1. General Provisions
1.1 The contract is concluded upon receipt of the supplier's written confirmation accepting the order (order confirmation). Offers that do not specify an acceptance period are non-binding.
1.2 These Terms and Conditions of Delivery are binding if they are declared applicable in the offer or in the order confirmation. Conflicting terms of the buyer are only valid if they have been expressly accepted in writing by the supplier.
1.3 All agreements and legally relevant declarations of the contracting parties require written form for their validity. Declarations in text form, which are transmitted or recorded by electronic media, are equivalent to the written form if specifically agreed upon by the parties.
2. Scope of Deliveries and Services
The deliveries and services of the supplier are exhaustively listed in the order confirmation, including any attachments thereto.
3. Plans and Technical Documents
3.1 Brochures and catalogs are not binding unless otherwise agreed. Information in technical documents is only binding if expressly guaranteed.
3.2 Each contracting party reserves all rights to plans and technical documents that it has provided to the other. The receiving contracting party acknowledges these rights and shall not make the documents available in whole or in part to third parties or use them for purposes other than that for which they were handed over, without the prior written authorization of the other contracting party.
4. Prices
4.1 All prices are – unless otherwise agreed – net, ex works, excluding packaging, in freely available Swiss Francs, without any deductions. All ancillary costs such as for freight, insurance, permits, certifications, taxes, duties, fees, and customs duties shall be borne by the buyer.
4.2 The supplier reserves the right to adjust prices if wage rates or material prices change between the time of the offer and the contractual fulfillment. In this case, the price adjustment will be made in accordance with the attached sliding price formula.
4.3 An appropriate price adjustment will also be made if the delivery period is subsequently extended for one of the reasons stated in Clause 7.2, if the documents provided by the buyer did not correspond to the actual circumstances or were incomplete, or if laws, regulations, interpretation, or application principles have changed.
5. Payment Terms
5.1 Payments shall be made by the buyer in accordance with the agreed payment terms at the supplier's domicile, without deduction of cash discount, expenses, taxes, duties, fees, customs duties, and the like.
Unless otherwise agreed, the price shall be paid in the following installments:
– one third as a down payment within one month after receipt of the order confirmation by the buyer,
– one third upon expiry of two thirds of the agreed delivery period,
– the remaining amount within one month after notification of readiness for dispatch by the
5.2 If the buyer fails to comply with the agreed payment dates, the buyer shall pay interest from the due date without reminder. The interest rate shall be based on the customary interest rates at the buyer's domicile, but shall be at least 4% above the respective key interest rate of the Swiss National Bank. The right to claim further damages remains reserved.
6. Retention of Title
The supplier retains ownership of all its deliveries until full payment according to the contract has been received.
By entering into the contract, the buyer authorizes the supplier to register or record the retention of title in public registers or similar, at the buyer's expense, and to complete all related formalities.
The buyer shall maintain the delivered items at its own expense during the period of retention of title and insure them in favor of the supplier against theft, breakage, fire, water, and other risks. Furthermore, the buyer shall take all measures to ensure that the supplier's claim to ownership is neither impaired nor revoked.
7. Delivery Period
7.1 The delivery period begins as soon as the contract has been concluded, all official formalities have been obtained, the payments and any securities to be provided upon order have been made, and the essential technical points have been clarified. The delivery period is met if the notification of readiness for dispatch has been sent to the buyer before its expiry.
7.2 The delivery period shall be extended appropriately:
a.) if the supplier does not receive the information required for the fulfillment of the contract in due time or if the buyer subsequently modifies it, thereby causing a delay in deliveries or services; or
b.) if obstacles occur that the supplier cannot avert despite exercising due diligence (Force Majeure), regardless of whether they arise with the supplier, the buyer, or a third party. Such obstacles include, for example, epidemics, pandemics, mobilization, war, civil war, acts of terrorism, insurgency, political unrest, revolutions, sabotage, significant operational disruptions, accidents, labor disputes, delayed or incorrect delivery of necessary raw materials, semi-finished or finished products, rejection of important workpieces, measures or omissions by authorities, governmental or supranational bodies, travel advisories from authorities, embargoes, unforeseen transport obstacles, fire, explosion, natural events; or
c.) if the Purchaser or third parties are in arrears with the work to be performed by them or in default of fulfilling their contractual obligations, particularly if the Purchaser fails to comply with the payment terms; or
d.) if other circumstances occur for which the Supplier is not responsible;
7.3 The Purchaser is entitled to claim compensation for late deliveries, provided that a delay is demonstrably caused by the Supplier and the Purchaser can prove damages as a result of this delay. If the Purchaser is helped out by substitute delivery, the claim for compensation for delay lapses.
The compensation for delay amounts to a maximum of 0.5% for each full week of delay, but not more than 5% in total, calculated on the contract price of the delayed part of the delivery. The first two weeks of delay do not give rise to any claim for compensation for delay.
After reaching the maximum amount of compensation for delay, the Purchaser must set a reasonable grace period for the Supplier in writing. If this grace period is not met for reasons for which the Supplier is responsible, the Purchaser is entitled to refuse acceptance of the delayed part of the delivery. If partial acceptance is economically unreasonable for the Purchaser, the Purchaser is entitled to withdraw from the contract and to reclaim payments already made against return of deliveries received.
7.4 Due to delays in deliveries or services, the Purchaser has no rights or claims other than those expressly stated in this Section 7. This limitation does not apply to unlawful intent or gross negligence of the Supplier, but it does apply to auxiliary persons.
8. Transfer of Benefit and Risk
8.1 Benefit and risk pass to the Purchaser at the latest upon dispatch of the deliveries ex works.
8.2 If shipment is delayed at the request of the Purchaser or for other reasons for which the Supplier is not responsible, the risk passes to the Purchaser at the time originally scheduled for delivery ex works. From this point onwards, the deliveries will be stored and insured at the Purchaser's expense and risk.
9. Inspection and Acceptance of Deliveries and Services
9.1 The Supplier will inspect deliveries and services to the extent customary before dispatch. If the Purchaser requests more extensive inspections, these must be agreed upon separately and paid for by the Purchaser.
9.2 The Purchaser must inspect the deliveries and services within a reasonable period and immediately notify the Supplier in writing of any defects. Failure to do so shall deem the deliveries and services approved.
9.3 The supplier shall remedy defects notified to him in accordance with 9.2 as quickly as possible, and the customer shall
give him the opportunity to do so.
9.4 The performance of an acceptance test and the definition of the conditions applicable thereto require a special agreement.
9.5 Due to defects of any kind in deliveries or services, the customer has no rights or claims other than those expressly stated in this Section 9 and Section 10 (Warranty, Liability for Defects).
10. Warranty, Liability for Defects
10.1 The warranty period is 12 months, and 6 months for multi-shift operation. It begins with the dispatch of the deliveries ex works or, if the supplier has also undertaken the assembly, with their completion. If dispatch or assembly is delayed for reasons for which the supplier is not responsible, the warranty period shall end no later than 18 months after notification of readiness for dispatch.
For replaced or repaired parts, the warranty period recommences and lasts 6 months from replacement or completion of the repair, but at most until the expiration of a period twice the length of the warranty period according to the preceding paragraph.
The warranty expires prematurely if the customer or third parties make alterations or repairs, or if the customer, should a defect occur, does not immediately take all suitable measures to mitigate the damage and give the supplier the opportunity to remedy the defect.
10.2 The supplier undertakes, upon written request from the customer, to repair or replace, as quickly as possible and at his discretion, all parts of the supplier's deliveries which are demonstrably damaged or rendered unusable due to poor material, faulty design, or defective workmanship within the warranty period. Replaced parts become the property of the supplier, unless he expressly waives this right. Within the scope of proportionality, the supplier bears the costs of rectification, provided they do not exceed the usual transport, personnel, travel and accommodation costs, and the usual costs for the installation and removal of the defective parts.
10.3 Guaranteed characteristics are only those that have been expressly designated as such in the order confirmation or in the specifications. The guarantee is valid at most until the end of the warranty period.
If the guaranteed characteristics are not met or only partially met, the customer is initially entitled to immediate rectification by the supplier. For this purpose, the customer must grant the supplier the necessary time and opportunity.
If this remediation is unsuccessful or only partially successful, the buyer is entitled to a reasonable reduction in price. If the defect is so severe that it cannot be remedied within a reasonable period, and the deliveries or services are unusable for the stated purpose or are usable only to a significantly reduced extent, the buyer has the right to refuse acceptance of the defective part or, if partial acceptance is economically unreasonable for him and he notifies this without delay, to withdraw from the contract. The supplier can only be obliged to refund the amounts paid to him for the parts affected by the withdrawal.
10.4 The supplier's warranty and liability do not cover damages that are not demonstrably a result of poor material, faulty design, or defective workmanship, e.g., due to natural wear and tear, inadequate maintenance, disregard of operating instructions, excessive stress, unsuitable operating equipment, chemical or electrolytic influences, construction or assembly work not performed by the supplier, as well as due to other reasons for which the supplier is not responsible.
10.5 Due to defects in material, design, or workmanship, as well as due to the absence of assured properties,
the buyer has no rights or claims other than those explicitly mentioned in sections 10.1 to 10.4.
11. Export Control
The buyer acknowledges that the deliveries may be subject to Swiss and/or foreign legal provisions and regulations concerning export control, trade sanctions, and embargoes, and may not be sold, rented, transferred in any other way, or used for a purpose other than the agreed one without the export or re-export license from the competent authority. The buyer undertakes to comply with such provisions and regulations. He acknowledges that these may change and are applicable to the contract in their respectively valid wording.
12. Data Protection
12.1 The supplier processes the buyer's data in accordance with the data protection declaration of the
12.2 The contracting parties agree that the buyer is the controller of data processing, who ensures compliance with applicable data protection laws, in particular the legality of processing personal data. The supplier processes personal data on behalf of the buyer and only guarantees those obligations under applicable data protection laws that are explicitly addressed to processors, and acts according to the buyer's instructions.
12.3 The personal data provided by the buyer or supplier for the purpose of ordering deliveries and services (such as name, e-mail address, address, payment data) are used by the supplier or buyer for the fulfillment and execution of the contract. This data is treated confidentially and not passed on to third parties not involved in the order, delivery, or payment process. Employees of the contracting parties involved in the processing of personal data are informed about the confidential nature of the personal data and receive appropriate instructions regarding their duties.
12.4 The buyer agrees not to refuse or delay his consent to changes to this data protection clause and/or to additional data processing or data protection agreements and their application to the deliveries and services provided by the supplier from time to time. This refers in particular to such changes that, in the supplier's reasonable assessment, are necessary to comply with applicable data protection laws and regulations and/or guidelines of a competent supervisory authority.
12.5 The buyer expressly agrees that the supplier may use the buyer's data for advertising and informational purposes regarding products and services offered by the supplier, in particular in connection with promotional e-mails, e-mail newsletters, etc.; however, the buyer may prohibit the use of his data for advertising and informational purposes at any time.
13. Exclusion of further liabilities of the supplier
All cases of breach of contract and their legal consequences, as well as all claims of the buyer, regardless of their legal basis, are conclusively regulated in these terms. In the event that claims by the buyer arise from or in connection with the contract or its improper performance, the total amount of these claims is limited to the price paid by the buyer. In contrast, all claims for damages, reduction, cancellation of the contract, or withdrawal from the contract not expressly mentioned are excluded. In no case are there claims by the buyer for compensation for damages not incurred on the delivery item itself, such as in particular loss of production, loss of use, loss of orders, recall costs, loss of profit, as well as other indirect or direct damages. Liability for compensation for claims of third parties asserted against the buyer due to infringement of intellectual property rights is also excluded.
This exclusion of further liabilities of the supplier does not apply to unlawful intent or gross negligence of the supplier, but it does apply to auxiliary persons.
Furthermore, this exclusion of liability does not apply insofar as mandatory law conflicts with it.
14. Assembly
If the supplier also undertakes assembly or assembly supervision, the General Assembly Conditions of Swissmem shall apply.
15. Place of Jurisdiction and Applicable Law
15.1 The place of jurisdiction for the Customer and the Supplier is the Supplier's registered office. The Supplier is, however, entitled to sue the Customer at the Customer's registered office.
15.2 The legal relationship is governed by substantive Swiss law.
Escalation Clause
established by Swissmem
**Lm** Mm P = P0 (a + b –––– + c ––––)
**Lo** Mo
- P = Sales price at the time of delivery
- P0 = Sales price according to offer
- a = Coefficient of the fixed cost component (e.g. = 0.1)1
- b = Coefficient of the wage-dependent cost component (e.g. = 0.6)1
- c = Coefficient of the material-dependent cost component (e.g. = 0.3)1
- Lo = Wage index2 from Swissmem, Zurich, at the time of the offer
- Lm = Average of all wage indices2
— from the time of order confirmation until contractual delivery* or
— during the production period, i.e., from until *
Mo = Weighted average of the price indices3 of the materials predominantly required for manufacturing from the group “Metals and Metal Products”, relative to their value-based shares in the delivery at the time of the offer
Mm = Average of the weighted averages of all price indices3 of the materials predominantly required for manufacturing from the group “Metals and Metal Products”, relative to their value-based shares in the delivery
— from the time of order confirmation until contractual delivery* or
— from the time of order confirmation until the date on which the Supplier received these materials for
mainly procured, i.e. up to *
1 a + b + c must always = 1.
2 Since the Swissmem wage index is calculated only quarterly, the index for the past calendar quarter must be used.
3 Sub-indices of the officially calculated and published monthly producer price index. (If the base year for the calculation of the index is changed by the responsible authorities, the supplier may calculate the changes in prices according to the corresponding new index values.)
