1 Scope of Application
1.1 These General Terms & Conditions of Sale and Delivery («GTC») shall apply to the sale of products, accessories and systems («Products«) by DIMETIX AG («DIMETIX«) to its customer («Customer«).
1.2 These GTC shall also apply if the Customer submits its own terms and conditions to DIMETIX and DIMETIX does not expressly refuse them. Any undertaking entered in deviation from the present GTC shall be binding for DIMETIX only if and to the extent agreed by DIMETIX in writing.
2 Conclusion of Contract
2.1 A contract shall become legally binding between DIMETIX and the Customer («Contract«) only after the issuance of an order confirmation by DIMETIX or by its conclusive action, such as, but not limited to, immediate delivery of the Products. DIMETIX’ quotation and order confirmation in conjunction with these GTC shall form the final contractual provisions.
2.2 All descriptions and representations by DIMETIX on printed, digital or electronic media as well as any technical documentation such as, but not limited to, descriptions, drawings, brochures shall not have any legally binding effect and may be modified by DIMETIX at any time without notice. Only those descriptions and representations set out in a Contract according to Clause 2.1 shall be legally binding.
2.3 If a Customer requested engineering changes under a Contract, such requests shall become legally effective between the parties only pursuant to Clauses 2.1 and 4.3.
3 Intellectual Property Rights of the Documentation
The intellectual property, including any Copyrights, in any Product as well as any Product documentation on printed, digital or electronic media such as, but not limited to, studies, blue prints, reports, brochures, photographs, software («Documentation«) shall remain the property of DIMETIX and its licensors, respectively.
4.1 Unless otherwise agreed in writing between the parties, the prices shall be deemed to be (a) «ex works» DIMETIX premises in Herisau (Incoterms 2010) for deliveries made within Switzerland and (b) «FCA» DIMETIX premises in Herisau (Incoterms 2010) for deliveries made abroad, net of any discounts or deductions, customarily packaged, net of any freight and insurance costs, net of any taxes and duties such as, without limitation, value added or sales taxes, customs duties, fees and risk premiums, all of which are for the Customer’s account.
4.2 If the Customer requested special packaging or provided packaging material or requested any other additional services, DIMETIX shall be entitled to invoice such additional costs incurred as a consequence.
4.3 Any price increase which DIMETIX is not accountable for or is a consequence of a Customer’s engineering change request pursuant to Clause 2.3 shall entitle DIMETIX to pass these costs on to the Customer.
5 Costs of Freight and Insurance
Only upon Customer’s request shall DIMETIX arrange for freight and marine insurance cover against loss, theft, destruction and any other damage of the Products in transit for the account and charge of the Customer. Upon delivery of the Products, any transport damage and other anomalies resulting from the transport must be forthwith acknowledged by the carrier. The extent of and the presumed reasons for such anomalies and/or damages shall be set out in such acknowledgement.
6 Terms of Payment
6.1 The payment terms are set out in the Contract on a case by case basis. The payment shall be deemed received when credited to DIMETIX’ account.
6.2 The due date shall be deemed legally binding even if for reasons not imputable to DIMETIX the transport, delivery, handover or receipt of the Products have been delayed or rendered impossible, or DIMETIX has to execute additional work on the Products. Set-offs, deductions and retentions of amounts with the invoiced amount shall be excluded unless expressly agreed by DIMETIX beforehand.
6.3 Past due payments shall entitle DIMETIX to charge late interest effective as of the due date at the CHF 3-month LIBOR increased by 5% in addition to the invoiced amount.
6.4 Past due payments and – in DIMETIX’ sole judgment – the deterioration of Customer’s creditworthiness, shall entitle DIMETIX to immediately declare any outstanding amounts due and payable. In addition, DIMETIX shall be entitled (a) to hold off the delivery of Products, or (b) to request prepayment of or an irrevocable, unconditional bank guarantee issued by a first class Swiss bank for the invoiced amount, or (c) to rescind the Contract and claim for damages.
7 Reservation of Title, Security Interest
Title of ownership in and to the Products shall remain with DIMETIX until the price has been credited in its entirety to DIMETIX’ bank account.
8 Deliveries and Dates of Delivery
8.1 Unless anything has been agreed to the contrary, deliveries are deemed (a) «ex works» DIMETIX premises in Herisau (Incoterms 2010) for deliveries within Switzerland and (b) «FCA» DIMETIX premises in Herisau (Incoterms 2010) for deliveries abroad.
8.2 The dates of deliveries indicated by DIMETIX shall be deemed indicative dates only and not fixed dates. DIMETIX shall forthwith inform the Customer if a delivery date cannot be kept. Under such circumstance and IN NO EVENT SHALL DIMETIX BECOME LIABLE FOR DIRECT, INDIRECT AND/OR CONSEQUENTIAL DAMAGES THAT MAY BE ARISING FOR CUSTOMER, SUCH AS, BUT NOT LIMITED TO, LOSS OF SALES AND/OR PROFITS.
8.3 DIMETIX shall be entitled to make partial deliveries unless anything to the contrary has been expressly agreed.
8.4 The time of delivery shall be counted as of the date of DIMETIX’ order confirmation, provided that all formalities have been fulfilled, any possible export, import and other authorization received, and all technical issues cleared and accepted by DIMETIX. If any of the foregoing has gone missing, the time of delivery shall be postponed and start at the time when such missing item has been fulfilled.
8.5 The time of delivery shall be extended in the following cases:
8.5.1 force majeure, i.e. in case of occurrences that are beyond DIMETIX’ reasonable control and/or not predictable even when applying reasonable due diligence. In such a circumstance, DIMETIX’ obligations under the Contract shall be postponed and Customer shall not be entitled to claim for loss and damages under any title. Should the force majeure event last longer than 3 months, either party may at its convenience rescind the Contract whereby neither party shall be entitled to claim for loss and damage from the other party;
8.5.2 default of the Customer under any clause of the Contract, in particular if payments are past due.
9 Incoming Inspection and Obligation to Notify Defects
The Customer shall proceed to a full-fledged incoming inspection immediately after the delivery of the Products, including a functional test of the Products. The Customer shall notify DIMETIX in writing about any defects of the Products, delivery of wrong Products, wrong quantities or unsatisfactory services within 8 days as of the date of delivery, failing which the Products shall be deemed accepted. The Customer shall give DIMETIX the opportunity of remedy pursuant to Clause 10. In the case of product warranty, the Customer shall be prevented from claiming under any and all titles for loss or damage or rescinding the Contract.
10 Product Warranty
10.1 DIMETIX warrants to Customer only that upon delivery the Products will be free from defects in workmanship and materials, under normal use for the purposes determined by DIMETIX, provided any and all operating and maintenance instructions of the Product are strictly respected.
10.2 The warranty period expires 12 (twelve) months as of the date of the invoice.
10.3 The sole remedy imposed on DIMETIX under this warranty is, at DIMETIX’ sole option, cost and expense, to repair or replace the defective Product or parts thereof. The warranty period for repaired or replaced Products is not extended; the original warranty period shall apply. All replaced Products or parts thereof shall become the property of DIMETIX.
10.4 Customer’s sole remedy for breach of the warranty shall be the express warranty in Clauses 10.1 to 10.3. The express warranty is exclusive and in lieu of all other warranties, terms or conditions, express or implied, either in fact or by operation of law, statutory or otherwise, including warranties, terms or conditions of merchantability, fitness for a particular purpose, satisfactory quality and non-infringement, all of which are expressly disclaimed.
10.5 DIMETIX shall not be liable if the alleged defect was caused by Customer’s or any other person’s misuse, neglect, improper installation, unauthorized attempt to open, repair or modify the Product, inadequate maintenance, disregard of operating instructions, excessive load or stress, normal wear and tear, or any other cause beyond the range of its intended use, by accident, fire, or other hazards, or any other cause not due or attributable to DIMETIX. This warranty does not cover physical damage to the Product or malfunctions resulting from the use of the Product in conjunction with any sort of ancillary or peripheral equipment if DIMETIX determines that there is no defect in the Product itself.
10.6 This express warranty does neither cover consumables, such as, without limitations, batteries, bulbs and fuses, which Purchaser can replace itself, nor calibrations of the Products made by the Customer after the delivery in accordance with the users’ manual. Third party products shall be subject to such third parties’ warranty conditions.
10.7 Purchaser must contact DIMETIX within the applicable warranty period to obtain a return material authorization («RMA«). Dated proof of original purchase from DIMETIX and a detailed description of the defect will be required. DIMETIX will instruct Customer of the way to proceed. Customer shall strictly follow DIMETIX’ instructions (including the instructions on returning the defective Product) failing which Customer will lose its remedy rights under the warranty. The repaired or replaces Product shall be shipped to Customer as soon as reasonably possible. DIMETIX will bear costs and expenses for returning the Product to the Customer. DIMETIX shall not be liable for damages in transit or loss of the Products.
10.8 Cost of appraisal of Products that are alleged to be defective shall be borne by DIMETIX. If no failures can be found (so called NFF) under commercially reasonable conditions by DIMETIX, the costs of appraisal as well as the costs of returning the Products shall be borne by Customer. The foregoing shall also apply in case of repair after the lapsing of the warranty period, if DIMETIX cannot identify the alleged defect.
10.9 DIMETIX shall be entitled to decide on the place of performance of the warranty work at its discretion.
10.10 DIMETIX is entitled to refuse any warranty work as long as the Customer is in default under the Contract or payments are past due.
11 Limitation of Liability
To the fullest extent permitted under applicable law, DIMETIX EXCLUDES ANY LIABILITY, WHETHER BASED IN CONTRACT, STRICT LIABILITY, WARRANTY OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER BASIS WHATSOEVER, FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND, OR ANY COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS BY CUSTOMER, OR FOR THE LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS, LOSS OF INFORMATION OR DATA, OR FINANCIAL LOSS ARISING OUT OF OR IN RELATION WITH THE SALE, INSTALLATION, MAINTENANCE, USE, PERFORMANCE, FAILURE, OR INTERRUPTION OF THE PRODUCTS, EVEN IF DIMETIX HAS BEEN ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. Without limiting the foregoing, DIMETIX limits its liability, at its sole option and cost, to replacement or repair of the defective Product. This limitation of liability for damages will not be affected if any remedy provided herein shall fail of its essential purpose.
12 Term and Termination
12.1 A Contract expires when it is fulfilled.
12.2 Termination for cause: Either party may terminate a Contract with immediate effect and shall be entitled to claim for any loss and damage in the following cases:
12.2.1 debt collection and/or debt settlement proceedings (in particular in the context of insolvency) are instituted against the terminated Party; cessation of the business, sale or assignment of the business; or the existence of other important causes which reasonably prompt the terminating party’s concerns about a loss or other damage;
12.2.2 breach of Contract such as, but not limited to, ongoing past due payments, provided that, to extent reasonably possible, the terminating party grants to the terminated party a 30-day period to remedy the contractual situation («Remedy Period«) and the terminated party fails or omits to remedy within the Remedy Period.
13 Applicable law and Jurisdiction
These GTC and each Contract hereunder shall be governed and interpreted according to the laws of Switzerland, excluding its conflict of law provisions and the United Nations Convention on the International Sale of Goods dated 11 April 1980. The ordinary courts at the seat of DIMETIX at Herisau, Switzerland, shall be competent. DIMETIX shall however, at its sole discretion, be entitled to take legal action against Customer at the courts competent at Customer’s place of business or domicile.
If a court of competent jurisdiction was to declare any of the provisions of these GTC and/or Contract as null and void or unenforceable for whatever reason, the validity of all other provisions shall not be affected. In such instance, the null and void or unenforceable provisions shall be replaced by other legally valid or enforceable provisions, which shall closest reflect the original economic intentions of the Parties within the limits of the law.
15 Modifications and Waiver
No supplement, modification or waiver of these GTC and/or a Contract shall be binding unless executed in writing by both Parties. No waiver of any of the provisions of this Agreement shall constitute, or shall be deemed constituting, a waiver of any other provisions hereof (whether or not similar), nor shall any such waiver constitute a continuing waiver unless otherwise expressly provided.
Herisau, June 2015