1. Validity of the General Terms and Conditions
The deliveries, services and offers of AZ Fittings GmbH, with registered office at Gruebstrasse 3, CH-8374 Oberwangen, shall be effected, provided or issued to customers which are businesses or legal persons governed by public law, exclusively on the basis of these GTC. They shall also apply to future business relations in the form known at the relevant time. Any terms and conditions of business with contrary effect shall only be accepted if confirmed in writing by AZ Fittings.
2. Offer and conclusion of contracts
2.1 Our offers are subject to confirmation. Orders shall only be deemed to have been received by us upon written confirmation ("order confirmation") or invoicing by us. Delivery of the goods shall have equivalent effect to order confirmation. Oral side agreements, commitments etc. made by our staff shall only be binding if confirmed in writing by us.
2.2 AZ Fittings GmbH reserves ownership and copyright over illustrations, presentation objects, diagrams, calculations, data and other documentation.
2.3 The Customer shall be responsible for examining the order or offer in order to ensure that it is complete.
3. Delivery and performance periods, delays
3.1 The deadlines and periods specified by AZ Fittings GmbH shall be non-binding unless expressly agreed otherwise in writing (e.g. in the order confirmation).
3.2. Compliance with any delivery period shall be conditional upon fulfilment of the buyer's contractual duties and obligations to cooperate. Delivery periods shall start to run at the earliest upon conclusion of the contract, although not before all documents, clearances, technical clarifications etc. that must be produced by the buyer have been provided in full. Any alterations or additions requested by the buyer after conclusion of the contract shall only be valid if accepted in writing by AZ Fittings GmbH and shall extend the delivery period accordingly. In the event of any unforeseen occurrence beyond the control of AZ Fittings GmbH and/or force majeure occurrence the delivery period shall likewise be extended accordingly.
3.3 In the event that AZ Fittings GmbH fails to make delivery at the time required under contract, the buyer shall not be entitled to withdraw from the contract, to claim damages in lieu of the full performance or to request reimbursement of wasted expenditure unless the breach of duty by AZ Fittings GmbH was material.
3.4 AZ Fittings GmbH shall only be deemed to be in default following intimation of a dunning notice, unless specified otherwise by law or under contract. Dunning notices shall only be validly issued and grace periods shall only be validly set if intimated in writing.
3.5 In the event of delayed delivery, following the issue to us of a written dunning notice, the buyer may set a reasonable grace period with the intimation that it will refuse to accept the contractual object following expiry of that period.
4. Transfer of risk
4.1 Unless agreed otherwise, delivery shall occur ex works from the warehouse of AZ Fittings GmbH.
4.2 Risk shall transfer to the buyer as soon as the shipment is handed over the person responsible for transportation or has left the warehouse of AZ Fittings GmbH for the purpose of shipment; the same shall apply in the event that AZ Fittings GmbH arranges transportation using its own vehicles on behalf of the buyer.
5. Prices and payment
5.1 The prices charged shall be those stated in the price lists of AZ Fittings GmbH that are valid at the relevant time in addition to statutory value added tax at the relevant rate. Additional supplies and services shall be charged separately.
5.2 Unless agreed otherwise, prices are quoted ex works.
5.3 Unless agreed otherwise, the amount invoiced shall fall due for payment without any deduction after the invoice date. If contrary to agreement any goods falling under make-and-hold orders are not requested according to contract, we shall be entitled to charge storage costs following expiry of a reasonable grace period. Transportation and storage shall occur on the account and at the risk of the buyer.
5.4 Should any circumstances come to the attention of AZ Fittings GmbH that question the creditworthiness of the buyer, AZ Fittings GmbH shall be entitled to demand advance payments or collateral, even if the contract has already been concluded, which shall be without prejudice to any further statutory claims.
5.5 Cheques and bills of exchange, acceptance of which shall be subject to confirmation by AZ Fittings GmbH, shall only be deemed to constitute payment after the relevant amount has been credited. Any discounting or banking charges shall be borne by the buyer. The buyer shall only be entitled to offset or withhold payments if its counterclaims have been established with full legal effect, are undisputed or have been acknowledged by AZ Fittings GmbH.
5.6 Goods shall be delivered in accordance with these terms and conditions (clause 8) subject to a reservation of title.
6. Claims relating to defects
6.1 If the object purchased features a defect imputable to AZ Fittings GmbH, AZ Fittings GmbH shall in the first instance and in all cases be granted the opportunity to effect remedial performance within a reasonable period. NLT shall at its choice be entitled to choose between rectification of the fault and delivery of a replacement. The buyer shall only be entitled to make a claim relating to a defect if it has complied with its statutory duties to inspect the goods and report any defects. All claims shall be excluded in the event that a defect is reported late.
6.2 If remedial performance is unsuccessful, upon expiry of a further grace period the buyer may also withdraw from the contract or reduce the purchase price, provided that the statutory prerequisites are met. Damages claims shall be governed by clause 7 of these General Terms and Conditions of Business.
6.3 Claims relating to defects must be brought within 12 months; the relevant period shall commence upon transfer of risk. In cases involving wilful action or gross negligence on the part of AZ Fittings GmbH or personal injury or loss of life, the statutory provisions shall apply.
7. Liability and damages claims
7.1 No damages claims may be brought against AZ Fittings GmbH or its staff on any legal basis whatsoever except and insofar as agreed below.
7.2. AZ Fittings GmbH shall be liable to pay damages and to make good any wasted expenditure pursuant to §§ 437(3) or 634(4) of the German Civil Code in conjunction with §§ 636, 280, 281, 283 and 311a and pursuant to § 284 of the German Civil Code (hereafter "damages") in relation to the breach of duties under contract or tort only a) in cases involving wilful action or gross negligence, b) in relation to negligent or intentional loss of life, personal injury or damage to health, c) on account of the provision of a quality guarantee, d) in relation to the negligent or intentional breach of material contractual duties, e) on account of strict liability under the Product Lability Actor f) on account of any other form of strict liability.
7.3. However, damages for the breach of material contractual duties shall be limited to foreseeable losses typical for the contract save in cases involving intentional action or gross negligence or loss of life, personal injury or damage to health or in the event that a quality guarantee has been provided. The foreseeable amount of the foreseeable loss that may be expected shall not exceed the value of the goods. The buyer must draw the attention of AZ Fittings GmbH to any higher amount and/or special risks of loss prior to conclusion of the contract.
8. Reservation of title
8.1 The goods delivered shall remain the property of AZ Fittings GmbH until payment in full of all claims pertaining to the business relationship between AZ Fittings GmbH and the buyer. Our individual deliveries shall thus constitute one single continuous supply transaction. The recognition of the outstanding balance shall not affect the reservation of title. Payment shall only be deemed to have been made upon receipt of the countervalue by AZ Fittings GmbH.
8.2 In the event of a breach of contract by the buyer, including in particular payment default, AZ Fittings GmbH shall be entitled to recover the object purchased. Recovery of the object purchased by AZ Fittings GmbH shall not imply withdrawal from the contract, unless AZ Fittings GmbH has expressly made a declaration to that effect in writing.
8.3 In the event that the goods are sold on to a third party in accordance with their intended purpose, the buyer hereby assigns all claims arising against its own customer in relation to the sale along with all ancillary rights until our claims have been settled in full. We hereby accept the assignment. If there are justified grounds to do so, the buyer shall give notice to its customers of the assignment to us and provide us with the information and documents necessary in order to exercise our rights. We shall release the collateral held by us insofar as its value exceeds the claims to be secured by more than 10%.
9. Place of performance / jurisdiction / applicable law
9.1 The place of performance shall be at the registered office of AZ Fittings GmbH in Oberwangen.
9.2 The place of jurisdiction shall be 8374 Oberwangen.
9.3 These terms and conditions and all legal relations between AZ Fittings GmbH and the buyer shall be governed exclusively by Swiss law.
Should any of these General Terms and Conditions of business be or become invalid, this shall not affect the efficacy of the remaining terms and conditions. In such an eventuality, the parties rather undertake to agree to a valid clause in place of the invalid clause that comes as close as possible to the economic purpose of the invalid clause. The same shall apply in relation to any gaps.