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Export of Plants and Machines

General Conditions of Sale and Delivery

General Conditions of Sale and Delivery for the Export of Plants and Machines of Topocrom Systems AG (Switzerland)

Version November 2020

  1. General Provisions and Scope of Application
    1. These general terms and conditions of sale and delivery apply to the export of our machines and systems, unless otherwise agreed in writing.
    2. If Topocrom Systems AG (hereinafter: "TOPOCROM" or "we") also undertakes the assembly or assembly supervision, the current terms and conditions of the Association of Swiss Machine Manufacturers (VSM) apply in addition to these General Terms and Conditions of Sale and Delivery in the current German-language version.
    3. These following General Terms of Sales and Delivery apply exclusively; We do not recognize any conditions of the customer that contradict or deviate from these General Terms and Conditions, unless we have expressly agreed to their validity in writing. These General Terms and Conditions of Sale and Delivery also apply if we carry out the delivery to the customer without reservation in the knowledge of conflicting or deviating general conditions of the customer.
    4. All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract.
    5. If the contract is drawn up in German and English, the German version shall be decisive in the event of linguistic discrepancies or ambiguities. ​​​​​​​
  2. Conclusion of Contract
    1. ​​​​​​​An effective contract with the customer is only concluded with our written order confirmation. If the written order confirmation contains extensions, restrictions or other changes compared to the order, customer’s consent shall be deemed to be given if he does not object in writing within 10 working days of receipt of our order confirmation.
    2. The documents belonging to an offer, such as illustrations, drawings, weight and dimensions information, are only approximate unless they are expressly designated as binding. TOPOCROM reserves the unlimited rights of ownership and copyright to cost estimates, drawings and other documents (hereinafter referred to as "documents"). The documents may only be made accessible to third parties with the prior consent of TOPOCROM and must be returned to TOPOCROM immediately upon request. ​​​​​​​
  3. Delivery Times and Late Delivery
    1. ​​​​​​​The delivery date and delivery time of the system or machine are laid down in our written order confirmation.
    2. The delivery period specified by TOPOCROM starts only after clarification of all technical questions.
    3. Compliance with our delivery obligation requires the timely and proper fulfillment of the customer's obligations.
    4. Compliance with the delivery period also requires that the customer procures any necessary import permit in due time, informs us of the number, date and duration of the import license and that a timely agreement is reached on all technical questions which the contracting parties have reserved to be later clarified when the contract is concluded.
    5. If the requirements under para. 3.2., 3.3. and 3.4. are not fulfilled in time, the delivery times are extended accordingly, unless we are responsible for the delay.
    6. If non-compliance with the delivery deadline is due to force majeure including obstacles, accidents or disruptions that could not be prevented despite taking the necessary care, the delivery deadline is extended accordingly. Force majeure includes, in particular, mobilization, war, riot, terrorism, acts of state, the failure to issue the necessary export permits, epidemics, pandemics, strikes and lockouts, scarcity of raw materials, lack of transport capacity, power outages and other unforeseeable natural events.
    7. The delivery period is deemed to have been met if the delivery items have left the TOPOCROM factory or the factory of one of our partners by the time it expires, or the customer has been notified that they are ready for dispatch.
    8. TOPOCROM reserves the right to make and invoice partial deliveries.
  4. Prices
    1. ​​​​​​​Unless otherwise stated in our order confirmation, the prices are “ex works (EXW Incoterms 2020) DE-75210 Keltern (Fa. FK Galvanik GmbH)”, excluding transport and packaging and all taxes, customs duties or charges that have to be paid under applicable law.
    2. The packaging will be invoiced separately. The purchaser undertakes to pay or reimburse all taxes, customs duties or charges imposed on TOPOCROM or its suppliers. ​​​​​​​
  5. Conditions of Payment
    1. ​​​​​​​Payments are to be made by the customer in accordance with the agreed terms of payment at TOPOCROM's domicile without deduction of discounts, expenses, taxes, duties, fees, customs duties, etc.
    2. The customer is not entitled to withhold agreed payments or to offset them with counterclaims that he may have against us, unless such counterclaims are undisputed or have been legally established.
    3. If a time has been specified for payment according to the calendar or if a specific date has been agreed in some other way, the customer shall be in default without a reminder if he does not make the payment at the specified time. The interest rate is 8 percentage points per annum. The right to claim further damages caused by delay remains reserved.
    4. The payment deadlines have also be kept if the transport, delivery, assembly, commissioning or acceptance of the deliveries or services are delayed or made impossible for reasons for which we are not responsible, or if insignificant parts are missing or reworking, not making the deliveries or services impossible, is necessary. ​​​​​​​
  6. Transfer of Risk
    1. ​​​​​​​Unless otherwise stated in the order confirmation, delivery “ex works (EXW Incoterms 2020), DE-75210 Keltern (FK Galvanik GmbH)” is agreed meaning that benefit and risk are transferred to the customer when the deliveries leave the factory.
    2.  If the dispatch of the plant or machine is delayed at the request of the customer or for other reasons for which we are not responsible, the risk is transferred to the customer at the time originally intended for delivery ex works. From this point on, the parts of the plant or machine to be delivered will be stored and insured at the expense and risk of the customer.
    3. Transport and all other packaging will not be taken back by TOPOCROM. The customer is obliged to dispose of the packaging at his own expense. ​​​​​​​
  7. No Refusal of Acceptance
    1. ​​​​​​​TOPOCROM will check the deliveries and services to the usual extent before dispatch. If the customer requests further tests, these must be agreed separately and paid for by the customer.
    2. The customer may not refuse to accept deliveries due to minor defects.
    3. The implementation of an acceptance test of the delivered item and the applicable conditions for such test require a special agreement. Unless otherwise agreed upon, the following applies:
      • TOPOCROM must inform the customer in good time that the acceptance test is being carried out so that the customer (or a representative) can take part.
      • A protocol is drawn up about the acceptance, which is to be signed by the customer and us. This states that the acceptance has taken place or that it has taken place with reservations or that the customer refuses the acceptance. In the last two cases mentioned, the defects identified or criticized by the customer must be recorded in the protocol.
      • Due to minor defects, in particular those that do not significantly impair the functionality of the delivered item, the customer may neither refuse acceptance in general nor the signing of the corresponding protocol. At the same time, such defects must also be remedied by TOPOCROM.
      • In the event of significant deviations from the contractually stipulated specifications of the delivered item or serious defects, the customer must give us the opportunity to rectify these within a reasonable grace period. Another acceptance test will then take place in a timely manner.
      • If the second acceptance test reveals significant deviations from the contract or serious defects, the customer hast he right to a price reduction or other services if we have agreed upon such remedies beforehand. However, if the defects are so serious that TOPOCROM cannot remedy them within a new reasonable period and if the delivered item cannot be used for the known purpose due to these defects or is only to a significantly reduced extent, the customer has the right to withdraw from the contract.
    4. The acceptance shall also deemed to have taken place,
      • if the acceptance test cannot be carried out on the scheduled and agreed date for reasons for which TOPOCROM is not responsible;
      • if the customer refuses acceptance without being entitled to do so;
      • if the customer refuses to sign the acceptance report which has been prepared according to para. 7.3;
      • as soon as the customer uses the delivered item in normal business operations.
    5. Due to defects of any kind in our delivered machine or plant, the customer has no claims other than those mentioned in this section 7 as well as in section 9 listed below.
  8. Regulations in force in the Country of Destination and Safety Devices
    1. ​​​​​​​At the latest when placing the order, the customer has to inform TOPOCROM about the statutory and official standards which apply to the execution of deliveries and services and that affect the operation of the machine or plant and the health and safety of the personnel.
    2. Unless otherwise agreed, our deliveries and services must comply with the standards and regulations at the customer's place of business, about which we were previously informed in accordance with section 8.1. ​​​​​​​
  9. Guarantee (Gewährleistung, Mängelhaftung)
    TOPOCROM shall be liable to the customer for all material defects as follows:
    1. If the delivery item should actually show a defect, we have to repair the defect or replace the defective part within a reasonable period of time at the written request of the customer. We decide at our own discretion which of the two alternatives we carry out.
    2. Claims for material defects become statute-barred in 3-shift operation in 12 months, in 2-shift operation in 18 and in 1-shift operation in 24 months. The warranty period begins at the latest on the day on which the delivered item is put into operation. If delivery, assembly and commissioning are delayed for reasons for which TOPOCROM is not responsible, the warranty period ends at the latest 18 months after notification of the readiness for dispatch of the delivery item. The warranty period begins anew for replaced or repaired parts and lasts 6 months from replacement or acceptance, whichever occurs first.
      The warranty expires prematurely if the customer or a third party makes improper changes or repairs to the delivered item or if the customer does not immediately take all suitable measures to reduce damage after a defect has occurred and gives us the opportunity to remedy the defect.
    3. The customer must examine the deliveries immediately and report any material defects to us in writing without delay. If the customer does not report any material defects immediately in writing, our deliveries are deemed to have been approved with regard to these material defects.
    4. The customer is only entitled to withhold payments due to defects if there are no doubts about the legality of the defect claims asserted by the customer, i.e. if these have been determined by a court or we have confirmed them in writing, and the defect is not merely insignificant.
    5. TOPOCROM is neither liable for defects that only insignificantly impair the usability of the delivered item, nor for only insignificant deviations in the deliveries from the agreed quality, nor for natural wear and tear and damage that occurs after the transfer of risk as a result of incorrect or negligent treatment, nor for excessive use, unsuitable operating resources, e.g. external chemical or electrolytic influences, inadequate assembly that was not carried out or installed by us, unsuitable building site or which arise due to special external influences on the delivery, which are not provided for in the contract or which we are not responsible for.
    6. TOPOCROM is generally not liable for defects if the customer or a third party makes improper changes or repairs to the delivered item.
    7. For deliveries and services from sub-suppliers that were stipulated by the customer, we only assume the warranty within the framework of the warranty obligations of the sub-suppliers concerned, unless something else is contractually agreed with the customer.
    8. Due to defects in material, construction or execution of the delivered item as well as due to the lack of warranted characteristics, the customer has no rights and claims other than those expressly listed in this section 9.
    9. We are only liable for claims of the customer due to inadequate advice and the like or due to the breach of secondary obligations in the event of illegal intent or gross negligence.​​​​​​​
  10. Non-Performance, defective Performance and its Consequences
    1. ​​​​​​​In all cases of poor performance or non-performance of our services not expressly regulated in these terms and conditions, in particular if TOPOCROM culpably begins its services late so that timely completion according to the contractual schedule cannot be expected or our services were culpably performed in breach of contract, the customer is authorized to set a reasonable grace period for the fulfillment of the affected deliveries and services under threat of withdrawal in the event of failure. If this grace period expires unused as a result of our fault, the customer can withdraw from the contract with regard to the deliveries or services that were performed in breach of the contract (or not at all) and claim back the proportion of payments already made.
    2. In such a case, with regard to a possible claim for damages by the customer and under the exclusion of further liability section 11 below shall apply. In any case, the purchaser's claim for damages is limited to 10% of the contract price of the deliveries and services due to which the withdrawal takes place. ​​​​​​​
  11. No additional Liability
    1. ​​​​​​​All cases of breaches of contract and the relating legal consequences as well as all claims of the customer, regardless of the legal reason, are finally and conclusively regulated in these conditions of sale and delivery. In particular, all claims for damages, price reduction, cancellation of the contract or withdrawal from the contract that are not expressly mentioned are excluded.
    2. In no case shall the customer have any claims for compensation for damage that did not occur on the delivered item itself, such as production downtime, loss of use, loss of orders, lost profit or other direct or indirect damage. This disclaimer does not apply to illegal intent or gross negligence on the part of TOPOCROM but it also applies to actions with illegal intent or gross negligence on the part of our auxiliary staff.
    3. Otherwise, the aforementioned exclusion of liability does not apply if it is contrary to mandatory provisions of law. ​​​​​​​
  12. Reservation of Title
    1. ​​​​​​​The delivered items remain in sole property of TOPOCROM until all claims against the customer arising from the business relationship have been met, in particular all payment claims. If this retention of title is not permitted under the law of the country in which the delivery items are located, but instead similar rights, TOPOCROM expressly reserves these rights. With the conclusion of our delivery contract, we expressly oblige and authorize the customer to enter the retention of title in public registers, books or the like in accordance with national laws and to fulfill all necessary formalities at the customer's expense. The customer must inform us immediately in writing of such a procedure.
    2. During the existence of the retention of title, the customer is prohibited from pledging or assigning the delivered item as security to third parties.
    3. The customer has to inform us immediately of any seizures, confiscations or other dispositions or interventions by third parties in our property that could lead to the loss of TOPOCROM's rights. If the customer culpably fails to do this in time, the customer is liable for the loss we incur.
    4. The customer is obliged to treat the delivered item with due care; In particular, he is obliged to insure it sufficiently at replacement value at his own expense against fire, water and theft damage and to use it exclusively for the intended purpose. If maintenance and inspection work is required, the customer must carry this out in good time at his own expense.
    5. The customer will take all measures to ensure that our property claim is neither impaired nor canceled.
  13. Place of Jurisdiction / Place of Performance
    1. The place of jurisdiction is TOPOCROM's registered office. At the same time, TOPOCROM is also entitled to sue the customer at his headquarters.
    2.  Unless otherwise stated in the order confirmation, TOPOCROM's registered office is also the place of performance for all obligations arising from the contractual relationship between the parties. ​​​​​​​
  14. General Provisions
    1. ​​​​​​​All changes and additions as well as ancillary agreements to these General Terms and Conditions must be made in writing, including changes to this written form clause. This also applies if the written form requirement set out here is no longer to apply. As far as legally a stricter form requirement is stipulated, this shall be applicable.
    2. The substantive laws of Switzerland, in particular the Swiss Code of Obligations (OR), applies to these General Conditions as well as to the contract in general. The applicability of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) is excluded.