General and Delivery Terms & Conditions
Without exception and independent of the transaction’s legal nature our deliveries, services and quotations are subject to these general terms and conditions. All of our declarations of intent, as defined by private law, shall be interpreted in accordance with these general terms and conditions. To be valid deviations require our explicit and written assent. Any contract fulfilment activities we may engage in do not by themselves constitute such assent. These general terms and conditions also form the underlying framework for any and all further (legal) transactions between parties.
2 Contract conclusion (order)
A contract is formally concluded and/or an order becomes effective on our receipt of customer’s order confirmation. To that end customer shall either return to us our quotation, duly acknowledged for acceptance, or submit its order in legally binding form, i.e. by FAX, postal delivery, certified e-mail or personal presentation. Alternatively dispatch or transfer of the ordered goods by us to customer shall be considered valid contract conclusion or binding order placement. Once confirmed in one of these ways, an order placed with us is irrevocable. Contract rescission is only possible for good and valid cause. Our duty to deliver the ordered goods and/or services is contingent on customer’s fulfilment of all its contractual obligations.
3 Contract rescission
In case of acceptance or payment delays, the inception of bankruptcy proceedings against customer, dismissal of same for lack of sufficient means, or for other good and valid cause, we are entitled either to insist on contract fulfilment or to rescind the contract and dispose of any ordered goods at our discretion.
Our prices are EXW (ex works/warehouse as defined in INCOTERMS), excluding VAT. Actual dispatching expense is charged separately. Prices agreed at the time of order placement remain in effect during the agreed delivery lead time. Should delivery be delayed by late customer acceptance or at the latter’s explicit request, we are entitled to apply any intermediate price increases. In Switzerland, all discounts and benefits on prescribable products have to be passed on to the patient respectively the health insurance company (Art. 56 KVG). Idiag explicitly refers to these legal regulations. It is in the responsibility of the purchaser to pass on the discounts.
5 Payment Conditions
Unless explicitly agreed differently, our invoices are payable net and without discount within 30 days from the date of issue. In case of payment delays we shall levy an interest on arrears starting at 5% of the invoice amount, as well as hold customer liable for all further expense related to the processing of our claim, such as but not limited to (legal) fees and charges. In such cases we are released from and entitled to suspend all outstanding fulfilment or delivery obligations. Offsetting payments with counter claims requires our prior explicit assent.
6 Retention of Title
Any deliveries remain vendor’s property till the agreed purchase price has been paid in full. Nevertheless customer carries full risk and peril related to such title retained goods, in particular for loss, damage or degradation. Should we reclaim or redeem title retained goods, this does not constitute contract rescission unless there is an explicit agreement to that effect. Furthermore we are entitled to charge customer for any transportation or
handling expense related to such reclamation or redemption.
7 Delivery, transportation, dispatching
In case of delivery delays beyond our control, e.g. by force majeure, lock out or similar events, including late supplies to us, the agreed delivery date is postponed accordingly. However, should such a delay exceed six weeks, customer may elect to rescind the contract without cancellation charge. On the other hand we shall not be liable for compensation or indemnification of related damages. Dispatch or collection of goods is at customer’s risk, cost and peril. The same applies to the disposal of packaging material according to the legal guidelines. Irrespective of the default legal regulations, the risk of incidental loss or degradation passes to customer latest on transfer to the carrier, even if delivery is “carriage paid”. At customer’s explicit request we can conclude a transportation insurance policy on its behalf.
8 Transfer of usage rights, risk and peril
All usage rights, risks and perils transfer to customer latest at the time of dispatch from our works/warehouse. Should dispatch be delayed at customer’s explicit request or for causes beyond our control, said transfer of risks and peril shall take place at the time originally foreseen for final transportation. As of then we store and insure the consignment at customer’s risk, cost and peril.
9 Inspection and acceptance
Prior to dispatch all deliveries are inspected and checked by us. Specific acceptance testing and any stipulations to that end require a separate agreement. Customer shall check deliveries, goods and services within 8 days after receipt and notify us in writing and without delay of any defects or deficiencies. In the absence of such notification all deliveries and services are considered approved and accepted, contingent on the absence of latent defects.
10 Warranty/ Liability for latent defects
10.1 Unless explicitly agreed differently our deliveries carry a 12 month warranty, starting on the date of dispatch or collection from our warehouse/works. Should such event be delayed for reasons beyond our control, warranty shall end latest 18 months after our notification of readiness for dispatch. In case the overall warranty entitlement expires beforehand, parts replaced or repaired under warranty are guaranteed for 6 months from the date of installation.
10.2 The warranty period terminates prematurely if customer or (a) third party(parties) conducts repairs or modifications without our prior written consent, if customer, once a defect has occurred, fails to immediately take all suitable measures to mitigate damages, and/or if it does not facilitate repair/resolution by us as appropriate.
10.3 On receipt of customer’s written request we commit (at our choice) to repair or replace as soon as possible all delivery parts that are/become damaged or unusable before the end of the warranty period if and in as far as this is verifiably due to material defects, design errors, or deficient workmanship. Such defective parts shall be returned to us on demand. In case of replacement the original parts become our property.
10.4 We do not accept liability for damages not verifiably due to material defects, design errors or deficient workmanship, and these are thus excluded from warranty entitlement. This notably comprises normal wear and tear, inadequate or incorrect maintenance, violation or disregard of operating instructions, excess load or stress, the deployment of inappropriate operating fluids or consumables, chemical or electrolytic impacts, installation or mounting not performed by us, and all other circumstances beyond our control.
10.5 Prerequisites for software related warranty interventions are:
• The error shall be reproducible using the original, unchanged version of the software
• The error shall be documented at the highest possible level of detail.
In case of loss of data (and/or storage media) the warranty does not include any expense or effort towards data recovery.
11 Liability and indemnification for damages
Any customer claims outside those expressly included in these Terms and Conditions, whatever their legal basis, shall be null and void. In particular, no indemnification entitlement shall exist for direct damages to goods not contained in the scope of our delivery or for indirect or consequential damages, e.g. but not limited to loss of production, utilisation, business turnover or profit. This liability disclaimer is limited by the stipulations of mandatory law and notably does not extend to cases of gross negligence and/or malicious or unlawful intent.
12 Applicable Law and Court of Jurisdiction
Our contracts and these Terms & Conditions are exclusively governed by Swiss Law. For all litigation arising from the contract and these Terms and Conditions Zurich shall be the Court of competent jurisdiction. At its discretion vendor may also instigate legal proceedings against customer at the location of the latter’s registered office.
13 Final clauses
Should a clause or stipulation in these Terms and Conditions be or over time become legally void, this does in no way invalidate the remainder. Customer is obliged to notify us in writing of any postal address change. Failure to do so implies that a communication of legal relevance sent by us to the old address shall be considered in time and effective in law. Plans, outlines, drawings, concepts, designs or documents of any kind developed or produced by us, e.g. but not limited to models, mock-ups, prototypes, catalogues, brochures and illustrations, remain our intellectual property. Unless explicitly agreed in writing, customer does not acquire related usage or exploitation rights of whatever