General Terms of Delivery and Payment

For all business transactions with us, the following Terms of Delivery and Payment shall apply:

This is a non-binding English translation provided for convenience only. The German version is the sole legally binding text; in the event of any discrepancy, the German wording shall prevail.

§ 1 Conclusion of Contract

The following terms and conditions apply to all contracts, offers and deliveries. Deviating conditions of the customer which we do not expressly acknowledge in writing are not binding on us, even if we do not expressly object to them.
Offers are always subject to change unless expressly confirmed otherwise in writing. Information of any kind regarding properties, samples and specimens are merely indications of the nature of the goods and do not constitute warranties of quality or other guarantees.
Amendments or additions to the agreements made, including our terms and conditions, require written confirmation to be effective.

§ 2 Scope of Delivery, Delivery Periods

For the determination of weights and quantities, the weights established at our works/warehouse or by the forwarding agent commissioned by us shall be authoritative.
Delivery dates or delivery periods, which may be agreed as binding or non-binding, are to be stated in writing. Delivery periods commence upon conclusion of the contract, but not before the documents, approvals and releases to be procured by the customer have been provided and not before receipt of an agreed down payment. If contract amendments are agreed subsequently, a delivery date or delivery period is, if necessary, to be agreed anew at the same time.
The delivery period is deemed to have been met if, by its expiry, the delivery item has left the works or readiness for dispatch has been notified.
If the impossibility of delivery is due to the inability of the manufacturer or one of our suppliers, both the customer and we may withdraw from the contract, provided that the agreed delivery time has been exceeded by three months.
In the event of force majeure and other unforeseeable, exceptional circumstances not caused by us – e.g. difficulties in procuring materials, operational disruptions, strike, lockout, lack of means of transport, official interventions, difficulties in energy supply, etc., even if they occur at the upstream supplier – the delivery period shall be extended by a reasonable amount, but at least for the duration of the impediment, if the supplier is prevented from the timely fulfilment of its obligation. If the delivery or service becomes impossible or unreasonable due to the aforementioned circumstances, we shall be released from the delivery obligation. If the delivery delay lasts longer than three months, the customer is entitled to withdraw from the contract. If the delivery time is extended or if we are released from our delivery obligation, the customer cannot derive any claims for damages from this. We may only invoke the aforementioned circumstances if we have notified the customer without delay.
In the event of a delay in dispatch at the customer's request, we reserve the right in individual cases to charge separately for the costs incurred by the storage. However, after setting and the fruitless expiry of a reasonable period for collection, we are entitled to dispose of the delivery item otherwise and to supply the customer with a reasonably extended period.
Compliance with the delivery period is subject to the fulfilment of the contractual obligations of the customer.

§ 3 Dispatch and Transfer of Risk

The route and means of dispatch, in particular packaging, are, unless otherwise agreed, at our discretion. There is no obligation to take back.
Insurance of the shipment against transport damage and other risks is taken out only on request and at the expense of the customer. In addition, we are entitled, but not obliged, to insure deliveries in the name and for the account of the customer.
The risk passes to the customer – even if carriage-free delivery has been agreed, such as in f.o.b. and c.i.f. transactions – upon handover of the goods (commencement of the loading process) to the forwarding agent or carrier, but at the latest when they leave our premises or warehouse. This also applies in the event that the goods are dispatched within the same location and/or loaded onto the supplier's own transport vehicles or dispatched with them. If the shipment is delayed for reasons for which we are not responsible, the transfer of risk takes place upon notification of readiness for dispatch; storage costs after the transfer of risk are borne by the customer.
Partial deliveries are permissible to a reasonable extent.

§ 4 Prices

Our prices are denominated in the agreed currencies and conditions. Ancillary costs, such as for special packaging at the customer's request, as well as transport routes, are borne by the customer.
Our prices are based on the customs duties, transaction taxes and other comparable public charges applicable at the conclusion of the contract, as well as the currency parities applicable at the conclusion of the contract. If carriage-free delivery has been agreed, the agreed price applies only in the case of unhindered and normal transport possibility and on the basis of the freight rates applicable at the conclusion of the contract. Additional costs due to transport difficulties or an increase in freight rates are borne by the customer.
If, after conclusion of the delivery contract, exceptional, substantial increases in the costs of raw materials, energy or freight occur at our premises or those of our suppliers, and these lead to a substantial increase in our purchase prices or own costs, we may require the customer to negotiate a price adjustment with us. If no agreement is reached thereafter, we may withdraw from the part of the delivery contract not yet performed by delivery.

§ 5 Payment

Unless otherwise agreed, our invoice amounts are payable net within 30 days of the invoice date. Cash discounts require a special agreement, whereby the day on which payment is received by us is decisive for the calculation of the discount period. We are entitled to set off payments by the customer (buyer) first against their older arrears. A payment is only deemed to have been made when we can dispose of the amount. Only by corresponding agreement do we accept discountable and duly taxed bills of exchange in lieu of payment, and only with the calculation of all collection and discount charges. All bank charges are borne by the customer (buyer). Acceptance in lieu of performance is excluded. The same applies to payments by cheque. Credits for bills of exchange and cheques are made subject to receipt, less expenses, with value date of the day on which we can dispose of the equivalent value. Our claims become due immediately, irrespective of the term of any bills of exchange or cheques taken in and credited, if the terms of payment are not complied with or facts become known that make the creditworthiness of the customer appear doubtful. In the latter case we are also entitled to carry out outstanding deliveries from this transaction or from other transactions only against advance payment and, if advance payment is not made, after setting a reasonable grace period, to withdraw from the contract or to demand damages for non-performance. In the event of default in payment, default interest is payable – irrespective of the assertion of further damages. The default interest is calculated at 2% p.a. above the discount rate of the relevant national bank. It is to be set higher or lower if we prove a charge at a higher interest rate or the customer (buyer) proves a lower charge.

§ 6 Retention of Title

The goods remain our property until payment of all our claims, on whatever legal grounds, until redemption of all bills of exchange and cheques given to us in payment, even if the purchase price for specifically designated claims has been paid, against the customer and its group companies. This also applies if individual or all claims have been included by us in a current account or the balance has been drawn and acknowledged.
In the event of a breach of important contractual obligations, in particular default in payment, we are entitled to take back the goods after a reminder; the customer is obliged to surrender them. The taking back as well as the seizure of the item by us shall, unless the Hire-Purchase Act applies, constitute a withdrawal from the contract only if this is expressly declared in writing on our part. In the event of seizures or other interventions by third parties, the customer must notify us in writing, enclosing a seizure record and an affidavit regarding the identity of the seized item.
The customer is entitled to resell the goods in the ordinary course of business, on the condition that the claims from the resale pass to us as follows: The customer hereby assigns to us all claims with all ancillary rights accruing to it from the resale against its own customers or against third parties, regardless of whether the reserved goods are resold without or after processing. The customer is also authorised to collect this claim after the assignment. Our authority to collect the claims ourselves remains unaffected; however, we undertake not to collect the claims as long as the customer duly meets its payment obligations. We may require the customer to disclose to us the assigned claims and their debtors, to provide all information required for collection, to hand over the relevant documents and to notify the debtors of the assignments. If the goods are resold together with other goods that do not belong to us, the customer's claim against its customers in the amount of the delivery price agreed between us and the customer is deemed to have been assigned.
Treatment and processing of the reserved goods is carried out for us as manufacturer within the meaning of the Swiss Code of Obligations (OR). If the reserved goods are processed or inseparably mixed with other objects not belonging to us, we acquire co-ownership of the new item in the ratio of the invoice value of the reserved goods to the invoice value of the other goods used at the time of processing or mixing. The co-ownership rights thus arising are deemed to be reserved goods within the meaning of these conditions. If our goods are combined or inseparably mixed with other movable objects to form a single item, and the other item is to be regarded as the main item, it is deemed agreed that the customer transfers proportionate co-ownership to us, insofar as the main item belongs to it. For the item arising from processing, combination and mixing, the same applies as for the reserved goods. As a matter of principle, the customer keeps the new item in safe custody for us free of charge.
If the value of the securities existing for us exceeds our claims in total by more than 20%, we are obliged, at the request of the customer or of a third party affected by the over-collateralisation existing in our favour, to release securities of our choice to that extent.
Should the retention of title under this section not be legally effective under the law of the country in which the reserved goods are located, the security closest to it and legally possible under the law of that country shall be deemed agreed in its place.

§ 7 Notice of Defects, Warranty and Guarantee

We are liable for defects only as follows:

The customer must inspect the goods received – even if samples have been sent – immediately upon arrival at the customer's premises for defects, condition and warranted properties. Obvious defects must be reported by the customer within one week by written notice to us. Notices of defects without the precise designation of the batch number and the marking details of the respective affected items of a batch are invalid.
In the case of justified complaints, at our option either rectification of the defective goods or replacement delivery shall take place.
The customer must give us the time and opportunity reasonably required for the rectification of defects, in particular by making the goods complained of available; otherwise the warranty lapses.
We warrant that the goods delivered by us comply with the respective applicable European quality standards.
For the rest, we assume the warranty only within the scope of the statutory provisions and only for such defects as occur under normal operating conditions and with proper use of the delivered item. Warranty obligations do not exist if the defect is attributable to improper use, processing or transport, or if the defect is based on an improper modification or an attempt at rectification by third parties. All other claims to which the customer may be entitled due to or in connection with defects or the absence of warranted properties of the delivered goods, on whatever legal grounds, in particular claims for damages for non-performance, claims arising from fault at the conclusion of the contract and claims arising from tort, are excluded; this does not apply to claims for compensation for damage based on gross fault (i.e. at least gross negligence) on our part, nor to claims for damages based on any warranties of properties intended to safeguard the customer against the risk of consequential damage caused by defects.

§ 8 Other Claims for Damages

Also outside the area of warranty as well as liability due to impossibility or default, any liability on our part for damages, on whatever legal grounds, in particular also due to the breach of obligations during contract negotiations, due to positive breach of contract and due to tort, is excluded, unless at least gross negligence on our part is present.

§ 9 Place of Performance and Jurisdiction

The place of performance and jurisdiction for all disputes arising between the parties from the contractual relationship is: CH-5400 Baden/Switzerland. Swiss law applies.

§ 10 Legal Validity

Should a provision in these general terms and conditions or a provision within the scope of other agreements be or become invalid, the validity of all other provisions or agreements shall not be affected. In place of the invalid provision, the legally effective regulation that comes closest to the purpose pursued by the invalid provision shall apply.

MICROBEADS AG – CH-5412 Gebenstorf