents to the last carrier, or within the prescribed period directly to the transport company. In the event of failure to do so, the purchaser shall be responsible for all consequences arising therefrom.
Cancellation and termination of contract
The Purchaser shall only be entitled to cancel the contract as long as the delivery has not been completed. The supplier shall be compensated in accordance with the law. No claim for cancellation of the contract shall arise from delays in delivery. The customer shall not be entitled to the return of goods delivered in accordance with the contract.
The prices are net prices, but do not include statutory taxes (VAT, etc.) ex warehouse or ex works of the supplier. The price does not include packaging, transport, insurance, unloading, assembly, commissioning and return of the packaging material. These services must be invoiced separately as agreed in the contract. If no prices are agreed and in case of interruptions of work, the supplier's prices according to brochures and catalogues used by the supplier at the time of dispatch shall apply.
Terms of payment
Ownership of the goods shall pass to the Purchaser upon payment. The supplier's invoices are to be paid strictly net to the supplier's place of business. Any transfer and collection costs shall be borne by the purchaser.
In the case of orders exceeding the equivalent value of CHF 30,000, the Supplier shall be entitled to partial payments according to the progress and stock of the services. The special terms of payment are part of the contract, the normal period on credit is 30 days. In the case of advance payments, confirmation from the supplier's receiving bank of receipt of payment or acceptance of the irrevocable letter of credit shall be deemed receipt of payment.
If the dispatch of the goods ready for dispatch is delayed through no fault of the Supplier or if the Purchaser reports a defect, the invoice or partial invoice shall nevertheless be forfeited and the Purchaser shall bear any storage costs. After expiry of the payment period, the purchaser shall be in default even without a reminder and shall owe interest on arrears from this
interest on arrears from this point in time. In the case of deliveries on call, the conditions shall apply mutatis mutandis one month after the date of readiness. In the event of delays in delivery in the sense of a contract postponement, the purchaser shall compensate the supplier for any inflation and additional costs for materials, wages and taxes.
Acceptance and quality control
The Purchaser shall immediately subject all incoming goods to an incoming inspection. Detectable defects must be reported to the supplier immediately and in writing. If no incoming goods inspection is carried out, it shall be assumed that the goods are transferred to the Purchaser in perfect condition and shall be deemed to have been accepted. Special acceptance tests and inspections must be agreed in writing and shall be at the expense of the Purchaser.
Liability for defects and right to rectifydefects
Defects are contractual deviations, i.e. if, at the time of dispatch of the goods, characteristics are missing which have been individually warranted by the supplier or which result from the technical documents used by the supplier at the time of conclusion of the contract, or which may be assumed without further ado for the usual suitability for use. The Purchaser shall observe the assembly, operating and maintenance instructions supplied to him by the Supplier. If such instructions are missing, they must be requested in writing from the supplier before assembly or commissioning.
The statutory provisions shall apply to the inspection and complaint periods. In any case, after installation of the goods in machines, plants, etc., the purchaser is obliged to carry out the necessary test runs, point checks, pressure tests and other inspections required to detect any hidden defects.
Notification of defects shall initially only require the right to demand that the supplier either rectifies the defect or replaces the goods with defect-free goods, whereby the supplier shall be entitled to choose between rectification and replacement. If the goods are to be repaired or replaced abroad, the Purchaser shall bear the additional costs.
If the Supplier does not successfully remedy the defect within a reasonable period of time, it shall be up to the Purchaser to insist on the rectification of the defect or to reduce the price. However, the Purchaser may only insist on rectification if this does not cause excessive costs in relation to its interest in the rectification of the defect.
The purchaser's right to withdraw from the contract (cancellation) and to compensation for any direct or indirect consequential damage caused by the defect (e.g. interruption of operations) are excluded. Any rights under the Product Liability Act remain reserved.
Retention of title
The plants as well as the plant components remain the property of the company NBS AG, Nickel Betriebsanlagen + Systeme, 6010 Kriens, in the case of an instalment, credit and leasing transaction until payment has been made in full. For the duration of the instalment, credit and leasing business, a reservation of title can be entered in the land registry of the company concerned - the costs shall be borne by NBS AG.
In case of non-payment of 6 monthly instalments, NBS AG has the right to take back the plant without further reminder. This without compensation claims to the customer.
The buyer/customer agrees that his personal data may be processed for the purposes of contract execution, customer care and marketing purposes (statistics, sending of brochures and offers, optimised service quality in order to respond to the different and individual needs of existing and potential customers). He also agrees that his personal data may be disclosed for the aforementioned purposes to importers/manufacturers whose registered offices are located abroad, among others.
Warranty and guarantee
The warranty shall commence on the date of performance of the contract. In the event of delays in handover not caused by the supplier, the warranty period shall commence on the delivery date agreed in writing. The warranty period is 12 months. If dispatch or assembly are delayed for reasons for which the supplier is not responsible, the warranty period shall end at the latest 18 months after notification of readiness for dispatch. For replaced parts, the warranty period shall start anew; it shall end at the latest 24 months after the start of the warranty period for the main delivery. An extension of the warranty services must be agreed in writing; it is only considered legally valid to the extent that it exceeds the services of supplied materials and parts. No warranty claims can be made in the event of failure to carry out the acceptance test, in the event of negligent or improper use of the delivery item, in the event of natural wear and tear, in the event of inadequate maintenance and disregard of operating instructions, in the event of unsuitable operating materials, in the event of electrolytic influences and corrosion, in the event of unforeseen influences, as well as after technical interventions and modifications which have not been carried out or confirmed by the supplier.
In general, the supplier does not provide any warranty or guarantee for the operation and function of the system. Services rendered for the investigation of causes of damage and malfunctions as well as the elimination and repair of the same as well as consequential damage and operational failures are expressly excluded. The warranty service extends to the replacement delivery of the defective parts. The replaced parts become the property of the supplier. Any liability of the supplier is excluded if technical and safety-related discrepancies exist which have not been identified or have not been warned.
Force majeure shall release both contracting parties from their performance obligations for the duration of the disruption and to the extent of its effect.
If the customer suspends payment or if bankruptcy or composition proceedings are applied for, the supplier may withdraw from the unfulfilled part of the contract.
For any disputes arising from this contract, the parties agree that the ordinary courts at the registered office or place of residence of the company shall have jurisdiction. The company is free to invoke the ordinary courts at the buyer's registered office or place of residence instead.
NBS AG, Dattenmattstrasse 16, 6010 Kriens, July 2014