General Terms and Conditions of Business and Delivery
Glutz AG
4502 Solothurn
Switzerland
1. GENERAL
1.1. These General Terms and Conditions (hereinafter referred to as ‘GTC’) are applicable to all supplies and services executed by Glutz AG (hereinafter referred to as ‘Glutz’). Any conditions stipulated by the customer that contradict these GTC shall be valid only if expressly acknowledged by Glutz in writing. Offers from Glutz that do not stipulate an acceptance period shall not be binding.
1.2. In the case of training, service and support contracts (consultation, planning, installation, commissioning, user training, maintenance and intervention, etc.), the contractual terms agreed in each case shall take precedence; these GTC shall be supplemental.
1.3. All agreements and legally relevant declarations of the parties to the contract must be in writing in order to be valid. Explicitly confirmed emails shall be deemed equivalent to writing. Verbal agreements apply only if they have been confirmed by us in writing.
1.4. The contract between Glutz and the customer shall be deemed to have been concluded, provided all relevant technical and commercial details have been settled, on receipt of Glutz’s written order acknowledgement by the customer.
2. SCOPE OF SUPPLIES AND SERVICES
2.1. Glutz’s supplies and services shall be executed in accordance with the order and/or in accordance with Glutz’s order
confirmation.
2.2. Glutz reserves the right to determine the most suitable shipping procedure for the nature of the goods and to bill the customer for the freight costs incurred. The freight charges and postage for each express parcel or express letter, and any direct shipment of goods shall be invoiced separately.
2.3. For small orders up to CHF 100, a surcharge of CHF 20 shall be charged for each order.
2.4. Due to the total production costs incurred, the packaging is invoiced. The contractual terms agreed in each case shall apply to reusable packaging in addition and with priority. Special packaging requested by customers shall be charged separately.
2.5. The return of goods requires the explicit consent of Glutz. Glutz charges a handling fee of 40% of the order value. Any shipping and packaging costs will be charged in full to the return sender. Any necessary maintenance or repair work done on returned goods will be invoiced according to the necessary expenses. Products made according to individual dimensions or customer drawings or tailormade products cannot be taken back at any time.
3. SALES AND TECHNICAL DOCUMENTATION, USAGE RIGHTS FOR SOFTWARE
3.1. Unless otherwise agreed, brochures, leaflets and catalogues are not binding. Data provided in technical documents is binding only insofar as it has been expressly stipulated as such in writing.
3.2. Glutz is the author/owner of any software provided to the customer for use, including the accompanying documentation material. The customer shall receive the non-transferable usage rights to the supplied software. The customer may only make changes to Glutz’s software with the written approval of Glutz. Unless otherwise agreed, the sole responsibility for selection of software and its commissioning and use lies with the customer. In addition, the provisions of the end user license agreement for the software shall apply.
4. PRICES
4.1. The prices according to Glutz’s price list valid at the time of the order shall apply. Unless otherwise agreed in Glutz’s offers and order confirmations, all prices shall be deemed to be net plus any applicable VAT ex works (INCOTERMS 2010). Any additional costs (e.g. packaging, transport, customs formalities, etc.) shall be charged to the customer unless otherwise agreed. If more than three months elapse between the date of the contract’s conclusion and the date of performance, Glutz is entitled to adjust the contract prices.
4.2. Glutz reserves the right to adjust the prices in the event the delivery time has been subsequently extended for any reasons stated in clause 7.2, or in the event any documents furnished by the customer did not conform with the actual circumstances or were incomplete.
5. TERMS OF PAYMENT
5.1. Within the credit limit set by Glutz, a period of 30 days net (after invoicing) shall apply, unless Glutz states otherwise in writing in its offers or order confirmation.
5.2. Unless agreed otherwise in Glutz’s offers and order confirmation, the payments shall be made at Glutz’s domicile without any deduction for cash discount, expenses, taxes, levies, fees, duties, etc.
5.3. If the customer does not comply with the agreed payment deadlines, it shall be liable, without any reminders, for interest with effect from the agreed date on which the payment was due at a rate of 4% above the three-month Libor CHF according to the Swiss National Bank, but at least 4%. If the customer is sent a reminder, Glutz is entitled to charge an additional reminder fee of CHF 20 per reminder. Glutz reserves the right to claim further damages.
5.4. Glutz is entitled to request advance payments, collateral (e.g. bank guarantee) or cash payment within a reasonable period of time, and refuse services if circumstances arise after the conclusion of the contract that objectively harm the customer’s creditworthiness and jeopardise Glutz’s payment claim. If the customer refuses or if the collateral is not provided within the stipulated period, Glutz shall be entitled to withdraw from the contract and/or claim damages.
6. COMPENSATION FOR DAMAGES IN CASE OF NON-FULFILMENT
If an order is not executed or executed later than originally planned at the request of the customer after a deadline has been set, Glutz shall be entitled to claim damages equal to 20% of the order value. Instead of the lump sum, Glutz can also claim the actual damages incurred.
7. DELIVERY TIME
7.1. The delivery time starts as soon as the contract is entered into, all official formalities have been completed, the advance or down payments due have been made, and any agreed securities given and the main technical points settled. The delivery time shall be deemed to be observed if by that time Glutz has sent a notice to the customer informing it that the goods are ready for dispatch.
7.2. The delivery time shall be reasonably extended:tion is therefore strictly at your own risk.
7.2.1. If the information required by Glutz for the performance of the contract is not received in time, or if the customer subsequently changes it, thereby causing a delay in delivery of the supplies or services;
7.2.2. if force majeure hindrances occur that Glutz cannot prevent despite due diligence, regardless of whether they arise with Glutz, the customer or a third party. Such force majeure includes, but is not limited to, epidemics, war, revolution, serious breakdowns in the works, accidents, labour disputes, late or erroneous delivery of the necessary raw materials, semifinished or finished products, rejection of important workpieces, official actions or omissions by state authorities or public bodies, natural phenomena;
7.2.3. If virus attacks or other kinds of attacks are carried out on the IT system by third parties despite observance of the usual protective measures;
7.2.4. if the customer or a third party is behind schedule with services it has to execute or with performance of its contractual obligations, in particular if the
customer fails to observe the terms of payment.
7.3. If the dispatch of the goods must be delayed by request of the customer, Glutz shall have the right to charge storage fees
starting one month from the date of dispatch of the written notification that states the goods are ready for dispatch. The storage fees shall be a minimum of 1% of the value of the goods stored for each full month or part thereof. The right to claim further damages is reserved.
7.4. If there is a delay in delivery, the customer undertakes to grant Glutz a reasonable time extension in writing.
7.5. Any delay of the supplies or services does not entitle the customer to any rights and claims other than those expressly stipulated in this clause 7. This limitation does not, however, apply to unlawful intent or gross negligence on the part of Glutz, but it does apply to unlawful intent or gross negligence on the part of persons employed or appointed by Glutz.
8. PASSING OF BENEFIT AND RISK
8.1. Unless there is an agreement to the contrary (e.g. INCOTERMS 2010), the benefits and risks shall be transferred to the customer on transfer of the supplies and services to the carrier or any other person designated by the customer.
8.2. If dispatch is delayed at the request of the customer or due to reasons beyond Glutz’s control, the risk shall pass to the customer at the time originally foreseen for delivery ex works. From this moment, the supplies shall be stored and insured on the account and at the risk of the customer.
9. INSPECTION AND ACCEPTANCE OF THE SUPPLIES/SERVICES
9.1. Insofar as is normal and reasonable practice, Glutz shall inspect the supplies and services before dispatch. If the customer requests further testing, this shall be specifically agreed and paid for by the customer.
9.2. The customer shall inspect the supplies and services, including any software, within 10 days of receipt and promptly notify Glutz in writing of any defects; otherwise, any warranty/liability on the part of Glutz is null and void. If the customer fails to do so, the supplies and
services shall be deemed to have been approved.
9.3. Having been notified of the defects according to clause 9.2, Glutz shall remedy them as soon as possible, and the customer shall give Glutz the opportunity to do so.
9.4. The performance of an acceptance test and determination of the applicable conditions require an individual agreement.
10. TRAINING, SERVICES AND SUPPORT
10.1. The contractual conditions agreed in each case (see clause 1.2 above) apply primarily.
10.2. If Glutz takes on training or service and support services and nothing else has been agreed, the customer shall pay all necessary additional costs, such as travel and transport costs, in addition to the agreed compensation. If services are performed outside Glutz’s usual business hours at the request of the customer or on Saturdays, Sundays or holidays, the customer shall pay for these in addition.
10.3. When service and support contracts are concluded, it is assumed that the object that forms the basis of the contract is easily accessible and complies with legal provisions and regulations.
11. RETENTION OF TITLE
11.1. Glutz shall remain the owner of all supplies until it has received full payment in accordance with the contract. On conclusion of the contract, Glutz shall be deemed as authorised by the customer to enter the retention of title in official registers in accordance with applicable regulations and to comply with all formalities, if necessary at the customer’s expense. If the customer acts in violation of the contract, in particular in the event of a default in payment, Glutz shall be entitled to demand the return of the supplied goods. If Glutz demands the return of the goods, it does not constitute a withdrawal from the contract unless Glutz has explicitly
declared this in writing.
11.2. During the period of retention of title, the customer shall, at its own cost, properly maintain the supplies and insure them for the benefit of Glutz against theft, breakdown, fire, water and other risks. It shall further take all measures to ensure that Glutz’s title is in no way prejudiced.
11.3. As long as the customer fulfils its obligations to Glutz and is not in default, it is entitled to process the reserved goods in the ordinary course of business and resell them subject to retention of title.
11.4. If the goods delivered by Glutz are intended for resale, the customer shall assign to Glutz all claims in Glutz’s invoice amount, including VAT, that accrue to it from resale to its customers or third parties, irrespective of whether the goods have been resold without processing or after processing.
11.5. If the goods are processed or inseparably mixed with other items that do not belong to Glutz, Glutz shall acquire joint ownership of the new item in the same ratio as the value of the goods supplied (invoice amount including VAT) to the other processed or mixed items at the time of the processing or mixing.
12. WARRANTY, LIABILITY FOR DEFECTS
12.1. The warranty period for mechanical products is 24 months and 12 months for mechatronic and electronic products. For service and support services, the contractual
terms agreed in each case shall apply. The warranty period begins at the time of the dispatch of the deliveries ex works, or if applicable after the services to be performed have been accepted. If shipping or acceptance are delayed for reasons beyond Glutz’s control, the warranty period shall end no later than 27 months (for mechanical
products) or 15 months (for service and support services) after Glutz’s notification that the goods are ready for dispatch or after the services are offered.
12.2. For replaced or repaired parts, the warranty period starts anew and lasts six months after replacement or completion of the repair, but not longer than expiry of a period equal to twice the warranty period stipulated in the preceding paragraph.
12.3. Excluded from Glutz’s warranty and liability for defects are all deficiencies that cannot be proved to have their origin in bad material, faulty design or poor workmanship; e.g. those resulting from normal wear, improper maintenance, failure to observe the operating instructions, excessive loading, use of any unsuitable material, influence of chemical or electrolytic action, changes, replacements or additions and services by third parties that do not comply with Glutz’s quality specifications, or installation work not undertaken according to Glutz’s instructions or the general industry standard, or due to other reasons for which Glutz is not responsible.
12.4. In general, no warranty/liability is assumed for software. In particular, Glutz assumes no warranty or liability for the uninterrupted or fault-free operation of the software under any operating conditions or for trouble-free operation in conjunction with other software programs operated by the customer.
12.5. In cases where it was not possible to detect defects within 10 days of receipt of the supplies and services (according to clause 9 above), the customer shall make a written complaint to Glutz as soon as they come to light. If the customer fails to do so, the supplies and services shall be deemed to have been approved even in respect of such defects.
12.6. On written request of the customer, Glutz undertakes at its discretion to repair or replace as soon as possible any parts of Glutz’s supplies that are proved to be defective or unfit for use due to bad material, faulty design or poor workmanship before the expiry of the guarantee period. Replaced parts shall become Glutz’s property.
12.7. Express warranties are those that have been expressly specified as such in the specifications. An express warranty shall be valid until expiry of the warranty period at the latest.
12.8. The warranty shall expire prematurely if the customer or third party improperly makes changes or performs repairs, or if the customer, in the case of a defect, does not immediately take all appropriate measures to mitigate the damage and give Glutz the opportunity to remedy the defect.
13. EXCLUSION OF FURTHER LIABILITY ON GLUTZ’S PART
13.1. All cases of breach of contract on Glutz’s part and the legal consequences thereof, as well as all claims by the customer, irrespective of their legal basis, are governed conclusively in these GTC. In particular, any claims for damages, abatement, cancellation of the contract or withdrawal from the contract shall be excluded.
13.2. Glutz accepts liability for damage resulting from this contractual relationship insofar as its deliberate intent or gross negligence can be proved. In the case of supplies and services provided to commercial customers, this liability is limited to CHF 50,000.00 per event.
13.3. Any further liability is declined to the extent permitted by law. In particular, Glutz specifically declines all contractual and non-contractual liability for damage
caused by the negligent conduct of its official bodies and helpers, for any kind of secondary damage and for consequential or indirect damage (e.g. loss of profit, loss of production or downtime, loss of orders, etc.) along with claims by third parties that have acquired products covered by this agreement from the customer.
13.4. Binding statutory provisions that take precedence and liability for culpably caused personal injury are reserved.
14. CONFIDENTIALITY OBLIGATION
The customer undertakes to refrain from disclosing any information about Glutz’s sphere of business that is neither generally accessible nor generally known, and to make every reasonable effort to prevent third parties from gaining access to this information. The customer shall also transfer this obligation to its employees. If the customer violates the confidentiality obligation, it shall indemnify Glutz against any damages or losses.
15. DUTY OF CARE
The customer is solely responsible for the installation and use of Glutz’s products and services, and any combination with other products. It shall take all necessary care and heed all safety aspects. If the customer is a reseller, it shall provide its customers with all the information necessary for safety in a suitable form; for example, with notices on the product itself, on the packaging or in an operator’s manual. The customer shall procure the necessary information itself. Glutz shall support the customer with training programs.
16. DATA PROTECTION
16.1. Personal data is processed as part of the business relationship with the customer, to which the customer consents by placing the order. The customer’s data is retained for the duration of this business relationship (and electronically in our ‘CRM’ customer management system) and then deleted, subject to any existing legal retention periods or if Glutz requires the data for the establishment, exercise or defence of legal claims. Only employees of Glutz and contracted service providers (e.g. service providers in the case of service and maintenance contracts) have access to the data, provided that they need the data for the agreed performance of tasks. For the purpose of handling the business relationship, data may be transferred to group companies or third parties in countries outside Switzerland or outside the scope of the GDPR.
16.2. Within the scope of application of the GDPR, the customer has rights of access, rectification or deletion of personal data concerning the customer or rights to the restriction of data processing by Glutz if certain prerequisites are met, according to Arts. 15-18 GDPR. The responsible person within the meaning of Arts. 13 and 14 GDPR is datenschutz-ch@glutz.com.
17. SEVERABILITY CLAUSE
If individual provisions of these GTC are or become ineffective or unfeasible, the validity of the remaining provisions shall not be affected. The invalid provision shall be replaced by a legally valid provision that comes closest to the economic purpose pursued by the invalid provision.
18. JURISDICTION AND APPLICABLE LAW
18.1. The legal relationship between Glutz and the customer and all related matters shall be governed exclusively by Swiss substantive law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980.
18.2. The exclusive place of jurisdiction for the disputes that arise from or in connection with the legal relationship is Glutz’s head office in Solothurn/Switzerland. However, Glutz is also entitled to institute proceedings against the customer at the place of its head office.
07/2019
General Conditions of Purchase
Glutz AG
4502 Solothurn
Switzerland
At as: 05/2020
1. General
1.1 These general conditions of purchase shall be binding on all orders of Glutz. Any conditions stipulated by the supplier which are in contradiction to these general conditions of purchase shall only be valid if expressly acknowledged by Glutz in writing.
2. Conclusion of and changes to the contract
2.1 Contracts, orders, and delivery call-offs as well as any changes or additions made to them must be placed and made in writing. Orders and delivery call-offs may also be made by remote data transfer or fax. Our packaging-terms and shipment-terms are integral elements of the contract.
2.2 Orders shall be deemed to have been accepted upon receipt of the suppliers written order acknowledgement in form of a countersigned, dated and stamped copy of Glutz‘s order and provided that all relevant technical and commercial details have been settled. The supplier must confirm each order within two weeks from receipt of the order, otherwise we are entitled to revoke the order at any time. Delivery call-offs are binding unless we receive written contradiction from the supplier within five working days (in Solothurn, Switzerland) of when the call-off was received.
2.3 Costs for preparing offers shall not be compensated by Glutz, unless agreed otherwise.
3. Delivery
3.1 Deviations from contracts, orders, and delivery call-offs in terms of type, quality, quantity, mass, and weight shall apply only if we have given our prior written approval. The values we determine at the time of the incoming goods inspection shall apply. Dates and deadlines that have been agreed upon are binding. Receipt of materials at the place of performance is the criterion that determines whether the delivery date or deadline was met. If free delivery to the plant (e.g. DAP or DDP as defined by Incoterms 2020) has not been agreed upon, the supplier must provide the materials on time, taking into account the time that will be required by the carrier for loading and shipping. Costs for preparing offers shall not be compensated by Glutz, unless agreed otherwise.
3.2 Dates and deadlines that have been agreed upon are binding. Receipt of materials at the place of performance is the criterion that determines whether the delivery date or deadline was met. If free delivery to the plant (e.g. DAP or DDP as defined by Incoterms 2020) has not been agreed upon, the supplier must provide the materials on time, taking into account the time that will be required by the carrier for loading and shipping.
3.3 Costs for preparing offers shall not be compensated by Glutz, unless agreed otherwise.
3.4 If the supplier is required to provide setup and/or assembly, the supplier shall be fully responsible for all auxiliary costs incurred, for example, travel expenses, providing tools and personnel etc., unless written provisions specify otherwise.
4. Subcontracting of Orders
41. Subcontracting of orders shall be permitted only upon prior w 4.1 ritten agreement of Glutz.
5. Freight costs, transfer of risk and place of performance
5.1 The corresponding Incoterms clause 2020 specified in the purchase order determines in particular payment of the freight costs and the transfer of risk. Deviations from these provisions may be negotiated depending on the situation, but require our explicit consent.
6. Guarantee, Liability for Defects
6.1 The guarantee period for all supplies is 24 months. It starts when the supplies have arrived at their place of destination. The Supplier guarantees that express warranties are strictly observed. An express warranty is valid until the expiry of the guarantee period.
6.2 The supplier ensures, that the relevant legal requirements regarding the treatment of employees, environmental protection and health and safety at work, are met. If specific requirements, in particular from REACH and RoHS regulations or relating to conflict resources, cannot be complied with or if deviations are presumed, the supplier must notify Glutz immediately.
6.3 Upon written request of Glutz, the supplier undertakes at the choice of Glutz to either repair or replace free of charge and as quickly as possible any parts of the supplies which, before the expiry of the guarantee period, are proved to be defective due to bad material, faulty design or poor workmanship.
6.4 For replaced or repaired parts the guarantee period starts anew and lasts 6 months after replacement or completion of the repair, but not longer than the expiry of a period being double to the guarantee period stipulated in paragraph 6.1.
6.5 The Supplier shall be responsible to take out adequate product liability insurance. If Glutz would like to see the contract of the insurance, the supplier has to show Glutz with a copy.
6.6 Should due to supplier‘s acts or omissions or persons employed or appointed by supplier any persons be injured or any damage occur to any third party‘s property and as a consequence thereof an action be taken against Glutz, Glutz shall have a right of recourse on the supplier.
7. Delivery Guarantee
7.1 The supplier guarantees the supply of spare parts for maintenance and repair of its supplies for a period 5 years from the date of delivery of goods.
8. Invoicing, Payment Terms
8.1 Invoices shall be issued in two copies. A separate invoice will be issued for each delivery showing the order number and separately invoiced VAT, if any. For the supply of goods each invoice position must show the country of origin, the customs tariff number, the possible preference according to the applicable Free Trade Agreements or the respective proof of origin must be indicated in a formally correct manner.
8.2 Unless agreed otherwise, payments shall be effected within 10 days with 3% discount, or 30 days with 2% discount or 60 days net.
8.3 Payments shall be effected independent from inspection of the supplies after their arrival at the place of destination. Payments or partial payments shall not be considered as an acceptance of the quantities, the price or the quality of the supplies by Glutz.
9. Inspection. Taking-over of the Supplies and Services
9.1 As far as being normal practice, the supplier shall inspect the supplies and services before dispatch.
9.2 Glutz shall inspect the supplies and services within a reasonable time from the date of their arrival at the place of destination and shall immediately notify the supplier of any deficiencies. If Glutz fails in doing so, the supplies and services shall be deemed to have been taken over.
9.3 Having been notified of the deficiencies according to Clause 9.2, the supplier shall as soon as possible remedy them and Glutz shall give the supplier the possibility of doing so.
10. Supplies by Glutz
10.1 For orders for which it was agreed that Glutz shall provide any kind of material, the supplier shall be responsible to off-call such material in the required quantity and at the appropriate time.
10.2 Materials, parts, containers and special packaging provided by us remain our property. These may only be used as designated.
11. Tools and Models
Tools and models which are put at the disposal of the supplier or which have been fully or partly paid by Glutz may only be used by the supplier for their intended purpose. The tools and models must be stored and maintained by the supplier according to their nature. They shall be insured by the supplier, unless agreed otherwise. The destruction of the tools and models is allowed only upon specific written consent by Glutz.
12. Technical Documents and Confidentiality
12.1 Glutz retains at all times all right to drawings, calculations, models, samples and electronic data, including all other materials put at the disposal of the supplier. This information shall not be disclosed to third parties unless agreed by Glutz in writing.
12.2 All data, information and materials, latter as far as not being used up, shall be returned by the supplier to Glutz without retaining any copies. The supplier shall keep secret the order and the work and the supplies involved.
12.3 This also includes information which does not contain the name of Glutz.
13. Infringement of Patents
13.1 The supplier warrants that no patents or any other third party rights will be infringed by the supply and use of such supplies by Glutz. Excluded from this warranty shall be supplies according to design of Glutz.
14. Product liability
14.1 In the event a product liability claim is asserted against us, the supplier is obliged to hold us harmless from such claims if and to the extent the damage was caused by a defect in the product supplied by the supplier. In cases of liability based on fault, this only applies, however, if the supplier is at fault. Insofar as the cause of the damage falls within the area of responsibility of the supplier, the supplier shall have the burden of proof to that extent.
14.2 In cases of indemnification from product liability, the supplier shall be responsible for all costs and expenses including any costs for legal defense or recall actions. Legal provisions shall also apply. In all other respects the provisions of statute shall apply. Prior to any recall action which is partially or wholly due to a defect in a product supplied by the supplier, we shall notify the supplier, give the supplier the opportunity to collaborate and discuss with the supplier the efficient conduct of the recall action, unless no notification of or collaboration by the supplier is possible on account of the particular urgency. The costs of the recall action shall be borne by the supplier insofar as a recall action is due to a defect in a product supplied by the supplier.
15. Social responsibility and environmental protection
15.1 The supplier shall comply with the respective statutory provisions governing the treatment of employees, environmental protection and health and safety at work and to work on reducing the adverse effects of its activities on human beings and the environment. In this respect the supplier shall set up and further develop a management system in accordance with ISO 14001 within the realms of its possibilities.
16. Jurisdiction and applicable law
16.1 The exclusive place of jurisdiction and the place of performance shall be Solothurn / Switzerland. Glutz shall, however, be entitled to sue the supplier at the latter‘s registered address.
16.2 The contract shall be governed by Swiss substantive law, under exclusion of the Vienna Convention on the International Sale of Goods (CISG).
