1. General; Offer and Conclusion of Contract (applicable as from 1.1.94)
1.1 The General Conditions of Supply (GCS) are an integral part of the supply contracts concluded with Ditting Maschinen AG where these are declared as applicable. Deviations from the General Conditions of Supply are only valid if they are expressly agreed in writing. Conditions of the client which contradict the General Conditions of Supply of Ditting Maschinen AG shall only apply if these have been expressly acknowledged by Ditting Maschinen AG.
1.2 The offers of Ditting Maschinen AG are not binding and subject to alteration. The supply contract only comes into effect once Ditting Maschinen AG has issued a written acceptance of the client's order or if Ditting Maschinen AG issues written confirmation of a purchase contract concluded subject to approval.
1.3 The illustrations, drawings and descriptions as well as details on measurements and weights relating to contracts and offers of Ditting Maschinen AG and contained in the brochures of Ditting Maschinen AG are only binding insofar as they are the subject of a separate, written confirmation. Ditting Maschinen AG reserves the copyright to all documentation. This may neither be copied nor made accessible to third parties nor used by the client to personally manufacture the relevant items and systems without the prior written approval of Ditting Maschinen AG. These documents must be returned to Ditting Maschinen AG on demand.
2. Prices
2.1 Unless expressly agreed otherwise, prices are understood as being in Swiss Francs, ex-works Bachenbulach, excluding packaging and taxes of all kind.
2.2 Work not included in the confirmation of order from Ditting Maschinen AG will be invoiced separately. Customs and stamp duties, contract taxes, charges for import, export and transit approval licences as well as all other costs associated with the import and export, such as bank costs, insurance etc., shall always be borne by the customer.
3. Delivery Deadline
3.1 The delivery deadline commences on the date on which the contract is concluded (No. 1.2, Sentence 2) providing the deposit due with the order has been paid.
3.2 Reasonable delay in delivery shall not be the responsibility of Ditting Maschinen AG if this is caused by an unforeseeable event. Such an event would be e.g., strike, lock-out, uprising, mobilization, war or other Acts of God, also in the event of material defects or loss of power, faulty moulds, rejection of major workpieces through no fault of its own, or other delays not of its own making, as well as transport obstacles, official export, import or transit bans or impediments. The same applies if delivery is delayed for reasons attributable to the customer. In any event, Ditting Maschinen AG shall be entitled to withdraw from the contract without being liable for compensation where the customer is unwilling to adjust the delivery price and contract conditions to meet any possible change in circumstances.
3.3 Any delay in delivery caused in accordance with Point 3.2 shall not entitle the customer either to withdraw from the contract nor to the right to compensation for direct or indirect losses caused by the delay.
3.4 However, if Ditting Maschinen AG effects late delivery due to reasons for which it is responsible, the customer is entitled and obligated to grant Ditting Maschinen AG a period of 6 weeks to subsequently fulfil the contract. If delivery is not effected within this extended deadline, the customer shall then be entitled to withdraw from the contract, step by step, against return of deposits already paid and issue of machinery and equipment already supplied. With regards to any eventual claim for compensation by the customer, the conditions of No. 10.1 shall apply. In any event the compensation is limited to 10% of the contract price of the delivery consignment which is the subject of the withdrawal.
4. Payments
4.1 In the absence of any specially agreed terms and conditions of payment, the supplier claim of Ditting Maschinen AG is due for payment in Switzerland within 30 days following delivery ex-works Bachenbülach. Payment will only be accepted from other countries by Ditting Maschinen AG providing this is in the form of an irrevocable, confirmed Letter of Credit, opened in Swiss Francs drawn on and covered by a Swiss bank, or by payment in advance.
4.2 Payments are to be made in the currency invoiced to the bank specified by Ditting Maschinen AG providing no other arrangement has been agreed. Payments in another currency will be converted at the rate on the day on which payment is received.
4.3 Fulfilment of the agreed payment terms and conditions on the specified dates is not affected by the guarantee. The return of payments for any counterclaims whatsoever is also excluded.
4.4 Should the customer be more than ten days in arrears with a payment or, where agreed, with the submission of bills of exchange, bank guarantees or other security, then the entire balance shall become immediately due. All arrears interest, stamp duties and collection expenses associated with the settlement of bills of exchange shall be met in their entirety by the customer. If the customer does not adhere to the agreed payment dates then he must pay interest from the agreed due date, without a reminder, at a rate which will be at least 4% above the relevant discount rate of the Swiss Central Bank.
5. Retention of Title
5.1 Ditting Maschinen AG retains title to all its supplies (machinery, replacement parts and accessories) until full and final payment of the price, as well as any installation costs and arrears interest to be met by the customer, has been made. The customer authorises Ditting Maschinen AG, at its (the customer's) costs, to enter or note the retention of title in public registers or books and records and to supply the signatures required to this end.
5.2 The customer will maintain the items supplied, at his costs throughout the period of the retention of title and insure them against theft, breakage, fire, water damage and other risks for the benefit of the supplier. He will also undertake all measures to prevent the claim to title of Ditting Maschinen AG either being detrimentally affected or lost.
6. Despatch
6.1 In the absence of any special instructions from the customer, Ditting Maschinen AG will supply the packaging and process the deliveries for despatch to the best of its knowledge and ability but accepts no liability whatsoever for same.
6.2 All consignments are despatched at the customer's own risk. The customer accepts full risk, with the departure of the consignments from the factory or warehouse, for any damage, destruction or loss of the said goods including if the consignment is sent carriage paid or if installation is included in the delivery.
7. Packaging
The packaging will be invoiced separately and not taken back unless it is designated as the property of Ditting Maschinen AG. In this event, it is to be returned to the despatch railway station freight-free.
8. Assembly and Installation
8.1 Where assembly or installation is included in the delivery price, this is understood as excluding additional personnel to be employed by the customer if requested and as needed, at the customer's own costs. Any delay or overtime costs of Ditting Maschinen AG installation personnel, which have not arisen through its own negligence, as well as the expenses incurred as a result, are to be invoiced separately as are all other expenses which exceed the agreed costs of the installation/assembly.
8.2 The customer accepts full responsibility for liability and accident risks caused by his personnel or by auxiliary persons employed by him even if the assembly and installation work is carried out by Ditting Maschinen AG. If, in connection with the installation, the above mentioned persons suffer loss or injury then Ditting Maschinen AG shall only be liable in the event of malicious intent or gross negligence.
9. Guarantee
9.1 Ditting Maschinen AG guarantees that all its supplies will be in proper functioning order. The guarantee period is 12 months, for day and night operation, 8 months. This commences with effect from the date of despatch ex-works or, where Ditting Maschinen AG is responsible for carrying out the installation, with effect from the completion date of installation.
9.2 Claims against the guarantee are subject to the agreed terms and conditions of payment being met on the due dates. The guarantee does not extend either to normal wear and tear nor to the consequences of incorrect installation, provided this has not been carried out by Ditting Maschinen AG. The guarantee obligation also lapses in any event if alterations or repairs to the goods supplied are carried out by the customer or third parties without the approval of Ditting Maschinen AG. Nor does the guarantee apply to loss or damage which arises due to faulty, improper or fault treatment, failure to comply with the operating instructions, excessive strain on the goods, use of replacement parts from other companies, in particular the failure to use grinding discs manufactured by Ditting Maschinen AG, or Acts of God. Furthermore, claims against the guarantee are subject to the proviso that the fault or defect is notified in writing immediately as soon as it is discovered and that the guarantee claim is lodged immediately.
9.3 The guarantee for components not manufactured by Ditting Maschinen AG itself, such as motors, belts, gears, switches, discs and electrical components, applies only within the framework of the guarantee provided by the relevant supplier of Ditting Maschinen AG. The guarantee is not transferable and lapses in the event of the item being sold.
9.4 Ditting Maschinen AG declares its willingness to repair or replace, on written request from the customer, any item of supply from Ditting Maschinen AG which is shown to be damaged or unusable as a result of defective material, faulty design or faulty manufacture, up to expiry of the guarantee period. Replaced parts become the property of Ditting Maschinen AG.
10. Exclusion of Other Liability: Recourse:
10.1 These conditions definitively regulate all potential claims by the customer. Specifically, this refers to all claims for compensation, reduction, cancellation of the contract or withdrawal of the contract not expressly named. Claims by the customer for the reimbursement of losses not incurred by the supply item itself, such as loss of use or production or loss of orders as well as any other indirect or direct loss, shall not apply in any event. This does not apply where Ditting Maschinen AG is guilty of malicious intent or gross negligence.
10.2 In the event of action or neglect by the customer, his employees or his auxiliary personnel resulting in injury being caused to persons or the property of third parties being damaged and if a claim is made against Ditting Maschinen AG on these grounds, then it shall be entitled to unlimited recourse to the customer.
11. Place of Fulfilment and Jurisdiction.
11.1 Place of fulfilment for both parties of the contract is Bachenbülach.
11.2 Jurisdiction is in Bachenbülach. The customer expressly declares that he will be bound by the agreed place of jurisdiction and waives the right to jurisdiction by the courts at his legal place of residence. Ditting Maschinen AG is nevertheless free and entitled to also assert its rights at the legal place of residence of the customer.
The contractual agreement is subject to Swiss law.
31st October 1994
DITTING MASCHINEN AG
Bramenstrasse 11
CH-8184 Bachenbülach
CH-8184 Bachenbulach