GENERAL PURCHASING TERMS AND CONDITIONS OF WITSCHI ELECTRONIC LTD.
1.1 The following “General purchasing terms and conditions” of Witschi Electronic Ltd in CH-3294 Büren a.A. (referred to hereinafter as “Witschi”) are applicable for all purchasing commitments of Witschi, unless an alternative mutual agreement has been reached in writing.
1.2 The vendor herewith expressly waives the right to assert any claims relating to “General Contractual Conditions” of their own.
2. Order placement
2.1 Legally binding orders can be placed by letter post, fax, various forms of electronic data transmission, verbally or by telephone.
2.2 Passing an order on to third parties in its entirety or partially requires the express prior approval of Witschi.
2.3 Every order must be acknowledged in writing within fourteen (14) days of the order date as long as an immediate delivery is not taking place. Witschi is entitled at any time to cancel orders not acknowledged within this period.
3. Prices and terms of payment
3.1 The agreed prices are fixed prices and include all ancillary costs, such as packaging, transport costs, etc. Price changes or reservations in this regard are only binding if and as long as they have been expressly approved by Witschi in writing.
3.2 Payments by Witschi take place irrespective of the inspection of goods when they arrive at the delivery point. Payments or part payments by Witschi do not represent acceptance of quantity, price and quality. In this regard, the legal rights of Witschi therefore remain fully guaranteed even after payment for the goods.
3.4 Unless otherwise agreed, payments are to be made according to the terms and conditions specified on the order.
3.5 The assignment of existing claims against Witschi, as well as offsetting with counterclaims, is only permissible with the written approval of Witschi.
4. Materials, drawings, tools, models and other resources
4.1 Materials, drawings, tools, models and other resources that are made available to the vendor by Witschi, or which are manufactured at Witschi’s cost, remain the property of Witschi.
4.2 The above-mentioned resources and/or materials must not be made available to third parties and are only to be used for the fulfilment of the order. Resources or materials that have not been used, if requested by Witschi, or at the latest on delivery of the goods, are to be returned in perfect condition or, if expressly agreed, to be stored by the vendor until they are recalled.
4.3 As long as the order from Witschi concerns the individual manufacture of small parts and components in the sense of a work contract (Art. 363 ff. Swiss Code of Obligations), Witschi retains unrestricted use of the intellectual property, as well as exclusive application to all designs and development results in this regard. Without express written approval, designs and developments may not be made accessible to third parties either in whole or in part, nor be used for the supplier’s own or other purposes.
5. Delivery date
5.1 The delivery deadlines and delivery dates specified by Witschi are binding (also in the case of partial deliveries). They shall be regarded as adhered to if the goods arrive at the delivery point by the date of expiry.
5.2 Delivery delays occur without any warning.
5.3 If Art. 5.5 does not apply, in the event of any delivery delays, Witschi reserves the right to indemnity claims, cancellation of the order or reduction of the order quantity.
5.4 Witschi is not obliged to accept premature deliveries. If Witschi keeps premature deliveries, the resulting additional costs (e.g. storage costs) can be set against the purchase price. In spite of any premature delivery, payment deadlines are calculated from the due delivery or invoice date.
5.5 For delayed deliveries, Witschi is entitled to claim compensation for delay as long as a loss can be attributed to this delay. The compensation for each full week of delay is a maximum of 0.5%, but no more than 5% in total, calculated on the contract price of the part of the delivery that has been delayed. After expiry of 3 weeks, the options stated in Point 5.3 are also open to Witschi.
6.1 Unless agreed differently, delivery is to be made to the place of fulfilment designated by Witschi.
6.2 Benefits and risks are transferred to Witschi on delivery of the goods to the place of fulfilment.
6.3 A detailed delivery note is to be included with every delivery, which indicates at least the order number, order item, item description and quantity delivered. Quantities specified on orders must be complied with. Witschi reserves the right, if no prior agreement has taken place on increased or reduced deliveries, to make surplus parts available to the vendor against full compensation for expenses and in the case of reduced quantities to insist on fulfilment of delivery of the ordered quantity.
6.4 The vendor takes on responsibility for the delivery according to contract of right and proper goods in perfect condition made with flawless raw materials, suitable for the intended purpose. Also applicable here in particular are compliance with the official and statutory safety regulations of the manufacturer- and country of destination. The vendor guarantees, also in case of the approved forwarding of the order to a third party, that the delivery complies with the requirements outlined above and that any information with which he has been entrusted will remain confidential. Witschi is entitled to return to the vendor incorrect or inadequate goods at the vendor’s expense and to demand perfect replacements.
6.5 For products freely available on the market, the proof of quality is regarded as a given, as long as the relevant test reports of the manufacturer can be viewed on request. Products specially manufactured or prepared for Witschi must be accompanied by a test report confirming that the agreed specifications have been fulfilled in their entirety. The test report must be capable of being traceably linked with the products of the relevant delivery. Products are to be tested according to the standard DIN ISO 2859 Part 1 using random samples. As long as the order does not mention any special requirements, the test parameters are to be specified by the supplier according to industry-standard samples and quoted in the test report. In the case of deliveries involving series production, the first sample taken and made available to Witschi by the supplier before the first series is produced shall apply. After initial sampling, both the supplier and Witschi will be in possession of a labelled, clearly defined sample. This sample will retain its validity until such time as Witschi recalls it.
7.1 The vendor assumes responsibility for guaranteeing for a period of 24 months after they are resold by Witschi to its customers, but for a maximum of 36 months after their delivery, that parts supplied by him comply with regulations and agreements in terms of materials, design, processing and functionality. In the case of replacement deliveries or after completion of the repair of faulty goods, the guarantee period starts afresh.
7.2 Goods delivered are to be inspected as soon as possible after receipt, but at the latest during further processing or commissioning and any defects communicated to the vendor immediately. However, as it is impossible in the case of most deliveries to immediately check that goods conform to the contract, the vendor recognises that the notification of defects without compliance with a notification deadline shall be regarded as effected in good time, as long as this is communicated during the guarantee period. This ruling only applies as long as the parties have not concluded a “Special quality or supplier agreement”.
7.3 In a case of defective delivery, Witschi, if it chooses, can request the immediate free-of- charge rectification of the deficiency or the delivery of faultless goods. The right is reserved to claim for redhibition, a price reduction and assertion of all claims for compensation. Witschi can withhold payment in whole or in part, until, as long as replacement is requested, the vendor meets his obligation to deliver perfect replacement goods or the situation in respect of redhibition, price reduction and compensation is clarified in a binding manner.
7.4 The vendor takes on the guarantee to fully indemnify Witschi against all claims from third parties because of all types of infringement of property rights, either alleged or committed.
8. Company and registered trademarks
8.1 As long as Witschi desires this, the company and registered trademarks are to be applied as directed to goods ordered by Witschi. Items marked in this manner may be delivered exclusively to Witschi. Goods about which Witschi has complained and then returned and which are provided with its company – or registered trademark, must, after consultation and written confirmation, be rendered unusable.
9. Product liability
9.1 Witschi will inform the vendor immediately about any product defects detected in goods it has supplied if the defect has led to or could lead to an accident resulting in a fatality, personal injury or damage to property and will agree upon further action with the vendor. The vendor will assist Witschi in dealing with injured parties and exonerate Witschi from authorised claims, as long as they can be traced back to product faults in the goods delivered by the vendor and for which Witschi or the vendor are liable according to the Swiss Federal Act on Product Liability. Claims are only regarded as authorised if they either have been recognised by the vendor or have been found in favour of the injured party in a legally binding procedure managed by Witschi. The vendor will reimburse Witschi for all costs resulting from this. The vendor adopts all costs for recall actions which are necessary from the viewpoint of product liability and can be traced back to the vendor’s contribution.
10. Place of jurisdiction/applicable law
10. 1 These “General purchasing terms and conditions of Witschi Electronic Ltd” are subject to Swiss Law and the place of jurisdiction is the registered office of Witschi, CH-3294 Büren a.A.
VA54.41 Original document German 11.12
Witschi Electronic Ltd General Terms of Business
1.1 These General Terms of Business shall be binding if declared applicable in the offer or order confirmation. Any conditions stipulated by the customer which are in contradiction to these general conditions shall only be valid if expressly accepted by the supplier in writing.
1.2 All agreements and legally relevant declarations of the parties to the contract have to be in writing in order to be valid.
2. Offers and conclusion of contract
2.1 The contract shall be deemed to have been entered into upon receipt of supplier’s confirmation stating its acceptance of the order.
2.2 Offers which do not stipulate an acceptance period shall not be binding.
3. Scope of Supplies
3.1 The supplies are specified in the order confirmation. Any material and services which are not included therein shall be additionally charged. The invoice is definitive, if a delivery occurs without acknowledgement.
3.2 The supplier shall be entitled to make any changes which lead to improvements.
4. Regulations in force in the country of destination
The customer shall inform the supplier, upon placing the order at the latest, about the standards and regulations applicable to the execution of the supplies and services, to the operation of the plant as well as to the health and safety of personnel.
5.1 Unless otherwise agreed upon, all prices shall be deemed to be net ex works, in Swiss Francs, without value-added tax, for shipment within Switzerland. All shipments to customers understand ex factory, excluding packing. Without prior special agreement, prices do not include installation and personal instruction.
5.2 If a general price increase is decreed between confirmation of the order and delivery, the new prices shall apply.
6. Terms of Payment
6.1 Payments shall be made within 30 days net as from the date of invoice.
6.2 Payments shall be made by the customer to the registered address of the supplier without any deducting for cash discount, expenses, taxes or duties of any kind. Other terms of payment may be agreed separately. Any unauthorised deductions will be charged again.
6.3 In case of delay in payment the supplier is entitled to discontinue planed deliveries and to charge a default interest.
7. Proprietary Right
7.1 The supplier shall retain ownership of the products supplied until full payment has been received. The customer shall take all necessary measures for the protection of the proprietary rights of the supplier.
7.2 The supplier is entitled, with customer’s participation, to apply for registration of the reservation of the proprietary right.
8. Delivery time
8.1 The delivery time shall start as soon as the contract has been entered into and all technical points have been settled.
8.2 The delivery time shall be reasonably extended:
- if the information required by the supplier for performance of the contract is not received in time, or if the customer subsequently changes it;
- if agreed terms of payment are not met, letters of credit are opened to late, or the necessary import licenses are not received by the supplier in time;
- if hindrances occur which the supplier cannot prevent despite using the required care, regardless whether they affect the supplier or the customer or a third party. Such hindrances include, but shall not be limited to, epidemics, mobilisation, war, revolution, serious breakdown in the works, accidents, labour conflicts, late or deficient delivery by subcontractors of raw material, semi finished or finished products, the need to scrap important work pieces, official actions or omissions by any state authorities or public bodies, natural catastrophes, acts of God.
9. Delay in delivery
9.1 The customer shall be entitled to claim liquidated damages for delayed delivery provided that the delay has been caused by a fault of the supplier and that the customer has suffered a loss as a result of such delay. If substitute material can be supplied to accommodate the customer, the latter is not entitled to any damages for delay.
9.2 Damages for delayed delivery shall not exceed 1/4 % of the part of supply in delay for every full week’s delay and shall in no case whatsoever exceed 3 % of the contract price of the part of the supplies in delay. No damages at all shall be due for the first two weeks of delay.
9.3 Any delay of the supplies does not entitle the customer to any rights and claims other than those expressly stipulated in these Articles 9.1 and 9.2.
10. Forwarding, Transport and insurance
10.1 The products will be carefully packed by the supplier.
10.2 The benefit and the risk of the supplies shall pass to the customer by the date of their leaving the premises of the supplier. Special requirements regarding forwarding and insurance shall be communicated to the supplier in good time. Transport shall be at the customer’s risk. Complaints in respect of transport shall be submitted immediately by the customer to the last carrier on receipt of the products or the shipping documents.
10.3 Insurance against risks of any kind is the responsibility of the customer. Even when taken out by the supplier, it shall be at the customer’s expense.
11. Inspection and taking-over of the supplies
The customer shall inspect the supplied products within a reasonable period after having received them and shall immediately notify the supplier in writing of any deficiencies. If the customer fails in doing so, the products shall be deemed to have been taken over.
12. Warranty and Disclaimer
12.1 The supplier hereby warrants that the products delivered by him will be free from defects in material and workmanship.
12.2 Express warranties are only those expressly specified as such in the order confirmation or in the manual. An express warranty is valid until the expiry of the warranty period at the latest.
12.3 In case delivered products are defective, the customer may request for compensation delivery or elimination of defect by the supplier during the warranty period of two years beginning on the date of delivering the products or the day of supplier’s notification that the products are ready for dispatch. 1 2.4 If a defect according to Article 12.3 is not eliminated or compensated by the supplier within a reasonable period, the customer may ask for price reduction or annulment of the contract.
12.5 The warranty expires prematurely, if the customer or a third party undertakes inappropriate modifications or repairs or if the customer, in case of a defect, does not immediately take all appropriate steps to mitigate the damage and give the supplier the possibility of remedying such defect.
12.6 Excluded from supplier’s warranty and liability for defects are all deficiencies which cannot be proved to have their origin in bad material, faulty design and poor workmanship or resulting from other reasons beyond supplier’s control.
12.7 With respect to any defective material, design or workmanship as well as to any failure to fulfil express warranties, the customer shall not be entitled to any rights and claims other than those expressly stipulated in Articles 12.3 and 12.4 hereof.
12.8 Not mentioned claims for compensation, for reduction, for termination and for withdrawal of the contract are excluded. The supplier shall not be liable for any direct, indirect, consequential or incidental damages that are not arisen on the product, including damages for loss of business information, loss of profits, production interruption and the like, subject to the compelling product liability law.
The supplier will provide the customer with the necessary software to be used for the bought product. The customer shall use this software solely and exclusively for this purpose and must not be used on any equipment other than the equipment defined by the supplier, nor copied or otherwise duplicated or changed. The license shall be deemed to convey a non- exclusive right of use only. If the customer fails to maintain these obligations, the supplier may claim for liquidated damages.
14. Governing law
The present contract shall be governed in all respects by Swiss law.
The place of jurisdiction for any disputes shall be at the registered office of the supplier.
CH-3294 Büren a.A., July 2012
Witschi Electronic Ltd Software License Terms and Conditions
1.1 With the transfer of the usage right, the software is not being sold but only licensed.
1.2 These software licensing conditions are valid once accepted by the customer or declared usable in the offer or order confirmation.
2. Rights of Use
Witschi Electronic Ltd hereby grants a nonexclusive license to use the software. The software may be run on one computer system only at a time. Customers are allowed to transfer the software from the computer where first installed to another one, provided that it is being used on one computer system only at any given point in time.
In the case of simultaneous use of the software on several computer systems, further licenses must be acquired for each computer system, which is particularly used on this computer system. The client may not reverse engineer, decompile or disassemble the product unless and to the extent expressly provided for by the respective governing law.
3. Software Rights
All rights in this software, especially rights protecting the brand and copyrights, such as the right to publish, copy, adapt and exploit the software, remain the property of Witschi Electronic Ltd, or their licensees, respectively, and are not affected by this contract.
4. Terms and Conditions for Copying
4.1 The software is protected by copyright. The customer is allowed to make a spare copy solely for backup and archiving purposes.
4.2 The customer may not modify the software or any portion of it. The customer is forbidden to use the software as an integral part of an extended program.
4.4 The customer is not entitled to remove single components of the software for their utilization in more than one computer system.
5.1 At the customer’s request Witschi Electronic Ltd will provide service for the software. Scope and cost of service will be agreed upon in a separate service contract.
5.2 Witschi Electronic Ltd is entitled to use the technical data acquired during maintenance in the product development process. Witschi Electronic Ltd. is bound to use these technical data in an exclusively anonymous manner.
6. Prices / Delivery Terms and Conditions of Payment
6.1 Prices relating to the order are determined in the offer or in the order confirmation.
6.2 The delivery and payment conditions comply with the general terms and conditions of Witschi Electronic Ltd.
7. Warranty and Liability
7.1 Witschi Electronic Ltd ensures the customer that at the time of installation the software is in perfect working order when used under normal operating conditions and when normal maintenance procedures are applied.
7.2 If the software is found to be faulty, the customer can demand a replacement delivery during the warranty period of 12 months from delivery, or demand that the faults be removed by Witschi Electronic Ltd.
7.3 Witschi Electronic Ltd cannot guarantee that the software is suited to the client’s needs and aims. The client is responsible for correctly choosing the software and how to use it to achieve the desired results.
7.4 Liability for consequential damages is excluded except where legally mandated product liability conditions indicate otherwise.
8. Governing Law and Competent Court
8.1 This contract will be governed by the Swiss laws.
8.2 Competent Court is the Court of Büren an der Aare, Switzerland.
Reservation of Rights
Witschi Electronic Ltd reserves all rights not expressly granted to you in this license.
CH-Büren a.A., July, 2012
Witschi Electronic Ltd
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