Standard After-Sales Service and Delivery Terms and Conditions
We shall agree contracts with you only in accordance with the following terms and conditions. Your purchasing terms and conditions shall not become
part of the contractual content in their entirety, even if we do not expressly object to them, or should you particularly emphasise that you want to deliver
only in accordance with your terms and conditions.
1
Offers and advance cost estimates
1.1
An offer by us shall be binding only if it is made in writing. Any
verbal instructions shall constitute approximate cost information
only, and shall not be binding.
1.2
Please notify us if you require a written offer prior to the execution
of an order for our services.
2
Scope of the deliveries and services
2.1
The deliveries and services shall be listed in detail on our order
confirmation.
2.2
Partial deliveries are acceptable.
3
Plans and technical documentation
3.1
Instructions in plans and technical documents shall be binding
only to the extent that we expressly guarantee them.
3.2
All rights to plans and technical documents shall remain with the
party that delivered them to the other party. The receiving party
is not authorised to make the documents available to third
parties in whole or part, and shall use them in no other way than
for the purpose for which they were delivered, unless with the
prior written consent of the delivering party.
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4.1
4.2
5
Delivery dates
Any delivery dates agreed for the delivery of parts or the
commencement of service and overhaul work will come into
force once all the necessary permits for export or the deployment
of our technician have been received and after you have made
the agreed payments or provided the appropriate assurances.
Any delivery date agreed shall be reasonably extended should
impediments arise that are beyond our control, in spite of the
requisite degree of care demonstrated on our part. For example,
in the event of natural phenomena, epidemics, mobilisation, war,
unrest, substantial operational disruptions, labour conflicts,
governmental measures, etc., or should you or any third parties
be negligent regarding the work to be carried out, or should you
default with respect to the fulfilment of your contractual duties, or
do not adhere to the conditions of payment.
The benefits and risk shall be transferred once the parts ordered
have been delivered to the shipping company.
5.2
Should shipment be delayed for reasons for which we are not responsible or because you require a later delivery date, the risk
shall be transferred to you at the time and date originally agreed.
Deliveries shall be stored at your cost and at your own risk from
that point in time.
6.1
7
Default of delivery
7.2
If the agreed performance is delayed for reasons for which you
are responsible, you shall compensate us for any costs incurred
as a result, and for any wasted or additional travel time and cost,
waiting time, etc., and 15% of the order value, in an amount of
no less than 500.00 Swiss Francs.
Permits
We reserve the right to rescind the contract without
compensation if the necessary permits and insurance for export,
import or our technician’s work at your company, etc., cannot be
obtained within a reasonable period.
If, for any reason whatsoever, the service has to be interrupted
for longer than four hours or temporarily discontinued due to
force majeure, we shall be entitled, but not obliged, to recall our
technician and to invoice you for the entire time taken to travel to
and from your premises, for our technician’s waiting time, and for
any other costs arising in this event.
Acceptance
Once our technician informs you that he has completed his work,
you shall accept the services promptly in the form agreed, and
confirm such acceptance in writing on our service report.
10.2
You shall not be entitled to refuse acceptance if an insignificant
defect still exists, or a defect which is based on circumstances
for which we are not responsible.
10.3
If the agreed acceptance is delayed through no fault on our part,
it shall be deemed to be accepted upon the (re)commissioning of
the machine, but no later than after the end of three days after
our technician requested your acceptance.
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Duties of cooperation
Storage
11.1
You shall undertake to correctly store, at your own cost, all the
parts to be mounted. We cannot be held liable for the
consequences of incorrect storage or incorrect transport.
Your company employees
11.2
You shall provide our technician with appropriately qualified
employees to enable him to carry out the service in a timely
manner. Our technician shall be authorised to instruct your
employees in connection with the service work.
11.3
In all other respects, your employees shall remain under your
supervision and responsibility, and shall be insured by you.
Supplies, devices and tools
11.4
You shall make all the equipment, devices and tools necessary
for the service available to us at no charge, in good working
order and in an operationally safe condition.
Test runs and commissioning
11.5
You shall provide us with the necessary materials at no charge
to us, and will carry out all other actions required to configure
and test the machine.
Safety
11.6
You shall take all the necessary precautions regarding accident
prevention and the protection of our technician and the
equipment we bring onto your premises. In particular, you shall
highlight specific dangers to our technician and inform him of the
relevant safety regulations.
11.7
If another company is carrying out work at your premises while
our technician is also working, you shall instruct and order one of
your employees to coordinate the respective work projects to
avoid any potential conflicts between such projects.
The dates we indicate at the start of our services shall be based
on the anticipated availability of our technicians.
You shall promptly inform us if you are unable, for any reason
whatsoever, to accept our services on the scheduled date.
8.1
10
Interruptions and discontinuation of service
10.1
Dates and deadlines
7.1
8
9.1
Transfer of use and risk
5.1
6
9
Accommodation
11.8
12
12.1
If it is agreed that you are responsible for our technician's
accommodation, he must be provided with a single occupancy
hotel room that conforms to Western European standards, with
an en suite bathroom/shower room.
Breach of duties of cooperation
If you do not fulfil your duties of cooperation, we shall be entitled,
but not obliged, to arrange to perform the measures you have
failed to carry out, to undertake them ourselves or to recall our
technician. All the costs arising from such event shall be borne
by you.
Stand: 10.01.2011 V2
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machines we have overhauled in accordance with our internal
operational guidelines.
Prices
Parts, material
13.1
Our prices shall be understood to be net, ex-works, excluding
packaging and excluding tax. Delivery shall be made FCA works
in accordance with latest Incoterms as per ICC rules, unless
otherwise expressly agreed with you.
13.2
In the case of replacement parts, we shall credit you up to 30%
of the value of the replacement parts delivered to you, depending
on the condition and the costs that will be incurred to repair your
part, provided you return to us the damaged part that you
replaced, at your cost and risk, within 10 days of receipt of our
part, and provided we are able to repair it.
13.3
Should we send you various electronic parts or data carriers, we
shall charge you for all such parts and data carriers unless you
return such parts and data carriers within 10 days, at your cost
and risk, in the undamaged and unopened original packaging. If
the original packaging is damaged or has been opened, we shall
inspect the relevant parts and data carriers, fully reconfigure
them and, depending on the result, charge you for the costs
incurred for such reconfiguration or for the cost of the part/data
carrier.
16.3
You shall inspect our deliveries and services within a reasonable
time period and promptly inform us in writing of any defects
found. Our deliveries and services shall be deemed to be
approved if you fail to do so.
Scope of warranty
16.4
During the warranty period, we undertake to repair or replace, at
our discretion and as quickly as possible, any parts that are
demonstrably damaged or unusable as a result of poor quality
materials, defective design or incorrect execution.
16.5
Parts that are replaced shall become our property unless we
expressly disclaim ownership of such parts.
16.6
If a substantial defect is present for which we are responsible we
shall, at our discretion and at our cost, immediately remedy it at
your premises, replace the defective part with a new part, or
repair it at our premises.
16.7
If the defect is not remedied despite multiple attempts on our
part, we shall reasonably reduce the price of our services or the
defective part, beyond which you shall be entitled to no additional
claims.
Service work, overhaul
13.4
We shall invoice you for our services based on the hourly rates
and conditions stated on the respective effective price list. Any
other agreements shall only be binding if they have been made
in writing.
16.8
Our warranty shall be null and void should you or any third party
carry out inappropriate modifications or repairs, should you fail to
immediately use your best endeavours to prevent any damage,
or fail to enable us to remedy the defect once it has occurred.
13.5
We shall invoice you for the entirety of the costs we have
incurred, regardless of whether it has been possible to perform
effectively the service work because, for example, the error in
question did not occur at the time of the inspection, because you
failed to adhere to the service time agreed, if you terminated the
order or failed to acquire the necessary replacement parts within
a reasonable time.
16.9
Any damages that may arise for which we are not responsible,
such as natural wear and tear, defective servicing, disregard of
operating instructions, excessive load, unsuitable equipment,
chemical, electrolytic or electronic factors, maintenance work
that has not been carried out by us, etc., shall be excluded from
the warranty and liability.
13.6
Our technician's travel time shall be considered working time,
and shall be charged per travel hour at the hourly rate indicated
on the relevant effective price list.
17.1
The claims to which you are entitled, irrespective of the legal
grounds on which they are based, are conclusively regulated by
these terms and conditions.
17.2
We shall be liable exclusively for damage to the machine, but not
for any further damage, such as production shutdown, loss of
use, loss of orders, loss of earnings or any other pecuniary
damage or losses.
17.3
You shall be liable for damage that is caused by your
employees, even if our technician conducted or supervised the
service, unless our technician exhibited gross professional
negligence.
17.4
Similarly, you shall be liable for damage resulting from any
defective equipment, devices, tools and materials that you make
available, even if our technician accepted to use them, unless he
should have recognised such defects had he been reasonably
attentive.
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14.1
14.2
15
15.1
15.2
15.3
15.4
16
Service report
Our technician shall undertake to maintain a service report,
itemised by working hours, travel time, preparation time and
waiting time, for each deployment. We shall invoice you for our
services based on such service report. You shall review and sign
the service report.
Please note that the information concerning the travel time for
the return trip can only be stated approximately in the service
report, and can only be definitively determined following our
technician's arrival at his next deployment or his place of
residence.
17
Payment terms and conditions
Payments shall be made to our offices, excluding any
deductions, i.e. early payment discounts, bank fees or other
fees, taxes, charges, fees, customs duties, etc.
We shall invoice you for our deliveries and services based on the
rates and payment conditions stated on the respective effective
price list immediately after the parts are delivered or after the
service work has been carried out.
If you are in arrears with your payments to us, we reserve the
right to postpone any deliveries and/or services (including
warranty) agreed with you but not yet rendered, until the
outstanding payments have been received, and reserve the right
to make said/future deliveries and services conditional upon
advance payments.
If you fail to meet the agreed payment deadlines, statutory
default interest must be paid to us without further notice at a rate
of 5% from the agreed due date of the payment.
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18.1
19
Liability / Exclusion of liability
Limitation of actions
Your claims, irrespective of the legal grounds on which they are
based, shall elapse after 12 months.
Applicable law and place of jurisdiction
19.1
Swiss substantive law shall be applicable. Applicability of the
Convention of the United Nations Concerning Contracts on the
International Sale of Goods is excluded.
19.2
The place of jurisdiction is the domicile of Mägerle AG
Maschinenfabrik. However, we also reserve the right, at our
discretion, to sue you for claims at your offices.
20
20.1
Final provisions
Any amendments or addenda to the contract that exists between
us, including this section, shall be binding only if they have been
agreed in writing.
Warranty
Warranty period
16.1
The warranty period for our deliveries and services shall be 12
months from the delivery date.
Inspection and acceptance of deliveries and services
16.2
Following the completion of our work, we shall inspect the
Stand: 10.01.2011 V2