These general terms and conditions shall be binding for all shipments of goods by Berlinger & Co. AG or Berlinger Special AG (hereafter “the vendor”). Without prior written consent of the vendor, all orders placed by the buyer shall be accepted subject to the application of these general terms and conditions.
Any modification of, or amendment to these general terms and conditions, including a waiver of this requirement of writings, shall be valid only with the written consent of the vendor. These general terms and conditions supersede the general terms and conditions of the buyer.
2. Acceptance of Order
Orders made by the buyer shall not be binding for the vendor until accepted with a written confirmation of order. The order and the confirmation of order shall contain quantity, de- scription, delivery, date of delivery and price.
Prices shall be binding only for a specific tender and for orders received by the vendor within 30 days from the date of the tender. Orders received after 30 days from the date of the tender may be subject to price alterations.
Prices don’t include the costs of packaging.
4. Terms of Delivery
Deliveries shall be FCA Ganterschwil (Incoterms 2010). Deliveries shall be at the buyer’s risk and expense as soon as the goods are made available to the carrier designated by the buyer at the depository of the vendor. The buyer shall bear all costs and expenses associated with shipping and transportation.
Upon request and at the expense of the buyer, the vendor shall arrange transportation in- surance for the goods.
Partial shipments shall be allowed.
Delayed deliveries shall not give the buyer the right to withdraw the contract or to assert any other claim. In particular, any claim due to possible damage arising directly or indirectly from a delayed delivery shall be excluded. This exclusion is not applicable when the delay has demonstrably been caused deliberately or through gross negligence on the part of the vendor.
5. Warranty and Liability
The vendor warrants that the goods are functional and free from material or fabrication de- fects. Further qualities shall only be warranted if specifically declared so by the vendor in writing.
In any case, the warranty shall only be valid if the goods are used and stored appropriately and in accordance with the instruction manual. In particular, all defects arising from ordi- nary wear, improper or forcible use, heavy inroad, accidents or force majeure shall not be warranted.
It shall be for the buyer to check the goods immediately upon delivery. If any transport dam- age is suspected, the buyer shall immediately report possible damage to his carrier and in- surer and undertake everything necessary for the preservation of evidence. In particular, the buyer shall have any complaint recorded in writing.
If a shipment or part of a shipment is received damaged or inoperative, any complaint shall be made to the vendor within 7 days in writing. If the buyer fails to act, the shipment shall be deemed to be approved. Subsequent complaints can only be made if a defect was not no- ticeable on the occasion of an orderly check upon delivery and if the complaint is made within 7 days after the discovery in writing and within the period of warranty.
The period of warranty shall be 2 years from the delivery, unless otherwise stated in writing. The warranty shall expire if the goods are modified or repaired by the buyer or any third party without prior written consent of the vendor.
Upon reasonable complaint according to the provisions of the preceding subparagraphs hereof the vendor shall remedy any warranted defect by repairing or replacing the damaged goods.
Any other claim of the buyer shall be excluded as far as accordable with mandatory regula- tion and if the claim has not demonstrably been caused deliberately or through gross negli- gence on the part of the vendor. Any other claim, as used herein, shall include any other war- ranty claim (such as price mitigation or annulment of contract), any liability of the vendor for possible damages caused by the vendor or the shipment directly or indirectly irrespective of legal basis (such as direct or indirect harm or consequential harm caused by a defect, claims of any third party or compensation for loss of profit).
6. Reservation of Proprietary Rights
The goods shall remain the property of the vendor until full payment is received.
7. Settlement of Disputes
All sales agreements between the vendor and the buyer, including these general terms and conditions, shall be subject to and construed in accordance with Swiss law. For all disputes arising under said agreements the courts at the registered office of the vendor shall have exclusive jurisdiction.