General Terms and Conditions
of "Brugg" Wire Rope Inc (BRUGG LIFTING)
1. Scope of application and basic principles
1.1 These general terms and conditions (“GTC”) shall apply to all legal relationships (offers, contract negotiations, agreements etc.) between “Brugg" Wire Rope Inc (also referred to as BRUGG LIFTING) (“BRUGG LIFTING”) and its clients (“CLIENTS”) concerning (i) the sale and de-livery of products and works (“SUPPLIES”) and (ii) the pro-vision of services such as assembly or assembly supervi-sion (“SERVICES”) by BRUGG LIFTING to the CLIENT.
1.2 Unless expressly agreed otherwise, these GTC shall constitute an integral part of the legal relationships in ex-istence between BRUGG LIFTING and the CLIENT, includ-ing in particular contracts. Any stipulations that depart from these GTC shall only be legally binding if expressly offered or expressly accepted by BRUGG LIFTING in writing.
1.3 By placing an order with BRUGG LIFTING, the CLIENT confirms, accepts and consents to the fact that the SUP-PLIES and SERVICES are governed by these GTC. BRUGG LIFTING reserves the right to amend these GTC at any time. Any amendments shall take effect upon notification to the CLIENT in respect of all legal relationships estab-lished thereafter between BRUGG LIFTING and the CLI-ENT.
1.4 All of the CLIENT's general terms and conditions and other contract documents are hereby explicitly excluded unless BRUGG LIFTING expressly consents thereto in writing, even if such general terms and conditions or other docu-ments of the CLIENT were included in the CLIENT'S order or order confirmation or otherwise communicated to BRUGG LIFTING.
b) Offers and the conclusion of contracts
1.5 BRUGG LIFTING’s offers, price lists, product descrip-tions, brochures, plans etc. are not legally binding (in par-ticular as regards the contractual characteristics of the SUPPLIES) and may be amended or revoked at any time, unless expressly specified otherwise in the relevant doc-ument.
1.6 Insofar as the offers of BRUGG LIFTING are non-binding, a contract shall only be concluded upon receipt by the CLIENT of written confirmation of acceptance of the order by BRUGG LIFTING (by written order confirmation or the signature of a written contract) or upon execution of the order by BRUGG LIFTING.
1.7 The SUPPLIES and SERVICES are conclusively listed in the written order confirmation. If no written order confirmation is issued, the relevant description shall be that contained in the contract signed by BRUGG LIFTING, or alternative-ly in the offer issued by BRUGG LIFTING.
1.8 Should it transpire following the conclusion of the contract that the SUPPLIES or SERVICES ordered cannot be deliv-ered or performed respectively either in full or in part due to force majeure or for any reasons beyond the control of BRUGG LIFTING (e.g. as a consequence of the failure to deliver or late delivery by a supplier of third party prod-ucts), BRUGG LIFTING shall be entitled to withdraw from the contract either in full or in part. The CLIENT shall be in-formed of this fact by email and any payments already made for the SUPPLIES concerned shall be reimbursed to the CLIENT either in full (in the event of complete with-drawal) or in relation to the part of the SUPPLIES not deliv-ered (in the event of partial withdrawal). In such cases, the CLIENT shall not be entitled to any further claims.
c) Webshop orders
1.9 The following terms and conditions shall apply to orders placed in the BRUGG LIFTING webshop www.bruggshop.com (“WEBSHOP”) notwithstanding let-ter b.
1.10 The CLIENT may select SUPPLIES from the product range in the WEBSHOP, which may be placed in a virtual basket by clicking “add to shopping cart”.
1.12 The order placed by the CLIENT shall be automatically recorded by BRUGG LIFTING with an order confirmation sent by email. This is only intended as confirmation of re-ceipt of the order, and shall not yet constitute acceptance of an offer by BRUGG LIFTING.
1.13 A contract for the SUPPLY ordered shall only be concluded upon the dispatch by BRUGG LIFTING to the CLIENT of an email order confirmation, however at the latest upon dispatch of the SUPPLIES ordered.
1.14 In the event that the SUPPLY ordered in the WEBSHOP is unavailable, BRUGG LIFTING reserves the right to de-cline to accept the CLIENT’s offer. BRUGG LIFTING shall inform the CLIENT accordingly and reimburse to the CLIENT any payments already made.
1.15 All information (product descriptions, pictures, colour samples, measurements, maximum loads, weights, tech-nical specifications, related accessories and other infor-mation) contained in the WEBSHOP of BRUGG LIFTING are subject to confirmation as regards any errors and do not constitute any warranty of quality (properties).
1.16 Clause 1.7 shall apply mutatis mutandis also for orders placed by the CLIENT in the WEBSHOP.
1.17 No agreements or legal declarations between the parties shall be effective unless formulated in writing. Declara-tions sent or recorded by e-mail or drawn up using the forms available in the WEBSHOP shall be regarded as writ-ten declarations by the relevant party.
2. Prices and payment terms
2.1 The prices and payment terms shall be set out in the written order confirmation or respectively in the order con-firmation sent by email following a WEBSHOP order (or in the contract signed by BRUGG LIFTING or the offer of BRUGG LIFTING, if no written order confirmation is is-sued). The prices indicated shall be net prices in Swiss francs, plus any statutorily applicable use tax, value added tax, “Goods and Services Tax” (GST) or other compa-rable tax in the country of destination, unless the liability to account for and pay such tax is reversed to the CLIENT in the country of destination according to the reverse charge mechanism. In addition, prices are quoted “ex works” (EXW) at the registered office of BRUGG LIFTING (INCOTERMS 2010).
2.2 Invoices shall be issued at the discretion of BRUGG LIFT-ING either in advance or upon delivery – the CLIENT may be able to select the type of payment himself/herself in the WEBSHOP. No deductions may be applied to invoice totals unless expressly agreed otherwise in writing. Off-setting against counterclaims is not permitted. Any unjus-tified discounts deducted will be invoiced.
2.3 The payment deadline must be adhered to even in the event that contractual performance is delayed or that neg-ligible parts of the SUPPLIES and/or SERVICES are still out-standing.
2.4 The place of performance for the purposes of payment shall be at the registered office of BRUGG LIFTING.
2.5 The due date shall also constitute a fixed payment date for the purposes of default. The CLIENT shall be automati-cally deemed to be in default without formal reminder in the event that invoices are not paid within the payment period and shall owe default interest of 8% per annum.
2.6 BRUGG LIFTING expressly reserves the right to claim further damages resulting from default and to withdraw from the contract and demand the return of the SUPPLIES pursuant to Article 214(3) of the Swiss Code of Obliga-tions, and to claim any additional damages. In the event of payment default on the part of the CLIENT, BRUGG LIFTING shall be entitled to arrange for collection by a third party at the cost of the CLIENT.
3. Delivery periods and deadlines
3.1 The period for delivering the SUPPLIES or providing the SERVICES (“DELIVERY PERIOD”) shall commence following conclusion of the contract as soon as all material prereq-uisites for the delivery of the SUPPLIES or the provision of the SERVICES have been fulfilled in BRUGG LIFTING’s view (e.g. receipt of advance payments, completion of administrative formalities, technical issues cleared up). DELIVERY PERIODS shall be deemed to have been com-plied with in the event that the SUPPLIES are made availa-ble to the CLIENT at the registered office of BRUGG LIFT-ING or the SERVICES have been provided prior to their ex-piry.
3.2 The DELIVERY PERIOD shall not start to run, or shall re-spectively be extended accordingly, in the event of any impediment that BRUGG LIFTING is unable to avoid de-spite having exercised all due care or upon the occur-rence of any circumstances that are beyond the control of BRUGG LIFTING. The foregoing shall be without preju-dice to clause 1.8.
3.3 If the DELIVERY PERIOD is not complied with, the CLIENT may claim liquidated damages in respect of the delay, provided that BRUGG LIFTING was demonstrably at fault for the delay and a loss thereby arose for the CLIENT. Liq-uidated damages shall amount to 0.2 % of the contractual price for the part of the SUPPLIES or SERVICES that is de-layed for each full week of delay, and shall be limited to a total of 5 % of the contractual price for the part in ques-tion. No entitlement to claim liquidated damages shall arise during the first two weeks of delay and the CLIENT shall not have any rights and claims in relation to any de-lay not exceeding two weeks. The CLIENT shall set a rea-sonable grace period for BRUGG LIFTING in writing once the maximum level of liquidated damages has been reached (5 %of the contractual price for the delayed part). If this grace period is not complied with due to reasons beyond the control of BRUGG LIFTING, the consequenc-es of default shall be those provided for by law.
3.4 In the event that a particular deadline has been agreed to rather than a DELIVERY PERIOD, the deadline in question shall be regarded as the last day of the DELIVERY PERIOD. Clauses 3.1-3.3 (and 3.5) shall apply mutatis mutandis.
3.5 The CLIENT shall not be entitled to any rights and claims as a result of delayed provision of SUPPLIES or SERVICES, except as expressly specified in this clause 3. This limita-tion of liability shall not apply in the event of gross negli-gence or wilful unlawful intent by BRUGG LIFTING, or to the extent otherwise excluded by mandatory law.
4. Transfer of risk
Risk shall transfer upon delivery “ex works” (EXW) at the registered office of BRUGG LIFTING (INCOTERMS 2010).
5.1 The CLIENT shall examine the Supplies promptly upon receipt and notify BRUGG LIFTING in writing of any com-plaints relating to defects within 7 days of receipt of the SUPPLIES. The SUPPLIES shall be deemed to have been approved in the event that the CLIENT fails to conduct an examination and to complain concerning any defects in accordance with this clause 5.1.
5.2 If the SUPPLIES do not feature any defects or only negligi-ble defects, the SUPPLIES shall be deemed to have been accepted upon completion of the examination.
5.3 The CLIENT’S rights in relation to defects shall be deter-mined in accordance with clause 6.
6.1 BRUGG LIFTING hereby warrants to the CLIENT that the SUPPLIES have no substantial defects of processing or materials impairing proper use of the SUPPLIES at the time of delivery. Any further product warranty and warranty of title is expressly excluded, unless expressly agreed oth-erwise in the written order confirmation and/or the con-tract.
6.2 The warranty and liability of BRUGG LIFTING towards the CLIENT in relation to third party products shall be exclu-sively limited to the exercise by BRUGG LIFTING of war-ranty rights according to law or the contractual terms and conditions of the third party (e.g. GTC, warranty terms and conditions) at the cost of the CLIENT. In the event that the third party fails to comply voluntarily with its warranty obligations and liability, BRUGG LIFTING hereby assigns the warranty rights and liability remedies to the CLIENT for the purpose of enforcement. Apart from that, any warranty and liability of BRUGG LIFTING and its vicarious agents towards the CLIENT is excluded to the extent permitted by law.
6.3 In particular, BRUGG LIFTING shall not be liable for de-fects for which the CLIENT himself/herself is at fault or aris-ing in particular as a result of ordinary wear and tear (e.g. for consumable parts), inappropriate transportation and/or storage, incorrect assembly, the usage of the CLIENT’S own material, alterations or repairs carried out by the CLI-ENT or by a third party without the approval of BRUGG LIFTING, assembly or maintenance by the CLIENT or by a third party without the approval of BRUGG LIFTING, over-loading, natural disasters, environmental damage or any other cause beyond the control of BRUGG LIFTING.
6.4 The warranty of BRUGG LIFTING requires written com-plaint by the CLIENT to BRUGG LIFTING concerning the defect within 7 days of receipt of the SUPPLIES (see also clause 5.1). Any defects discovered at a later stage must be objected to in writing with BRUGG LIFTING within 7 days of their discovery.
6.5 Unless explicitly specified otherwise, warranty claims shall become time-barred 12 months after the delivery of the SUPPLY in question. In the event that any SUPPLY is replaced or repaired by BRUGG LIFTING, the relevant 12-month period shall commence upon delivery of the original SUPPLY.
6.6 In the event that any defects are objected to, BRUGG LIFTING may thereafter at its choosing either inspect the SUPPLY in situ or request that the SUPPLY be returned to BRUGG LIFTING. BRUGG LIFTING shall examine the warranty claim and inform the CLIENT whether or not the claim invoked falls under the warranty. The CLIENT shall store the SUPPLY until the complaint has been definitively clarified.
6.7 Any involvement by BRUGG LIFTING in investigating or rectifying defects shall have no impact on the existence and scope of the warranty.
6.8 In the event of a warranty claim, BRUGG LIFTING shall at its own discretion either rectify any defects free of charge or replace the SUPPLY in full or in part. There shall be no entitlement to withdraw from the contract (rescission), to reduce the purchase price (reduction) or to substitute per-formance and/or damages.
6.9 In the event that a claim is not covered by the warranty, the CLIENT shall bear all costs arising for BRUGG LIFT-ING as a result of the assertion of the respective claim. This shall include in particular the costs of transportation, assembly and labour.
6.10 The CLIENT shall not be entitled to any rights and claims in relation to defects or the absence of any warranted quality (properties) except as expressly specified in this clause 6. This limitation of warranty claims and liability shall not ap-ply in the event of gross negligence, unlawful intent or fraudulent concealment by BRUGG LIFTING, or to the ex-tent otherwise excluded by mandatory law.
7.1 The object and scope of the SERVICES shall be specified conclusively in the relevant contract. Additional terms and conditions may apply to the SERVICES, such as e.g. SER-VICES provided by BRUGG LIFTING in relation to the as-sembly or monitoring of assembly of the SUPPLIES.
7.2 The CLIENT shall examine the SERVICES promptly after they have been provided and notify BRUGG LIFTING of any complaints in writing immediately and under no cir-cumstances within more than 7 days from the provision of the SERVICES (date of the postmark is decisive). In the event that the CLIENT fails to make such notification, the SERVICES shall be deemed to have been accepted.
7.3 Unless expressly agreed otherwise, BRUGG LIFTING shall be liable to the CLIENT only for performing the SER-VICES with due care, and thus shall not be liable for specif-ic results, especially not in the case of consulting services related to the SUPPLIES. BRUGG LIFTING shall provide consultancy services to the best of its knowledge and be-lief, but does not warrant that the SUPPLIES are suitable for their intended usage by the CLIENT. The SERVICES of BRUGG LIFTING shall be based on the documentation of the CLIENT or of third parties made available. The CLIENT is responsible for ensuring that the documentation is up to date, complete and correct. BRUGG LIFTING does not accept any liability for deficient documentation or instruc-tions. Otherwise, liability shall be determined in accord-ance with clause 10.
7.4 Clause 6 shall apply mutatis mutandis in the event that liability as to specific results is expressly agreed to by BRUGG LIFTING.
8.1 BRUGG LIFTING voluntarily grants the CLIENT the right to return any SUPPLIES ordered, provided that they are in un-damaged condition. However, the right of return shall only be available subject to the proviso that the SUPPLY re-turned is undamaged, does not display any signs of us-age and is returned by the CLIENT to BRUGG LIFTING in full (including all individual parts, accessories and packag-ing material) within 14 days of receipt of the SUPPLY (the relevant time being that of receipt by BRUGG LIFTING of the SUPPLY returned).
8.2. The right of return according to clause 8.1 shall expressly exclude all SUPPLIES that are ready-made for the CLIENT (such as e.g. wire ropes, textile lifting gear or ready-made chain slings cut according to the CLIENT’S instructions in the drop-down menu in the WEBSHOP) along with all SUP-PLIES prepared or adjusted at the request of the CLIENT. In exceptional cases, BRUGG LIFTING may at its own dis-cretion take back such SUPPLIES as a matter of goodwill; however, the CLIENT shall not have any right to insist on this.
8.3 SUPPLIES shall be returned at the cost and risk of the CLI-ENT. Following the receipt and examination of the SUPPLY, BRUGG LIFTING shall reimburse to the CLIENT the pur-chase price paid for the returned SUPPLY, excluding the costs of shipping and packaging.
9. Retention of title
The SUPPLIES shall remain the property of BRUGG LIFT-ING until the CLIENT has complied with the duty to make payment and BRUGG LIFTING has received in full all payments in accordance with this contract. The CLIENT shall be obliged to cooperate promptly in any action to uphold the ownership of BRUGG LIFTING. The CLIENT also authorises BRUGG LIFTING to enter its right of ownership in the relevant register of retention of title, in the event that BRUGG LIFTING wishes such an entry to be made.
10. Liability and limitation of liability
10.1 Any liability of BRUGG LIFTING arising out of or in rela-tion to a contract or the deficient performance thereof shall be limited to a total of 50% of the agreed contractual price. This shall include in particular any claims relating to delayed performance according to clause 3.3.
10.2 The CLIENT shall not be entitled to claim compensation for indirect, collateral and consequential damages, loss of profit and unrealised savings, irrespective of the legal ba-sis for claiming such damages. The same shall apply for damages attributable to causes regulated under clause 6.3 (own fault, ordinary wear and tear, inappropriate transportation, etc.) and for any acts or omissions of vi-carious agents.
10.3 The liability of BRUGG LIFTING for third party products shall be excluded or limited in accordance with clause 6.2.
10.4 All rights and claims of the CLIENT under or in relation to the contract or its deficient performance, irrespective of the legal basis, are expressly and exhaustively specified in these GTC. There shall be no further rights and claims.
10.5 These limitations of liability shall not apply in the event of gross negligence or of unlawful intent by BRUGG LIFT-ING, or to the extent otherwise excluded by mandatory law.
11. Other provisions
a) Involvement of third parties
11.1 BRUGG LIFTING shall be entitled to involve third parties in contractual performance. BRUGG LIFTING shall bear responsibility for the services of any third parties involved in the same manner as for its own.
b) Intellectual property rights
11.2 BRUGG LIFTING or any licensors shall retain all rights over all SUPPLIES and SERVICES, descriptions, brochures, plans, documents and data carriers, including rights under patent law and copyright or any other intellectual property rights. The CLIENT acknowledges these rights of BRUGG LIFTING or its licensors.
11.3 BRUGG LIFTING confirms that, as far as it is aware, the descriptions of SUPPLIES and SERVICES, brochures, plans, documents and data carriers provided to the CLIENT do not infringe any third party rights. However, BRUGG LIFT-ING does not provide any guarantee or warranty that the descriptions of SUPPLIES and SERVICES, brochures, plans, documents and data carriers provided to the CLIENT do not infringe any third party rights.
c) Data protection
11.4 BRUGG LIFTING processes particular personal data of its CLIENTS in relation to the contractual relationship or prior to entering into a contract. Data are processed by BRUGG LIFTING in accordance with the relevant provi-sions of the EU General Data Protection Regulation (GDPR), taking account of the relevant national data pro-tection law. All relevant information relating to data pro-cessing is set out in the document entitled “Data protec-tion guidelines concerning the general terms and condi-tions of BRUGG Drahtseil AG” which may be downloaded from the BRUGG LIFTING website on the page www.brugglifting.com/?lang=en and may also be made available to the CLIENT upon request.
11.5 Should any individual terms of these GTC be invalid or unenforceable, this shall not affect the validity of the re-maining terms and of these GTC as a whole. The invalid or unenforceable term shall be replaced by a valid term that comes as close as possible to the economic purpose of the invalid or unenforceable term.
12. Jurisdiction and applicable law
12.1 The exclusive place of jurisdiction shall be Birr (Aargau), Switzerland. BRUGG LIFTING shall however also be enti-tled to take action against the CLIENT at the CLIENT’S dom-icile/registered office. If the CLIENT has its domi-cile/registered office abroad, Birr (Aargau), Switzerland, shall also be the place of debt enforcement.
12.2 The legal relationship shall be governed by substantive Swiss law, to the exclusion of conflict of law principles and the UN Convention of 11 April 1980 on the interna-tional sale of goods (Vienna Sales Convention, CISG).