Terms and Conditions of Purchase

 

1. General
   • The Terms and Conditions of Purchase (hereinafter referred to as „Terms and Conditions of Purchase“) of SOTECH AG, Bahnhofstrasse 38, 9315 Neukirch (Egnach) (hereinafter referred to as „SOTECH“) shall apply to all suppliers of SOTECH (hereinafter referred to as „Supplier(s)“) with regard to the delivery of movable goods (hereinafter referred to as „Product(s)“ or „Goods“) and/or the provision of services, regardless of whether the Supplier renders performance itself or sources it from Suppliers.
   • These Terms and Conditions of Purchase shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Supplier shall only apply to the contract if and insofar as SOTECH has expressly agreed to their applicability in writing. The reservation of SOTECH’s acceptance in writing of Supplier’s general terms and conditions shall apply in any case, and also irrespective of SOTECH’s acceptance of the Supplier’s deliveries without reservation in a given case after having acquired full knowledge of the Supplier’s general terms and conditions.
   • Individual agreements made with the Supplier in the specific case (including ancillary agreements, addenda and amendments) shall prevail over these Terms and Conditions of Purchase. Such individual agreements shall, however, only be binding on SOTECH based on a contract in writing between SOTECH and the Supplier or the confirmation of SOTECH in writing.
   • Legally relevant declarations and notifications, which are to be made by the Supplier to SOTECH after conclusion of the contract (e.g., setting of deadlines, reminders) shall only be deemed effective if such are given in writing.
   • Written declarations of SOTECH shall be deemed received, if they are sent to the most recent address indicated by the Supplier. Written declarations of the Supplier are considered as received if they are sent to the respective registered office of SOTECH.
   • All correspondence of the Supplier (invoices, order data, dispatch notes, delivery notes, order confirmations, etc.) shall include the order number, order items, article numbers, quantities, customs tariff numbers and the address of SOTECH.
   • References to the applicability of statutory provisions are made for the sake of clarity only. Even without such reference, the statutory provisions shall apply insofar as such are not directly amended or expressly excluded in these Terms and Conditions of Purchase.

 

2. Contract initiation
   • Offers, drafts, samples and specimens as well as potential visits or other pre-contractual services of the Supplier shall be free of charge, unless a remuneration is explicitly agreed in writing

 

3. Conclusion and amendment of the contract
   • Framework contracts, in particular for call-off transactions or services as well as amendments to such contracts shall only be valid if concluded in writing, i.e. by means of an order in writing by SOTECH and a corresponding order confirmation of the Supplier in writing or if a separate contract is signed by both parties; individual orders and call-offs shall also be deemed valid if made by means of electronic transmission (fax, e-mail).
   • Oral agreements before or at the time of the conclusion of the contract shall only be valid if confirmed by SOTECH in the order (in text form) or if made in a separate agreement signed by both parties.
   • Agreements subsequent to the conclusion of the contract, in particular subsequent changes and amendments to the Terms and Conditions of Purchase – including this requirement for such agreements to be made writing – as well as ancillary agreements of any kind shall only be valid based on a confirmation in writing by SOTECH.
   • The Supplier shall notify SOTECH of manifest errors (e.g., spelling and calculation errors), incomplete orders, missing documents as well as contradictory order bases for the purpose of correction or completion immediately and in writing or by fax/e-mail.
   • The Supplier shall confirm each order within 5 (in words: five) working days in text form (fax/e-mail is sufficient) as of receipt of SOTECH’s order by means of order confirmation; absent such confirmation in time SOTECH shall be authorised to revoke at any time. If the Supplier does not object to a call-off under a call-off transaction in text form (fax/e-mail suffices) within 3 (in words: three) working days as of receipt, the contract shall be deemed to have been validly concluded based on the call-off. Deviations in the order confirmation from the order / from the call-off are considered as offers and require a corresponding, new order by SOTECH. Silence of SOTECH to offers, requests or other declarations of Supplier shall only be deemed as consent if this was expressly agreed in writing. Furthermore, order confirmations of the Supplier shall be deemed to have a purely declaratory character as such confirming that the Supplier has received the order/the call-off.
   • Deliveries for which no orders have been issued by SOTECH will not be accepted.
   • If the Supplier changes characteristics of a Good or service within the framework of an existing business relationship, he shall notify SOTECH thereof expressly and in advance, either before conclusion of the contract or also during the term of the contract.

 

4. Delivery and delivery dates
   • Deviations from call-offs or orders with regard to type, quality, number of pieces, dimensions and/or weight shall only be permissible with the prior consent of SOTECH in writing. The characteristics determined by SOTECH during the incoming Goods inspection shall be decisive.
   • The Goods shall be delivered in suitable packaging that is safe for transport. The Supplier shall be liable for any transport damage due to insufficient packaging.
   • Agreed dates and deadlines shall be binding. The receipt of the Goods at the place of fulfilment shall be decisive for compliance with delivery period or delivery date by Supplier. Place of fulfilment for the Supplier’s delivery/service obligation is the place of receipt designated by SOTECH. Absent a deviating agreement in an individual case, DPU Neukirch (ramp SOTECH) according to Incoterms® 2020 shall apply.
   • If the Supplier is responsible for installation and/or assembly, he shall bear all ancillary costs incurred, e.g. travel costs, provision of personnel and tools, etc., unless otherwise agreed in writing. In this case, the time of acceptance shall be decisive for compliance with agreed delivery dates or periods.
   • In case of non-compliance with delivery periods or dates the Supplier shall be deemed to be in default without further warning. The rights of SOTECH in case of delay of the Supplier – in particular as regards rescission and compensation for damages – correspond to the rights provided by statutory law, whereby any grace period to be granted by SOTECH if necessary shall amount to 5 working days. As soon as difficulties with regard to production, material procurement, adherence to Supplier deadlines or similar circumstances, which could prevent the Supplier from adhering to the delivery period or the delivery date or from the delivery in the agreed quality or quantity, become foreseeable to the Supplier, he shall inform SOTECH immediately and in writing thereof.
   • SOTECH reserves the right to reject premature deliveries thereby not waiving the right to timely or on-time delivery. The unconditional acceptance of a delivery of Goods not in line with agreed delivery periods or delivery dates shall not be deemed to constitute a waiver of SOTECH to compensation for the resulting damage. In the event of acceptance of a premature delivery, the Goods shall be stored at the Supplier’s expense and risk until the agreed delivery date or the expiry of the agreed delivery period.
   • Partial deliveries are not permissible, unless in case of explicit consent of SOTECH to such in writing.

 

5. Force majeure
   • Force majeure, labour disputes, operational disruptions through no fault of either party, political unrest, governmental measures, pandemics, epidemics and other inevitable events entitle SOTECH – without prejudice to SOTECH’s other rights – to withdraw from the contract in whole or in part, insofar as these events are of considerable duration or intensity and/or result in a considerable reduction in SOTECH’s needs.
   • In this case SOTECH shall reimburse the Supplier for the costs of the transport to SOTECH and back, provided that the notification of the withdrawal does not reach the Supplier in time and the transport can consequently not be stopped in time.

 

6. Transfer of risk
   • The Supplier shall bear the benefit and risk for the Goods until acceptance by SOTECH or its agents at the place to which delivery is to be made according to the order in accordance with Incoterms® 2020 (place of receipt according to para. 3). In case an acceptance by SOTECH has been agreed, this shall be decisive for the transfer of benefit and risk.
   • The ownership of the Goods is transferred to SOTECH with the acceptance at the place of fulfilment.

 

7. Price, dispatch notice and invoice
   • The prices in the order shall be binding. Other prices than those in the order or the call-off of SOTECH as well as changes and reservations to prices shall only be deemed validly agreed on based on an express agreement signed by SOTECH and the Supplier. If final prices are not available at the time the order is made, SOTECH shall be notified of the binding prices immediately, however at the latest 3 (in words: three) days after receipt of the order from SOTECH. In this case, the order shall only be valid and binding on SOTECH once SOTECH confirmed the binding prices in writing.
   • Absent specific provisions in an individual case, the prices shall be DPU (according to Incoterms® 2020) including packaging. All prices are exclusive of VAT at the applicable rate, even if such is not disclosed separately.
   • The dispatch notification shall be made according to the specifications of SOTECH in the orders and call-offs.
   • Delivery notes shall be enclosed with each consignment in duplicate. The documents shall contain: order number, quantity and quantity unit, gross, net and if necessary calculation weight, article description with the article number of the Supplier as well as that of SOTECH as well as in case of partial deliveries the remaining quantity. In case of freight shipments a dispatch note shall be sent to SOTECH separately on the day of dispatch.
   • The invoice shall be sent in duplicate to the address mentioned in the order of SOTECH (and otherwise to the registered office of SOTECH), stating the invoice number as well as the VAT number, if applicable. A copy of the invoice shall be enclosed with the shipment.

 

8. Terms of payment
   • SOTECH settles the invoices of the Supplier within 30 (in words: thirty) days, strictly net, unless otherwise agreed.
   • The payment period shall run as from receipt of the Goods and (cumulatively) receipt of the original invoice. In addition, in case acceptance of the Goods by SOTECH has been agreed upon, acceptance shall be deemed a further condition to the running of the payment period.

 

9. Warranty
   • The Supplier warrants – irrespective of any further warranty agreed on in individual cases – that, at delivery, the Goods are free from defects and in conformity with the agreed specifications, possess the warranted characteristics and comply with the state of the art as well as the current Swiss and international standards, namely the FEPA standards, and, if applicable, bear the valid test marks.
   • The incoming Goods inspection by SOTECH is limited to type, number of pieces and manifest defects. SOTECH shall have no further obligation to inspection. In particular, SOTECH may validly assume that the quality control has been carried out according to the test plan, quality agreement and in accordance with the FEPA standards.
   • Payments by SOTECH shall not be considered as approval of the Goods.
   • Regardless of whether a defect is (objectively) immediately recognisable or concealed, SOTECH shall have the right, in the case of a defect recognised during the warranty period, to demand the free and immediate rectification of the defect, the cancellation of the contract (reversal step by step), reduction of the purchase price (price reduction) or free replacement delivery. The right claim compensation for damages shall remain reserved in any case.
   • If the defect of the delivered Goods is not immediately remedied by the Supplier on demand of SOTECH, SOTECH shall also have the right to take the necessary remedial measures to fix the defects itself at the expense of the Supplier or to have it carried out by third parties. The return of defective Products shall take place within a reasonable period of time at the order and expense of the Supplier. If this period expires unused by Supplier, SOTECH shall be entitled to dispose of the defective Products.
   • The warranty period for defects is two years from delivery of the Goods. During this period, notice of defects may be given at any time within 30 days as from discovery. Warranty claims shall become statute-barred within three years; the statute of limitations shall begin to run from the time of the notice of defect given within the warranty period or from the time at which it should have been given at the latest. With rectification and/or replacement delivery, the warranty and limitation period for the rectified/replaced Goods shall start anew.

 

10. Third party property rights
    • The Supplier further warrants that the use of the delivered Goods does not infringe or conflict with industrial property rights or other rights of third parties. He undertakes to fully indemnify SOTECH and its customers at first demand and franc for franc with respect to all claims of third parties potentially resulting from the violation of property rights. In addition, the Supplier shall bear lawyer’s fees and process costs resulting in this connection on demand of SOTECH.
    • The corresponding claims shall become statute-barred when the corresponding third-party claims become statute-barred, but at the earliest after the expiry of 10 years as from delivery.

 

11. Product liability
    • In the event that claims are brought against SOTECH based on product liability, the Supplier is obliged to fully indemnify SOTECH for such claims, provided that the damage has been caused by a defect in the Goods delivered by the Supplier. Likewise, the Supplier undertakes to fully indemnify SOTECH for all costs and expenses in connection with measures of damage prevention (e.g. product recalls) regarding the Goods delivered by the Supplier.
    • In cases of indemnification under product liability, the Supplier shall assume all costs and expenses, including the costs of any legal defence or recall action. In addition, the statutory provisions shall apply.
    • The Supplier undertakes to maintain product liability insurance with sufficient coverage.

 

12. Documents, Means
    • SOTECH reserves all property and copyright exploitation rights without restriction for illustrations, drawings, calculations and other documents (hereinafter „Documents“), which SOTECH makes available to the Supplier. The Documents may only be used for the execution of the order of SOTECH by the Supplier. They may only be made accessible to third parties with the prior consent in writing of SOTECH. The documents are to be handed over to SOTECH at any time at request of SOTECH or unsolicited upon execution of the order, premature termination or if no contract is concluded.
    • Operating and auxiliary means made available to the Supplier by SOTECH (in the following „Means“) remain property of SOTECH. If the property right of SOTECH expires due to joining, mixing, processing or transformation, the Supplier herewith transfers in advance a joint ownership share in the new object to SOTECH in proportion to the invoice value of the respective Means. The Means may be used exclusively in connection with the execution of the orders of SOTECH. They shall be kept safe by the Supplier free of charge, to be insured at his expense against accidental destruction or loss and to be marked as the property of SOTECH. The Means are to be handed over to SOTECH at any time at request of SOTECH or unsolicited after execution of the order, premature termination or if no contract is concluded.

 

13. Customs and preferential requirements

The Supplier undertakes to provide the correct preferential proof of origin (EUR.1/EUR-MED movement certificate or a correct preferential declaration of origin on the invoice) for originating Goods for each delivery without being requested to do so. Swiss Suppliers shall provide an annually valid domestic Supplier’s declaration in accordance with the regulations of the Federal Customs Administration (FCA). In the absence of preferential proof at the time of border crossing, any import duties/fines incurred shall be borne in full by the Supplier.

 

14. Secrecy
    • The Supplier commits himself to treat confidentially all information and documents which have come to his knowledge within the scope of the business relation with SOTECH, be it with the order, delivery, other services or otherwise within the scope of the handling of the business relationship with SOTECH (among other things business or technical information which are contained in orders, accompanying documents, plans or similar) and to keep them secret towards third parties. They may only be made accessible in the Supplier’s company to persons who are subject to an equivalent duty of secrecy as in this clause 14.
    • Excluded from the obligation to maintain confidentiality are (i) legal or regulatory obligations to disclose (in which case the parties are obliged to cooperate in good faith in order to agree in advance on the content of the disclosure – insofar as time permits) and (ii) information that is already freely accessible without having become public as a result of a breach of these Terms and Conditions of Purchase.
    • The duty to maintain confidentiality exists before the conclusion of a contract or before a possible order on the part of SOTECH and also survives the termination of the contractual relationship with SOTECH.

 

15. Compliance
    • The Supplier undertakes to comply with the prevailing statutory regulations on the treatment of employees, environmental protection and occupational safety.
    • In case a Supplier repeatedly and/or despite a corresponding notice behaves in an unlawful manner and does not prove that the violation of the law has been cured as far as possible and that appropriate precautions have been taken to avoid violations of the law in the future, SOTECH reserves the right to withdraw from existing contracts or to terminate them without notice.

 

16. Other provisions
    • SOTECH has the right to correct manifest errors (spelling and calculation errors) on orders, supplements etc. at any time and without further ado.
    • Should any provision of these Terms and Conditions of Purchase and any further agreements made be or become invalid and/or unenforceable, this shall not affect the validity and enforceability of the remaining terms and conditions. The contracting parties are obliged to replace the invalid and/or unenforceable provision with a valid and enforceable provision that comes as close as possible to the invalid and/or unenforceable provision in terms of economic success.

 

17. Place of jurisdiction; applicable law
    • For all legal relationships between SOTECH and the Supplier, Swiss law shall apply exclusively, excluding conflict of laws and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
    • The place of jurisdiction for all disputes arising out of or in connection with contractual relationships to which these conditions of purchase are applicable is Neukirch, TG, Switzerland. However, SOTECH expressly reserves the right to assert claims against the Supplier before the courts at the Supplier’s registered office or another competent authority according to legal regulations. 

 

Status 1 September 2022