Gene­ral terms and con­di­ti­ons for sales and deliveries

The pre­sent Gene­ral Terms and Con­di­ti­ons for Sales and Deli­ve­ries by Micro­cut Ltd, CH-073.3.005.666–9 (her­ein­af­ter Micro­cut  or “we” / “us”) shall be bin­ding in con­tracts for all ser­vices ren­de­red and goods deli­ve­ries made by Micro­cut.. In no event shall they app­ly to work per­for­man­ces or ser­vice work.

1. App­li­ca­ti­on
Pro­vi­ded that no chan­ges were made to the pre­sent terms and con­di­ti­ons and that no amend­ments were added to them by any writ­ten agree­ment, the­se terms and con­di­ti­ons shall have abso­lu­te vali­di­ty for all sales con­tracts. Other sti­pu­la­ti­ons, terms and con­di­ti­ons spe­ci­fied in cus­to­mer docu­ments shall be valid only after we have accep­ted them in writing.

2. Offers
All our offers are non­bin­ding and they remain valid for one mon­th. If the offer or the purcha­se order is accep­ted, the pre­sent Gene­ral Terms and Con­di­ti­ons for Sales and Deli­ve­ries are con­si­de­red as accep­ted by the cus­to­mer. We reser­ve the intel­lec­tu­al pro­per­ty right and the copy­right to all drawings and other docu­ments crea­ted by us, and we reser­ve the copy­right for all sam­ples and designs. They must neit­her be uti­li­zed nor made acces­si­ble to third par­ties without our approval.

3. Con­clu­si­on of a con­tract by order confirmation
An order beco­mes effec­ti­ve only after we have accep­ted and con­fir­med it in wri­ting (con­clu­si­on of a con­tract). Deli­very as such shall also be deemed as an order con­fir­ma­ti­on con­sti­tu­ting a con­tract. Each order must be accom­pa­nied by all drawings (showing clear­ly legi­ble dimen­si­ons and tole­ran­ce values) apper­tai­ning to it. Unless other­wi­se sti­pu­la­ted by the cus­to­mer, the tole­ran­ces cus­to­ma­ry in the tra­de and the DIN stan­dards in the respec­tively cur­rent ver­si­on do apply.

4. Pri­ces and terms of payment
All pri­ces are — unless other­wi­se agreed — in Swiss Francs (CHF), net, ex works (EXW CH-2543 Len­gnau, Incoterms 2010), without insuran­ce, without pack­a­ging and exclu­ding VAT. The pri­ces are fixed; howe­ver, Micro­cut has the right to adjust the pri­ces for deli­ve­ries not yet made in case of chan­ges in the rele­vant basis for cal­cu­la­ti­on, espe­cial­ly in case of cur­ren­cy changes.
The invoi­ced amounts are due for pay­ment wit­hin 30 days after the invoice date, net and without dis­counts or other deduc­tions. Pos­si­ble dis­count cos­ts and bank ser­vice char­ges are for the account of the cus­to­mer. Sett­ling our receiva­bles by any coun­ter­c­laims of the cus­to­mer is exclu­ded. It is inad­mis­si­ble to assign claims against us. Pay­ment must be made inde­pen­dent of pos­si­ble com­p­laints as to the deli­very or alle­ged coun­ter­c­laims. It is inad­mis­si­ble to retain pay­ments. We are enti­t­led to refu­se the reme­dy of pos­si­ble defects as long as the cus­to­mer has­n’t met his obli­ga­ti­on to pay. The purcha­se pri­ce shall beco­me paya­ble also if the cus­to­mer is in default of acceptance.
If he fails to meet the peri­od allo­wed for pay­ment, the cus­to­mer will be in default without fur­ther pay­ment remin­der on the part of Micro­cut. In case of default in pay­ment, we reser­ve the right to char­ge default inte­rest to the amount of 5% abo­ve the dis­count rate of the Swiss Natio­nal Bank. Collec­tion expen­ses to the amount of CHF 20.00 are char­ged for each pay­ment reminder.
In case of pos­si­ble default in pay­ment or if the cus­to­mer has pro­blems of liqui­di­ty, Micro­cut is enti­t­led to demand advan­ce pay­ments for fur­ther deli­ve­ries or to make deli­ve­ries only against pay­ment in advan­ce, even if other pay­ment terms and deli­very con­di­ti­ons were agreed upon on the con­clu­si­on of the con­tract. Micro­cut will not be in default in such a case.
The effect of the cus­to­mer being in default of pay­ment is that all Microcut’s claims against this cus­to­mer beco­me paya­ble immedia­te­ly. The non­ob­ser­van­ce of pay­ment terms aut­ho­ri­zes Micro­cut to can­cel the con­tract and claim dama­ges. Micro­cut is also enti­t­led to can­cel the con­tract and to demand goods back from the cus­to­mer if the owners­hip of the­se goods has pas­sed to the cus­to­mer befo­re the pay­ment of the purcha­se pri­ce. The cus­to­mer has no right of retention.

5. Tools and Clam­ping units
Shares of the tool and clam­ping unit cos­ts are cal­cu­la­ted sepa­r­ate­ly from the parts pri­ce.  The­se shares are due for pay­ment wit­hin 10 days after the con­fir­ma­ti­on of the order.
The tool remains our pro­per­ty and in our pos­ses­si­on even if the cus­to­mer has paid a share of the tool and clam­ping unit cos­ts. The cos­ts of repair and pro­per sto­rage are for our account, the cos­ts of rene­wal and of chan­ges due to the drawing are for the account of the cus­to­mer. If no new order is pla­ced wit­hin a peri­od of five years, we are enti­t­led to des­troy tools and clam­ping units.

6. Reser­va­ti­on of pro­prie­ta­ry rights
The deli­ve­r­ed goods remain our pro­per­ty until pay­ment is made in full. Micro­cut is obli­ged to take back the pro­ducts; the cus­to­mer is obli­ged to return them. The pro­per­ty of Micro­cut is not lost with regard to the pro­ducts pro­ces­sed or resold by the cus­to­mer; co-owners­hip as to the new good is acqui­red, amoun­ting to the open invoice total. The cus­to­mer shall store the joint­ly owned goods for Micro­cut. The cus­to­mer must take out appro­pria­te insuran­ce for the pro­ducts and must keep them in order on his own expen­se until full pay­ment. Fur­ther­mo­re, the cus­to­mer shall take all mea­su­res requi­red for ensu­ring that Microcut’s owners­hip claim is neit­her impai­red nor made void.
With con­clu­ding the con­tract, the cus­to­mer shall in any event trans­fer his claims from a resa­le to Micro­cut. The cus­to­mer is aut­ho­ri­zed to collect the­se claims after their trans­fer. Micro­cuts right to collect the claims its­elf, howe­ver, shall remain unaf­fec­ted by this; Micro­cut com­mits not to collect the claims as long as the cus­to­mer pro­per­ly meets his pay­ment obli­ga­ti­ons and is not in default of pay­ment. Howe­ver, if the lat­ter is the case, Micro­cut may demand that the cus­to­mer announ­ces the trans­fer­red claims and their deb­tors, gives any details necessa­ry for the collec­tion, hands over all rela­ted docu­ments and informs the deb­tors (third par­ties) on the transfer.
The cus­to­mer is obli­ged to par­ti­ci­pa­te in mea­su­res necessa­ry for pro­tec­ting Microcut’s pro­per­ty. On the con­clu­si­on of the con­tract, the cus­to­mer shall espe­cial­ly grant Micro­cut his con­sent to enter the reser­va­ti­on of pro­prie­ta­ry rights in the tit­le reten­ti­on register.
The cus­to­mer must neit­her pledge nor assign the deli­ve­r­ed pro­ducts as secu­ri­ty. In case of pled­ging and dis­traint or other orders by third par­ties, the cus­to­mer must immedia­te­ly inform Micro­cut on this and make avail­ab­le all infor­ma­ti­on and docu­ments requi­red for the safe­guar­ding of its rights. Microcut’s pro­prie­ta­ry rights must be indi­ca­ted to exe­cu­to­ry offi­cers or third parties.

7. Deli­very times and dates
We always make efforts to meet our deli­very times but we can­not gua­ran­tee them. The deli­very time shall be exten­ded appro­pria­te­ly if impe­di­ments occur which can­not be aver­ted by Micro­cut without any fur­ther input (in par­ti­cu­lar strikes and lock-outs), no mat­ter whe­ther the­se impe­di­ments occur with us or with one of our sub­con­trac­tors or sub-sup­pliers. A pos­si­ble dama­ge cau­sed by delay remains limi­ted to the value of the deli­very. Secon­da­ry dama­ges cau­sed by the delay, cost of covering purcha­ses, lost pro­fit and dama­ge due to inter­rup­ti­on of busi­ness are express­ly exclu­ded. Rescis­si­on of con­tract by the orde­rer due to default in deli­very is excluded.

8. Ship­ment
The reci­pi­ent shall assu­me any trans­port risks as to all our deli­ve­ries of goods — even in case of free shipment.

9. Par­ti­al deli­very, over­de­li­very and underdelivery
We reser­ve the right to make par­ti­al deli­ve­ries. Over­de­li­ve­ries and under­de­li­ve­ries of up to 10% of the total deli­very quan­ti­ty are per­mis­si­ble and will be taken into account in the invoice.

10. Chan­ges on the order made by the customer
If the cus­to­mer makes chan­ges on the order (dimen­si­ons, pie­ce num­ber), he must bear the cos­ts of alrea­dy pre-machined or finis­hed parts and of the raw mate­ri­al. Fur­ther­mo­re, the pro­ces­sing cos­ts are set off with the customer.

11. Inspec­tion and let­ter of complaint
Immedia­te­ly after rece­i­pt, the cus­to­mer must check all deli­ve­ries and deli­very items for sui­ta­bi­li­ty and ser­vicea­bi­li­ty as well as for quan­ti­ty vari­an­ces out­side the tole­ran­ces cus­to­ma­ry in this line of busi­ness. Any pos­si­ble let­ters of com­p­laints must be sent to us in wri­ting wit­hin ten (10) days at the latest, coun­ted from the day on which our deli­very was recei­ved and must inclu­de a detail­ed spe­ci­fi­ca­ti­on of the alle­ged defects (pos­si­ble pro­of must be atta­ched). The inspec­tion and com­p­laint obli­ga­ti­on shall not be limi­ted to visi­ble defects. If no such a let­ter of com­p­laint is recei­ved wit­hin the time limit, the pro­ducts are con­si­de­red to be free from defects in all their func­tions and the deli­very is then deemed as accep­ted. Return ship­ments due to sta­tis­ti­cal con­trol are accep­ted only if the con­trol basis items were pro­per­ly per­mit­ted by both par­ties and if a writ­ten return ship­ment per­mis­si­on was han­ded over to the customer.

12. War­ran­ty, lia­bi­li­ty for defects
As a basic rule, the sta­tu­to­ry war­ran­ty regu­la­ti­ons shall app­ly, with the reser­va­ti­on of the fol­lowing stipulations:
As a pre­re­qui­si­te for all war­ran­ty claims to be hand­led, the cus­to­mer must have sent a time­ly and for­mal­ly valid let­ter of com­p­laint as per clau­se 11 (Let­ter of Com­p­laint). War­ran­ty claims beco­me time-bar­red after three mon­ths coun­ted from the trans­fer of bene­fits and risks.
War­ran­tied pro­per­ties shall be only tho­se which have been express­ly spe­ci­fied as such in the spe­ci­fi­ca­ti­ons and drawings.
Any dama­ges which were not veri­fia­b­ly cau­sed by impro­per mate­ri­als, faul­ty design or poor work­manship, e.g. dama­ges due to natu­ral wear and tear, incor­rect and unsa­tis­fac­to­ry main­ten­an­ce, trans­port, fail­u­re to obser­ve ope­ra­ting rules and regu­la­ti­ons, exces­si­ve loads, unsui­ta­ble ope­ra­ting equip­ment, che­mi­cal or elec­tro­ly­tic influ­ence, con­struc­tion or assem­bly work not car­ri­ed out by Micro­cut, as well as dama­ges cau­sed by rea­sons which are bey­ond the con­trol of Micro­cut, shall be exclu­ded from the war­ran­ty and lia­bi­li­ty of Micro­cut. Micro­cut can­not war­rant for pro­ducts or semi-finis­hed arti­cles deli­ve­r­ed by third par­ties and shall not war­rant for the con­for­mi­ty of the pro­ducts to the public or pri­va­te-law stan­dards or to the stan­dards of pro­fes­sio­nal asso­cia­ti­ons on the place of deli­very or destination.
If the deli­very turns out to be defec­ti­ve and if Micro­cut beco­mes obli­ged to war­ran­ty under the abo­ve-men­tio­ned pre­re­qui­si­tes, Micro­cut shall, in any case, be enti­t­led to eit­her pro­vi­de repla­ce­ment or sub­se­quent deli­very wit­hin an appro­pria­te time ex works (EXW CH-2543 Len­gnau, Incoterms 2010), or to accept the redu­ced value of the deli­very, or to reme­dy the defects on the pro­duct sub­se­quent­ly. Any fur­ther claim of the cus­to­mer due to defec­ti­ve deli­very, espe­cial­ly com­pen­sa­ti­on for dama­ges, con­se­quen­ti­al dama­ges and can­cel­la­ti­on shall be exclu­ded. Sub­sti­tu­te per­for­mance by third par­ties at the expen­se of Micro­cut shall also be excluded.
If Micro­cut deci­des to remo­ve the defects noted, the cus­to­mer must give Micro­cut the oppor­tu­ni­ty to do this. Defec­ti­ve parts must be retur­ned to Micro­cut — on Microcut’s request and with its express con­sent only — at the customer’s expen­se in the deli­very con­di­ti­on, if pos­si­ble in the ori­gi­nal packaging.
The cus­to­mer has no fur­ther rights and claims due to defects with regard to mate­ri­al, design or work­manship as well as with regard to mis­sing war­ran­tied properties.

13. Purcha­se order can­cel­la­ti­on by the Customer
A purcha­se order can­cel­la­ti­on during the manu­fac­tu­ring pro­cess can be accep­ted only if the cus­to­mer agrees to take over the alrea­dy manu­fac­tu­red or pre-machined parts and to bear the cos­ts of the basic mate­ri­al, deve­lo­p­ment and tools as well as all other expen­dit­u­re incur­red by the cancellation.

14. Purcha­se order can­cel­la­ti­on by Microcut
In case of for­ce majeu­re or par­ti­cu­lar cir­cum­s­tan­ces out­side our con­trol, we reser­ve the right to ter­mi­na­te the con­tract without any claims for com­pen­sa­ti­on for the customer.

15. Infrin­ge­ment of patents and of other third-par­ty rights
If the cus­to­mer makes express spe­ci­fi­ca­ti­ons for the exe­cu­ti­on of the order, he shall gua­ran­tee that third-par­ty rights — in any form whatsoever — are not infrin­ged. The cus­to­mer under­ta­kes to indem­ni­fy us from any third-par­ty claims which could result from such an infringement.

16. Lia­bi­li­ty for acces­so­ry obligations
Alt­hough we will inform and advi­se the cus­to­mer to the best of our know­ledge as regards the use of goods deli­ve­r­ed by us and the design and make of orde­red parts, we shall refu­se any lia­bi­li­ty in con­nec­tion with sui­ta­bi­li­ty and inten­ded use of the goods.

17. Exclu­si­on from fur­ther Lia­bi­li­ty of Microcut
Unless a dif­fe­rent lia­bi­li­ty clau­se is agreed upon at ano­t­her point of the­se sti­pu­la­ti­ons, Micro­cut is only obli­ged as fol­lows to com­pen­sa­ti­on for dama­ges which ari­se to the cus­to­mer direct­ly due to faul­ty deli­very or due to any other rea­son for which Micro­cut is responsible:
The lia­bi­li­ty to pay dama­ges of Micro­cut under any claim whatsoever shall remain limi­ted to the deli­very value and man­da­to­ri­ly requi­res that Micro­cut is respon­si­ble for the dama­ge caused.
The lia­bi­li­ty to pay dama­ges is exclu­ded inso­far as the cus­to­mer on his part has effec­tively limi­ted lia­bi­li­ty as against his purcha­sers or could have limi­ted lia­bi­li­ty but fai­led to limit it. The cus­to­mer is obli­ged to agree upon limi­ta­ti­ons of lia­bi­li­ty as against third par­ties to the extent per­mis­si­ble by law also to the bene­fit of Microcut.
Claims of the cus­to­mer are exclu­ded inso­far as the dama­ge is attri­bu­ta­ble to the non­ob­ser­van­ce of ope­ra­ting, main­ten­an­ce, instal­la­ti­on and assem­bly regu­la­ti­ons, unsui­ta­ble or impro­per use, incor­rect or negli­gent hand­ling, natu­ral wear or incor­rect repair assi­gnab­le to the customer.
Micro­cut is liable for dama­ge pre­ven­ti­on mea­su­res (e.g. recall cam­pai­gns) of the cus­to­mer only inso­far as it is legal­ly obli­ged to.
The cus­to­mer shall immedia­te­ly inform and con­sult Micro­cut com­pre­hen­si­ve­ly if he intends to app­ly tho­se mea­su­res. The cus­to­mer must give Micro­cut the oppor­tu­ni­ty to exami­ne the case of damage.
The basic princi­ples deter­mi­ned here must be app­lied cor­re­spon­din­gly inso­far as the­re is no or insuf­fi­ci­ent insuran­ce. Microcut’s pro­duct lia­bi­li­ty is wai­ved to the extent per­mit­ted by law.
All cases of breaching the con­tract and their legal con­se­quen­ces as well as the claims of the cus­to­mer —  irre­spec­ti­ve of the legal ground due to which they are made — are final­ly sett­led in the­se Terms and Con­di­ti­ons. Espe­cial­ly all claims for pay­ment of dama­ges, reduc­tion, can­cel­la­ti­on or rescis­si­on of the con­tract which are not be expli­ci­tly men­tio­ned are exclu­ded. Under no cir­cum­s­tan­ces shall the cus­to­mer have any com­pen­sa­ti­on claim for dama­ges which were not cau­sed on the deli­very item its­elf, name­ly lost pro­duc­tion, use, loss of orders or pro­fit as well as other direct or indi­rect damages.

18. Chan­ges to the Gene­ral Terms and Con­di­ti­ons for Sales and Deliveries
The Gene­ral Terms and Con­di­ti­ons for Sales and Deli­ve­ries app­ly in the ver­si­on valid at the time the con­tract was con­clu­ded. Sub­se­quent chan­ges or sup­ple­ments to the­se Gene­ral Terms and Con­di­ti­ons for Sales and Deli­ve­ries shall beco­me inte­gral part of the con­tract if the cus­to­mer does not object wit­hin 30 days after he was infor­med on the chan­ged stipulations.

19. App­li­ca­ble law and place of jurisdiction
In any legal dis­pu­te, sett­le­ment shall be exclu­si­ve­ly gover­ned by the sub­stan­ti­ve law of Switz­er­land, to the exclu­si­on of the Pri­va­te Inter­na­tio­nal law (sole­ly art. 116 IPRG, expli­ci­tly per­mit­ting an express choice of law as her­ein, shall not be sub­ject to this exclu­si­on) and to the exclu­si­on of the so-cal­led Vien­na Sales Con­ven­ti­on CISG. The place of busi­ness of Micro­cut is the legal venue.

The Ger­man text shall pre­vail as regards all legal matters.

Date: 01.01.2019