General Terms and Conditions of Sale
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General Terms and Conditions of Computer Controls for transactions with businesses (B2B)
We confirm your order subject to the exclusive application of our General Terms and Conditions of Sale.
§ 1 Scope, contract language
(1) These terms and conditions (“GTCs”) apply exclusively to the contracts concluded between you as customer (“Customer”) and us, Computer Controls AG (Industriestrasse 53, 8112 Otelfingen, Switzerland, VAT registration number and Commercial Register number: CHE-105.859.409) (hereinafter “Computer Controls” or “we”) for the supply of goods and services (together “Products”). They apply regardless of conditions to the contrary in an order, a document or any other communication from the Customer (“Order”) and regardless of the lack of any objection by Computer Controls to other conditions. Differing or contrary conditions are not accepted by us in so far as we have not agreed to them expressly in writing. These GTCs may only be amended jointly in writing by persons authorised by Computer Controls and by the Customer. However a written individual agreement supersedes these GTCs; that is, if Computer Controls agrees something specific with the Customer, this shall apply even where something different is provided in these GTCs.
(2) These GTC of sale apply only to businesses, legal entities under public law or public law entities and other non-consumers.
(3) These GTCs of sale apply also to all future transactions between the parties, including where we carry out the supply of goods with knowledge of differing or contrary conditions.
(4) The language available for the conclusion of the contract is exclusively German. Translations of these GTCs into other languages serve only for convenience. In the event of any differences between the language versions the German text has priority.
§ 2 Applicable law
(1) The material law of Switzerland applies, including the UN sales law, if the Customer has its head office in Switzerland. Similarly the law of Switzerland applies including the UN sales law, if the Customer has its head office in a country that is not a member of the European Union.
(2) Where the Customer has its head office in a country that is a member of the European Union, the material law of Switzerland also applies, including the UN sales law. Mandatory provisions of the country in which the Customer has its head office are not affected.
§ 3 Formation of the Contract
(1) Information provided by Computer Controls concerning prices or delivery dates does not constitute an offer. Only the Customer’s order is to be deemed an offer. Computer Controls may accept this offer by written confirmation or commencement of activity indicating performance, unless Computer Controls receives a withdrawal of the offer before confirmation or commencement of performance activity.
(2) A contract between the Customer and Computer Controls is formed as soon as Computer Controls accepts the order or booking by the Customer by means of a separate confirmation email or shipment of goods or commencement of the provision of the service (thus execution of the order). The Customer is asked to check the SPAM folder of its email inbox regularly.
(3) Communications labelled as “offers” are deemed to be offers only subject to these GTCs and only with a separate notice concerning the period of validity of such “offer”, otherwise such “offers” are purely for informational purposes.
§ 5 Storage of the contractual text
The contractual provisions with details of the ordered Products including these GTCs are sent to the Customer either by email upon acceptance of the offer to contract or with the notification of this or by a link upon delivery. Computer Controls does not store the contractual provisions.
§ 6 Processing of personal data of the Customer
For information on the processing of the Customer’s data our data protection information can be viewed using the following link: privacy.ccontrols.ch.
§ 7 Prices
All prices are net prices (excluding taxes, freight, customs or other fees and excluding costs for additional services and packaging costs) where and in so far as this is not otherwise provided for in the offer, cost estimate or invoice of Computer Controls. Computer Controls reserves the right to alter prices before the conclusion of the contract and delivery, in particular for reasons of price increases on the part of the manufacturer, currency fluctuations or errors in the submission of the offer.
§ 8 Payment terms/offsetting and retention
(1) Invoices are due at the stated date without deduction. If the Customer is already registered with Computer Controls, the due date will be in accordance with their debit customer data; as a rule the due date is 30 days from invoicing.
(2) After the due date, default interest of 5% p.a. is charged. We reserve the right to assert further claims for damages due to default. Offsetting is not permitted, unless claims or counterclaims are undisputed and legally established, as well as claims or counterclaims arising from the same contractual relationship.
(3) The Customer has the right to assert retention rights only when based on claims or counterclaims arising from the same contractual relationship.
(4) If the Customer has been given a credit limit, this may be changed by Computer Controls at any time.
(5) Incoming payments may be credited to any existing customer account for the Customer, using the oldest debt of the Customer first.
(6) If the Customer defaults on payment, Computer Controls has the right to postpone and/or cancel outstanding deliveries and orders and in addition to immediately declare due for payment all outstanding amounts. Without prejudice to applicable law, credit limits granted by Computer Controls, yet unused, expire automatically after twelve (12) months.
§ 9 Software
The corresponding valid and applicable licence conditions for software and the accompanying documentation shall apply for the use of any software the Customer bought. Software that has already been included in hardware or that operates only in conjunction with certain hardware, may only be used with this hardware, and not separately.
§ 10 Delivery terms / shipment
(1) Prerequisite for timely delivery by Computer Controls is the proper and timely fulfilment of the Customer's obligations. The right to raise objection to non-fulfilment of the agreement is reserved.
(2) In case of default in acceptance or other breach of duties to cooperate by the Customer Computer Controls has the right to compensation for the resulting damage, including any additional expenses. Computer Controls reserves the right to make further claims. The risk of accidental destruction or of accidental deterioration of the goods shall pass in this case to the purchaser at the time of default in acceptance or other breach of the duties to cooperate.
(3) Computer Controls supplies the Products in accordance with the agreements reached with the Customer. If Computer Controls supplied goods not conforming to contract, i.e. defective, incorrect or quantitatively insufficient goods, the Customer may require subsequent performance by replacement delivery or remedy of the defect at the place where delivery is usually made. Details are governed by § 13.
(4) The applicable shipping costs are listed with the Product description and are shown separately on the invoice by Computer Controls. Unless otherwise agreed, the following delivery terms apply: for all deliveries from the European Union CPT (customer address) and for all deliveries into the European Union EXW (Computer Controls warehouse) or EXW (manufacturer’s warehouse) for shortened direct deliveries.
(5) All Incoterms refer to the INCOTERMS 2020. Delivery dates are subject to Computer Controls itself receiving correct and timely delivery. Computer Controls is not liable in the event of delayed, partial or premature delivery and the Customer must accept such deliveries. Cancellation after acceptance is not possible.
(6) Delivery dates shall be met as well as possible, but are not binding. Delays in delivery do not give the purchaser the right either to withdraw from the contract or to compensation or other claims. If delivery is delayed for more than double the indicated time from the delivery date, but at least by more than 38 days, then both parties have the right to withdraw from the contract subject to waiving further claims.
(7) Orders for products that Computer Controls – at its discretion – identifies as “Non-Standard Products” or “NCNR”, may be cancelled, returned or have the delivery date postponed only with the specific written agreement of Computer Controls. Computer Controls reserves the right at its discretion to deliver products or allocate deliveries to individual Customers.
§ 11 Transfer of risk, shipping
(1) The costs for the shipping to the Customer and for packaging – save where otherwise agreed – are borne by the Customer (see § 10). Computer Controls not liable for damage in transit. Damage in transit of any kind must however be notified to Computer Controls by the Customer within eight (8) days of receipt of the Products accompanied by a written report from the carrier.
(2) Upon shipment the goods at the request of the Customer, the risk of accidental destruction and of accidental deterioration of the goods passes to the Customer at the time of dispatch.
§ 12 Retention of title
(1) Until complete receipt of all payments the goods remain in the ownership of Computer Controls in so far as this is registered appropriately according to the Swiss provisions on retention of title. In the event of breach of contract by the Customer, including default in payment, Computer Controls has the right to a return of the goods.
(2) The Customer has the right to resell the goods subject to the retention of title in the usual course of business. In this case it assigns to Computer Controls all receivables from such resale, irrespective of whether these arise prior to or after any processing of the supplied goods subject to the retention of title. Notwithstanding Computer Control’s right to collect the receivable directly, the Customer remains entitled to collect the receivable even after the assignment. In this regard, Computer Controls undertakes not to collect the receivable for so long as and to the extent that the Customer complies with its payment obligations, no application for the opening of an insolvency or similar proceeding is made and there is no cessation of payments.
(3) The Customer must handle the goods with due care, insure them adequately and, in so far as necessary, maintain them.
(4) In so far as the purchase price is not paid in full, the Customer must inform Computer Controls in writing without delay, whether the goods are encumbered with the rights of third parties or otherwise subject of intervention by third parties.
(5) In so far as the above-mentioned securities exceed the secured receivables by more than 10%, Computer Controls releases securities of its choice at the request of the Customer.
§ 13 Warranty
(1) Precondition for any warranty claims by the Customer is proper compliance with all obligations to inspect and to give notice of defects. In accordance with those obligations immediately and at the latest within ten (10) calendar days the goods must be inspected and any defects notified.
(2) The Customer acknowledges that Computer Controls is not the manufacturer of the Products. In so far as and to the extent that the goods sold and supplied by Computer Controls are defective, the Customer has the right within the framework of the statutory provisions, to demand supplementary performance, to withdraw from the contract or to reduce the purchase price. The choice lies with Computer Controls.
(3) Computer Controls can refuse the supplementary performance demanded by the Customer in particular where it proves that this is impossible or disproportionate. The Customer may set Computer Controls a reasonable period for supplementary performance of at least 30 days. If the supplementary performance is not provided within this period, the Customer can, at its discretion demand a reduction. This is, however, excluded in the case of insignificant defects. The warranty is also excluded in the following cases:
- For stock or spare parts with a service life of less than one year, at the end of their expected service life. Service life will be determined by Computer Controls at its discretion based on advice from the manufacturing company.
- For electronic components and modules, the warranty expires when these parts are soldered in place.
- Products or components subject to complaint may be sent to Computer Controls only with its consent. Transportation costs for products or parts that are returned by the Customer as defective shall be borne by the Customer. If the goods are not accepted by Computer Controls as defective, the Customer shall also bear the return transport costs. All transportation costs will be borne by Computer Controls if it acknowledges the defect and also agrees to send the goods to Computer Controls.
- Computer Controls shall not be liable for products or parts that were not purchased from it, nor for complaints that are due to parts that were not purchased from Computer Controls.
- Computer Controls shall be relieved of all obligations if repairs or modifications are made by anyone other than Computer Controls personnel, unless the repairs or modifications are preceded by written consent from Computer Controls.
- There is no warranty for damage caused by incorrect tampering or for products whose seals or seals are broken.
- Failure to comply with the terms of payment shall void the warranty.
- No liability is accepted for functional defects due to special local conditions and influences.
(4) The warranty obligations of Computer Controls also lapse, if a possible defect is attributable to one of the following causes:
- inappropriate preparation or maintenance of the installation location;
- inappropriate, improper or incorrect installation, operation or maintenance by the Customer;
- software not supported by Computer Controls or connected third party products
- changes and repairs to the Products not approved by Computer Controls.
(5) The operating instructions and circuit diagrams accompanying the goods supplied by the manufacturer are subject to the general terms of the manufacturing company. The Customer may not make any claims for recourse in relation to data contained in these, which are diverging from the Products against Computer Controls.
(6) Where and to the extent legally prescribed, Computer Controls warrants that at the time of the transfer of the Products, these correspond to the properties stated in the published product data sheets of the respective manufacturer.
(7) Where and to the extent possible under applicable law and permitted contractually, Computer Controls passes all product warranties and right to receive damage compensation received from the manufacturer (including such rights for breaches of intellectual property) to the Customer.
(8) The limitation period for warranty claims in respect of goods supplied is 12 months from receipt of the goods. If Computer Controls Service provide services (such as calibration, repairs), the warranty extends – in so far as legally permissible – to ninety (90) days, otherwise to the legally permissible shortest possible period from the provision of the service and on the basis that they correspond to the Customer specifications accepted by Computer Controls.
(9) So far as legally permissible, Computer Controls gives excludes guarantees – either expressly or impliedly.
(10) With regard to distributed software there is no warranty or liability on the part of Computer Controls. Unless and to the extent otherwise provided in the applicable licence agreement for the software, the software is provided without any additional warranty.
§ 14 Limitation of liability
(1) Computer Controls is liable for intent and gross negligence. In addition Computer Controls is liable for the negligent breach of duties the fulfilment of which principally facilitates the proper performance of the contract and where their breach endangers the attainment of the contractual goal and the observance of which the Customer may rely on regularly. In the last-mentioned case Computer Controls is, however, liable only for the foreseeable, contractually typical damage. The same applies for breaches of duties of the vicarious agents of Computer Controls.
The foregoing exclusions of liability do not apply in the case of injury to life, limb or health. Mandatory liability according to product liability legislation is not affected.
(2) Computer Controls is not liable for consequential loss (such as loss of profit or revenue, loss of data, loss of use, reworking, repair and manufacturing costs, costs of product recall, for reputational damage or the loss of customers). The foregoing does not apply where and to the extent that Computer Controls is liable on the basis of mandatory statutory provisions.
(3) Computer Controls is not liable for the non-fulfillment of obligations under these GTCs, where this is attributable to force majeure, such as for example natural catastrophes, military conflicts, pandemics/epidemics.
(4) Computer Controls is not liable, where the Customer does not comply with the communicated technical product specifications or the requirements of the respective manufacturer.
§ 15 Catalogue
(1) The operating instructions and circuit diagrams accompanying the supplied Products are subject to the general conditions of the manufacturing company. The purchaser may not make any claims for recourse in relation to data contained in these and diverging from the Products against Computer Controls.
(2) All catalogues and data sheets supplied by Computer Controls are non-binding. We reserve the right to make changes to construction, technical data and execution.
§ 16 Re-export
The re-export of these goods is permitted in accordance with a commitment made to the Department of Import and Export, 3003 Bern, only with a permit from this office. This condition is hereby transferred to the Customer of the goods and must in turn be transferred on if the goods are passed on.§ 17 No original parts
(1) Parts that cannot -irrespective of cause - be obtained by Computer Controls directly from the original manufacturers, even after the best commercially justifiable efforts have been made («parts»), are subject to these special conditions in § 17.
(2) Original parts are such parts as have been produced by the original manufacturer.
(3) The parts and all related information are "as is” and made available as inspected by the incoming goods control of Computer Controls. Should it be the case that the parts are not «original parts», Computer Controls assigns all rights concerning parts that have become faulty against the supplier to the Customer in complete and total exchange for any possible liability claims against Computer Controls whatever the legal basis.
(4) The Customer must accept ordered parts regardless of whether they are original parts or parts.
(5) A return of the ordered and accepted parts is excluded without the prior written agreement of Computer Controls.
(6) Computer Controls disclaims all warranties, express or implied, with respect to the components as «original». This includes also guarantees of merchantability on the grounds of lack of quality as «original part» or the suitability deriving therefrom for a particular purpose.
(7) Computer Controls is not liable in any case for direct, particular, incidental or consequential damages of any kind, irrespective of the legal theory on which such a claim is based, even where the possibility of such damage has been pointed out, so far as this is legally permissible.
(8) The Customer shall indemnify Computer Controls against and hold it harmless from any claims of third parties on grounds of personal injury including fatal injuries or damage to material property that is attributable to these parts.
§ 18 Applicable law/jurisdiction and alternative dispute resolution/severability clause
(1) This contract is subject to the law of Switzerland (excluding international private law) – see § 2.
(2) The place of performance and exclusive jurisdiction for all disputes arising from or in connection with this contract is the head office of the company of Computer Controls in Otelfingen, Switzerland. Computer Controls also has the right to bring claims at the head office of the Customer.
(3) If a provision of these GTCs or of an individual contract are wholly or partially incomplete, void or ineffective, the remaining regulations and conditions shall not be affected thereby. In place of an incomplete, void or ineffective provision Computer Controls and the Customer shall negotiate an effective regulation that is comparable to the economic purpose of the incomplete, void or ineffective provision. The same shall apply to gaps in the contract.