General Terms and Conditions of “Brugg”Drahtseil AG (BRUGG LIFTING), Birr
1. Scope of application and basics
a) Scope of application
1.1 These General Terms and Conditions (“GTC”) shall apply to any legal relationships (quotations, contract negotiations, contracts, etc.) between “Brugg”Drahtseil AG, also referred to as BRUGG LIFTING, (“BRUGG LIFTING”) and its Purchasers (“Purchasers “) regarding the sale and delivery of products or factories (“Deliveries”) by BRUGG LIFTING to the Purchasers. The Deliveries may include services regarding the assembly or monitoring of assembly of the products and works (“Services”).
1.2 These GTC shall form an integral part of the legal relationships between BRUGG LIFTING and Purchaser and in particular the contracts except where something different is explicitly agreed on. General terms of contract and terms and conditions of Purchaser shall only apply if they have been expressly accepted by BRUGG LIFTING.
1.3 BRUGG LIFTING reserve the right to change these GTC at any time. Changes shall apply from their disclosure to Purchaser for any legal relationships established thereafter between BRUGG LIFTING and Purchaser.
b) Quotations and conclusion of contracts
1.4 Any quotations, price lists, product descriptions, leaflets, plans and similar by BRUGG LIFTING shall be non-committal (in particular also regarding the contractual properties of the Deliveries) and subject to change or revocation at any time except if the respective document explicitly states differently.
1.5 Where quotations of BRUGG LIFTING are non-committal, a contract shall only be concluded at the time at which Purchaser receives the written confirmation that BRUGG LIFTING accepts the purchase order (by written order confirmation or signature of a written contract), or at the time at which BRUGG LIFTING performs the purchase order.
1.6 The Deliveries shall be listed finally in the written order confirmation. If a written order confirmation is not issued, the description shall result from the written contract signed by BRUGG LIFTING or subsidiarily from the quotation by BRUGG LIFTING.
1.7 Declarations in text form that are transmitted or recorded by email shall be deemed written declarations of a party.
1.8 Any agreements and legally relevant declarations of the parties shall require written form to be valid.
2. Prices and payment conditions
2.1 The prices and payment conditions shall be provided in the written order confirmation (or in the written contract signed by BRUGG LIFTING or the quotation by BRUGG LIFTING if no written order confirmation was issued). Prices shall be stated net, in Swiss Francs, excluding the respective statutory excise taxes, VAT, “Goods and Services Tax” (GST) or comparable taxes in the destination country, if such excise taxes are not shifted to Purchaser by way of “Reverse Charge” in the destination country. The prices shall be “ex works” (EXW) domicile of BRUGG LIFTING (INCOTERMS 2010).
2.2 Invoicing shall be in advance or after delivery, at the discretion of BRUGG LIFTING. No deductions from invoiced amounts shall be permitted, except if expressly agreed on differently in writing. Set-off against counter-claims shall not be permitted. Unjustified deductions of discount shall be invoiced.
2.3 The payment period shall be complied with even if performance of the contract is delayed or if inessential parts of the Deliveries are still missing.
2.4 The Place of Performance for payment shall be the domicile of BRUGG LIFTING.
2.5 The due date shall at the same time be the expiration date. If invoices are not settled within the payment period, Purchaser shall enter default without reminder and shall owe default interest at 8 % p.a.
2.6 BRUGG LIFTING expressly reserve the right to assert further default damage as well as withdrawal from the contract and release of the Delivery according to sect. 214 para. 3 of the Swiss law of obligations and assertion of further claims for damages. In case of default of payment by Purchaser, BRUGG LIFTING shall have the right to have cash collection performed by a third party at Purchaser’s expense.
3. Delivery deadlines and dates
3.1 Delivery deadlines or delivery dates shall be deemed complied with if the Deliveries were provided at the domicile of BRUGG LIFTING to Purchaser before their end and in case of Services if they were rendered in time or on the due date.
3.2 The delivery deadline shall be extended appropriately if any obstacles occur that BRUGG LIFTING cannot prevent in spite of applying the required care or if any other circumstances occur for which BRUGG LIFTING is not at fault.
3.3 BRUGG LIFTING always strives to comply with agreed delivery deadlines and dates. BRUGG LIFTING can, however, not assume any warranty for compliance with delivery deadlines and dates and shall not be liable for any delays and/or default.
3.4 Purchaser’s claims from or in connection with any delays, in particular of the contract, are expressly and finally provided for in this Clause 3, subject to exclusion of any further claims of Purchaser. This limitation of liability shall not apply in cases of gross negligence or illegal intent.
4. Passing of risk, assumption of costs
Risks shall pass on delivery “ex works” (EXW) domicile of BRUGG LIFTING (INCOTERMS 2010). The costs shall be assumed according to the same provision.
5.1 Purchaser shall inspect Deliveries without delay upon receipt and inform BRUGG LIFTING of any defects no later than within 7 days of delivery of the Deliveries in writing with a complaint. If Purchaser does not inspect for or report any defects according to this Clause 5.1, the Deliveries shall be deemed approved.
5.2 If no defects appear in the Deliveries or if there are only inessential defects, acceptance shall be deemed given at conclusion of the inspection.
5.3 Purchaser’s rights in case of defects shall be according to Clause 6.
6.1 BRUGG LIFTING warrants to Purchaser that the Deliveries (but not the Services, cf. Clause 6.9) are free from any substantial defects of craftsmanship or material that would impair proper use of the Deliveries at the time of dispatch. Any material warranty beyond this, as well as any granting of rights, shall be expressly excluded unless explicitly agreed in the written order confirmation and/or the contract.
6.2 BRUGG LIFTING shall specifically not be liable for the non-contractual condition of the Deliveries due to Purchaser’s own fault or specifically as a consequence of regular wear, improper transport and/or storage, improper assembly, use of Purchaser’s or a third party’s material without the consent of BRUGG LIFTING, changes or repairs by Purchaser or any third parties without consent of BRUGG LIFTING, assembly or maintenance by Purchaser or any third parties without consent of BRUGG LIFTING, overload, natural disaster, environmental damage or as a consequence of other causes not due to the fault of BRUGG LIFTING.
6.3 The warranty of BRUGG LIFTING shall require that Purchaser reports the defects to BRUGG LIFTING in writing without delay after discovering them (also see Clause 5.1). Any concealed defects discovered later shall be reported to BRUGG LIFTING in writing within 7 days of their discovery.
6.4 Warranty claims shall expire, subject to explicitly different provisions, after the end of  months after delivery of the respective Delivery. Any deliveries replaced or repaired by BRUGG LIFTING shall be subject to the [period of 12 months] from delivery of the original Delivery.
6.5 After assertion of defects, BRUGG LIFTING may subsequently either examine the delivery on site or demand that the delivery be returned to BRUGG LIFTING. BRUGG LIFTING shall review the warranty claim and inform Purchaser whether the asserted claim is subject to warranty or not. Purchaser shall store the delivery until definite clarification of the complaint.
6.6 In case of warranty, BRUGG LIFTING shall remedy any defects of the delivery free of charge or replace them fully or partially, at its own discretion. Any claims to withdrawal from the contract (conversion), reduction of the purchasing price (price reduction) or replacement performance shall be excluded.
6.7 If there is no warranty claim, Purchaser shall bear all costs incurred by BRUGG LIFTING due to assertion of the claim not subject to warranty. This shall specifically include costs for transport, assembly and labour.
6.8 Subject to express agreements to the contrary, BRUGG LIFTING shall only be liable to Purchaser for the careful execution of the Services, and therefore shall not assume any responsibility for the results or warranty for the Services. If responsibility for results by BRUGG LIFTING is expressly agreed on, this Clause 6 of the GTC shall apply accordingly. Apart from this, see Clause 8 of these GTC for liability.
6.9 Purchaser’s warranty rights shall be provided for expressly and finally in this Clause 6.
7. Reservation of title
The Deliveries shall remain the property of BRUGG LIFTING until Purchaser has met its payment obligation and BRUGG LIFTING has received all payments according to the contract in full. BRUGG LIFTING shall have the right at any time to register the reservation of title in the register of retained title and Purchaser commits to performing any contribution actions required for this without delay.
8. Liability and exclusion of liability
8.1 Any claims of Purchaser to reimbursement of damage that has not occurred to the Deliveries directly, such as usage loss, loss of orders, lost profit, third-party claims or reimbursement of connected, indirect and consequential damage, no matter the legal reason for which such claims are asserted, are expressly excluded. BRUGG LIFTING shall also not be liable for any actions or omissions of servants. The liability of BRUGG LIFTING from or in connection with a contract (purchase order) or its improper performance shall be limited to 50 % (including any default compensation pursuant to Clause 3.3) of the agreed contractual price for the respective purchase order (excl. VAT).
8.2 Purchaser’s claims from or in connection with this contract or its improper performance are expressly and finally determined in these GTC. Any other and additional claims shall be waived as far as legally permitted. These limitations of liability shall not apply in cases of gross negligence or illegal intent.
9. Taking back parts of the Deliveries
Taking back any parts of the Deliveries shall require the express written consent of BRUGG LIFTING from case to case.
10. Further provisions
a) Involvement of third parties
10.1 BRUGG LIFTING shall have the right to use third parties to perform the contract. BRUGG LIFTING shall be liable for the services of involved third parties as for own Services.
b) Intangible property rights
10.2 BRUGG LIFTING or any of its licensors shall remain the owners of any rights in any Deliveries and Services, descriptions, leaflets, plans, documents and data carriers, including patent, copyright and other intangible property rights. Purchaser accepts these rights of BRUGG LIFTING or its licensors.
10.3 BRUGG LIFTING confirms that the descriptions provided to Purchaser of Deliveries and Services, leaflets, plans, documents and data carriers do not violate any third-party rights according to the best knowledge of BRUGG LIFTING. BRUGG LIFTING shall not provide any warranty that the descriptions provided to Purchaser of Deliveries and Services, leaflets, plans, documents and data carriers do not infringe any third-party rights, however.
c) Partial invalidity
10.4 If any provision of these GTC turns out to be wholly or partially invalid, the parties shall replace such provision with a new one that comes as close to its economic purpose as possible.
11. Place of jurisdiction and applicable law
11.1 The exclusive place of jurisdiction shall be Birr (Aargau), Switzerland. BRUGG LIFTING shall, however, also have the right to assert claims against Purchaser in court at Purchaser’s registered office or domicile.
11.2 Any legal relationships between Purchaser and BRUGG LIFTING shall be subject to the material Swiss law, subject to exclusion of its provisions on conflicts of legal codes. Application of the convention of the United Nations from 11 April 1980 on contracts for the international sale of goods (Vienna Sales Law, CISG) is waived.
Birr, 1 January 2018