1. Applicability
These General Contractual Terms and Conditions are applicable to all supplies of products by Berlinger & Co. AG or Berlinger Special AG (hereinafter “the Seller”). No contractual terms and conditions of the Buyer of any kind shall apply.
The Seller reserves the right to unilaterally modify these General Contractual Terms and Conditions at any time. In such an event, the Seller will notify the Buyer of such modifications in appropriate form. In the absence of any immediate objection thereto upon such notification, the Buyer will be deemed to have accepted the modifications concerned.
2. Conclusion of sale
The Seller’s offers are non-binding and non-committal. Only an order submitted by the Buyer to the Seller by post, fax or email shall be regarded as a binding offer to conclude a purchase agreement. The Seller will accept such an offer by means of a written confirmation of the Buyer’s order. Such acceptance may also be communicated in fax, email or other electronic form.
3. Purchase Price
The purchase price shall be the Seller’s list price for the product(s) concerned at the time the Buyer’s order is confirmed. All such prices shall be deemed to be stated in Swiss francs and excluding valueadded tax.
The prices stated do not include packaging costs, which shall be additionally charged to the Buyer.
The price of any order shall be paid to the Seller without deduction within 30 days of invoicing and in accordance with the Seller’s payment instructions.
4. Transport and transfer of benefits and risks
All products shall be supplied FCA Ganterschwil, Canton St. Gallen, Switzerland (Incoterms 2020). All the costs incurred in connection with the shipment and transport thereof shall therefore be at the Buyer’s expense. The benefits and risks associated with the products concerned shall pass to the Buyer as soon as the products are provided by the Seller to the carrier designated by the Buyer for the collection and transport thereof.
The Seller shall also be permitted to make partial deliveries of an order.
All the delivery dates and times provided by the Seller shall be non-binding. In view of this, any deviations from the same shall not entitle the Buyer to withdraw from their purchase agreement or to any further claims towards the Seller. In particular, the Seller may not be held liable for any loss or damage incurred by the Buyer, either directly or indirectly, in connection with such deviation.
5. Regulatory Requirements
Berlinger shall be entitled to disclose customer data to third parties and/or authorities insofar as this is necessary for business-related clarifications, the obtaining of authorisations or the making of registrations. Berlinger shall not disclose customer data to third parties beyond the afore mentioned purposes, in particular not for advertising or marketing purposes.
6. Warranties and liability
The Seller guarantees that the products supplied are functional and free of material or manufacturing flaws.
This warranty shall only apply provided the products concerned are handled and stored correctly and in accordance with their instructions for use. In particular, the Seller cannot provide any such warranty in connection with normal wear and tear or in the event of improper handling, non-compliance with the instructions provided, excessive force, excessive use, accident or force majeure.
It is the responsibility of the Buyer to inspect the products immediately upon receipt. Any perceived defects must be communicated to the Seller in detail and in writing without delay, and within seven working days at the latest after such receipt. Any product defects detected at a later stage which were not identified upon receipt (hidden defects) shall be reported to the Seller immediately, in detail and in writing.
The Seller’s warranty on the products supplied shall expire two years after the transfer of the associated benefits and risks (see para. 4 above). Such warranty shall also expire immediately and in its entirety if the Buyer or any third party makes any changes or repairs to the product(s) concerned without the Seller’s written approval.
Exceptions to the two years warranty period: For the following products, the warranty period is limited to one year after the transfer of the associated benefits and risks (see para. 4 above): SmartSensor CRYO, SmartSensor ULTRA LOW.
Customer acknowledges that any product purchased, or service provided may in time reach the end of its life cycle. Berlinger reserves the right to discontinue a product or service and initiate its end-of-life ("EOL") process at Berlinger's free discretion. Berlinger shall notify the Customer at least [6] months before the EOL of a product or service (the "EOL Notification"). The EOL Notification may include an endof-sale ("EOS") date for the Product or Service, notifying the Customer that the product, or service is no longer for sale after this date. Products or services purchased after the EOL Notification but before the EOS date may be subject to a limited warranty as specified in the EOL Notification.
Should the Seller be required to fulfil a warranty obligation, the Seller shall be free to decide whether to repair or replace the product(s) concerned.
In such an event, the Buyer shall have no further claims on the Seller. In particular, the Buyer shall have no entitlement to any reduction in the purchase price, to the cancellation of the purchase agreement or to compensation for any direct or indirect damages.
In addition, any liability of the Seller arising from or in connection with deliveries shall be excluded, to the extent permitted by law, irrespective of the legal basis.
7. Product Modifications
Berlinger has the right to implement modifications and changes to the Device Firmware at its free discretion. Berlinger will notify the Customer about such changes and modifications at least 3 months before implementation. Modifications and changes will be applied to newly produced devices, as well as Customer's on-site active devices capable of cloud based on-air-synchronization for the necessary Firmware update. If cloud based on-air-synchronization is not possible for an active device, the Customer may perform a manual Firmware update via USB. In case an urgent update is required due to security issues or for critical bugfix patches, Berlinger may schedule such updates on short notice. Customers will be notified accordingly.
Only limited support can be guaranteed for devices with outdated Firmware-versions. Prior any rootcause analysis on potential bugs, the support may request the customer to update the device to the latest firmware.
8. Applicable law and place of jurisdiction
These General Contractual Terms and Conditions and all legal relations between the Seller and the Buyer shall be subject solely to substantive Swiss law, to the exclusion of the Swiss law of conflicts and the United Nations Convention on Contracts for the International Sale of Goods (CISG). In the event of any dispute the sole place of jurisdiction shall be the ordinary courts at the Seller’s legal domicile.
Version: 2.00
Valid till: 28.02.2025