1. Applicable Conditions and Scope of Application
1.1 Unless otherwise expressly agreed upon in writing, the supplies and services of INRAG are exclusively subject to the following General Terms and Conditions of Sale.
1.2 Any conditions of the Customer shall apply only if and to the extent to which INRAG has expressly consented to in writing.
2. Quality Description/Information and Advice, Documentation
2.1 Technical data and quality descriptions of the products of INRAG are exclusively determined in the respective product specifications.
2.2 Any further advice and information given on the products of INRAG is based on our experience to date. The data, in particular concerning the possibilities of use of the products of INRAG, are average data only and do not represent quality description of the products. INRAG is unable to assume any liability as to the exact correctness of the data and the possibilities of use. As far as the Customer is entitled to damages notwithstanding this provision, clause 7 (Warranty / Liability) shall apply.
2.3 Any documents and objects, such as drawings, samples or models, made available to the Customer in connection with the offers of INRAG, remain the property of INRAG. INRAG is the holder of copyrights and related protective rights within the meaning of the German Copyright Act (Urheberrechtsgesetz) regarding these documents and objects. The Customer is not entitled to disclose to third parties the documents made available to him without the prior written consent of INRAG.
3. Conclusion and Content of Supply Contracts
3.1 The offers of INRAG are always non-binding. A Contract for delivery shall be concluded only upon either the written confirmation of INRAG of the Customer's order or, where no such confirmation is given, the delivery of the goods. The contents of the Contract shall be determined by the written confirmation of INRAG, in case of delivery without prior confirmation, the delivery note of INRAG shall be deemed as being such written confirmation.
3.2 The composition, suitability, qualification, function and purpose of the products of INRAG are exclusively determined by the respective product specifications of INRAG. Any further information given on the products of INRAG, in particular, pictures or drawings or information concerning quality, quantity, weight, colour, measure and performance enclosed in the offers of INRAG, are approximate data only and no quality descriptions. As far as permissible, deviations are not stipulated in the order confirmation, and none arise from the Customer’s specification as expressly accepted, deviations customary in the industry are admissible in any case. Public statements, laudations or advertising by INRAG or by third parties do not represent a quality description of the product.
3.3 Guarantees regarding qualities or shelf life of the products of INRAG must be expressly declared as such in the order confirmation. If models and samples are delivered, their qualities are not warranted unless expressly stated otherwise in the order confirmation. This shall also apply to data concerning the result of analyses.
4. Prices/Payment
4.1 The prices of INRAG do not include the packaging, transport, VAT and other expenses and charges.
4.2 All shipping costs shall be borne by the Customer insofar as nothing to the contrary is agreed in writing. The freight tariffs, customs rates and other shipping charges on the day of delivery are determinative.
4.3 The Customer is not entitled to make any deductions from amounts due to INRAG due to any counterclaims or to exercise a right of retention, unless the counterclaims or the right of retention have been acknowledged by INRAG in writing or declared valid with final effect in a judicial proceeding.
4.4 The purchase price is to be paid within 30 days from the invoice date. The Customer is in default of payment upon expiry of this period without a reminder. For orders from countries outside the European Union (EU) INRAG will only accept letters of credit or advance payments (via bank transfer).
4.5 If the Customer is in default with any payments due, INRAG is entitled to claim interest at 8 percentage points above the base-lending rate of the European Central Bank p.a., unless a higher or lower damage is proven. INRAG reserves the right to claim additional dunning fees.
4.6 All amounts payable to INRAG become due immediately if the Customer does not comply with his contractual obligations regardless of the duration of any bill of exchange INRAG may has accepted as conditional payment. In the event of delay in payment, bill of exchange protest or suspension of payments by the Customer INRAG is entitled to demand immediate payment of all its claims, including claims of circulating bills of exchange, regardless of any due dates agreed upon. This shall also apply in the event that circumstances become known to INRAG which give reason to relevant and justified doubts about the Customer’s ability to pay or his creditworthiness, even if these circumstances existed at the time the order was placed, but were not known or should have been known by INRAG at that time. In all mentioned cases INRAG shall be entitled to make outstanding deliveries against advance payment or the provision of security only, and if no advance payment is made, nor security granted, within a two week period, to withdraw from the Contract without setting any further time limit for compliance. Further claims remain unaffected.
4.7 The Customer is not entitled to assign any claims deriving from this Contract to third parties without the written consent of INRAG.
5. Delivery and Passing of Risk
5.1 In case of default or impossibility of performance INRAG is liable for claims for damages exclusively pursuant to the provisions in clause 7. (Warranty/Liability). The liability of INRAG for damages caused by default according to clause 7 is limited to 0.5 % of the value of the delivery or partial delivery that is in default per week. The maximum liability of SLS for damages caused by default is limited to 5 % of the value of the (partial) delivery in default.
5.2 In cases of force majeure, for example operational disturbances, delay in transportation, measures taken in the course of industrial action, in particular strike and lockout, and in cases of non- delivery, incorrect or delayed delivery by INRAG own suppliers, irrespective of its cause (reservation of self-supply), and in any other cases of insufficient performances for which INRAG is not responsible, INRAG shall be entitled to extend the delivery period for the duration of the obstruction, and for a reasonable period thereafter, to reinstate works. If it is foreseeable that the inability to perform will be of permanent nature, INRAG is entitled to withdraw from the Contract. In that case the Customer is not entitled to any damage claims against INRAG. The Customer is no longer obliged to fulfil his contractually agreed consideration and any advance payments will be returned.
5.3 INRAG is entitled to make partial deliveries.
5.4 All sales are quoted ex works Muttenz. Shipment and transportation shall always be made at the Customer’s risk. The risk, also in partial deliveries, shall pass to the Customer as soon as the consignment is either handed over to the carrier - independent of the fact whether someone belonging to our company or a third party is concerned - or has left the work of INRAG for the purpose of shipment, unless clause 5.5 below applies.
5.5 If the Customer refuses acceptance of the goods, or if shipment is delayed for reasons which the Customer is responsible for, the risk shall pass when his default in acceptance commences. Any storage costs incurred after the risk has passed shall be payable by the Customer. INRAG is entitled, at its discretion, to charge either a lump sum of 0.5% of the invoice amount for each month for storage costs or the actual costs incurred. In addition, INRAG is entitled to set the Customer a period of grace of 14 days and, in case of fruitless expiration of such period, to withdraw from the Contract or to claim damages instead of fulfilment.
6. Retention of Title
6.1 All products delivered shall remain the sole property ("Vorbehaltsware" - separate goods) of INRAG until the Customer has fully satisfied all existing claims and those arising after conclusion of Contract.
6.2 Processing and transformation of the separate goods is made for INRAG as manufacturer (”Hersteller”) in the sense of Swiss law, without obligation to INRAG. Processed and transformed goods are deemed to be separate goods according to clause 6.1 above. In case of processing and transformation, combining and intermixture of the separate goods by the Customer with goods of other origin to a new product or to an intermixed stock, respectively, INRAG becomes co-owner of it, namely in the ratio of the invoiced amount of the separate goods at the time of delivery to the value of the other processed or the intermixed goods, respectively. The co-ownership share is held as separate goods according to clause 6.1 above.
6.3 If separate goods are connected with other goods, and if goods belonging to the Customer are to be regarded as the principal good in the sense of Swiss Law, it is hereby agreed that the co- ownership share is transferred to INRAG in the ratio of the invoiced amount of the separate goods to the value of the principal good, and that the Customer holds the goods in safe custody for INRAG free of charge. The co-ownership share is held as separate goods according to clause 6.1 above.
6.4 The Customer shall hold the separate goods in safe custody for INRAG. Upon request INRAG is to be granted at any time the opportunity of stocktaking and marking at the respective warehouse. The Customer shall notify INRAG immediately of any seizure or other interferences of the rights of INRAG by third parties, stating all details necessary to proceed against it with all legal means.
6.5 The Customer is entitled to sell the separate goods exclusively within the ordinary course of business according to his usual conditions and stipulating a retention of title to the extend given by INRAG, if it is ensured that his claims arising from the resale pursuant to clauses 6.6 through 6.8 are transferred to INRAG.
6.6 The Customer hereby assigns all claims deriving from the resale of the separate goods, also within the scope of contracts for work and labour and contracts for the delivery of movable goods to be manufactured or produced, already now with all ancillary rights to INRAG. They serve to the same extent as security for INRAG for the separate goods. The Customer is only authorised to assign claims to third parties with the prior written consent of INRAG.
6.7 If the Customer sells the separate goods together with other goods not supplied by INRAG, the claim following from such sale shall only be assigned to INRAG up to the amount invoiced by INRAG for the respective separate goods at the time of delivery. For the resale of goods, for which INRAG has co-ownership pursuant to clause 6.2 or clause 6.3, respectively, the assignment of claims is valid up to the amount of the co-ownership share.
6.8 If the assigned claim is taken into a current account, the Customer already now assigns to INRAG a corresponding part of the balance of such account, including the closing balance. The Customer is not entitled to assign claims from this Contract to third parties without written consent of INRAG.
6.9 The Customer is authorised to collect the claims deriving from resales pursuant to clauses 6.5 through 6.7 above until revoked.
6.10 If the Customer does not fulfil his obligations under this Contract or any other Contract entered into with INRAG, or if circumstances become known to INRAG that decrease the creditworthiness of the Customer
– INRAG is entitled to prohibit the resale, the processing and transformation of the separate goods as well as the combination and intermixture with other goods;
– INRAG is entitled to withdraw from the Contract; in this event, the Customer’s right of possession of the separate goods expires and INRAG is entitled to demand surrender of the separate goods. INRAG is then entitled to enter the Customer’s business premises and take possession of the separate goods at the expense of the Customer and to sell them by private sale or public auction at the best possible rate, notwithstanding the Customer’s financial obligations and other duties; after deduction of the costs of such sale the proceeds thereof shall be used to reduce the Customer’s debt; any remaining surplus shall be made available to the Customer;
– the Customer shall upon request inform INRAG about the names of the debtors of the claims assigned to INRAG, so that INRAG can disclose the assignment and collect the claims; all proceeds to which INRAG is entitled from assignments shall be forwarded to INRAG immediately after receipt, if and as soon as claims of INRAG against the Customer are due;
– INRAG is entitled to revoke the Customer’s right to collect the claims.
6.11 If the value of the securities INRAG is entitled to exceeds the claims by more than 20 %, INRAG is upon Customer’s request obliged to release securities at its choice to that extent.
7. Warranty/Liability
7.1 The Customer shall immediately upon receipt of the delivered products at the place of destination carry out the special reception inspection determined in the respective product specification for each single product. The products shall be deemed to have been accepted without any defects, unless the Customer notifies INRAG of any defect within ten (10) calendar days after receipt of the products at the place of destination or, in case of hidden defects, within ten (10) calendar days after the defect was discovered. All such notifications of defects of products must be addressed to INRAG directly.
7.2 Any damages to goods in transit and incomplete delivery have to be notified immediately to the forwarding agent.
7.3 If a notification of defects is justified and has been made in due time INRAG shall, at its choice, render performance through either remedy or replacement.
7.4 If subsequent performance or replacement of the goods does not remedy the defect, the Customer may demand a reduction of the purchase price or withdraw from the Contract. In case of minor defects, the Customer is not entitled to rescission of the Contract. If the Customer chooses to withdraw from the Contract after failure of the subsequent performance, he is not entitled to any additional claims for damages.
7.5 The provisions above contain the final and complete warranty for the goods of INRAG. In particular, INRAG is liable for any further claims for damages due to the Customer, for whatever legal ground, because of, or in connection with, defects of the delivered goods exclusively pursuant to the requirements of clauses 7.6 and 7.8 below.
7.6 For any claims for damages based on misconduct, irrespective of their legal basis, e.g. default, delivery of defective goods, violation of contractual duties or of duties during Contract negotiations, torts, product liability (with the exception of the liability under the German Product Liability Act, "Produkthaftungsgesetz"), INRAG is only liable for damages in case of a wilful act or gross negligence. Liability for minor negligence is excluded. This restriction does not apply to injuries suffered by the Customer to his life, body or health. Personal liability on the part of the statutory representatives, persons engaged in performance of the contractual obligations or employees of INRAG for damages caused by them by negligent conduct of a minor degree is excluded.
All claims are conclusively regulated in these conditions. In no event shall INRAG be liable for consequential, indirect, direct or other damages of any kind, including, without limitation, loss of production, loss of profits or the like.
7.7 In the case that claims exist against INRAG in connection with the Contract or its proper performance, these shall in any case be limited to CHF 250,000.
7.8 In the case that the Customer and INRAG are in the context of product liability jointly liable vis- à-vis third parties, and that claims are exclusively lodged against INRAG, the Customer is obliged to, upon first demand, hold INRAG free from the portion of the liability attributable to the Customer.
7.9 Warranty claims and claims for compensation of the Customer shall become time-barred one year after delivery of the goods. This shall not apply if INRAG can be accused of fraudulent intent.
7.10 Deviating from these terms and conditions, the contractual liability and warranty of INRAG vis-à-vis Customer for the products is excluded, if the Customer did not follow of its indicator obligation clause 7.1 to 7.3 above and did not pay one of the appropriate category assigned price for the products.
8. Applicable Law/Jurisdiction
8.1 The relations between INRAG and the Customer are governed by the material laws of Switzerland. Neither the UN-treaty (CISG) nor any other existing or future bilateral or international treaties, even if implemented into the laws of Switzerland, shall be applicable.
8.2 Place of jurisdiction for all disputes arising from, or in connection with, the Contract shall be at the choice of INRAG either Liestal or the company seat of the Customer. The exclusive place of jurisdiction for lawsuits filed by the Customer shall be Liestal.
9. Concluding Provisions
9.1 Any alterations of, and amendments to, this Contract, including this clause, must be made in writing in order to be valid. This shall also apply to any supplementary and additional agreements.
9.2 If a provision of this Contract is or becomes partly or completely invalid, the invalidity of this provision shall not affect the validity of the remaining provisions of this Contract. The invalid provision shall be replaced by a valid provision reflecting the economical objectives of the invalid provision as close as legally possible. This applies also to possible gaps of this Contract.
9.3 These provisions were made in German and in English. In case of differences the German version shall take precedence.