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GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY TERMS ACTEGA SCHMID RHYNER AG
( January 2023)
1.1. These General Terms and Conditions of Sale and Delivery shall only apply in relation to enterprises (custom-ers), i.e. any natural person or legal entity exercising their commercial or independent professional activities when purchasing goods (hereinafter referred to as "Customers").
1.2. These General Terms and Conditions of Sale and Delivery apply to contracts concluded between ACTEGA Schmid Rhyner AG, based in Adliswil, and Customers via the usual sales channels (including orders by e-mail and fax).
1.3. Sale to consumers is excluded.
1.4. The contract language is German.
1.5. If our General Terms and Conditions of Sale and Delivery have been introduced into the business with the Customer, they shall also apply to all further transactions between the Customer and us, unless otherwise agreed in writing.
1.6. Our General Terms and Conditions of Sale and Delivery apply exclusively. Any terms and conditions of the Customer that conflict with or deviate from our General Terms and Conditions of Sale and Delivery shall only apply if we have expressly accepted them in writing. Our silence on such deviating conditions shall not be deemed as consent, not even in the case of future contracts.
2. Offers and Orders
2.1. Our offers are subject to change and non-binding unless we have expressly designated them as binding. They are merely an invitation for the Customer to submit a binding order (application) on this basis. A contract is only concluded, also in relation to ongoing business transactions, when we confirm the Customer's order in writing or in text form or deliver the goods (acceptance). Our order confirmation is decisive for the content of the delivery contract. In the case of immediate delivery, our order confirmation can be replaced by the invoice.
2.2. The obligation to deliver an item determined only by category alone does not include the assumption of a pro-curement risk. We shall only be obliged to supply goods at hand (Vorratsschuld / Stock Debt). A guarantee shall only be deemed to have been assumed by us if we have specified a guaranteed property in writing.
3. CLP Regulation (Regulation (EC) No 1272/2008) ("CLP")
3.1. If we deliver products to the European Union, the Customer is considered an EUimporter under the CLP Regu-lation. In order to comply with its reporting obligation for the Classification and labelling "C&L" of the European Chemicals Agency (ECHA) pursuant to Section 40 CLP, the Customer hereby instructs Chemservice S.A., 5 an de Laengten, 6776 Grevenmacher, Luxembourg, as our Only Representative (OR), on be- half and in the name of its company, to submit C&L group reports to the C&L register of the EU for all relevant substances in the imported products.
3.2. End users: The Customer is obliged to inform Chemservice S.A. or us of new relevant scientific or technical information if it could lead to a change in the harmonized classification and labelling or influence the classification of substances without harmonized classification. If the Customer has new information that could lead to a change in the harmonized classification and labelling, he instructs Chemservice S.A. to submit a corresponding proposal to the competent authority (Section 37(6) CLP).
3.3. Remarketing: The Customer is obliged to inform Chemservice S.A. or us of new relevant scientific or technical information if it could lead to a change in the harmonized classification and labelling or influence the classifi-cation of substances without harmonized classification. If the Customer has new information that could lead to a change in the harmonized classification and labelling, he instructs Chemservice S.A. to submit a correspond-ing proposal to the competent authority (Section 37(6) CLP).The Customer remains solely and fully responsible for the fulfilment of all obligations in connection with the notification; these include, inter alia: 1. updating labels following changes in the classification and labelling of a substance or mixture; 2. the provision of safety data sheets (SDS) along the supply chain and updating the SDS as required; 3. notifying Chemservice S.A. and/or us in the event of new relevant information.
3.4. If we have new information that could lead to a change in the harmonized classification and labeling, we will instruct Chemservice S.A. to update the group report and provide safety data sheets with the relevant C&L in-formation to Customers/distributors.
4. Documents and Product Samples
4.1. The quality of product samples is only binding to the extent we explicitly qualified it in writing as an agreed quality of the product (Beschaffenheit).
4.2. We reserve all rights to any product samples, illustrations, drawings, data, cost estimates and other documents about our products that have not been separately remunerated by the Customer. These are to be returned to us at our request (together with all copies). We do not reserve ownership rights to samples if the Customer processes the samples in the ordinary course of business. If the above-mentioned objects and documents remain in the possession of the Customer, we have independent indirect possession of them. A right of retention on these objects and documents is excluded. The Customer undertakes not to make the samples, data and/or documents listed in sentence 1 above accessible to third parties, unless we give our express written consent.
4.3. The provisions in Sections 4.1 and 4.2 shall apply mutatis mutandis to documents, drawings or data of the Customer. We do, however, reserve the right to make these available to any third parties who are permissibly taking care of our contractual delivery obligations or are our agents or suppliers.
5. Product Characteristics and Warranties
5.1. Unless otherwise agreed to in writing, the quality of the products is exclusively determined by our product specifications.
5.2. Information on product quality and shelf life including other product information shall only constitute a warranty within the meaning of Section 197 paragraph 1 CO if they are agreed and designated as such.
5.3. Our technical advice - whether verbal, in writing and/or tests - is based on current knowledge. It is the Custom-er’s responsibility to preuse examine the quality and test the products as to their fitness for a particular purpose. The same applies regarding potential infringement of third parties’ intellectual property rights.
6. Payment Conditions, Security
6.1. Unless otherwise agreed, invoiced amounts are due for payment to our bank account without any deductions within 30 days of the date of invoice. This is an expiry date within the meaning of Section 102 paragraph 2 CO, which is why the Customer is in default of payment on the day after expiry of the payment period without a re-minder. The invoice amounts are payable to one of our bank accounts in the currency specified on the order confirmation. Any further expenses shall be borne by the Customer. Regardless of the place of delivery of the products, the place of performance for the Customer's payment obligation is our registered office in Adliswil. In the event of export of the products, the costs associated with the receipt of payment shall be borne by the Cus-tomer to the extent they incur in the Customer’s country. A timely payment is only made if we can dispose of the money with value date on the due date on the account specified by us. Discounts and rebates are only granted by special agreement. A discount deduction is excluded if older due invoices have not yet been paid.
6.2. In case of payment default, we are entitled to claim interest in the amount of 9 per cent above the base interest rate of the European Central Bank from the date payment is due without the need for a previous separate de-mand note or warning. We reserve the right to assert additional damages.
6.3. Any acceptance of an order and the performance of delivery may be made subject to requirements of security deposit or prepayment. We are also entitled to demand payment concurrently with the delivery of the products.
6.4. In the event that there is any substantial deterioration in the financial situation of the Customer after concluding the contract endangering Customer’s ability to perform its contractual obligations, such as by way of filing for insolvency proceedings by the Customer, the commencement of insolvency proceedings, an application for a declaration of insolvency or an arrest warrant or, if there is a cessation of payment, which is not based on any right of retention or other rights, we may also withdraw from the contract at any time.
6.5. Any rights of retention or set-off on the part of the Customer shall only exist in relation to those counterclaims which are undisputed or have been determined by final legal judgement. A right of retention can only be exer-cised by the Customer if his counterclaim is based on the same contractual relationship.
6.6. Payment with bills of exchange is only permitted if and to the extent expressly agreed. In these cases, bills of exchange are accepted on account of the payment due. All discount and bill of exchange charges shall be borne by the Customer. For payment by letter of credit, the most current version of the Uniform Rules and Cus-toms for Documentary Credits issued by the International Chamber of Commerce in Paris shall apply.
7. Deliveries, Shipping and Force Majeure
7.1. Unless otherwise agreed, deliveries shall be made EXW in accordance with the current ICC INCOTERMS. Binding delivery dates and periods must be expressly agreed in writing and always refer to delivery from us and not to delivery to the Customer. We endeavor to comply with non-binding or approximate (approx., about, expected, etc.) delivery dates and deadlines to the best of our ability. Unilateral requirements of the Customer are not binding for us unless we have expressly agreed to them in writing. Transactions for fixed delivery dates must expressly be designated as such and confirmed by us in writing. Partial deliveries that are reasonable for the Customer are permissible.
7.2. If despite proper stocking, we do not receive raw materials or deliveries or services from our suppliers for rea-sons for which we are not responsible, or do not receive them correctly, completely or on time (e.g. information required for the execution of the order is not received by us in time or is subsequently changed; Payment dead-lines are not met, letters of credit are opened too late, or required import licenses do not arrive at us in time), or if events of force majeure occur, we will timely inform our Customers in writing or in text form. Irrespective of this information, we are in any case entitled to postpone the delivery for the duration of the hindrance, or to withdraw from the contract in whole or in part with respect to the part not yet fulfilled. Force majeure includes but is not limited to strikes, lockouts, official interventions, pandemics, energy and raw material shortages, transport bottlenecks through no fault of our own, operational disruptions through no fault of our own, for ex-ample due to fire, water and machine damage and all other impediments which, from an objective point of view, were not culpably caused by us. If a delivery date or a delivery period has been bindingly agreed and the agreed delivery date or the agreed delivery period is exceeded due to events according to this Section 7.2, the Customer is entitled to withdraw from the contract 30 days after the occurrence of the event of this Section 7.2 due to the part not yet fulfilled if it is objectively unacceptable for him to continue adhering to the contract. Fur-ther claims of the Customer do not exist in this case.
7.3. In the event of force majeure and/or incomplete, improper, or late delivery of our suppliers pursuant to Section 7.2 we are entitled – in addition to the rights set forth in Section 7.2 – to make partial deliveries of the products, split the available quantity of products among our customers, including affiliated companies, at our sole discre-tion or choose to interrupt delivery. We shall notify the Customer in time in writing accordingly. We will complete the delayed delivery respectively deliver the remaining quantity of products once the force majeure event and/or incomplete, improper, or late delivery of our suppliers pursuant to Section 7.2 has ended. The Custom-er’s rights pursuant to Section 7.2 shall remain unaffected.
7.4. Claims for damages of the Customer due to delay in delivery based on intent or gross negligence on our part are limited to a maximum amount of 0.5% of the net delivery price of the delayed product per completed week of delay, but in total to a maximum of 5% of the stated net delivery price.
7.5. If a Customer sets a reasonable subsequent deadline after a delay in delivery and such deadline expires without performance, the Customer may withdraw from the contract; Claims for compensation for damage caused by the loss of the contract (Section 109 para. 2 CO) are excluded, unless our non-performance is based on in-tent or gross negligence on our part.
7.6. The limitations of liability in accordance with Sections 7.4 and 7.5 shall not apply in so far as a contract where time is of the essence is agreed.
7.7. We shall be entitled to refuse fulfilling our obligations for as long as the Customer is in default of performance of any obligations it may have towards us, even if resulting from other contracts.
7.8. Insofar as the Customer also wishes the transport to be organized, we shall assume this without this affecting our fulfilment of the delivery obligation and the transfer of risk in accordance with EXW (Section 7.1). All costs for the transport itself as well as our costs for the necessary activities shall be borne by the Customer.
7.9. If no representative of the Customer is present at the time of delivery of the ordered products to the Customer, who accepts the products, and if there is no recognizable, secure and lockable unloading area/depot at the de-livery address, the confirmation of the driver (the transport company) is sufficient as proof that the products have been delivered in proper condition.
7.10. We do not take back transport packaging nor any other packaging; it becomes the property of the Customer. This does not apply to loaned bins or containers; these are to be returned to us, at our discretion, either empty and in exchange or carriage paid. As far as we are subject to legal obligations to take back and recycle packag-ing, we offer to take back completely emptied packaging at the operating site or we will name a third party who will dispose of the packaging in accordance with the legal provisions.
8. Retention of Title
8.1. We reserve title of ownership to all products supplied by us until full payment for all delivered products has been made. The Customer is obliged to take the measures necessary to protect our property.
8.2. We are entitled, with the cooperation of the Customer, to have the retention of title entered in the corresponding register.
8.3. The Customer shall maintain the delivered products at his own expense for the duration of the retention of title. He is liable to us for theft, breakage, fire, water, and other risks. He will also take all measures to ensure that our claim to ownership is neither impaired nor cancelled.
8.4. If a regulation in the Customer's country comparable to the retention of title in Switzerland is not sufficient for a legally valid retention of title, the retention of title shall be governed by the specifications of the offer or our or-der confirmation.
8.5. If there is no regulation in the Customer's country comparable to the retention of title in Switzerland, we may demand a bank guarantee or similar security in the amount of the corresponding order upon order confirmation.
8.6. Irrespective of an entry of the retention of title in the relevant register, we reserve the right of withdrawal and a right of reclaim about the goods due to default of payment by the Customer even in the event in which we have already transferred the products into the possession of the Customer before payment of the purchase price (reservation in the sense of Swection 214 para. 3 CO).
9.1. Orders placed shall be executed by us at the agreed prices and, in the absence of a separate agreement, at the list prices valid on the day of delivery. The prices are the prices stated on the order confirmation, and do not in-clude VAT. VAT will be invoiced separately at the applicable rate in accordance with the applicable tax regula-tions.
9.2. Unless otherwise agreed, the delivery prices are per net/kg, ex works (EXW), duty unpaid, in disposable pack-aging (drums and containers). If express or air freight transport or other packaging is desired, we shall invoice the additional costs, whereby the organization of this carriage shall have no effect on the fulfilment of our de-livery obligation and the transfer of risk in accordance with EXW.
9.3. In the event of an increase in material procurement or production costs, taxes, wage, and ancillary wage costs as well as energy costs, costs due to environmental requirements, currency regulations or other public charges between conclusion of the contract and acceptance of the products, we shall be entitled to increase the prices stated in the order confirmation accordingly until the final completion of the order placed with us. An increase in this sense is excluded if the cost increase in the aforementioned factors is offset by a cost reduction in other of the aforementioned factors with regard to the total cost burden for the delivery.
10. Warranty and Notification of Defect
10.1. Insofar as we have not given any assurances or guarantees designated as such with regard to the quality of the products, any warranty is excluded, unless there is fraudulent intent on our part to be proven by the Customer.
10.2. The Customer must inspect the delivered products – if necessary and reasonable by means of trial processing – in due course after delivery for defects in quantity and quality and notify us of the defects immediately, but no later than 10 days after delivery; otherwise, the products shall be deemed to have been accepted. Defects not detectable during this inspection must be reported to us within five days of their discovery. Complaints must be communicated in writing, stating the order data such as order, batch, invoice, and shipping number. A com-plaint that is not made within the period prescribed, excludes any claim of the Customer from breach of duty due to poor performance. Notices of defects must always contain a detailed description of the defect.
10.3. The notice of defects according to Section 10.1 must be made in writing and received by us within the deadline. A complaint not being in due form also excludes any claim of the Customer due to defects.
10.4. Upon commencement of processing, finishing, combining, or mixing with other items, the delivered products shall be deemed to have been accepted by the Customer in accordance with the contract in the event of recognizable defects. The same applies in the case of onward shipment from the original destination.
10.5. In the event of recognizable defects, the products complained of must be left in the shipping bin or container so that we can properly verify the justification of the complaint, unless we expressly refrain from doing so by writ-ten declaration and the Customer ensures the separate safekeeping of the products complained of.
10.6. Insofar as we are obliged to provide a warranty (Section 10.1), we shall, at our discretion, remedy the defect free of charge or deliver defect-free goods (subsequent performance). If the goods are replaced, our consent must be obtained before returning the products. Replaced products shall become our property. If we do not comply with the defect or subsequent delivery of the defective products within a reasonable grace period set for us, if the supplementary performance fails (whereby we are entitled to two attempts), if we refuse the sup-plementary performance or if this supplementary performance is unreasonable for us, the Customer has the right to rescission in accordance with the statutory provisions, to reduce the purchase price, as well as claim damages within the limits specified in Section 11. The parties agree that Section 205 para. 2 CO is to be interpreted as meaning that rescission is only justified in the case of significant defects and that the Customer is otherwise referred to reduction.
10.7. Claims and rights arising from warranty shall become statute-barred or forfeited within one year after delivery of the products (Section 7.1) to the Customer. This does not apply in the cases referred to in Section 11.1 (1) to (4).
11. Liability, Exclusion and Limitation Of Liability
11.1. Insofar as we are obliged to provide a warranty (Section 10.1), any resulting liability for damages shall be limited to cases of intent and gross negligence. Our liability for auxiliary persons consulted within the meaning of Section 101 CO is completely excluded. In particular, our executive and non-executive employees and other vi-carious agents as well as our subcontractors are considered as auxiliary persons. The above exclusion of liabil-ity does not apply to claims arising from the Product Liability Act (Produkte haftpflichtgesetz).
11.2. Any further liability for damages is excluded subject to intent and gross negligence – regardless of the legal nature of the asserted claim. This applies in particular to claims for damages arising from fault at the conclu-sion of the contract (culpa in contrahendo), due to other breaches of duty or due to tortious claims for compen-sation for material damage.
11.3. A reversal of the burden of proof is not associated with the above provisions.
11.4. If a claim is asserted against us by a third party with regard to the delivery, the Customer shall indemnify us, our legal representatives, our employees and vicarious agents comprehensively (including reasonable legal pros-ecution and defense costs, expenses, fees, taxes, etc. as well as reasonable advances), if and to the extent that (i) the causes of the claim (in relation to us) are within the Customer's sphere of control and organization or (ii), insofar as the causes of the claim fall within our sphere of control and organization, we are not liable in relation to the Customer for these causes of the claim by the third party.
We store and process the personal data provided by the Customer within the framework of the applicable statu-tory provisions, in particular the Swiss Data Protection Act and, if applicable, the EU General Data Protection Regulation, insofar as this is necessary for the establishment, design, processing, or amendment of the con-tractual relationship. This includes, in particular, the right to transmit the Customer's declarations and data to a third party, insofar as this is necessary for the conclusion and/or execution of contracts of the Customer. Our data protection information, which describes the processing of customer data in more detail, can be viewed at: https://www.actega.com/de/en/asr_transparency.
Legal compliance and ethically correct behavior are part of our core values. We therefore expect our customers to abide by all applicable national and international laws and regulations as well as the UN Global Compact Ini-tiative during our mutual business relationship. This specifically applies to laws and regulations on work envi-ronment and employee protection, human rights, prohibition of child labor, criminal corruption, and the granting of bribes of all kinds, anti-trust, and competition laws as well as environmental protection laws.
14. Export Controls
14.1. In the absence of deviating contractual agreements with the Customer, the products delivered by us are in-tended for the first placing on the market within Switzerland or, in the case of agreed delivery, outside Switzer-land to the agreed country of initial delivery (first country of delivery / Erstlieferland).
14.2. The export of certain products by the Customer from the country of first delivery may be subject to approval - e.g., due to their nature or intended use or final destination. The Customer himself is obliged to check this and to strictly observe the export regulations and internationally binding embargoes applicable to these prod-ucts/products insofar as he exports the products delivered by us or has them exported.
14.3. Upon request, the Customer undertakes to send us the original end-use declarations in the form specified by the State Secretariat for Economic Affairs (SECO) or, if an official issuance of the end-use declarations is nec-essary and has not yet taken place, to inform us about the status of the application.
14.4. Access to and use of products delivered by us may only take place if the above-mentioned inspections and guarantees have been made by the Customer; otherwise, the Customer must refrain from the intended export, and we are not obliged to perform.
14.5. When passing on the products delivered by us to third parties, the Customer undertakes to oblige these third parties in the same way as in Sections 14.1 - 14.4 and to inform them of the necessity of complying with such legal provisions.
The contracting parties shall undertake to maintain secrecy at all times regarding all information made availa-ble to them in connection with their contractual relationship and which are designated as confidential or are identifiable as business or industrial secrets for any other reasons and shall not - unless required to achieve the agreed contract purpose - be copied nor used in any other way.
16. Jurisdiction and Applicable Law
16.1. The courts responsible for Adliswil ZH, Switzerland shall have exclusive jurisdictions for all disputes arising from or in connection with the contractual relationship. However, we are also entitled to sue the Customer at his general place of jurisdiction.
16.2. The law of Switzerland shall apply exclusively to the exclusion of the provisions of private international law and the UN Convention on Contracts for the International Sale of Goods (CISG). If our order confirmation contains a clause listed in the INCOTERMS, the INCOTERMS in the latest version shall apply to the respective clause, un-less otherwise stated in our order confirmation.