General Conditions (GC) for the Supply of Products and Services from Business to Business

Status 03.08.2015

Artikel I: General Provisions

  1. Legal relations between Lamello AG (hereafter referred to as Supplier) and Buyer in connection with Goods and/or services of the Supplier (hereinafter referred to as "Goods") shall be solely governed by the present GC. The Buyer's general terms and conditions shall apply only if expressly accepted by the Supplier in writing. The scope of delivery shall be determined by the congruent mutual written declarations.
  2. These GC's as well as any and all separate contractual agreements shall be deemed as a basis for all deliveries and services. No deviating terms and conditions of purchase of the Buyer shall become part of the contract even when an order is accepted. A contract shall – in the absence of a separate agreement - materialise upon receipt of the written order confirmation from the Supplier.
  3. The Supplier's offers are without obligation unless expressly stated otherwise. The Supplier unlimitedly reserves all his rights to industrial property and/or copyright for samples, cost estimates, sketches, etc., information of a physical and immaterial type - also in digital form; they shall not be made accessible to third parties without the Supplier's prior consent and shall, upon request, be returned without undue delay to the Supplier if the contract is not awarded to the Supplier. Digital documents are to be safely deleted. The Supplier undertakes to obtain the prior consent of the Buyer before making any information and documents described as confidential by the Buyer accessible to third parties, these may, however, be made accessible to those third parties to whom the Supplier has rightfully subcontracted Goods.
  4. Each contract, change of contract, assurances and additional agreements require written confirmation by the Supplier. The content of this confirmation is decisive. Verbal agreements take on legal validity by the written confirmation of the Supplier. If a written confirmation is not received, the contract shall remain valid in its present conditions.
  5. The Buyer may not derive expectations for certain features of the delivered object from any descriptions and presentations in public statements made by the Supplier.

Artikel II: Prices, Terms of Payment, and Set-Off

  1. In the absence of a separate agreement the prices are valid ex works, incl. loading, however, excluding packaging; value added tax shall be added at the then applicable rate.
  2. The prices valid on the day the contract is entered into will always apply unless otherwise expressively stated. The Supplier reserves the right to change his prices accordingly if there are any reductions or increases in costs after conclusion of the contract.
  3. All payments are due generally 30 days past the Supplier's invoiced date or as per separate agreements made between Supplier and Buyer. Payments shall be made free Supplier's paying office. The Buyer shall be in default on the day past the due date - this without payment reminder. A reminder is sent after the due date, no later however than 30 days after due date and receipt of an invoice or an equivalent payment demand of the Supplier. Should the Buyer be in default of payment then the Supplier shall be entitled to demand interest on default in the amount of the respective bank rates for overdraft facilities from due date. The Supplier shall then also be entitled to only execute any deliveries still outstanding against an advance payment.
  4. Unauthorized deductions will be charged subsequently. All costs incurred through late or incorrect payments are at the expense of the Buyer.
  5. The Buyer shall insofar only be entitled to the right to retain payments or to set off against counter claims if his counter claims shall be undisputed or have been declared final.
  6. The Buyer may set off only those claims which are undisputed or non-appealable.

Artikel III: Retention of Title

  1. The items pertaining to the Goods ("Retained Goods") shall remain the Supplier's property until each and every claim the Supplier has against the Buyer on account of the business relationship has been fulfilled. If the combined value of the Supplier's security interests exceeds the value of all secured claims by more than 20 %, the Supplier shall release a corresponding part of the security interest if so requested by the Buyer; the Supplier shall be entitled to choose which security interest it wishes to release.
  2. Should Buyer resell Retained Goods, it assigns to the Supplier, already today, all claims it will have against its customers out of the resale, including any collateral rights and all balance claims, as security, without any subsequent declarations to this effect being necessary. If the Retained Goods are sold on together with other items and no individual price has been agreed with respect the Retained Goods, Buyer shall assign to the Supplier such fraction of the total price claim as is attributable to the price of the retained goods invoiced by the Supplier.
  3. a. Buyer may process, amalgamate or combine Retained Goods with other items. Processing is made for Supplier. Buyer shall store the new item thus created for Supplier, exercising the due care of a diligent business person. The new items are considered as Retained Goods.
    b. Already today, Supplier and Buyer agree that if Retained Goods are combined or amalgamated with other items that are not the property of Supplier, Supplier shall acquire co-ownership in the new item in proportion of the value of the Retained Goods combined or amalgamated to the other items at the time of combination or amalgamation. In this respect, the new items are considered as Retained Goods.
    c. The provisions on the assignment of claims according to Par. 2 above shall also apply to the new item. The assignment, however, shall only apply to the amount corresponding to the value invoiced by Supplier for the Retained Goods that have been processed, combined or amalgamated.
    d. Where Buyer combines Retained Goods with real estate or movable goods, it shall, without further declaration being necessary to this effect, also assign to Supplier as security its claim to consideration for the combination, including all collateral rights for the prorate amount of the value the combined Retained Goods have on the other combined items at the time of the combination.

  4. Until further notice, Buyer may collect assigned claims relating to the resale. Supplier is entitled to withdraw Buyer's permission to collect funds for good reason, including, but not limited to delayed payment, suspension of payments, start of insolvency proceedings, protest of justified indications of overindebtedness or pending insolvency of Buyer. In addition, Supplier may, upon expiry of an adequate period of notice disclose the assignment, realize the claims assigned and demand that Buyer informs its customer of the assignment.
  5. The Buyer shall inform the Supplier forthwith of any seizure or other act of intervention by third parties. If a reasonable interest can be proven, Buyer shall, without undue delay, provide Supplier with the information and/or Documents necessary to assert the claims it has against its customers.
  6. The Buyer is obliged to treat the purchased item with care and insure at his own expense these items against fire, water and theft at replacement value.
  7. Where the Buyer fails to fulfill its duties, fails to make payment due, or otherwise violates its obligations the Supplier shall be entitled to rescind the contract and take back the Retained Goods in the case of continued failure following expiry of a reasonable remedy period set by the Supplier; the statutory provisions providing that a remedy period is not needed shall be unaffected. The Buyer shall be obliged to return the Retained Goods. The fact that the Supplier takes back Retained Goods and/or exercises the retention of title, or has the Retained Goods seized shall not be construed to constitute a rescission of the contract, unless the Supplier so expressly declares.

Artikel IV: Time of Delivery; Delay in Delivery

  1. Delivery times are always only approximate unless Supplier expressively agrees to firm delivery times and/or a firm delivery date. However, every reasonable effort shall be made by the Supplier to make delivery of Goods on the date requested by the Buyer.
  2. Goods shall only be binding if all Documents to be furnished by the Buyer, necessary permits and approvals, especially concerning plans, are received in time and if agreed terms of payment and other obligations of the Buyer are fulfilled. If these conditions are not fulfilled in time, times set shall be extended reasonably; this shall not apply if the Supplier is responsible for the delay.
  3. Partial deliveries are permissible as far as they are within the bounds of what is reasonable for the Buyer.
  4. If non-observance of the delivery times set is due to:
    a. information required by the Supplier for executing the contract is not received in time, or if the Buyer subsequently changes it thereby causing a delay in the delivery of Goods and/or services;
    b. Force Majeure, such as mobilization, war, terror attacks, riots or similar events (e. g. strike or lockout);
    c. virus attacks or other attacks on the Supplier's IT systems occurring despite protective measures were in place that complied with the principles of proper care;
    d. hindrances attributable to Swiss, US or otherwise applicable national, EU or international rules of foreign trade law or to other circumstances for which Supplier is not responsible; or
    e. the fact that Supplier does not receive its own Goods in due time or in due form such delivery times shall be extended accordingly.
  5. The Supplier will notify the Buyer immediately on entry of those circumstances as well as regarding its likely duration and the extent of the foreseeable consequences.
  6. Should the duration of such circumstances extend beyond 3 months or should it be noted that such circumstances could exceed 3 months both parties have the right to withdraw from the contract.
  7. Compensation claims by the Buyer due to delay of Goods are generally excluded. This does not apply in the event of liabilities due to intent, gross negligence or violation of life, body or health. The Buyer may only rescind the agreement under statutory provisions if delay of Goods is to be attributed to the Supplier. The above rulings do not constitute any change in the burden of proof to the disadvantage of the Buyer.
  8. The Buyer is obliged to declare within a reasonable period of time whether, due to delayed delivery, he intends to terminate the contract or if he still insists on delivery of the goods.
  9. If dispatch or delivery, due to Buyer's request, is delayed by more than one month after notification of the readiness for dispatch was given, the Buyer may be charged, for every additional month commenced, storage costs of 0.5 % of the price of the items of the Goods, but in no case more than a total of 5 %. The parties to the contract may prove that higher or, as the case may be, lower storage costs have been incurred.

Artikel V: Transfer of Risk, Transport, Acceptance, Returns

  1. The risk passes over to the Buyer when the Goods are handed over to the carrier or freight forwarder no later, however, than if the delivered object has left the works and indeed also if part deliveries take place. Upon the Buyer's request, the Supplier shall insure the delivery against the usual risks of transport at the Buyer's expense.
  2. The risk is transferred to the Buyer, also in case of freight-free transport, ex works collection or on ex works dispatch of Goods.
  3. When exceeding storage time the Supplier is entitled to charge a storage fee after prior consultation of the Buyer.
  4. The Buyer may not refuse acceptance in the case of an insignificant faults or defects.
  5. Returns of delivered Goods without prior written agreement are not accepted, provided the Buyer has no legal right for the return. Goods accepted for return:
    a. must be accompanied by a copy of the Supplier's approval and must quote the Supplier's invoice and delivery number to which the Goods relate;
    b. must be returned in their original packaging;
    c. must not have been in use or damaged and must be of merchantable quality
    c. must be returned at the cost of the Buyer, unless otherwise agreed. Returns shall be credited with the invoiced net value less 20% of the net value for internal expenses unless otherwise agreed. Customized Goods cannot be returned at all.

Artikel VI: Defects as to Quality / Warranty / Product Liability

The Supplier shall provide warranty for a duration of 24 months starting from the day of delivery resp. transfer of risk for Goods, i.e. new equipment, parts and services for defects of quality and services hereinafter referred to as "Defects" as follows:

  1. The received Goods are to be inspected immediately after arrival. The goods are deemed accepted if a written complaint is not received by the Supplier within 10 working days of receipt of goods. Defects which are later detected, but still within warranty period must be filed in writing with the Supplier immediately. Replaced parts shall become the property of the Supplier.
  2. The guarantee expires immediately for Defects or Damages arising after the passing of risk due to faulty or negligent handling, excessive strain, unsuitable equipment or claims based on particular external influences not assumed under the contract, chemical, electrochemical or electrical influences. Claims based on defects attributable to improper modifications or repair work carried out by the Buyer or third parties and the consequences thereof are likewise excluded. The Supplier is not liable for natural wear and tear or for non-reproducible software errors
  3. Defective Goods shall be, at the Supplier's discretion, repaired, replaced or provided again free of charge, provided that the reason for the Defect had already existed at the time when the risk passed. The Buyer shall give the necessary time and opportunity to undertake all improvements and replacement deliveries which may appear necessary to the Supplier after consultation with the Supplier; otherwise the Supplier shall be released from the liability for the ensuing consequences. Only in urgent cases with risk of danger to the operational safety or to prevent disproportionately high damages, whereby the Supplier is to be notified immediately, the Buyer shall be entitled to correct the faults himself or have these corrected by third parties and to demand that the Supplier reimburse the necessary expenses.
  4. The guarantee expires immediately for Defects or Damages arising after the passing of risk due to faulty or negligent handling, excessive strain, unsuitable equipment or claims based on particular external influences not assumed under the contract, chemical, electrochemical or electrical influences. Claims based on defects attributable to improper modifications or repair work carried out by the Buyer or third parties and the consequences thereof are likewise excluded. The Supplier is not liable for natural wear and tear or for non-reproducible software errors
  5. The Buyer shall ensure that irrespective whether the Goods supplied by the Supplier are used by the Buyer or are being resold, generally applicable, resp. known safety regulations and standards are observed.
  6. Supplier's Goods may only be sold in original packaging / labelling incl. original manual, original accessories and tools. Differing versions (private label / neutral packaging, etc.) are subject to mandatory written consent by the Supplier.
  7. Due to the fact that systems form a technical entity, Supplier's Goods may not be used for purposes other than the by Supplier recommended and designated purposes or combined with goods which are not suitable for the intended purposes.
  8. The Supplier declines any responsibility for damages, losses or consequential damages that may arise due to non-compliance with Supplier's recommended use and instructions or due to material defects unless in the event of intent, gross negligence or violation of life, body or health.

Artikel VII: Other Claims for Damages

  1. Unless otherwise provided for in the present GC, the Buyer has no claim for damages based on whatever legal reason, including infringement of duties arising in connection with the contract.
  2. This does not apply if liability is based on:
    a. the Swiss Product Liability Act;
    b. intent;
    c. gross negligence on the part of the owners, legal representatives or executives;
    d. fraud;
    e. failure to comply with a guarantee granted;
    f. negligent injury to life, body or health; or
    d. negligent breach of a fundamental condition of contract.
  3. Claims for damages arising from a breach of a fundamental condition of contract shall be limited to the foreseeable damage which is intrinsic to the contract, provided that no other of the above case applies.
  4. The above provision does not imply a change in the burden of proof to the detriment of the Buyer.
  5. Products supplied by the Supplier shall exclusively be resold in their original packaging and labelling incl. installation and operating manual and original accessories and tools where applicable. Everything deviating from the above (e.g. private label or neutral versions) are subject to written approval by the Supplier.

Artikel VIII: Venue and Applicable law

  1. Sole venue for all disputes arising directly or indirectly out of legal relations between Buyer and Supplier shall be the Supplier’s registered place of business. However, the Supplier may also bring an action at the Buyer's registered place of business.
  2. Legal relations existing in connection with this contract shall be governed by Swiss substantive law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

Artikel IX: Severability Clause

The legal invalidity of one or more provisions of this contract shall in no way affect the validity of the remaining provisions. This shall not apply if it would be unreasonable for one of the parties to continue the contract.

Lamello AG