General conditions of contract and delivery
1.1 These General Conditions of Supply shall be binding if declared applicable in the tender or in the order acknowledgement of Utilis. All the offers of Utilis are non-binding The contract enters into effect upon receipt of the order confirmation of Utilis by the Customer. Any conditions stipulated by the Customer which are in contraction with these General Conditions of Supply shall only be valid if expressly acknowledged by Utilis in writing.
1.2 Should a provision of these General Conditions of Supply prove to be wholly or partly invalid, the parties to the contract shall jointly seek an arrangement having a legal and economic effect which will be as similar as possible to the invalid provision.
1.3 All agreements and legally relevant declarations of the parties to the contract must be in writing in order to be valid. Any communication by electronic means is equivalent to "writing" if it provides a durable record of the agreement.
1.4 The Customer shall not assign any rights based on this contract to any other party without the prior written consent of Utilis.
2. Scope of Supplies and Services
The supplies and services are exhaustively specified in the order acknowledgement and in appendices thereto.
3. Technical Documents
3.1 Brochures, catalogues and statements on the homepage of Utilis are not binding. Data provided for in technical documents are only binding so far as having been expressly stipulated as such in the order confirmation.
3.2 Utilis retains all rights to technical documents provided to the Customer. The Customer recognizes these rights and shall – without previous written consent of the other party – not make these documents available to any third party, either in whole or in parts, nor use them for purposes other than those for which they were handed over.
4. Regulations in Force in the Country of Destination and Safety Devices
4.1 The Customer shall, at the latest when placing the order, draw the attention of Utilis to the standards and regulations applicable to the execution of the supplies and services, to the operation of the plant as well as to the health and safety of personal.
4.2 Unless otherwise agreed upon, the supplies and services shall comply with those standards and regulations at the place of business of the Customer about which Utilis has been informed on the clause
4.1. Additional or other safety devices shall be supplied to the extent as having been expressly agreed upon.
5.1 Unless otherwise agreed up, all prices shall be deemed to be net ex works, excluding packaging, in freely available Swiss Francs, without any deduction whatsoever.
5.2 Any and all additional charges such as, but not limited to, freight charges, insurance premiums, fees for export, transit, import and other permits, as well as for certifications, shall be borne by the Customer. Likewise, the Customer shall bear any and all taxes, fees, levies, customs duties and the like which are levied out of or in connection with the contract, or shall refund them to Utilis against adequate evidence in case Utilis is liable for them.
6. Terms of Payment
6.1 Payments shall be made by the Customer at Utilis’ domicile according to the agreed terms of payment, without any deduction for cash discount, expenses, taxes, levies, fees, duties and the like. The price shall be paid no later than 30 days after the invoice has been sent to the Customer. Starting date of the term of payment is the date indicated on the invoice. Payment shall be deemed to be effected as far as Swiss Francs, for supplies to EU-countries as far as Euro, have been made freely available to Utilis at Utilis’ domicile. Utilis shall, at its own discretion, be entitled to make deliveries abroad dependent on the issues of an irrevocable letter of credit of a first class bank.
6.2 The dates of payment shall also be observed if transport, delivery, erection, commissioning or taking over of the supplies or services is delayed or prevented due to reasons beyond Utilis’ control, or if unimportant parts are missing, or if post-delivery work is to be carried out without the supplies being prevented from use.
6.3 If the payment is not provided in accordance with the terms of the contract, Utilis shall be entitled to adhere to or to terminate the contract, and shall in both cases be entitled to claim damages.
If the Customer, for any reason whatsoever, is in delay with a further payment, or if Utilis is seriously concerned that it will not receive payments in total or in due time because of circumstances having taken place since entering into the contract, Utilis, without being limited in its rights provided for by law, shall be entitled to refuse the further performance of the contract and to retain the supplies ready for dispatch until full payment of the purchase price has been
made to Utilis.
6.4 If the Customer delays the agreed terms of payment, it shall be liable, without reminder, for interest with effect from the agreed date on which the payment was due at a rate of 5 % p.a. The right to claim further damages is reserved.
7. Reservation of Title
Utilis shall remain the owner of all supplies until having received the full payment in accordance with the contract.
The Customer shall cooperate in any measures necessary for the protection of Utilis’ title. In particular, upon entering into the contract, it authorizes Utilis to enter or notify the reservation of title in the required form in public registers, books or similar records, all in accordance with relevant national law, and to fulfill all corresponding formalities, at Customer’s cost.
During the period of the reservation of title, Customer shall, at its own costs, maintain the supplies and insure them for the benefit of Utilis against theft, break-down, fire, water and other risks. It shall further take all measures to ensure that Utilis’ title is in no way prejudiced. In order to secure the claim regarding the reservation of title, the Customer herewith assigns to Utilis all future receivables arising from resale of further processing of the supplies. If the supplies are mixed or combined with other substances, the Customer herewith assigns its co-ownership rights to Utilis.
8. Delivery Time
8.1 The delivery time offered by Utilis is not binding. After the expiration of two thirds of the delivery time, the parties are entitled to ask for an agreement concerning a binding delivery time. The delivery time starts at the time of signing and after all information and documents of the Customer which are necessary to deliver the supplies are obtained by Utilis. The delivery time shall be deemed to be observed if by that time Utilis has sent a notice to the Customer informing that the supplies are ready for dispatch in the plant of Utilis.
8.2 The delivery time is reasonably extended if hindrances occur which Utilis can not prevent despite using the required care, such as for instance delayed or defective delivery of row material, semi-manufactured or finished goods.
8.3 Utilis is only liable for damages and losses caused by late delivery to the extent of unlawful intent or gross-negligence. The Customer is only entitled to terminate the contract if the binding delivery time has been exceeded by an equal period and if Utilis is not able to deliver within an reasonable additional period of delivery time.
Packaging shall be charged for separately by Utilis and shall not be returnable. This does not concern Pallets.
10. Passing of Benefit and Risk
10.1 The benefits and the risk of the supplies shall pass to the Customer by the date of their leaving the works.
10.2 If dispatch is delayed at the request of the Customer or due to reasons beyond Utilis’ control, the risk of the supplies shall pass to the Customer at the time originally foreseen for their leaving the works. From this moment on, the supplies shall be stored and insured on the account and risk of the Customer.
11. Forwarding, Transport and Insurance
Utilis organizes the transport of the supplies to the Customer. The supplies shall be dispatched on the account and at the risk of the Customer.
Objections regarding forwarding or transport shall upon receipt of the supplies or of the transportation documents be immediately submitted by the Customer to the last carrier.
12. Inspection and Taking-Over of the Supplies
12.1 The Customer shall inspect the supplies and services no later than 8 days after dispatch of the supplies and shall immediately notify Utilis in writing of any deficiencies. If the Customer fails in doing so, the supplies and services shall be deemed to have been taken over.
12.2 Taking-over shall also be deemed completed
– if the Customer refuses the acceptance without being entitled to do so;
– as soon as the Customer uses supplies or services.
13. Guarantee, Liability for Defects
13.1 The guarantee period is twelve months. It starts when the supplies leave the works of Utilis. If dispatch is delayed due to reasons beyond Utilis’ control, the guarantee period shall end no later than 18 months after Utilis’ notification that the supplies are ready for dispatch. For replaced or repaired parts the guarantee period starts anew and lasts 12 months after replacement or completion of the repair. The guarantee expires prematurely if the Customer or a third party
undertakes inappropriate modifications or repairs or if the Customer, in case of a defect, does not immediately take all appropriate steps to mitigate the damage and give Utilis the possibility of remedying such defect.
13.2 Utilis undertakes at its choice to repair or replace as quickly as possible any parts of the supplies which, at the time, when the supplies leave the works of Utilis, are proved to be defective due to e.g bad material, faulty design or defective execution. Replaced parts shall become Utilis’ property. Utilis shall bear the costs of remedying defective parts in its works. If the repair can not be carried out in Utilis’ works, the Customer shall bear the related costs to the extent exceeding the customary costs of transport, personal, traveling, living, dismantling and reassembling of the defective parts.
13.3 Express warranties are only those which have been expressly specified as such in the order acknowledgement.
13.4 If such improvements fail completely or on in part, the Customer may claim a reasonable reduction of price. If, however, the defects are of such importance that they can not be remedied within a reasonable time and provided the supplies and services can not be used for the specified purpose or if such use is considerably impaired, then the Customer shall be entitled to refuse acceptance of the defective part or, if partial acceptance is economically not justified for it, to terminate the contract. In such case, Utilis can only be held liable for reimbursing the sums which have been paid to it for the parts affected by the termination.
13.5 Excluded from Utilis’ guarantee and liability for defects are all deficiencies which can not be proved to have their origin in bad material, faulty design or poor workmanship, e.g. those relating from normal wear, improper maintenance, failure to observe the operating instructions, excessive loading, use of any unsuitable material, influence of chemical or electrolytic action, building or erection work not undertaken by Utilis, or resulting from other reasons beyond Utilis’
13.6 With respect to any defective material, with regard, in particular to design or workmanship as well as to any failure to fulfill express warranties, the Customer shall not be entitled to any rights and claims other than those expressly stipulated in clauses 13.1 to 13.5.
13.7 Utilis is only liable to the extent of unlawful intent or gross negligence as far as claims arising out of faulty advice and the like or out of breach of any additional obligations are concerned.
14. Exclusion of Further Liability on Utilis’ Part
All cases of breach of contract and the relevant consequences as well as all rights and claims on the part of the Customer, irrespective on what ground they are based, are exhaustively covered by these General Conditions of Supply. In particular any claims not expressly mentioned for damages, reduction of price, termination of or withdrawal from the contract are excluded. In no case whatsoever shall the Customer be entitled to claim damages other than compensation for costs of remedying defects in the supplies. This in particular refers, but shall not be limited, to loss of production, loss of use, loss of orders, loss of profit and other direct or indirect or consequential
damage. This exclusion of liability, however, does not apply to unlawful intent or gross negligence on the part of Utilis, but it does apply to unlawful intent or gross negligence of persons employed or appointed by Utilis to perform any of its obligations.
15. Right of Recourse of Utilis
If, through actions or omissions of the Customer or of persons employed or appointed by it to perform any of its obligations, personal injury or damage to the property of third parties occur and if a claim is made against Utilis, then the later shall be entitled to take recourse against the Customer.
16. Jurisdiction and Applicable Law
16.1 The place of jurisdiction for both the Customer and Utilis shall be at the registered office of Utilis. Utilis shall, however, be entitled to
suit the Customer at the latter’s registered address.
16.2 The contract shall be governed by Swiss substantive law. All clauses concerning the Vienna Convention (CISG) do not apply.
Utilis AG CH-8555 Müllheim on 29th of August 2014