General Conditions of Sale and Delivery

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General Terms and Conditions of Sale and Delivery FUCHS Maschinen AG

Status 01.02.2024

1. General

  1. Unless otherwise agreed in writing, these General Terms and Conditions of Sale and Delivery of FUCHS Maschinen AG (hereinafter referred to as "FUCHS") apply to all goods and services supplied or provided by FUCHS (hereinafter referred to as "GTC"). General terms and conditions of the customer are only effective if they are accepted by FUCHS in writing with a legally valid signature in the particular case.

2. Quotations and conclusion of contract

  1. Unless expressly agreed otherwise in writing, all quotations and cost estimates from FUCHS shall be deemed to be an invitation to the customer to submit an offer for such goods or services (invitation to make an offer). The customer's order is deemed to be an offer. A legally binding contract is only concluded when FUCHS has confirmed acceptance of the offer in the order confirmation (hereinafter the 'contract'). A confirmed offer can only be cancelled or amended with FUCHS' express written consent. If FUCHS declares its written consent, this shall not affect FUCHS' rights to demand full compensation from the customer for all losses or costs incurred as a result of such cancellation or amendment.

3. Validity of the quotation

  1. The FUCHS quotation is valid for 30 calendar days from the date of its submission, unless otherwise stated in the quotation. After expiry of this period, FUCHS reserves the right to adapt the quotation to the new conditions. These FUCHS GTC are an integral part of the FUCHS quotation.

4. Scope of delivery

  1. The scope and execution of the deliveries and services shall be specified by FUCHS in the order confirmation. Goods or services not listed in the order confirmation which are additionally ordered by the customer after conclusion of the contract will either be rejected by FUCHS or confirmed and invoiced separately
  2. Pictures, drawings and descriptions in brochures and catalogues as well as information on dimensions and weights are approximate values. They are only binding if they are expressly confirmed in writing.
  3. It is the customer's responsibility to ensure that the drawings, calculations, and specifications are correct. If the customer has approved all specifications, FUCHS shall not be liable for any errors or omissions. In any case, FUCHS' liability is limited to the components manufactured by FUCHS itself and does not extend to other products or components or to general structural or architectural conditions.

5. Prices

  1. Unless expressly stated otherwise in FUCHS' quotation, prices are ex works (EXW Granges-Paccot Incoterms 2020) plus VAT, freight inspection, packaging, customs duties, taxes, levies, insurance, installation, commissioning, and other services.
  2. Unless expressly stated otherwise in FUCHS' quotation, the price does not include the assembly or installation of the system, commissioning, validation support or personnel training.
  3. If the costs on which the calculation is based increase in the period between the conclusion of the contract and the acceptance of the goods, FUCHS shall be entitled to adjust the prices stated in the order confirmation accordingly.

6. Terms of payment

  1. The terms of payment depend on the object of sale and are defined in the quotation or in the order confirmation from FUCHS.
  2. The customer shall make payment(s) to FUCHS without deductions for discounts, costs, taxes and fees of any kind.
  3. After expiry of the payment deadline stated in the invoice, the customer shall owe default interest of 6% p.a. plus processing fees without notice of default. This does not affect compensation for further damages. In the event of default of payment, FUCHS is authorised to suspend all further deliveries with immediate effect and to suspend any rectification of defects.
  4. Payments may not be withheld, in particular not in the event of late delivery or complaints. Claims of FUCHS may not be offset against any counterclaims of the customer.
  5. In the event of late payment, FUCHS reserves the right to withdraw from the contract and to reclaim the goods handed over in accordance with article 214, paragraph 3 of the Swiss Code of Obligations (CO; cf. clause 12).

7. Retention of title

  1. FUCHS retains ownership of all delivered goods until they have been paid for in full. The customer must take all necessary measures to protect the property rights of FUCHS.
  2. FUCHS is entitled to have the retention of title entered in the relevant public register and the customer is obliged to co-operate in such an entry.

8. Terms of delivery

  1. The delivery time and delivery conditions (if different from EXW Granges-Paccot Incoterms 2020 according to clause 5.1) are defined in the quotation or in the order confirmation from FUCHS.
  2. In the case of customised products for the customer, the following additional conditions apply (unless otherwise defined in the quotation or order confirmation):
    • All goods are clearly defined at the time of ordering;
    • The request for authorisation for the equipment is made approximately 2 weeks after the customer's purchase application and after clarification of all technical details;
    • Within 1 week of receiving the request for authorisation, the customer must give their approval for the equipment and technical aspects. If the customer does not comply with this one-week deadline, the defined delivery date will be postponed.
  3. The delivery period shall be extended if the terms of payment are not complied with or if the letter of credit is opened too late.
  4. FUCHS will endeavour to meet the customer's delivery requirements for the goods in a timely manner, but accepts no liability for failure to deliver the goods on time. Time of delivery shall not be of the essence of the contract unless expressly stated in writing in the customer's purchase request and FUCHS' order confirmation.
  5. If the customer does not accept the delivery on the agreed delivery date or if no specific delivery date has been agreed and the goods are ready for handover, FUCHS shall be entitled to store and insure the goods and invoice the customer for the reasonable costs incurred.

9. Packaging

  1. Packaging cannot be returned, and the customer is liable for its appropriate disposal.

10. Inspection and acceptance of the delivery

  1. FUCHS shall inspect the goods and services in accordance with the FUCHS standard before delivery or after performance of the services. Additional checks must be agreed and will be invoiced separately
  2. Within 20 days of delivery or provision of services, the customer must inspect all deliveries and services received, including partial deliveries and partial services, and must notify FUCHS immediately in writing of all recognisable defects within this period, otherwise the deliveries and services shall be deemed to have been accepted and approved
  3. The deliveries and services shall also be deemed to have been approved as soon as the customer uses or is able to use them.
  4. The remedies for defective delivery and defective performance set out in clause 11 are exclusive and the customer waives all other remedies.

11. Liability for defects

  1. FUCHS warrants that the products supplied under this contract conform to the specifications listed in the order confirmation, provided that the products are used in accordance with these specifications. This warranty becomes effective at the time the products leave the FUCHS production facility
  2. Only those warranties that are expressly mentioned in the FUCHS order confirmation shall be deemed to be express warranties. This warranty expires upon expiry of the warranty period.
  3. Any warranty or liability on the part of FUCHS for damages for which it cannot be proven that it is due to deviations from the specifications that impair proper use is excluded. In particular, any warranty or liability of FUCHS is excluded for damages caused by wear and tear, inadequate maintenance, violation of the operating instructions, overuse, use outside the specifications, improper operation, damage to property or loss of production, loss of profit or other indirect or consequential damages, as well as for damages for which FUCHS is not responsible.
  4. The warranty period for hidden defects is 12 months from the date of delivery; the warranty period for recognisable defects is governed by clause 10.2. The warranty includes the replacement of defective parts, but not the on-site intervention of FUCHS. Any potential return of the object of the contract to remedy defects shall be carried out in co-operation with the customer. The transport costs incurred shall be borne by FUCHS. For products not manufactured by FUCHS, the warranty provisions of the respective manufacturer shall apply.
  5. If the customer discovers hidden defects within the meaning of clause 11.4 in products supplied by FUCHS within the warranty period and the customer wishes to assert a warranty claim, he must notify FUCHS accordingly in writing within seven days of discovery at the latest.
  6. FUCHS may, at its own discretion, either repair or replace the affected products or their parts or refund the purchase price for all defects notified to FUCHS in accordance with clause 10.2 or 11.5. The customer must give FUCHS the opportunity to remedy the defect. If possible and agreed in advance with FUCHS, minor defects can be rectified by the customer himself. The replacement or repair of defective products does not extend the warranty period and does not restart it. The time and expenses incurred by FUCHS due to a complaint that proves to be unfounded will be charged to the customer.
  7. In the following cases, the warranty expires prematurely and all certificates (ATEX, CE, etc.) become invalid:
    1. if the customer or a third party does not handle the products in accordance with the operating instructions provided by FUCHS;
    2. if the products are used outside their specifications;
    3. if the customer or a third party carries out improper modifications or repairs;
    4. if the customer does not use original FUCHS spare parts or components;
    5. if the customer does not submit a written notice of defects in due time (see clauses 10.2 and 11.5);
    6. if the customer does not immediately take all appropriate measures to limit the damage when a defect occurs; or
    7. if the customer does not give FUCHS the opportunity to remedy the defect.

12. Cancellation of the contract

  1. FUCHS is entitled to cancel the contract immediately by written notice (article 214 CO) if the other party
    1. fails to make payments when due;
    2. becomes insolvent or unable to pay its debts, has been granted a moratorium on its debts, is placed under insolvency administration or is wound up, or if there is a risk that one of such circumstances will occur;
    3. ceases its business activities or if the continuation of its business activities is threatened.
  2. If FUCHS has the right to terminate the contract in accordance with clause 12.1, the following shall apply
    1. FUCHS may withhold the delivery of all undelivered goods and stop the goods in transit;
    2. FUCHS may cancel the customer's right to resell and retain the goods owned by FUCHS;
    3. FUCHS may enter the customer's premises or any other place where the goods are stored, take possession of them and sell or dispose of any goods owned by FUCHS in order to recover any sums due from the customer under this contract or any other agreement;
    4. all amounts owed by the customer to FUCHS are immediately due.

13. Maximum liability limit and exclusion of further liability

  1. The maximum liability of FUCHS arising from or in connection with the contract is in any case limited to 60% of the purchase price to be paid in accordance with the respective contract with the customer.
  2. All cases of breach of contract and their legal consequences are conclusively regulated in these GTC.
  3. With the exception of the claims expressly set out in these GTC, the customer waives all claims, irrespective of their legal basis, in particular he waives claims for damages, reduction of the purchase price and cancellation or termination of the contract.
  4. Subject to mandatory provisions on product liability, liability for incidental and consequential damages is expressly excluded. In particular, FUCHS shall not be liable on any legal grounds for damages caused by defects, including consequential damages such as operational disruptions, loss of production, removal costs, capital costs, loss of profit, claims by third parties (including claims by the customer's customers) or for the customer's interests in being indemnified against such claims.

14. CE labelling

  1. FUCHS products and systems comply with CE regulations if they are expressly labelled as such.
  2. FUCHS products and systems that are supplied incomplete (e.g. without protective grille, control panel or machine control as per the technical description in the FUCHS quotation) are supplied with a CE declaration of conformity in accordance with the Machinery Directive 2006/42/EC on machine safety. This declaration is valid subject to the installation of a CE-compliant protective enclosure. Such enclosure can be ordered at the same time or manufactured and installed by the customer at his own responsibility.
  3. FUCHS systems are manufactured in accordance with the EC Machinery Directive 2006/42/EC and the ATEX Directive 2014/34/EU (for Ex versions). The respective underlying risk assessment was prepared by FUCHS technicians together with an external engineering office specialised in such assessments. If the customer comes to a different assessment, which FUCHS does not share, he can adapt the product or its safety equipment in consultation with FUCHS at his own expense so that it corresponds to his assessment. If the customer wishes this adjustment work to be carried out by FUCHS and if feasible, FUCHS will carry it out at the customer's expense following a prior quotation by FUCHS and order by the customer. If the complaint is clear and there is no doubt that the product does not conform, FUCHS shall establish conformity at its own expense (with the best possible co-operation with the customer).

15. Performance of the products/system

  1. Unless expressly stated otherwise in FUCHS' quotation, FUCHS shall not be liable for whether and to what extent a product or system is suitable for the customer's intended application or produces the result desired by the customer: no guarantee is given that the products or services are suitable or sufficient for the customer's specific purposes, unless the corresponding purpose or desired result is precisely defined in advance and expressly recognised by FUCHS in the order confirmation.

16. Severability clause

  1. Should individual provisions of these GTC be partially or completely invalid or unenforceable, the parties undertake to replace the invalid provision with a valid provision that comes as close as possible to the purpose of the invalid provision. All other contractual provisions shall remain unaffected by this. The same applies to loopholes.

17. No waiver

  1. If a party waives the right to assert a breach of contract committed by the other party, this may not be interpreted as a waiver of the right to assert subsequent breaches of contract.

18. Force majeure

  1. FUCHS shall not be liable for non-performance of its contractual obligations if the non-performance is due to strike, industrial action, breakdown of systems, transport, or equipment, government restrictions, blockades, war, riots, forces of nature or any event or circumstance beyond the control of FUCHS, irrespective of whether the latter are of the same nature as the aforementioned.

19. Applicable law and place of jurisdiction

  1. Swiss law shall apply to the exclusion of any conflict of laws rules. The place of jurisdiction is the city of Bern (Switzerland).
  2. However, FUCHS reserves the right to take legal action before the courts at the customer's place of business or any other competent court.

20. Assignment and resale

  1. The customer may not assign, pass on, transfer, or sell the contract or the rights or obligations associated with it without the prior written consent of FUCHS.
  2. The customer undertakes not to resell the goods to third parties who are subject to a foreign jurisdiction and where, if FUCHS were to make such a sale, this sale would be illegal under Swiss law or, where applicable, under an international trade embargo restricting the sale of goods from Switzerland to a foreign territory.
  3. If the customer discovers that he has sold the goods in breach of clause 20.2, he is obliged to inform FUCHS of the details of this resale as soon as he becomes aware of this breach, including the identity of the third-party buyer, the date of the resale, the quantity of the resold goods and any other details requested by FUCHS.
  4. If the customer breaches clauses 20.2 and 20.3, the following shall apply:
    1. FUCHS may withhold delivery of any undelivered goods under the contract that has been breached or any other contract concluded between FUCHS and the customer;
    2. FUCHS may assert any direct and indirect damages and consequential damages against the customer arising from this breach.

21. Indemnification by the customer

  1. The customer shall indemnify FUCHS and its employees against all claims or pay compensation for losses, costs (including all legal costs incurred), damages, injuries or expenses suffered by FUCHS, its employees or representatives that:
    1. have arisen in any way at the customer's location or at any other location where the delivery is made or where services are provided at the customer's request;
    2. were caused or contributed to by the negligence of the customer, its employees or other persons for whom the customer is liable;
    3. arise from a breach of contract by the customer or a liability of the customer under the contract or these GTC and insofar as these were not directly caused by the negligence of FUCHS, its employees or representatives;
    4. result from a breach of the customer's obligations under clause 20.
  2. 21.2 If FUCHS agrees at the customer's request (or by contract with the customer) to supply goods or services to persons who are not parties to the contract, FUCHS shall in all cases be liable only to the customer and the customer shall indemnify FUCHS against any claims by the third party.

The German version of these GTC shall be authoritative and shall take precedence over other language versions in the event of any inaccuracies or contradictions.