1. SCOPE OF APPLICATION OF THE GENERAL CONDITIONS
These General Conditions of Purchase (hereafter “GCP”) shall apply to the following Companies of Berlinger:
Berlinger & Co. AG (CH-101.178.581)
Berlinger Special AG (CH-100.939.231)
These GCP shall regulate all legal relationships of the parties with respect to the purchase of products, goods or products/services (hereafter “products/services”) by companies of the Berlinger Group (the respective purchasing company hereafter “Berlinger”) from suppliers (hereafter “supplier”) and shall form an integral part of all contracts concluded between Berlinger and the supplier, unless otherwise expressly agreed. This shall apply regardless of whether the co-operation of the parties occurs on a one-time basis, an ongoing or a recurring basis. Where the co-operation is on an ongoing or recurring basis, the GCP shall also apply as a framework contract between the parties. Terms deviating from the provisions of the GCP shall only be legally binding where they have been expressly accepted in writing by Berlinger.
With the making of an offer to Berlinger or the receipt of a purchase order or a call from Berlinger, the supplier shall be deemed to have accepted the binding effect of the GCP.
The supplier’s general terms and conditions shall be waived and excluded. This waiver and exclusion shall apply, and the supplier’s terms and conditions shall be inapplicable even where such terms and conditions are referred to in its offers or other documents and Berlinger relying thereupon, issues a purchase order, accepts products/products/services or makes payment.
2. REQUESTS FOR TENDER AND OFFERS OF THE SUPPLIER
Communications from Berlinger addressed to a supplier as “Request” shall denote a request for information and documents or an invitation to the supplier to tender.
Unless otherwise indicated, offers made to Berlinger shall generally be free of charge. Terms of an offer that deviate from an invitation to tender or from the GCP shall be expressly indicated in the offer.
Offers shall be binding during the time period fixed in an invitation to tender or, failing such invitation, in an offer. Where no time period is fixed, an offer directed to Berlinger shall be binding for a period of three (3) months from the date of its issue.
3. PASSING OF TITLE AND RISK
The title in the subject matter of delivery shall pass to Berlinger at the handing-over to Berlinger or to a third-party designated by Berlinger as the recipient. The supplier shall bear the risk of deterioration and destruction until the passing of title.
4. DUE DATES
All due dates shall be binding deadlines. The supplier shall be automatically in delay and default where due dates are exceeded, without the need of an additional reminder or demand. In case of delay, the statutory rules shall apply. In addition, Berlinger shall have the right to levy liquidated damages in the amount of 0.5% of the contract value for every started calendar week of delay, up to a maximum of 5% of the contract value. The payment of the liquidated damages shall not discharge the supplier from the duty to fulfil its contractual obligations. The supplier shall also compensate Berlinger for damages in excess of the liquidated damages unless the supplier can demonstrate that it was not at fault.
Relevant moment in time for a due date being met shall be the receipt or the acceptance by Berlinger of products/services that are in accordance with the terms of the contract.
5. DELIVERY, TRANSPORTATION AND EXPORT CONTROL
Deliveries shall be to the address at the place of performance as designated by Berlinger or to another address designated by Berlinger as the destination. A possibly prescribed means of transportation shall be observed.
The supplier shall insure the goods until the moment of their handing-over at the place of performance or destination. The supplier shall be liable for damages in transit resulting from insufficient or unsuitable packaging. This shall also apply to damages in transit which occur during further transportation to a distributor or end customer.
The supplier is obliged, as far as applicable, to comply with export control laws and regulations of the EU, the USA or other export control regulations. The supplier is obliged to obtain the necessary approvals prior to the transfer of technical information or items and to inform us unsolicited the relevant export control classification number for such technical information and goods (e.g., USCN: ECCN) and any restrictions on their disclosure. The supplier undertakes to provide us with all information necessary for compliance with such regulations in individual cases. We are entitled to extraordinary termination of contracts with the supplier to the extent that changes in applicable national or international export control laws and regulations or our internal regulations based thereon make the acceptance of the contractual services or performance of obligations arising from the contract impossible and will not be possible in the foreseeable future.
All prices shall be fix and binding. Price adjustments shall be excluded.
The supplier shall provide its products/services for fixed prices. The price shall cover the entire performance necessary for the fulfilment of the contractual obligations.
Except where otherwise expressly agreed, the price shall include the costs of packaging, shipment, transportation, insurance, unloading as well as expenses, tariffs and other public charges. The value added tax shall be deemed included in the price insofar as the price is not expressed as net price or as price excl. VAT.
7. PAYMENT TERMS AND INVOICING
The payment period shall run starting from the receipt or the acceptance by Berlinger of products/services that are in accordance with the terms of the contract and a subsequent proper and verifiable invoicing. The payment of an invoice shall be either within ten (10) days with 2% discount, or within sixty (60) days without discount. Berlinger shall be entitled to withhold corresponding payments in the event of late delivery of required documents or where invoices are not issued or addressed as requested by Berlinger.
In the exceptional event that an advance payment is agreed, the supplier shall provide at the request of Berlinger a suitable bank guarantee, insurance bond or other security for the advance payment.
Where due dates are exceeded, Berlinger may deduct the forfeited liquidated damages from the invoiced amounts. Berlinger generally reserves the right to setting-off the supplier’s claims with counterclaims of Berlinger or other members of the Berlinger Group.
The supplier may not assign to a third-party claims against Berlinger without having first obtained the consent of Berlinger. This consent shall not be unreasonably withheld.
Invoices are to be sent to the following address with the IBAN number, Swift code, bank name and account holder incl. name and address for the Financial Accounting of Berlinger:
Mitteldorfstrasse 2 • CH-9608 Ganterschwil.
Invoices must contain the following information: Berlinger order number, origin of each item, delivery address.
The supplier shall provide its products/services to Berlinger free from physical and legal defects. The supplier represents and warrants that its products/services are of satisfactory quality and fitness for the agreed and the presupposed purpose, as well as for the purpose as disclosed to the supplier.
In addition, the supplier represents and warrants that its products/services comply with the applicable relevant laws and standards on product safety and environmental protection. The supplier shall deliver to Berlinger the corresponding conformity statements and other documentation. In relation to technical work equipment’s, the supplier represents and warrants that these are in line with the generally accepted rules of technology and that these conform with work protection and accident prevention regulations and that they are equipped with the required safety devices.
The warranty shall be for a period of two (2) years. This period shall commence upon the receipt or the acceptance by Berlinger of products/services that are in accordance with the terms of the contract.
Berlinger shall be entitled to notify defects throughout this entire period, regardless of when the defect was discovered or could have been discovered. Berlinger shall not be bound to - completely or merely randomly - inspect products/services for defects upon receipt.
In the case of breach of warranty, Berlinger shall have the right to firstly demand re-performance by way of repair or replacement. Should the re-performance fail, Berlinger shall have, at its discretion, the right to declare rescission of the contract (withdrawal) or to demand reduction of the price and/or to demand damages. Berlinger may exercise its rights for the entire purchase or with respect to a certain part of it only.
In the event of re-performance, the two-year warranty period shall start to run anew.
The supplier shall compensate Berlinger as well for all damages arising out of or in connection with a defect (consequential damages). Berlinger shall have full recourse against the supplier and the supplier shall compensate all expenses and damages of Berlinger in relation to distributors’ or end customers’ warranty claims against Berlinger for defects that are attributable to defects of supplier’s products/services. This shall apply beyond the above warranty period for whole the duration of Berlinger’s warranty vis-à-vis distributors or end customers.
9. REGULATORY SPECIFICATIONS
Conflict minerals according to U.S. Pat. Dodd-Frank Act Section 1502.
The supplier commits himself in accordance with. The principles of the Wall Street Reform and Consumer Protection Act, Chapter 1502. This means that the supplier checks his entire supply chain for any use of so-called "conflict minerals" and, if so, informs Berlinger about this. Information on the legislation "Conflict Minerals": (http://www.sec.gov/about/laws/wallstreetreform-cpa.pdf).
The supplier is obliged to inform Berlinger if the delivered articles contain one or more of the substances of very high concern (SVHC) of the candidate list above 0,1% by weight contains. This information obligation always refers to the current candidate list. (Http://echa.europa.eu).
10. PRODUCT LIABILITY AND SAFETY
The supplier shall, without limitation in time, indemnify and hold Berlinger fully harmless of all third-party claims and for all suffered damages and incurred expenses arising from product liability or product safety obligations related to the products/services of the supplier. Berlinger shall without delay inform the supplier of such claims.
The supplier shall maintain, during the entire period of supply to Berlinger, a product liability, product safety and business liability insurance adequately covering possible risks of liability as well as the costs of indemnity of Berlinger. The insurance shall be valid worldwide and include installation and dismantling costs as well. The insurance coverage shall be evidenced at the request of Berlinger.
11. THIRD-PARTY RIGHTS
The supplier shall, without limitation in time, indemnify and hold Berlinger fully harmless of all third-party claims and for all suffered damages and incurred expenses arising from the breach of, through the products/services of the supplier, third-party intellectual property rights such as patents, copyrights, trademarks or similar rights.
Berlinger shall without delay inform the supplier of such claims. At the request of Berlinger, the supplier shall join legal proceedings against Berlinger or conduct them in place of Berlinger at its own cost and/or assume the ensuing costs and compensations associated with the proceedings.
12. INTELLECTUAL PROPERTY RIGHTS
The rights in all documents, including drawings, sketches, computations etc., which are handed over by the supplier, shall remain with Berlinger. The supplier shall use such documents and all further information exclusively for the purpose of providing products/services to Berlinger. Unless having obtained the prior written consent of Berlinger, the supplier shall not be entitled to rely on such documents or information for the provision of products/services to a third-party, nor to copy or reproduce such documents or information or in any manner, nor to put such documents or information in the knowledge of third parties.
All rights, particularly including copyrights and rights to inventions, in work results that are created within the provision of products/services to Berlinger shall vest in Berlinger and the supplier herewith assigns and transfers such rights to Berlinger.
13. SUPPLIED MATERIALS AND DOCUMENTS
Materials, parts, containers, special packaging, tools, measurement equipment’s or similar goods supplied for or paid for by Berlinger shall remain in the ownership of Berlinger. They shall be carefully stored and maintained and shall be insured against all damages. They shall not be changed, destroyed or used for a thirty party without the prior written consent of Berlinger. The supplier shall at the request of Berlinger change or destroy them without delay. The supplier shall not be entitled, on whatever ground, to a right of retention. The complete return or destruction shall be confirmed in writing.
The supplier shall keep confidential all information communicated to it by Berlinger or made known to it in any other way. Such information shall include drawings, documents, knowledge, samples, workshop facilities, models, instruction manuals, specifications, data storage mediums etc. The supplier shall use such information exclusively for the purpose of providing products/services to Berlinger.
The supplier shall impose this duty of confidentiality to its supplier’s employees and third parties retained by it. Berlinger reserves the right to demand a special confidentiality declaration where third parties provide products/services on the premises of Berlinger.The duty of confidentiality shall not apply to information, which the supplier legitimately and without a duty of confidentiality knew prior to receipt from Berlinger, or which becomes there-after known without a duty of confidentiality, and information which – without breach by either of the parties –is or becomes generally known, or information for which the use for other purposes has been approved in writing.
15. CODE OF CONDUCT SUPPLIERS
The supplier is obliged to comply with the laws of the applicable legal system (s), in those of the manufacturer and destination country. He will not participate, either actively or passively, directly or indirectly, in any form of bribery, violation of the fundamental rights of his employees or child labor. He will also assume responsibility for the health and safety of these employees in the workplace, observe the environmental protection laws and promote and demand the best possible adherence to this Code of Conduct with his suppliers. If the supplier culpably violates these obligations, we are entitled, without prejudice to further claims, to withdraw from the contract.
The supplier may mention Berlinger in its publications only after having obtained the written consent of Berlinger, therefore.
17. APPLICABLE LAW, PLACE OF PERFORMANCE AND JURISDICTION
The contractual relationship between Berlinger and the supplier shall be governed by Swiss law. The provisions of the Vienna Sales Law (The United Nations Convention on Contracts on the International Sale of Goods, concluded in Vienna on April 11, 1980) shall not apply.
The place of performance shall be the place of the registered offices of Berlinger or another place expressly designated by Berlinger as the place of performance.
The exclusive place of jurisdiction is the registered office of the Berlinger company concerned, whereby Berlinger reserves the right to assert rights also at the domicile of the supplier.
These GCP are a translation of the German version of the GCP. The German version shall prevail at all times and where there is any contradiction between the German and any other language version, the German version shall take precedence.