(1) These General Terms and Conditions of Delivery and Business ("GTC") shall apply to all contractual agreements of Tiefbohrbär Ltd., Rothrist ("Tiefbohrbär"), in particular to purchase contracts, contracts for work and services and delivery contracts and orders.
(2) By concluding a contract, a purchaser, buyer or client ("contractual partner") accepts the version of the GTC valid at the time of the order confirmation without restriction and unconditionally. The general terms and conditions of the contractual partner shall not apply, unless Tiefbohrbär accepts such terms and conditions in advance in writing, in part or in whole. This also applies if such general terms and conditions have been accepted unchallenged in the past.
Conclusion of contract and scope of performance
(3) The scope of services and deliveries of Tiefbohrbär is conclusively defined in the order confirmation. If no order confirmation has been issued, the offer made by Tiefbohrbär will apply. Further services of any kind will be charged separately. Insofar as Tiefbohrbär submits an offer, this is not binding in any respect until the final confirmation of the order by Tiefbohrbär. Changes to the contract must always be made in writing. A contract is concluded with the order confirmation by Tiefbohrbär.
(4) Tiefbohrbär is released from any duty and obligation to check the (especially technical) information provided by the contracting partner and is authorised to independently make changes or additions to the scope of services or deliveries, insofar as these lead to an improvement of the product or service and do not result in a price increase. The contract partner is obliged to comprehensively inform Tiefbohrbär, at the latest with the order confirmation, in particular about special specifications regarding the use or non-use of certain materials, aids in the machining process.
(5) The contracting partner is obliged at every stage of the legal transaction to inform Tiefbohrbär immediately in writing if he becomes aware that the deliverables or parts thereof are or could be used for purposes which involve increased risks (nuclear, medical, aerospace and similar). Tiefbohrbär reserves the right to issue binding instructions in such a case, even after conclusion of the contract. The contractual partner further undertakes not to misuse the objects covered by the contract or to supply them for such use.
Intellectual property rights, confidentiality and data protection
(6) The parties shall retain in full all intellectual property rights to which they are entitled, in particular all patent-, model-, design- , copyright-, personality-, name- and company rights as well as the rights to their know-how. Subject to an explicit provision to the contrary, neither party shall grant the other party any right to use the intellectual property rights to which it is entitled without express prior consent.
(7) The parties undertake to keep all information exchanged before and during the contractual relationship concerning the business activities of the respective other party confidential, irrespective of whether this information has been expressly defined as secret or confidential. If the parties have concluded a separate confidentiality agreement, the mutual obligation of confidentiality shall be determined in accordance with the provisions of such a confidentiality agreement.
(8) Tiefbohrbär protects transmitted personal data by appropriate security measures. Should the contracting partner provide Tiefbohrbär with particularly sensitive data, he must inform Tiefbohrbär of this separately. In all other respects Tiefborbär complies with the applicable rules regarding data protection.
Delivery and performance
(9) Deliveries are made in accordance with EXW (Incoterms 2020), in so far as no other conditions have been expressly agreed upon. Non-reusable packaging will be charged at cost price and cannot be returned. Reusable containers (e.g. Post-Box or special reusable containers) must be returned by the contractual partner in accordance with the system provided for this purpose. Production aids (machines, measuring instruments, control-, auxiliary- and special tools etc.) remain the property of Tiefbohrbär.
(10) Tiefbohrbär will in principle comply with contractually agreed delivery and performance dates. The delivery period begins as soon as any down-or advance payments or any agreed securities have been made and the technical issues relating to the manufacturing or processing of the product have been taken care of. Tiefbohrbär is released from the contractually agreed delivery dates in particular when not all the necessary information and documents are available, changes are made after the conclusion of the contract or otherobstacles occur for which Tiefbohrbär is not responsible. In such cases, the delivery period will be extended appropriately.
(11) Should Tiefbohrbär be in default of delivery, the contractual partner must set a reasonable period during which the default of delivery can be amended. Damages resulting from a delay can only be asserted by the contracting partner to Tiefbohrbär if Tiefbohrbär has caused the delay and the contracting party can prove a direct damage caused by a delay caused by Tiefbohrbär.
(12) In the event of a delay in acceptance by the contracting partner, Tiefbohrbär is entitled to invoice the entire delivery. Tiefbohrbär is not liable for damage to stored material. In the event of a delay in acceptance, Tiefbohrbär can charge reasonable storage costs for material which has to be stored at Tiefbohrbär due to the delay in acceptance.
(13) Delivery on call can be invoiced by Tiefbohrbär after the expiration of one month after the agreed date of readiness.
Warranty and liability
(14) The warranty period is 12 months from the date of delivery. After a proper complaint of a defectiveness by the contract partner, Tiefbohrbär can, at its own discretion, either rectify the defect in accordance with the relevant legal provisions or make a replacement delivery. Further claims of the contracting partner remain excluded.
(15) Excluded from the warranty period are damages which are the result of natural wear and tear, inadequate maintenance, disregard for use- and installation instructions as well as operating instructions, use of unsuitable process utilities (oils etc.), chemical-, mechanical- or electrolytic influences, consequences of accidents, incorrect information provided by the contractual partner or other reasons for which Tiefbohrbär is not responsible. Also excluded from the warranty period are all damages which have occurred to components, or are attributable to components which have been handed over to Tiefbohrbär by the contractual partner or a person commissioned by the contractual partner for use, installation or processing. Tiefbohrbär is not obliged to inspect such components and is in no case liable for damages of any kind which are directly or indirectly attributable to defects in components or raw materials which have not been ordered or manufactured by Tiefbohrbär. Tiefbohrbär does not assume any warranty for deliveries and services of sub-suppliers, which are specified by the contractual partner.
(16) The warranty period expires if the contract partner or a third party processes, modifies, disassembles or improperly installs or removes products which have been produced or processed by Tiefbohrbär without the consent of Tiefbohrbär. It also expires if the delivered goods continue to be used even though there is a defect or the presumption of the existence of a defect exists or should exist, or if, in the event of the existence of such a defect, all appropriate measures are not immediately taken to minimise the damage.
(17) Subject to liability for damage due to a defect, the party in breach of contract shall be liable to the other party only for direct damage caused by a negligent breach of its obligations. On the other hand, liability for indirect damage, including loss of sales or profit, loss of use, capital costs or costs for the acquisition of substitute products or services, is excluded, unless it is expressly provided for in individual circumstances. The liability of a party for intentional damage, intentional or grossly negligent conduct shall not be subject to any limitation.
(18) Each party shall indemnify the other party against all claims of a third party for damage caused as a result of a breach of its obligations. The indemnity shall also include the costs incurred by the other party in connection with the examination, defence or recognition of claims of the third party, as well as any fees and penalties.
(19) Insofar as the damage of the third party was caused by a breach of contract by both parties, the indemnification of the party claimed against by the third party, shall be limited to the level of damage caused by the party in breach its obligations.
(20) The to be indemnified party shall promptly notify the indemnifying party in writing of any pending proceedings and any other assertion of claims to the extent that it intends to claim indemnification.
(21) Subject to any conflicting provisions of applicable law, the indemnifying party may: jointly participate with the indemnified party in the relevant proceedings; and, at its sole discretion, validly settle the matter by compromise or otherwise, provided that such settlement results in the third party validly declaring in writing the settlement of the assertion of all claims against the indemnified party and that it does not otherwise adversely affect the indemnified party.
Prices and terms of payment
(22) The prices for Tiefbohrbär's services are determined by the contract or the order confirmation. For small orders, a minimum invoice value of CHF 200.00 (plus VAT) applies. All invoices are payable within 20 days of the invoice date.
(23) All prices in price lists, offers or order confirmations are based on the conditions valid at the time of conclusion of the contract. In the event that a change in the conditions of third parties occurs before the service or delivery (increase in list prices, raw material prices and the like), Tiefbohrbär reserves the right to adjust the agreed prices. Tiefbohrbär also reserves the right to adjust prices due to changes of a constructive- or other nature, which are a consequence of new legal regulations or official requirements. No risk of rejects is included in the prices and quantities offered. In principle, reject costs shall be borne by the contractual partner. Risks of rejects can arise, in particular, when setting up a new series ("setup” or “run-in pieces") if the basic material has been provided by the contractual partner. Prices in quotations or order confirmations are valid for the period stated in the quotation or order confirmation. In the absence of such information, quoted prices are valid for a maximum of 60 days from the date of announcement.
(24) Tiefbohrbär is not obligated to deliver or produce services or goods and is not in default when a contracting partner does not settle payments within the periods stated on an invoice.
(25) Rights and obligations arising from the contractual relationship may not be assigned or otherwise transferred to third parties, either in whole or in part, without written consent of the respective other party.
(26) All amendments and supplements to the agreements between the parties must be in writing in order to be effective.
(27) Should individual provisions of these GTC or the order confirmation be or become invalid or unenforceable, the remaining provisions of these GTC or the order confirmation shall remain unaffected. The parties agree to replace the invalid or unenforceable provision with a valid and enforceable provision which, in the view of the parties, comes closest in economic terms to the objective which was associated with the invalid or unenforceable provision. Gaps in the agreement between the parties shall be closed in a corresponding manner.
(28) To the extent that a party is prevented from performing its obligations under this agreement as a result of force majeure, that party shall be released from the obligations under the agreement between the parties. The other party shall in return be released from its obligation to perform to the extent and for as long as the party is prevented from performing its obligation due to force majeure. Force Majeure means any unforeseeable event beyond the reasonable control of any party involved, such as, but not limited to, incompatible accidents, power failure or deficiency, fires, floods, epidemics, pandemics, earthquakes, explosions, war or armed conflict, embargoes, governmental measures or orders, riots or insurrections.
Choice of law and place of jurisdiction
(29) The contractual relationship between Tiefbohrbär and the contracting party shall be governed by Swiss law; the substantive norms of the conflict of laws as well as the provisions of the Vienna Sales Convention (United Nations Convention on Contracts for the International Sale of Goods) are excluded.
(30) The place of jurisdiction is the registered office of Tiefbohrbär. Tiefbohrbär is also entitled to sue the contracting partner at his ordinary place of jurisdiction. Mandatory places of jurisdiction remain reserved.
The 2022 edition, version 1.2 | valid as of 1 May 2022 replaces all previous terms and conditions of Tiefbohrbär Ltd. | Lehenweg 15 | CH-4852 Rothrist | Switzerland