General terms and conditions for sales and deliveries (COS)
The present General Terms and Conditions for Sales and Deliveries by Feller Pivotages SA, CHE-109.756.760 (hereinafter Feller or "we" / "us") shall be binding in contracts for all services rendered and goods deliveries made by Feller.. In no event shall they apply to work performances or service work.
Provided that no changes were made to the present terms and conditions and that no amendments were added to them by any written agreement, these terms and conditions shall have absolute validity for all sales contracts. Other stipulations, terms and conditions specified in customer documents shall be valid only after we have accepted them in writing.
All our offers are nonbinding and they remain valid for three months.. If the offer or the purchase order is accepted, the present General Terms and Conditions for Sales and Deliveries are considered as accepted by the customer. We reserve the intellectual property right and the copyright to all drawings and other documents created by us, and we reserve the copyright for all samples and designs. They must neither be utilized nor made accessible to third parties without our approval.
3. Conclusion of a contract by order confirmation
An order becomes effective only after we have accepted and confirmed it in writing (conclusion of a contract). Delivery as such shall also be deemed as an order confirmation constituting a contract. Each order must be accompanied by all drawings (showing clearly legible dimensions and tolerance values) appertaining to it. Unless otherwise stipulated by the customer, the tolerances customary in the trade and the DIN standards in the respectively current version do apply.
4. Prices and terms of payment
All prices are - unless otherwise agreed - in Swiss Francs (CHF), net, ex works (EXW CH-2540 Grenchen, Incoterms 2010), without insurance, without packaging and excluding VAT. The prices are fixed; however, Feller has the right to adjust the prices for deliveries not yet made in case of changes in the relevant basis for calculation, especially in case of currency changes.
The invoiced amounts are due for payment within 30 days after the invoice date, net and without discounts or other deductions. Possible discount costs and bank service charges are for the account of the customer. Settling our receivables by any counterclaims of the customer is excluded. It is inadmissible to assign claims against us. Payment must be made independent of possible complaints as to the delivery or alleged counterclaims. It is inadmissible to retain payments. We are entitled to refuse the remedy of possible defects as long as the customer hasn't met his obligation to pay. The purchase price shall become payable also if the customer is in default of acceptance.
If he fails to meet the period allowed for payment, the customer will be in default without further payment reminder on the part of Feller. In case of default in payment, we reserve the right to charge default interest to the amount of 5% above the discount rate of the Swiss National Bank. Collection expenses to the amount of CHF 20.00 are charged for each payment reminder.
In case of possible default in payment or if the customer has problems of liquidity, Feller is entitled to demand advance payments for further deliveries or to make deliveries only against payment in advance, even if other payment terms and delivery conditions were agreed upon on the conclusion of the contract. Feller will not be in default in such a case.
The effect of the customer being in default of payment is that all Feller's claims against this customer become payable immediately. The nonobservance of payment terms authorizes Feller to cancel the contract and claim damages. Feller is also entitled to cancel the contract and to demand goods back from the customer if the ownership of these goods has passed to the customer before the payment of the purchase price. The customer has no right of retention.
Shares of the tool costs are calculated separately from the parts price. These shares are due for payment within 10 days after the confirmation of the order.
The tool remains our property and in our possession even if the customer has paid a share of the tool costs. The costs of repair and proper storage are for our account, the costs of renewal and of changes due to the drawing are for the account of the customer. If no new order is placed within a period of five years, we are entitled to destroy tools.
6. Reservation of proprietary rights
The delivered goods remain our property until payment is made in full. Feller is obliged to take back the products; the customer is obliged to return them. The property of Feller is not lost with regard to the products processed or resold by the customer; co-ownership as to the new good is acquired, amounting to the open invoice total. The customer shall store the jointly owned goods for Feller. The customer must take out appropriate insurance for the products and must keep them in order on his own expense until full payment. Furthermore, the customer shall take all measures required for ensuring that Feller's ownership claim is neither impaired nor made void.
With concluding the contract, the customer shall in any event transfer his claims from a resale to Feller. The customer is authorized to collect these claims after their transfer. Fellers right to collect the claims itself, however, shall remain unaffected by this; Feller commits not to collect the claims as long as the customer properly meets his payment obligations and is not in default of payment. However, if the latter is the case, Feller may demand that the customer announces the transferred claims and their debtors, gives any details necessary for the collection, hands over all related documents and informs the debtors (third parties) on the transfer.
The customer is obliged to participate in measures necessary for protecting Feller's property. On the conclusion of the contract, the customer shall especially grant Feller his consent to enter the reservation of proprietary rights in the title retention register.
The customer must neither pledge nor assign the delivered products as security. In case of pledging and distraint or other orders by third parties, the customer must immediately inform Feller on this and make available all information and documents required for the safeguarding of its rights. Feller's proprietary rights must be indicated to executory officers or third parties.
7. Delivery times and dates
We always make efforts to meet our delivery times but we cannot guarantee them. The delivery time shall be extended appropriately if impediments occur which cannot be averted by Feller without any further input (in particular strikes and lock-outs), no matter whether these impediments occur with us or with one of our subcontractors or sub-suppliers. A possible damage caused by delay remains limited to the value of the delivery. Secondary damages caused by the delay, cost of covering purchases, lost profit and damage due to interruption of business are expressly excluded. Rescission of contract by the orderer due to default in delivery is excluded.
The recipient shall assume any transport risks as to all our deliveries of goods - even in case of free shipment.
9. Partial delivery, overdelivery and underdelivery
We reserve the right to make partial deliveries. Overdeliveries and underdeliveries of up to 10% of the total delivery quantity are permissible and will be taken into account in the invoice.
10. Changes on the order made by the customer
If the customer makes changes on the order (dimensions, piece number), he must bear the costs of already pre-machined or finished parts and of the raw material. Furthermore, the processing costs are set off with the customer.
11. Inspection and letter of complaint
Immediately after receipt, the customer must check all deliveries and delivery items for suitability and serviceability as well as for quantity variances outside the tolerances customary in this line of business. Any possible letters of complaints must be sent to us in writing within ten (10) days at the latest, counted from the day on which our delivery was received and must include a detailed specification of the alleged defects (possible proof must be attached). The inspection and complaint obligation shall not be limited to visible defects. If no such a letter of complaint is received within the time limit, the products are considered to be free from defects in all their functions and the delivery is then deemed as accepted. Return shipments due to statistical control are accepted only if the control basis items were properly permitted by both parties and if a written return shipment permission was handed over to the customer.
12. Warranty, liability for defects
As a basic rule, the statutory warranty regulations shall apply, with the reservation of the following stipulations:
As a prerequisite for all warranty claims to be handled, the customer must have sent a timely and formally valid letter of complaint as per clause 11 (Letter of Complaint). Warranty claims become time-barred after three months counted from the transfer of benefits and risks.
Warrantied properties shall be only those which have been expressly specified as such in the specifications and drawings.
Any damages which were not verifiably caused by improper materials, faulty design or poor workmanship, e.g. damages due to natural wear and tear, incorrect and unsatisfactory maintenance, transport, failure to observe operating rules and regulations, excessive loads, unsuitable operating equipment, chemical or electrolytic influence, construction or assembly work not carried out by Feller, as well as damages caused by reasons which are beyond the control of Feller, shall be excluded from the warranty and liability of Feller. Feller cannot warrant for products or semi-finished articles delivered by third parties and shall not warrant for the conformity of the products to the public or private-law standards or to the standards of professional associations on the place of delivery or destination.
If the delivery turns out to be defective and if Feller becomes obliged to warranty under the above-mentioned prerequisites, Feller shall, in any case, be entitled to either provide replacement or subsequent delivery within an appropriate time ex works (EXW CH-2540 Grenchen, Incoterms 2010), or to accept the reduced value of the delivery, or to remedy the defects on the product subsequently. Any further claim of the customer due to defective delivery, especially compensation for damages, consequential damages and cancellation shall be excluded. Substitute performance by third parties at the expense of Feller shall also be excluded.
If Feller decides to remove the defects noted, the customer must give Feller the opportunity to do this. Defective parts must be returned to Feller - on Feller's request and with its express consent only - at the customer's expense in the delivery condition, if possible in the original packaging.
The customer has no further rights and claims due to defects with regard to material, design or workmanship as well as with regard to missing warrantied properties.
13. Purchase order cancellation by the Customer
A purchase order cancellation during the manufacturing process can be accepted only if the customer agrees to take over the already manufactured or pre-machined parts and to bear the costs of the basic material, development and tools as well as all other expenditure incurred by the cancellation.
14. Purchase order cancellation by Feller
In case of force majeure or particular circumstances outside our control, we reserve the right to terminate the contract without any claims for compensation for the customer.
15. Infringement of patents and of other third-party rights
If the customer makes express specifications for the execution of the order, he shall guarantee that third-party rights - in any form whatsoever - are not infringed. The customer undertakes to indemnify us from any third-party claims which could result from such an infringement.
16. Liability for accessory obligations
Although we will inform and advise the customer to the best of our knowledge as regards the use of goods delivered by us and the design and make of ordered parts, we shall refuse any liability in connection with suitability and intended use of the goods.
17. Exclusion from further Liability of Feller
Unless a different liability clause is agreed upon at another point of these stipulations, Feller is only obliged as follows to compensation for damages which arise to the customer directly due to faulty delivery or due to any other reason for which Feller is responsible:
The liability to pay damages of Feller under any claim whatsoever shall remain limited to the delivery value and mandatorily requires that Feller is responsible for the damage caused.
The liability to pay damages is excluded insofar as the customer on his part has effectively limited liability as against his purchasers or could have limited liability but failed to limit it. The customer is obliged to agree upon limitations of liability as against third parties to the extent permissible by law also to the benefit of Feller.
Claims of the customer are excluded insofar as the damage is attributable to the nonobservance of operating, maintenance, installation and assembly regulations, unsuitable or improper use, incorrect or negligent handling, natural wear or incorrect repair assignable to the customer.
Feller is liable for damage prevention measures (e.g. recall campaigns) of the customer only insofar as it is legally obliged to.
The customer shall immediately inform and consult Feller comprehensively if he intends to apply those measures. The customer must give Feller the opportunity to examine the case of damage.
The basic principles determined here must be applied correspondingly insofar as there is no or insufficient insurance. Feller's product liability is waived to the extent permitted by law.
All cases of breaching the contract and their legal consequences as well as the claims of the customer - irrespective of the legal ground due to which they are made - are finally settled in these Terms and Conditions. Especially all claims for payment of damages, reduction, cancellation or rescission of the contract which are not be explicitly mentioned are excluded. Under no circumstances shall the customer have any compensation claim for damages which were not caused on the delivery item itself, namely lost production, use, loss of orders or profit as well as other direct or indirect damages.
18. Changes to the General Terms and Conditions for Sales and Deliveries
The General Terms and Conditions for Sales and Deliveries apply in the version valid at the time the contract was concluded. Subsequent changes or supplements to these General Terms and Conditions for Sales and Deliveries shall become integral part of the contract if the customer does not object within 30 days after he was informed on the changed stipulations.
19. Applicable law and place of jurisdiction
In any legal dispute, settlement shall be exclusively governed by the substantive law of Switzerland, to the exclusion of the Private International law (solely art. 116 IPRG, explicitly permitting an express choice of law as herein, shall not be subject to this exclusion) and to the exclusion of the so-called Vienna Sales Convention CISG. The place of business of Feller is the legal venue.
The German text shall prevail as regards all legal matters.