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Schiller AG
General Conditions of Sale
IMPORTANT NOTE: These terms and conditions apply in the absence of a previously signed written contract between Schiller and its customer or between Schiller and its authorized distributor.
1. General
1.1 These Terms and Conditions of Sale and Delivery of Schiller (“the Terms” or “these Terms”) are binding upon customer when they are declared applicable by Schiller in a Purchase Order (which has a weblink reference to these Terms or attaches these Terms as the case may be), and when the Purchase Order is confirmed in writing by Schiller (“ the Order Confirmation”); and to the extent Schiller and the customer do not expressly and in writing agree to other terms or there exists at the time of the placing of the order a binding, written agreement between the parties setting forth the terms and conditions of sale, whether the other party is a customer or a distributor, in which case such other written agreement shall govern and control. Differing terms and conditions of sale or delivery proposed by the customer will only be binding or modify any existing agreement only to the extent that such terms and conditions are expressly accepted by Schiller in writing. Unless otherwise provided or set forth in a written agreement between Schiller and customer, the relevant rules of the Swiss Code of Obligations (OR) shall apply. For purposes of these Terms, the term “customer” shall mean a customer purchasing products directly from Schiller or a distributor purchasing such products for resale without an existing written contract with Schiller. The term “the Contract” shall mean these Terms and the written Order Confirmation as confirmed in writing by Schiller.
1.2 Unless otherwise provided or set forth in a written agreement between Schiller and customer, a contract for a specific order shall be created and be binding subject to these Terms only when the customer receives written confirmation of Schiller by way of Order Confirmation confirming that Schiller accepts the order described therein.
2. Rules in the country of destination, protection devices and rules
2.1 The customer shall, at the latest at the time the Purchase Order is placed with Schiller, or at Schiller’s request, disclose and point to Schiller’s attention the rules and regulations applicable in the customer’s country with respect to the services and deliveries of Schiller, especially rules and regulations for protection against disease or accidents or business disruptions.
2.2 The deliveries and services of Schiller products set forth and described in the Order Confirmation are intended to correspond to the rules and regulations at the domicile of the customer, insofar as they are known to Schiller at the time of written acceptance of the Purchase Order by Schiller, but it shall be the customer’s exclusive responsibility to alert and notify Schiller regarding any such rules and regulations.
2.3 The use of hazardous substances and the management of electrical and electronic equipment are intended to meet the fundamental requirements of the WEEE and RoHS Directives (2002/96/EC and 2002/95/EC).
3. Prices
3.1 All Prices quoted by Schiller are strictly net, ex works (EXW, Incoterms 2020), in Swiss Francs, without any deductions. All extra costs, e.g. for packaging, freight, insurance, export, transit, import and other permissions, as well as certifications, are payable by the customer, unless otherwise agreed to in writing by Schiller.
4. Terms of payment
4.1 The customer must effect and make payments to Schiller at the domicile of Schiller in Baar, Switzerland (according to any payment instructions required by Schiller in the Order Confirmation) within thirty (30) days after issuance of an invoice by Schiller or according to the agreed terms of payment. Payment shall be made by customer without any deduction, set-off, withholding or discount, expenses, taxes, duties, fees, tolls and similar offsets. If payment by promissory note is agreed to by Schiller, the customer shall bear all interest, note taxes and expenses of collection, including reasonable attorney’s fees and costs incurred by Schiller to collect any amounts due under said promissory note, which shall be a separate written instrument.
4.2 Customer must comply with the agreed payment terms and schedule set forth in the Order Confirmation and make such payments in full even if transport, delivery, installation, putting into operation or acceptance of the deliveries or services are delayed or made impossible for reasons for which Schiller is not responsible, or if insignificant parts are missing, or if reworking measures are necessary, that do not make the use of the delivered products impossible or unacceptable. It shall be the sole responsibility of customer to address and resolve any and all issues customer may have or that may arise with customs and government officials, and shipping, transportation and /or warehouse personnel for release and delivery of the products to customer at the destination.
4.3 If the customer does not comply with the payment terms of the Order Confirmation, the customer shall be responsible for and pay interest on the amount in arrears as of the agreed payment date. Interest shall accrue on and apply to arrears and shall correspond to the usual prevailing annual interest at the domicile of Schiller in Baar, Switzerland, but shall be not less than five percent (5%). This provision requiring customer to pay interest is not a waiver of Schiller’s rights to seek any additional compensation and/or damages against customer, and all such rights are expressly reserved herewith.
4.4 If customer does not make any required down-payment towards the Contract and/or provide any guarantee of payment as may be required by Schiller in its sole discretion, Schiller shall have the right to cancel the Contract at Schiller’s convenience or for cause, and Schiller may withdraw performance thereunder without liability to the customer, reserving and not waiving any and all rights against customer to be paid compensation for any damages or losses incurred in preparing to perform and/or beginning to perform, as the case may be.
4.5 If the customer at any time during performance of the Contract by Schiller or the applicable term of the Order Confirmation fails to make any installment payments that may be agreed-upon by Schiller or set forth in the Order Confirmation, or make final payment or fails to comply with the payment terms of the Order Confirmation, or if Schiller has good faith reasons to believe that payment may not be forthcoming from customer, Schiller shall have the right to suspend performance of the Contract and not deliver the product or cancel the Contract after giving notice to the customer and an opportunity to perform within a reasonable period of time, without any liability to customer and reserving and not waiving any and all rights to compensation for any damages or losses incurred in performing or arising out of the suspension or cancellation.
5. Retention of title
5.1 Schiller retains title and ownership of its products until they are fully paid.
Customer agrees that Schiller shall have all rights and remedies available in the local jurisdiction where the products may be located to register, protect, preserve and establish Schiller’s ownership and any lien or encumbrance to protect said ownership. Customer grants to Schiller a security interest in all products sold and all proceeds thereof to secure the full payment and performance by customer of its obligations and liabilities to Schiller hereunder. In any bankruptcy or liquidation or dissolution, customer agrees that Schiller shall have the rights of a secured and protected creditor with respect to any unpaid Schiller products.
5.2 To the extent customer may receive and be in possession of Schiller products when title and ownership have not passed to the customer, the customer agrees to keep and maintain adequate insurance to cover said products and protect Schiller’s ownership in and title to them and to adequately and fully insure said products against fire, flood, earthquakes, war, riots, hurricanes, typhoons, tornados, terrorist attack, acts of God and other risks.
6. Term of delivery
6.1 The date of delivery of Schiller products shall only be binding when it is specifically confirmed in writing by Schiller by way of the written Order Confirmation as confirmed in writing by Schiller. Customer agrees that delivery shall not be made by Schiller until all official formalities such as import, export, transit and payment permissions are obtained by customer, and after full payment for the products is made to Schiller, unless otherwise agreed to in writing by Schiller. Delivery is expressly made contingent on compliance by customer with these Terms.
6.2 Customer agrees that Schiller may reasonably modify the date of delivery for or because of any or a combination of the following reasons:
(a) when customer has not provided Schiller with the information or specifications needed to fulfill the Contract in due time, or when the customer changes the information or specifications after the Purchase Order is confirmed by Schiller in writing or customer otherwise causes a delay of the deliveries or services;
(b) Force Majeure events over which Schiller has no control, such as fires, earthquakes, hurricanes, typhoons, tornados, tsunamis, floods, epidemics, war, riots, strikes, terrorist acts, labor disputes, lack of or late supply of raw materials, semi-finished or finished products, government official measures, and acts of God;
(c) Customers or third parties affiliated with or used or retained by customer are delayed with respect to customer’s performance or tasks that customer is required to perform under the Contract.
7. Packaging
7.1 Customer agrees that Schiller will invoice customer and be paid for special packaging separately, unless otherwise agreed by Schiller in writing. Where Schiller has informed the customer that Schiller retains ownership of the packaging, and that Schiller wants such packaging returned back, customer agrees to return said packaging to Schiller free of charge and at Schiller’s reasonable cost per Schiller’s instructions to customer.
8. Risk of Loss
8.1 Risk of loss shall pass to the customer with the departure of the deliveries ex works (EXW Incoterms 2020).
8.2 If the shipment is delayed at the request of the customer for other reasons for which Schiller is not responsible, the risk shall pass to the customer at the point of time when delivery ex works was originally planned and was supposed to occur, regardless if the products are located at Schiller’s facilities. From that point of time forward, any Schiller products that are ready for delivery will be stored by Schiller for a reasonable time at the sole expense and risk of the customer.
8.3 Any changes to Schiller’s standard shipment and transportation procedures will only be binding on Schiller only upon previous written agreement by Schiller.
9. Warranties / Disclaimer of Liability / Acceptance by Customer
9.1 Unless another duration of the limited warranty period is otherwise stated by Schiller in writing in the Contract or in the OEM Schiller product literature included with the product, Schiller warrants its products to be free from defects in material and workmanship for a period of one (1) year from the date of delivery. This is a Limited Warranty and all other warranties, implied or express, are hereby disclaimed. The only remedy under this Limited Warranty for any defects is either repair by Schiller at Schiller’s cost or replacement of the product, at Schiller’s sole discretion. In no event will Schiller’s liability to customer exceed the purchase price of the product in question.
Exclusions: THIS LIMITED WARRANTY COVERS NORMAL USE ONLY. THIS WARRANTY BECOMES NULL AND VOID AND DOES NOT APPLY TO ANY PRODUCT THAT: (a) was sold by non-authorized Schiller distributors or representatives; (b) has been installed, altered, or repaired by non-Schiller authorized personnel or using non-Schiller parts or accessories, unless such installation, alterations, or repairs have been previously approved in writing by Schiller and have been properly performed in accordance with such approval; (c) has not been serviced, operated, maintained, and upgraded (including all software and firmware associated with it) per Schiller’s recommendations and/or specifications; (d) has been damaged or rendered defective by accident, shipment, handling, improper storage, abuse, misuse, neglect, modifications, misapplication, or a failure to exercise due caution in cleaning, maintenance, or operation; (e) has been damaged by any power line variations, such as voltage spikes and transients, noise, under or over voltage conditions, power outages, or any conditions caused by an act of God; (f) has been damaged with that damage attributable to any associated or complementary equipment or software not furnished by Schiller; (g) has been used in an application or manner for which it was not intended or operated under environmental, power, electrical and operating conditions which are beyond those specified by Schiller; or (h) sold by a website or e-commerce platform not previously authorized in writing by Schiller.
9.2 CUSTOMER AGREES THAT IN NO EVENT WILL SCHILLER OR ITS AFFILIATES, PARENT COMPANIES, SUBSIDIARIES, SUPPLIERS OR LICENSORS, OR ANY OF THEIR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY (INCLUDING BUT NOT LIMITED TO END-USER CUSTOMERS) FOR: LOST PROFITS, LOST DATA OR LOST USE, OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY INDIRECT, SPECIAL, ENHANCED, EXEMPLARY OR PUNITIVE DAMAGES REGARDLESS OF THE FORM OF ACTION, WHETHER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF ONE PARTY OR ANY OTHER PERSON HAS ADVISED SCHILLER, ITS AFFILIATES,SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR PARENT COMPANIES OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 Customer agrees that it shall inspect all deliveries of Schiller hereunder and advise Schiller in writing of any defects within five (5) days of receipt of the products. Failure to notify Schiller in writing within this period shall constitute acceptance of the products by Customer.
9.4 To the fullest extent permitted by law, customer agrees to indemnify and hold harmless Schiller and its affiliates, subsidiaries, parent companies, employees, officers, directors, shareholders, agents, and consultants harmless from and against any and all third party claims, losses, costs and damages of whatever nature, including but not limited to attorney’s fees, experts’ fees, and litigation costs and expenses, arising out of any negligence, errors or omissions or willful conduct by customer or breaches of the Contract by customer and involving personal injury, sickness, disease, death or property damages, including economic loss, but only to the extent caused in whole or in part by the negligent acts, willful conduct or errors or omissions of the customer or its employees, representatives or agents. This indemnification obligation shall survive termination of the Contract or its expiration or fulfillment by customer.
10. Governing Law / Jurisdiction / Litigation Fees and Costs
10.1 The governing law of the Contract shall be Swiss law unless otherwise agreed to in writing by Schiller. Any and all disputes under the Contract and/or these Terms shall be litigated in the Swiss court available at the domicile of Schiller AG in Baar, Switzerland, except that Schiller reserves the right to file suit in the country or jurisdiction of the customer, in Schiller’s sole discretion. The UN Convention on Contracts for the International Sale of Goods shall not apply.
10.2 If Schiller is the prevailing party in any litigation or dispute under the contract or these Terms, Schiller shall be entitled to recover and be paid by customer, Schiller’s reasonable attorney’s fees, experts’ fees and court costs and litigation expenses.
11. Other Provisions
11.1 Intellectual Property Rights: The products involve valuable patent, copyright, trademark, trade secret and other intellectual property rights of Schiller or its affiliated companies. Schiller reserves all such rights on its own behalf and its affiliated companies. No title to or ownership of any intellectual property rights related to any product is transferred to customer pursuant to these Terms. Customer shall not attempt to reverse engineer any product or component thereof (including any software) or to otherwise misappropriate, circumvent or violate any of Schiller’s, or its affiliated companies’ intellectual property rights.
11.2 Non-waiver: Any failure by Schiller to insist upon or enforce performance by customer of any of the provisions of these Terms or the Contract or to exercise any right or remedy under these Terms or the Contract Agreement or applicable law will not be construed as a waiver or relinquishment to any extent of Schiller’s right to assert or rely upon any such provision, right or remedy in that or any instance.
11.3 Assignment: Customer shall not assign the Contract to any party without the previous written consent of Schiller, and any attempt to assign it without such consent shall automatically render the purported assignment null and void.
11.4 Amendment: No amendment to these Terms or the Contract shall be binding upon Schiller unless Schiller agrees to such amendment in writing.
11.5 Severability: If any portion of these Terms or the Contract is determined by any court of competent jurisdiction or tribunal to be wholly or partially unenforceable, for any reason, such unenforceability shall not affect the balance hereof.
Version: December 2016
General Conditions of Purchase
1. General
The following provisions shall apply irrespective of whether the orders or deliveries to Schiller AG are goods or services. SCHILLER AG is hereinafter referred to as “SCHILLER”.
2. Scope and validity
Only orders placed by SCHILLER in writing (also electronically transmitted) and legally signed are valid. Orders, amendments and supplements placed verbally or by telephone shall only become binding upon written confirmation.
3. Applicable provisions and conclusion of contract
If SCHILLER’s order, including the General Terms and Conditions of Purchase, deviates from the supplier’s offer, the supplier’s silence will be considered as its consent to SCHILLER’s order. The acceptance of SCHILLER’s order by the supplier also excludes any other terms and conditions of the supplier, even if SCHILLER has not objected to them.
4. Pleas by the supplier
The SUPPLIER shall ensure that he possesses the current specifications listed on the purchase order and that the goods delivered to SCHILLER fully comply with these specifications. SCHILLER must be notified in writing immediately and prior to execution of the order of any doubts on the part of the supplier against the specifications specified in the order from SCHILLER.
5. Confirmation of order
The supplier must confirm the order received from SCHILLER in full and in writing within a maximum of 3 (three) days. The order confirmation must contain a delivery date indicating when the ordered goods will arrive at SCHILLER. If it is not possible for the SUPPLIER to send an order confirmation to SCHILLER within the aforementioned period, the SUPPLIER shall confirm receipt of the order in writing to SCHILLER.
6. Prices
The prices accepted by SCHILLER are binding. Unless otherwise agreed, all incidental procurement costs are included in the prices. Subsequent price increases are excluded unless SCHILLER expressly agrees to them in writing. Additional costs resulting from changes to the order can only be passed on to SCHILLER if they are notified and justified in writing within 30 days of the change to the order and SCHILLER expressly agrees to them in writing. In the case of deliveries for which prices have been agreed ex works abroad, all taxes, export charges and duties in the countries of delivery and transit shall be borne by the supplier, unless otherwise agreed in individual cases.
7. Delivery dates
The delivery dates stated in the order (goods arriving at destination) are binding. If these delivery dates cannot be met, SCHILLER must be informed immediately in writing. The supplier shall be fully liable to SCHILLER for all damages resulting from a delayed delivery. If the agreed delivery dates are exceeded, SCHILLER shall also be entitled to grant the supplier a grace period corresponding to SCHILLER’s needs and to insist further on performance after its unused expiry or to cancel the entire order. Partial deliveries or premature delivery of the goods is only permitted by agreement.
8. Required documents
Each shipment must be accompanied by a delivery note with the following information: SCHILLER order and article number, the exact description of the contents and, if required, the test certificates. For shipments imported into Switzerland, a delivery note must also be enclosed with the packaging.
9. Packaging, transport and customs
The supplier shall be liable for damage during transport as a result of inadequate packaging. The INCOTERMS 2010 shall apply with regard to the regulation and division of obligations between SCHILLER and the Supplier. Unless otherwise agreed, DDP (Delivery Duty Paid) shall apply.
10. Transfer of risk
Subject to special written agreements (e.g. INCOTERMS), the Supplier shall bear all risks of loss of or damage to the goods up to the place of destination.
11. Examination of merchandise
After receipt, SCHILLER will check the goods for their identity, the quantity of goods and for externally immediately recognisable defects and inform the supplier in writing of any defects within a reasonable period of time. SCHILLER shall notify the supplier of any other defects which are only discovered during the use, processing or intended use of the goods after the defects have been discovered. In this respect, the supplier waives the defence of late notification of defects.
12. Invoice, terms of payment and securities
Unless otherwise agreed, payment shall be made within 30 (thirty) days of receipt of the invoice and subject to the correct finding of the goods and/or services supplied. The supplier shall quote the SCHILLER order number on each recurring invoice as well as the country of origin and customs tariff numbers. In the case of advance payment, the supplier shall provide appropriate security (e.g. bank guarantee) upon request.
13. Warranty
The supplier fully guarantees the functionality and quality of all deliveries for two years from the date of delivery. In addition, the supplier guarantees that the supplies comply with all relevant standards and all applicable statutory provisions relating to work and operational safety as well as the relevant EU directives, in particular but not limited to RoHS compliance, REACH, SEC, Conflict Mineral Regulation and EMC regulations. Defective deliveries entitle SCHILLER to demand either replacement or subsequent improvement during the entire warranty period, at SCHILLER’s discretion. If SCHILLER has evidence that a similar defect exists in all delivered products, SCHILLER may carry out a replacement action, even if the warranty period has already expired. The same warranty period starts anew for all warranty deliveries or warranty work.
The supplier undertakes to assist SCHILLER in identifying defective parts at its own expense, sorting them out and determining the cause of the defect within a reasonable period of time and notifying SCHILLER thereof. In urgent cases or if the supplier is unable to remedy the defects immediately, SCHILLER shall be entitled to have the defects remedied or to remedy them itself at the supplier’s expense. If replacement or rectification is not made within the set period, SCHILLER shall be entitled to immediately cancel the entire order. In any case and without proof of fault, the supplier is obliged to pay SCHILLER full damages (including all consequential damages).
14. Product liability
If a claim is asserted against SCHILLER by an injured party due to product liability and if the cause of the defect can most probably be attributed to the supplier, the supplier shall be obliged to indemnify SCHILLER from this liability towards the injured party without restriction and without it having to prove any fault on his part. The supplier shall inform SCHILLER of all possible defects and potential or actual hazards arising from his supplier products which have occurred with other manufacturers/consumers or of which he has become aware in some other way. If SCHILLER itself has to warn customers or recall its own products due to defects of the supplied product, the supplier shall, without proof of fault, take out product liability insurance for SCHILLER for all necessary and own product liability and shall, upon SCHILLER’s request, submit a confirmation from the insurer or allow SCHILLER to inspect the policy.
15. Quality assurance and inspection rights
The supplier shall do everything necessary to ensure the quality assurance of the goods or parts thereof to be delivered. He shall ensure that only inspected goods are delivered to SCHILLER. Certain quality specifications (e.g. standards, drawings, specifications, product specifications) must be adhered to by the supplier. If the supplier is aware of the inaccuracy or potential danger of certain specifications, he must immediately notify SCHILLER in writing of this circumstance. SCHILLER is entitled to regularly check compliance with the specifications and the implementation of the necessary and agreed quality assurance measures at the supplier’s premises. The supplier shall grant SCHILLER the necessary access to the production facilities and inspection of its quality assurance measures, such as measurement reports, test results, samples, etc. in accordance with the statutory provisions.
16. Management of change
The supplier shall be obliged to obtain the written consent of SCHILLER before making any changes to products which are the responsibility of the supplier’s specifications and to provide the quality proofs required in this context. In the case of goods for which SCHILLER is responsible for specifications (technical specifications such as drawings by SCHILLER), the supplier is obliged to compare the revision status of his production documents with those of the current order from SCHILLER. Deviations must in any case be rectified with SCHILLER prior to the start of production or delivery.
17. Copyrights and Patents
The supplier is responsible for ensuring that the delivery does not infringe any third-party copyrights, patents, trademarks, utility models or existing statutory provisions. He shall be liable for all consequences of such an infringement.
18. Duty of confidentiality
The supplier undertakes not to disclose to any third party, either directly or indirectly, any knowledge and information which he may obtain in connection with the cooperation with SCHILLER or which he may otherwise obtain through the cooperation and not to use it himself for his own or other purposes.
19. Contract modifications
Amendments and supplements to the contract between SCHILLER and the supplier must be made in writing. Verbal agreements are invalid. If a provision of these General Terms and Conditions of Purchase is invalid, the remaining part of the General Terms and Conditions of Purchase shall nevertheless apply mutatis mutandis.
20. Applicable law and jurisdiction
The ordinary courts at SCHILLER’s registered office shall have exclusive jurisdiction for the judicial assessment of all disputes between the supplier and SCHILLER. However, SCHILLER has the right to sue the supplier at the supplier’s registered office.
Duty to provide information on substances as per RoHS and REACH regulations
The following European legal acts dictate restrictions and obligations to report information on substances:
- Directive 2011/65/EU of 8 June 2011 on the restriction of the use of certain hazardous substances in electrical and electronic equipment including the amendments by the directive (EU) 2015/863 of 31 March 2015 (“RoHS 2”)
- Regulation (EC) No. 1907/2006 of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (“REACH”)
As a result of these regulations, the communication concerning substances used in products will be improved between the customer and distributor. This includes both the substances in products you manufacture yourself and products you purchase from suppliers and which are components of the products ordered or supplied.
We kindly ask you to inform us upon the receipt of our order to comply with the RoHS and REACH regulations:
