General terms and conditions of delivery

1. General
   • For all deliveries of grinding wheels or other goods or for other services (hereinafter jointly referred to as „Products“) of SOTECH AG, Bahnhofstrasse 38, 9315 Neukirch, (Egnach) (hereinafter referred to as „SOTECH“) as well as the contractual relationships with SOTECH, these general terms and conditions of delivery (hereinafter referred to as „GTCS“) shall apply exclusively. Provisions or general terms and conditions of the customer or of third parties (hereinafter jointly „Customer(s)“) in contradiction to these GTCS shall not be valid, even if they form the basis of the Customer’s order and SOTECH has not expressly objected to their content. The GTCS shall also apply exclusively if SOTECH provides services without reservation after becoming aware of deviating provisions or general terms and conditions.
   • Deviating provisions shall only apply in case of an express agreement in writing to this end between SOTECH and the Customer. Amendments shall only apply to the order for which they were agreed.
   • The GTCS shall also apply to all future deliveries and services to the Customer until new GTCS enter into force.
   • Legally relevant declarations and notifications of the Customer towards SOTECH (e.g. setting of deadlines, notification of defects) have to be made in writing; stricter statutory form requirements remain reserved.

 

2. Offer and offer documents
   • Offers including all information contained therein or in accompanying documents of SOTECH are not binding on SOTECH and do not constitute an application in the legal sense, as long as SOTECH does not expressly and in writing declare offers to be binding .
   • Information, technical data and performance descriptions contained in documents of SOTECH shall be understood to constitute approximate values, unless they are expressly and in writing declared to be binding.
   • Offers including all information contained therein or in accompanying documents are the property of SOTECH. Such may only be used, duplicated or passed on by the Customer with the express consent of SOTECH in writing. In case of non-observance of this provision, the Customer shall be obliged to compensate SOTECH for any damage.

 

3. Conclusion of contract
   • A contract shall come into existence between SOTECH and the Customer with the dispatch of the order confirmation (by e-mail) by SOTECH to the Customer or the signature of a separate, written contract by both SOTECH and the Customer.
   • Changes to the Products after conclusion of the contract at the request of the Customer can only be validly agreed on between SOTECH and the Customer based on an express agreement in writing in which the subject of the changes and their effects are specified (namely additional or reduced costs as well as delivery dates, if applicable).
   • Additional costs due to changes of the Products after conclusion of the contract shall be borne by the Customer and are calculated according to the then applicable rates of SOTECH.

 

4. Prices, terms of payment and default in payment
   • The prices contained in the order confirmation, the written contract signed by both parties or any amendment to the contract shall be decisive.
   • In the order confirmation, prices are quoted either in Swiss francs (CHF) or Euro (EUR) plus taxes and charges (namely VAT, HVC) at the statutory rate, FCA (Incoterms® 2020) Neukirch excluding packaging.
   • Invoice amounts are due for payment without deduction within ten (10) days from invoicing in the agreed currency by bank transfer in the absence of an explicit deviating agreement in writing. However, SOTECH can also subject its services to concurrent payment (Zug um Zug) or on an advance payment.
   • The payment obligation shall only be fulfilled with the receipt of the payment (value date) on the bank account of SOTECH.
   • Upon expiry of the payment deadline without payment, the Customer shall be in default without reminder and shall owe default interest of 5% p.a. from the first day of default. Upon the occurrence of default in payment, any rebates, discounts or other benefits shall be forfeited. Upon the occurrence of default in payment, all claims of SOTECH against the Customer shall become immediately due for payment. This also includes deferred receivables or receivables for which payment agreements have been concluded in individual cases.
   • With occurrence of default in payment of the Customer or of circumstances which give reason to justified doubts about the solvency or creditworthiness of the Customer, and also if such circumstances already existed at the time of conclusion of the contract, however, were not known to or did not have to be known SOTECH, SOTECH shall then and without further ado have the right (individually or cumulatively):

• to withdraw from the contract at any time and to reclaim from the Customer any services already rendered;
• waive the subsequent performance of the Customer and demand compensation for the damage resulting from the non-performance
• to demand appropriate securities from the Customer for all due claims;
• to provide services to the Customer, also from other contracts and irrespective of the agreements made in this respect, only against advance payment;
• to claim damages from the Customer.
  • The delivered Products remain property of SOTECH until the purchase price has been paid in full (retention of title) and may neither be pledged nor transferred by way of security (Sicherungsübereignung). SOTECH has the right to register the retention of title at its own expense in the retention of title register at the registered seat or place of residence of the Customer. The Customer undertakes to, on first request of SOTECH and without compensation, co-operate appropriately, provide necessary explanations or signatures. Furthermore, the Customer shall be obliged to immediately inform SOTECH about any changes to the domicile of the Customer, at the latest within 10 days.

 

5. Delivery
   • The indication of delivery times and dates shall not be binding on SOTECH and such are to be understood approximately. Delivery periods begin at the earliest with the date stated on the confirmation or the date of the order confirmation of SOTECH, however, not before the clarification of all technical details or, to the extent agreed on in the individual case, the provision of a deposit or security to SOTECH. Deliveries are made in consultation with the Customer.
   • Delivery periods and dates shall be extended appropriately to the extent the Customer fails to fulfil his duties to cooperate towards SOTECH. The rights of SOTECH in case of default of the Customer remain reserved.
   • The time of delivery shall correspond to the day on which the Products are made available to the Customer by SOTECH in Neukirch after consultation with the Customer or handed over for the transport. The risk is transferred at the time of handing over for transport, (completion of the loading process). If the shipment is delayed for reasons attributable to the Customer, the transfer of risk shall occur at the time of notification of readiness for dispatch by SOTECH.
   • Cases of force majeure and other events, which are not attributable to SOTECH and which make a delivery considerably more burdensome or impossible, such as operational disturbances, transport delays, strikes, lockouts, official measures, pandemics, epidemics, war, terrorist attacks, import or export restrictions, non-delivery, incorrect or delayed delivery by suppliers of SOTECH etc., entitle SOTECH to extend delivery periods and dates appropriately. If events of force majeure or equivalent events last longer than three (3) months, each party shall be entitled to withdraw from the contract, insofar as an adjustment of the contract by mutual agreement of the parties is not possible. The Customer shall not be entitled to any claims for damages against SOTECH in the cases according to this clause. 4.
   • If SOTECH is responsible for a delay in delivery, the Customer shall, on demand, explain within an appropriate period of time whether he insists on the delivery or withdraws from the contract.
   • The dispatch of Products by SOTECH based on an agreement in an individual case shall take place at the expense and risk of the Customer. Product damages shall be reported to the carrier immediately upon receipt of the Product.
   • Complaints concerning quality and quantity shall be immediately reported to SOTECH in writing, however at the latest within five (5) days as from receipt of the Products. Otherwise, the delivery shall be considered as approved. The receipt of the notification by SOTECH is decisive.

 

6. Warranty
   • The warranty obligation of SOTECH in case of defects of the Products (Art. 197 ff. OR, esp. Art. 205 ff. OR) shall, as far as legally permissible, be excluded. The Customer’s statutory warranty claims in case of defects of the Products, in particular withdrawal from the contract (rescission), price reduction (reduction), replacement delivery and/or compensation shall be excluded and replaced, to the exclusion of any other claims, by the Customer’s claims according to this clause 6.
   • The warranty period for Products delivered by SOTECH shall correspond to the period granted by the manufacturer to SOTECH, however, such warranty period shall never exceed twelve (12) months as from delivery to the Customer. (Decisive is the time of the delivery, i.e. the making available or handing over for transport (see para. 3.)
   • Warranty claims of the Customer against SOTECH for Products which become demonstrably defective or unusable as a result of bad material, faulty construction or defective execution shall correspond to the warranty or guarantee claims of SOTECH against the manufacturer. On demand, SOTECH shall inform the Customer about the respective warranty claims of SOTECH against the manufacturer.
   • The Customer is obliged to inform SOTECH immediately and in writing about possible defects of the Products occurring during the guarantee period. The assertion of potential guarantee claims of the Customer presupposes that he immediately separates the affected Products (entire batch) as at the time of the discovery of potential defects and, on demand of SOTECH, returns them to SOTECH. By use of defective Products, the Customer forfeits potential guarantee claims against SOTECH (regardless of the guarantee or warranty claims of SOTECH against the manufacturer). With expiration of the guarantee period any claims of the Customer in case of defects of the Products shall cease to exist. Any liability of SOTECH is excluded for damages resulting from delayed notification of defects to SOTECH.
   • The warranty does not cover customary or insignificant deviations from the agreed quality of the Products, insignificant impairment of the usability of the Products or damage resulting from natural wear and tear, improper handling, storage, installation, non-compliance with installation or operating instructions or safety recommendations, or damage resulting from excessive stress or use. Also excluded from the warranty are defects which are attributable to the Customer’s design specifications or the Customer’s instructions for the use of certain materials. Any warranty shall be excluded for grinding wheels used by the Customer after the discovery of defects. Finally, there shall be no warranty claims if the Products are modified by third parties or by the installation of parts of foreign origin after delivery.

 

7. Damages
   • SOTECH shall only be liable for damages resulting from the violation of contractual and non-contractual obligations:

• in the event of intent or gross negligence;
• in the event of negligent or intentional bodily injury;
• due to mandatory statutory provisions.
  • Any liability of SOTECH shall be limited in amount and correspond, at maximum, to the invoice amount of the respective Products delivered to the Customer. The compensation shall be limited to the direct, immediate damage, any liability for indirect, incidental and consequential damages of all kinds or loss of profit shall be, as far as legally permissible, excluded.

 

8. Secrecy
   • The Customer undertakes to treat as confidential all information and documents which have come to his knowledge in the course of the business relationship with SOTECH, be it with the order, delivery, other services or otherwise in the course of the handling of the business relationship with SOTECH (among other things business or technical information which are contained in offer documents, offer confirmations, delivery notes, accompanying documents, plans or similar) and not to disclose them to third parties. They shall only be made accessible to persons in the Customer’s organisation which are subject to an equivalent duty of confidentiality as in this clause. 8.
   • Excluded from the duty to maintain confidentiality shall be (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 GTCS.
   • The duty to maintain confidentiality shall exist before the conclusion of a contract or before issuance of a possible order confirmation by SOTECH and shall also survive the termination of the contractual relationship with SOTECH.

 

9. Other provisions
   • SOTECH has the right to correct obvious errors (spelling and calculation errors) on offers, quotations, order confirmations, delivery notes, invoices, etc. at any time and without further ado.
   • The Customer shall only have the right to withhold payments or to offset them against counterclaims if such counterclaims are undisputed or have been determined in a legally binding manner (rechtskräftig).
   • The invalidity or ineffectiveness of individual provisions of these GTCS shall not result in the invalidity or ineffectiveness of the remaining provisions of these GTCS. In place of an invalid or unenforceable provision, it shall be deemed agreed what comes closest to the meaning and purpose of the invalid or unenforceable provision in a legally effective manner.
   • Written declarations of SOTECH are considered as received if they are sent to the last address communicated by the Customer. Written declarations of the Customer are considered as received if they are sent to the respective registered office of SOTECH.

 

10. Applicable law and place of jurisdiction
    • Swiss law shall apply exclusively to all legal relationships between SOTECH and the Customer to the exclusion of the conflict of laws and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
    • The ordinary courts at the registered office of SOTECH in Neukirch, TG, shall have exclusive jurisdiction for all disputes arising out of or in connection with the legal relationships between SOTECH and the Customer. However, SOTECH expressly reserves the right to assert claims against the Customer before the courts at the Customer’s place of residence or registered office or another authority responsible according to legal regulations.

 

Status 1 September 2022