of the Kistler Group:
(the supplying company of the Kistler Group is hereinafter referred to as "Supplier")
1.1 Scope of application
1 These General Terms and Conditions ("GTC") shall apply to all present and future sales, deliveries, services and projects of Supplier. They apply exclusively to operationally active persons (hereinafter referred to as "Customer").
2 Supplier's GTC shall apply exclusively. Other preformulated conditions, in particular Customer's conditions of purchase, shall only be valid if they have been expressly accepted in writing and in advance by Supplier. Supplier's GTC shall also apply if Supplier accepts Customer's performance without reservation or renders its own performance without reservation in full knowledge of the conflicting terms and conditions of Customer.
3 Agreements and legally relevant declarations of the parties require the written form to be valid. Electronic communication channels that enable proof by text (e.g. e-mail) are equivalent to the written form.
1.2 Conclusion of contract
4 The contract shall come into effect upon receipt of Supplier's written confirmation that it accepts Customer's order.
5 Offers (quotations) made by Supplier without an acceptance period are non-binding. Brochures and catalogs (incl. internet pages) as well as information in technical documents are not binding unless Supplier expressly assures their binding nature in writing.
1.3 Scope of deliveries/services:
6 The scope of deliveries or services shall be based on the concurrent intentions of the contracting parties as expressed in writing. In the absence of any, Supplier's written order confirmation or, if no such confirmation exists, Customer's written order shall be decisive.
7 Unless agreed otherwise and subject to the applicable imperative legal provisions, Customer waives the physical delivery of all documents and operating instructions (collectively referred to as "documentation") relating to Supplier's products, deliveries and services and accepts that Supplier may only make such documentation available via electronic media, the internet or any other paperless channel. Customer confirms with its order that it is aware that the documentation must be retrieved via the website (www.kistler.com). Physical delivery of the documentation or delivery in Customer's national language shall only take place upon written request of Customer.
8 All ancillary costs shall be borne by Customer and are not included in the scope of delivery and performance unless stipulated otherwise in the agreed Incoterms clauses. In particular, this also includes all costs and charges in connection with the conclusion of a contract or its performance such as freight, insurance, export, transit, import and other authorizations, notarizations, taxes, levies, fees and customs duties as well as all administrative costs associated with these costs and charges. Insofar as such costs and charges are levied on Supplier or its auxiliary persons, they shall be reimbursed by Customer.
9 Supplier reserves the right to make reasonable price adjustments if wage rates or material prices change between the time of the offer and the contractual delivery, or if the material or design changes for reasons for which Customer is responsible, or if changes occur in the laws, regulations, interpretation and application principles to be observed.
1.5 Terms of payment
10 Unless stated otherwise in the offer (quotation), Supplier shall invoice Customer at the time of delivery. The invoice is due for payment without deduction within the period stated on the invoice, but at the latest within 30 (thirty) days of the invoice date.
11 Customer shall be in default without reminder upon expiry of the payment period in accordance with the above paragraph. In the event of default, Customer shall pay default interest in the amount of the default interest customary at its domicile, but at least 6% p.a. above the respective 3-month CHF SARON rate.
12 In the event of default in payment, Supplier reserves the right to immediately suspend planned deliveries and services, including further partial deliveries or partial services.
13 If payment by letter of credit has been agreed, Customer shall bear the costs of opening, notifying and confirming the letter of credit. The same applies to bills of exchange and other related forms of payment.
1.6 Delivery period
14 If the order confirmation does not stipulate otherwise, the delivery period shall commence when all official formalities such as export, transit, import and payment permits have been obtained, the payments that became due when the order was placed have been made, any collateral that may be required has been provided and the essential technical points have been clarified.
15 Supplier shall endeavor to observe the delivery periods stated in the order confirmation, but shall not give any binding assurance as to their observance. Customer's right to withdraw from the contract or claim damages in the event of delayed delivery or performance is excluded. The exclusion does not apply to unlawful intent or gross negligence, but it also applies to auxiliary persons.
1.7 Disclaimer and limitation of liability
16 These GTC conclusively regulate the claims of Customer arising from breach of contract.
17 If Customer has any claims under the contract, the total amount of these claims is limited to the price paid by Customer. Under no circumstances shall Customer be entitled to compensation for damage not incurred to the deliverable itself, in particular such as loss of production, loss of use, loss of orders, recall costs, installation and removal costs, loss of profit or other direct or indirect damage. Supplier's liability for the compensation of claims of third parties asserted against Customer due to infringements of intellectual property rights is excluded.
18 The exclusion and limitation of liability shall not apply in the event of Supplier’s intentional, gross negligence, fraudulent concealment of a defect, acceptance of a guarantee, injury to life, limb or health and in the event of product liability. Furthermore, the exclusion of liability shall not apply in cases in which Supplier is liable by law. The exclusion and limitation of liability shall, however, also apply to auxiliary persons of Supplier, except in the case of injury to life, limb or health.
1.8 Cancellation of contract
19 In the event of unforeseen events that substantially change the economic significance or content of the delivery or service or that have a considerable effect on the performance of the contract by Supplier or render it impossible, the contract shall be adapted accordingly. Insofar as this is not economically feasible, Supplier shall be entitled to cancel the contract or the relevant part of the contract. A corresponding notification by Supplier must be made within a reasonable period of time.
1.9 Intellectual property rights
20 Supplier shall retain in full all intellectual property rights to which it is entitled, in particular all patent, design, copyright, trademark, name and company rights as well as the rights to the products, its know-how and the technical and commercial documents made available to Customer, such as drawings and diagrams. Subject to an express contractual provision, Supplier does not grant Customer any right to use or transfer the intellectual property rights to which it is entitled.
1.10 Export control
21 Customer acknowledges that deliveries may be subject to domestic and/or foreign export control regulations and may therefore not be sold, otherwise transferred or used for any purpose other than the agreed purpose without an export or re-export permit issued by the competent authority. Customer is obliged to comply with such regulations.
2. Additional provisions for delivery of goods
2.1 Prices for delivery of goods
22 Prices are net ex works (EXW according to Incoterms 2020), without packaging, in the specified currency, exclusive of VAT and without deductions.
2.2 Warranty for delivery of goods
23 Supplier warrants that delivered goods are free from manufacturing and material defects at the time of transfer of risk. However, Supplier does not guarantee that the goods meet the requirements and purposes of Customer and its customers. Customer and its customers bear responsibility for the correct selection and consequences of the use of the products as well as the intended or achieved results.
24 Supplier does not warrant any characteristics with regard to the delivered goods unless this is expressly stated in the order confirmation or in the specifications as an "assurance". Supplier also does not assume any warranty. Unless agreed otherwise, any descriptions refer only to the condition of the goods at the time of transfer of risk. Warranty claims arising therefrom may be asserted up to the expiry of the warranty period at the latest.
25 If the goods delivered to Customer are defective, Customer must notify Supplier of obvious defects in writing within 5 (five) days of receipt of the delivery, stating the specific defect. Customer shall notify Supplier in writing of any defects that can only be recognized through a proper inspection without delay after it should have discovered the defect on the basis of such an inspection, stating the specific defect. Hidden defects must be reported by Customer to Supplier in writing within 5 (five) days of their discovery, stating the specific defect.
26 In the event of a material defect, Customer can only demand that the defect be remedied or, if this is not possible, that a replacement delivery be made. Unless the material breach resulted from causes attributable to Supplier’s intentional or grossly negligent conduct, cancellation or rescission and reduction are excluded, and Supplier assumes no liability for the costs of any procurement of replacement products from third parties or for installation and removal costs.
27 Claims for warranty arising from the delivery of goods due to defects shall expire 12 (twelve) months after Customer has received the defective goods. Deviating from this, the statutory warranty periods shall apply (a) if the goods are a newly manufactured object that is a building and/or an object that has been used for a building in accordance with its usual purpose and that has caused its defectiveness, (b) if Customer's claims are based on an intentional and/or grossly negligent breach of contract, (c) if Supplier has fraudulently concealed the defect and (d) for claims due to injury to life, limb and/or health. For deliveries of goods replaced or repaired by Supplier, the warranty period shall recommence and shall last 6 (six) months from delivery of the replaced or repaired goods, but at least until expiry of the original limitation period of 12 (twelve) months.
2.3 Transfer of benefits and risks
28 Benefit and risk shall pass to Customer upon dispatch of the delivery ex works at the latest. If dispatch is delayed at Customer's request or for other reasons for which Customer is responsible, the risk shall pass at the time originally intended for delivery ex works. From this time on, deliveries will be stored and, if appropriate, insured at the expense and risk of Customer.
2.4 Reservation of title
29 Supplier shall retain title to its delivery until payment has been made in full. Customer shall co-operate in any measures necessary to protect Supplier's property. Customer authorizes Supplier to register the reservation of title independently.
3. Additional provisions for performance of services
3.1 Prices for performance of services
30 Unless agreed otherwise, services and work performed (collectively referred to as "services") shall be invoiced on a time and material basis, plus all ancillary costs.
31 If a lump sum price has been agreed for Supplier's services, all work carried out that exceeds the agreed scope of services shall be compensated separately by Customer.
32 Costs for accommodation, transport, allowances, visas or other extraordinary expenses such as taxes or similar levies shall be reimbursed to Supplier in accordance with the actual costs incurred within the usual scope and amount. In addition to the time required for the outward and return journey to the assembly site, travel time also includes the time required to move into the accommodation at the assembly site and to complete the official registration and deregistration formalities.
33 Information in plans, drawings, technical documents and the like shall only be binding if expressly agreed in the contract.
34 Supplier performs the services through qualified personnel and is entitled to engage third parties as subcontractors.
35 If Supplier's personnel are significantly impeded from performing the services for reasons for which Supplier is not responsible, Supplier shall be entitled to withdraw the personnel and charge Customer for waiting times and travel expenses at the applicable rates.
36 Customer shall carry out preparatory tasks in accordance with Supplier's specifications and shall in particular ensure that access to the assembly site is guaranteed and that the assembly site is in working order.
37 Customer shall take the necessary measures to prevent illness and accidents and to protect the environment, otherwise Supplier shall be entitled to suspend or refuse performance of the services.
38 Tools, equipment and consumables made available to Customer by Supplier shall remain the property of Supplier.
3.3 Inspection and acceptance
39 Customer must inspect the service within 5 (five) days of performance and report any defects in writing within this period, stating the specific defect. (Hidden) defects discovered at a later date must be reported in writing by Customer to Supplier within 5 (five) days after discovery of the defect, stating the specific defect. Otherwise the delivery and service shall be deemed to have been approved.
40 Customer shall give Supplier the opportunity to remedy the defects notified in accordance with the preceding paragraph.
41 The parties shall carry out a joint acceptance test in accordance with previously agreed conditions, if so agreed. Acceptance will take place in case Customer issues an acceptance notice, in writing, within 14 days from the receipt of the product.
The Customer agrees that acceptance, if any, shall also be deemed to have taken place if (i) acceptance does not take place on the 14th date from the delivery for reasons for which Supplier is not responsible or (ii) Customer puts the plant in-to operation.
3.4 Warranty for services
42 If Supplier's services prove to have been performed incorrectly or not carefully at the time of transfer of risk, Supplier shall remedy the relevant services within a reasonable period of time. Supplier shall exclusively bear the costs of rectification incurred by itself, and in particular shall not bear any installation and removal costs. Unless the material breach results from causes attributable to Supplier’s intentional or grossly negligent conduct, cancellation or rescission and reduction are excluded, and Supplier assumes no liability for the costs of any procurement of replacement products from third parties or for installation and removal costs. Supplier does not assume any guarantee for the services.
43 The assertion of defects arising from the performance of services shall become statute-barred 12 (twelve) months after acceptance of the service. If acceptance is delayed for reasons for which Supplier is not responsible, the warranty period shall end 18 (eighteen) months after performance. Notwithstanding the foregoing, the statutory warranty periods, calculated from the date of acceptance or from the date of performance, shall apply in the event of a delay in acceptance for which Supplier is not responsible, depending on which occurs first, (a) if the assembly or maintenance work involves a building or work, the success of which consists of the provision of planning or monitoring services for this purpose, (b) if Customer's claims are based on an intentional and/or grossly negligent breach of contract, (c) if Supplier has fraudulently concealed the defect, and (d) for claims based on injury to life, limb and/or health.
3.5 Goods testing and repairs
44 If Customer commissions Supplier to test the functionality of goods, Customer shall pay a lump sum ("discovery fee") depending on the product category in accordance with Supplier's corresponding price list for the test. If Customer commissions Supplier to repair these goods, the discovery fee will be added to the remuneration owed by Customer. Unless agreed otherwise, Customer shall pay the actual cost of the repair. If the repair costs are substantial, Supplier shall provide Customer with a cost estimate in advance for approval.
4. Additional provision for delivery of software
45 If software is part of the scope of delivery and services, Customer shall be granted a simple, non-exclusive, non-transferable and non-sublicensable right to use the software together with the deliverable, unless otherwise agreed and subject to full payment of any agreed usage fee. Multiple usage rights, e.g. for the use of the software on several hardware systems, must be contractually agreed separately.
46 Customer shall not be entitled to make copies of the software (except for archiving purposes), process the software (further develop, modify, disassemble, decompile, decrypt, reverse engineer, etc.) or pass it on to third parties.
47 Customer acquires the right of use for the version of the software that is current at the time of the conclusion of the contract or the first installation.
48 Customer takes note and acknowledges that it has no right to updates, upgrades or patches of the software and Supplier is not obliged to maintain the software or to provide technical support, subject to a separately concluded contract.
49 Supplier warrants that the software is free from defects at its installation that would void or seriously impair its value or fitness for use as provided in the contract. Such errors must be reported to Supplier immediately in writing, whereupon Supplier shall, at its discretion, either remedy them or provide Customer with a reasonable workaround. Customer acknowledges that data processing programs, in particular if they are combined with other products or interact with other data processing units, cannot be created completely error-free according to the current state of the art.
50 Supplier does not issue any warranty for errors in the selection of the software, for an installation carried out by Customer itself, for the interaction of the delivered software with an installation carried out by Customer itself, or for the interaction of the delivered software with hardware or software products operated by Customer that were not purchased from Supplier.
51 If Customer violates the provisions of this clause, Supplier may revoke the right of use.
5. Final provisions
53 Should any provision of these GTC prove to be invalid or unenforceable in whole or in part, the validity of the remaining provisions of these GTC shall not be affected thereby.
54 The legal relationship shall be governed by the substantive law applicable at the registered office of Supplier, to the exclusion of the applicable conflict of laws provisions.
55 The exclusive place of jurisdiction for Customer shall be the registered office of Supplier. Supplier shall, however, be entitled to sue Customer at Customer's place of business.