General Terms and Conditions of Delivery and Service

Bankkonten:

Zürcher Kantonalbank, 8706 Meilen:

IBAN-Code CHF: CH12 0070 0112 7001 0219 2
IBAN-Code EURO: CH20 0070 0132 7000 2076 1

BIC: ZKBKCHZZ80A

1. Scope

1. The following General Terms and Conditions of Delivery and Service apply for all our deliveries and services.  The General Terms of Delivery and Service (hereinafter referred to as "Terms of Business") apply exclusively. We do not recognize any customer terms of business that conflict with or deviate from these Terms of Business unless we have explicitly agreed to their validity in writing. These Terms of Business shall also apply if we, in the knowledge of customer terms of business that are contrary to or deviate from our Terms of Business, perform the delivery or service to the customer unconditionally.
2. Our employees are not authorized to enter into verbal contractual agreements, verbal changes to these conditions, or any other verbal agreements.
3. In addition to these Terms of Business, the "Supplementary Clauses for the Acquisition and Use of Software", which can be accessed at www.jumo.net, shall also apply to the provision of software.
4. These Terms of Business shall also apply in their respective version as a framework agreement for future contracts for delivery of movable goods with the same Customer, without us having to refer to them again in each individual case.
5. Individual agreements made with the Customer in individual cases (including subsidiary agreements, supplements and amendments) shall take precedence over these Terms of Business in every case. A written contract or respectively our written confirmation shall be decisive for the content of agreements of this type.

2. Quotation and order confirmation

1. Our quotations are non-binding. The scope of our obligation to perform shall be determined solely by our written order confirmation.
2. The statements on the object of service or delivery (hereinafter referred to as "deliverable") (e.g. weights, dimensions, use values, load capacity, tolerances, technical data, etc.) as well as representations of the same (e.g. figures, drawings, etc.) are only approximately decisive, unless usability for the contractually intended purpose requires exact compliance. These are not guaranteed characteristics, but descriptions or identifications for the delivery. Deviations usual in the trade as well as deviations that arise due to legal specifications or represent technical improvements, as well as the replacement of components with equivalent parts, shall be permissible unless they impair usability for the contractually intended purpose.

3. Copyright and retention of ownership on drawings and similar.

1. We retain ownership of drawings, sketches, technical documents, etc. and other documents attached to our quotations and order confirmations. The customer shall be permitted to use them only for the agreed purpose and shall not be permitted to reproduce them or make them accessible to third parties without our consent. These documents themselves and all copies thereof must be returned to us on request.
2. If these documents are eligible for copyright protection, we also reserve our copyright to these documents. .

4. Delivery and delay

1. For service or delivery dates and deadlines (hereinafter referred to as "Delivery Deadline") to be binding requires that the customer provides us with documents and other required information promptly and is not in default with its collaboration or with its other material contractual obligations, in particular payment obligations.
2. Partial deliveries or services are permissible if reasonable for the customer.
3. If a term of delivery is stipulated in the contract, it does not begin until the contract is concluded, all administrative formalities, such as import and payment permits have been obtained, the payment and possible collateral due at the time of ordering have been effected, and the material technical issues have been resolved. The term of delivery is regarded as adhered to if, at the end of the term, the objects to be delivered are completely constructed in the factory and ready for shipment.
4. In the following cases, we shall have the right to demand a reasonable extension of the delivery deadline:
   a) The information required for the performance of the service is not supplied promptly by the customer or is subsequently amended.
   b) Events impossible to prevent despite using all necessary caution occur (force majeure), such as epidemics, mobilization, war, unrest, strikes and other labour disputes, significant disruptions in our operation, accidents, late or faulty supply of the necessary raw materials, semi-finished or finished products, important workpieces becoming defective, administrative or other measures of any kind, transport barriers, natural events, etc.
5. If an ordered deliverable cannot be delivered because despite the supplier's contractual obligation we are not supplied by our own supplier through no fault of our own, we shall be entitled to withdraw from the contract. In this case, we shall immediately inform the customer that the ordered goods are not available, and we shall immediately refund any payments already made.
6. If a contract penalty for delayed deliveries is to be stipulated, this requires a special written agreement that also sets out its conditions. The contract penalty can only become valid if it is verifiable that our company is responsible for the delay and only if the customer can prove that losses were incurred due to the delay. Above all, the entitlement to a contract penalty becomes void if compensation deliveries can solve the customer's problem.
7. The customer expressly waives the right to rescind the contract in case of a delayed delivery. Liability for consequential damages is excluded.
8. If special legal, administrative, or other regulations, which must be observed when delivering and installing the devices, apply in the place of destination, it is the customer's responsibility to expressly inform us of these regulations and send us the corresponding documents. In this case, communication with the authorities and, in particular, obtaining the required licenses in due time and/or other formalities are the customer's responsibility. The customer must pay all costs incurred as a result of this as well as all costs caused by delays.

5. Transfer of benefit and risk

1. The benefit and risk shall transfer to the customer with transfer of the deliverable to the haulage contractor, carrier, or collector, or if transported by us, however not later than upon departing our stores or the manufacturing plant.
2. If the customer has placed a call order, it must correctly call the deliverable – if ordering several deliverables, all of them – within 12 months from the date of the order, unless agreed otherwise by the contractual partners.
3. If shipment cannot be carried out on time for reasons beyond our control, the shipment will be put in storage at the customer's cost and risk and generally delivered only when full indemnity is provided.
4. Transport is carried out at the customer's cost and risk. If special directives concerning shipment and insurance of the delivery have to be adhered to, we must be informed of these in due time. The customer must immediately inform the most recent transport carrier of any transport-related complaints on receipt of the delivery or the freight documents. We must be immediately informed of this; otherwise, the delivery is considered approved.
5. Insurance against damage of any kind is the customer's responsibility. If we are instructed to take out insurance, we will do so on behalf of the customer and at the customer's cost and risk.

6. Prices and payment conditions

1. The prices stated by us are in the currency stipulated in the order confirmation, ex delivery works, without any deductions, plus VAT at the statutory rate applicable at the time of delivery. All ancillary costs such as packaging, freight, insurance, and export, import and other authorizations etc. will be charged separately. Similarly, any taxes, duties, fees, customs duties, etc. will be charged separately.
2. The purchase price must be paid net within 30 days of the invoice date.
3. If a cost component within the overall costs changes (e.g. personnel costs or hourly rates or demonstrably third-party-related material or other costs, change in the scope of delivery and services, etc.), we shall adjust the price on a proportionate basis.
4. In the case of change requests from the customer after conclusion of the contract, we reserve the right to adjust the prices correspondingly, as well as the delivery deadlines already agreed.
5. Retaining payments or offsetting against customer's claims which are disputed by us, are not recognized, are not legally upheld, or are not ready for decision in pending court proceedings, are excluded.
6. In the case of non-compliance with the terms of payment, or if we become aware, after concluding the contract, that payment is at risk as a result of the customer's inability to pay, we reserve the right to carry out outstanding deliveries only for payment in advance or for provision of security deposits.
7. The duty to pay will only be regarded as fulfilled once the payment has been credited to an account of Mess- und Regeltechnik AG, Stäfa, in the agreed currency, without any deductions, such as discounts, business expenses, taxes, and fees, in accordance with the terms contained in the order confirmation. If partial deliveries are invoiced, payment must be made for each individual delivery.
8. The terms of payment also have to be adhered to if transport, delivery, assembly, commissioning/start-up, or acceptance of the delivery are postponed or made impossible for reasons beyond our control. Payment also has to be made if insignificant components are missing, as long as the delivery is not impossible to use, or if reworking proves to be necessary as long as this does not significantly affect its use.
9. After expiry of payment deadline (maturity date), the customer shall enter default with preceding warning. The default interest is 5% p.a.

7. Retention of ownership

1. We retain ownership of all delivery items until full payment of all claims to which we are entitled from the business relationship with the customer. In particular, the customer agrees that the retention of title can be entered in the retention of title registry.
2. The customer may not pledge or otherwise transfer the delivery item as security. In the event of seizure or forfeit, or other disposal by third parties, the customer shall immediately inform us thereof.
3. In the event of conduct by the customer that is in breach of the contract, in particular in the event of default, we reserve the right to recall the goods after dunning and to require the customer to return the goods.

8. Warranty and liability

1. We grant a warranty period of 12 months for the products we supply. The warranty period begins when we make the goods to be delivered ready in our works. If shipment is delayed for reasons beyond our control, the warranty period ends 18 months after notification of readiness for shipment at the latest.
2. If parts of our delivery become defective or unusable during the warranty period and this is verifiably the case due to inadequate materials, faulty construction, or faulty design, we are obliged to either repair or replace the parts in question as quickly as possible according to our choice. If parts are replaced, they become our property.
3. In the case of a warranty claim, we are only obliged to pay the costs incurred by repair work or the replacement of the faulty component in our workshops. Any transport costs are to be paid by the customer. If faulty parts cannot be repaired or replaced in our workshops for reasons beyond our control, all additional costs incurred due to this are to be paid by the customer.
4. If parts have to be replaced or repaired during the warranty period, the warranty period for those parts starts over again. However, at the latest it ends 24 months after the beginning of the warranty period for the main delivery or if the main delivery's shipment, installation, or commissioning/start-up was delayed for reasons beyond our control, at the latest 30 months after readiness for shipment of the main delivery.
5. Damage caused by natural wear and tear, incorrect, careless or faulty maintenance, installation or commissioning of the deliverable by the customer or a third party, non-adherence to operating regulations and instructions, incorrect operation, excessive load, use of unsuitable operating materials and alternative materials, chemical or electrolytic influences, sandy, encrusting or contaminated water, corrosion, erosion, cavitation and similar reasons, faulty foundation, construction and installation work not carried out by us, and other reasons beyond our control is exempt from all warranty claims.
6. The warranty immediately becomes null and void if the customer or third persons modify or repair the delivery without our written agreement or if the customer does not immediately take suitable measures to reduce possible damage or prevent it from worsening. The same applies if we can remedy the fault.
7. Warranty claims must be asserted in writing and with the reasons for the claim included prior to the expiry of the warranty term. Otherwise, we are exempt from our warranty obligation.
8. If our delivery also includes third-person deliveries, we will only assume the warranty for these within the scope of the subsupplier's warranty obligations.
9. Claims for compensation for damages of any kind as well as withdrawal from the contract, regardless of the material and legal reasons, and namely for such damages that have not occurred to the deliverable, are explicitly ruled out.

9. Assembly and services

1. Unless agreed otherwise in writing, assembly work and services (repairs and maintenance) shall be remunerated. The remuneration shall include, in particular, travel costs, daily allowances, and the usual rates for working hours, and surcharges for overtime, night work, Sunday work, and work on public holidays, for work under difficult circumstances, and for planning, and monitoring.
2. We shall charge the costs for preparatory work, travel, waiting time, and transit time separately. If the assembly or commissioning is delayed for reasons for which we are not responsible, the customer shall bear all costs for the waiting time, and for other necessary travel.
3. At its own cost, the customer shall provide the necessary support staff with the tools they require in the necessary number. In order to protect our property, as well as the assembly and service staff, it shall take the measures which it would take in order to protect its own property. If the nature of the customer's business requires particular protective clothing and protective equipment for the assembly and service staff, it shall also provide this.
4. Our assembly and service staff and their vicarious agents are not authorized to carry out work, which is not performed in order to fulfil our obligation to deliver and erect or assemble the deliverable, or which is arranged by the customer or a third party without consulting us.
5. If assembly is performed by the customer or by a third party engaged by it, our respective operating and assembly instructions must be observed.
6. When carrying out service work (repair and maintenance work), we can decide at our discretion, on the basis of our experience and technical assessment, whether we carry out the service work at the customer's premises or in our own premises. If the service work is to be carried out in our premises, the customer shall send us the item. After completing the service, we shall return the item to the customer. The customer shall bear the risk of loss or damage, along with the transport costs.
7. Insofar as the customer does not report the fact that it has made changes, the devices shall be reset to the standard configuration after the service. If the customer has informed us of altered settings and programs, we shall configure and program the item correspondingly after completing the service. However, the customer is required to check these settings. We do not assume any guarantee for this. Furthermore, we do not assume responsibility for the function after incorporation of our product in the plant.
8. Our service engineer is only authorized to carry out service work to parts other than those supplied by us if a quick and easy solution is expected, and the customer expressly places a corresponding supplemental order.
9. Our engineer can cancel the service if it is found that he is unable to provide a remedy in the expected short time. In this case, the customer shall also pay the time-based remuneration and pay for the material used in carrying out the supplemental order.
10. It is incumbent upon the customer to check whether claims from delivery and maintenance agreements with third parties will be affected or lost as a result of the issue and execution of a supplemental order.                      We do not accept any liability for this.
11. If devices to be serviced are delivered, and in the event of returns, the customer shall always strictly comply with the respective applicable version of the Ordinance on Hazardous Substances.
12. In particular, the customer shall also package and label devices which are filled with hazardous substances, or which otherwise come into contact with same, taking into account the statutory conditions correspondingly. In addition, the customer must explicitly point out in the service order that the device will be associated with hazardous working materials in the sense of the Ordinance on Hazardous Substances and, where needed, enclose a safety datasheet.
13. We reserve the right to assert any claims for damages in the event of non-compliance with the Ordinance on Hazardous Substances.

10. Export control regulation

1. The contractual performance is provided under the condition that there are no legal conflicts due to national or international regulations, in particular export control regulations as well as embargos or other trade and foreign trade law restrictions. The Purchaser undertakes to provide all information and documents required for the export, transfer or import.
2. Delays in delivery due to necessary export inspections or approval procedures shall invalidate agreed delivery periods and dates. The Supplier is obliged to inform the Purchaser immediately of the delay in delivery and its cause. In the event of a delay in delivery of more than one month, the Contractual Partners shall be entitled to withdraw from the Contract to the extent affected by the delays in delivery by means of a corresponding written declaration, without the other Contractual Partner being entitled to damages as a result.
3. If required official (export) permits are not granted or if the performance of the Contract is not subject to approval or if the Purchaser breaches its obligation to provide all necessary information and documents to obtain the required permits despite the Supplier setting a reasonable deadline, the Supplier shall be entitled to rescind the Contract to the extent affected. Claims for damages by the Purchaser shall be excluded in accordance with clause 8.
4. Supplier is entitled to terminate the Contract without notice if termination is required for Supplier to comply with national or international legal provisions. In the case of such termination, the enforcement of damages or other rights by Purchaser due to the     termination or its consequences is excluded.

5. The Purchaser/Importer shall not sell, export, or re-export, directly or indirectly, to the Russian Federation or for use in the Russian Federation, any goods supplied that fall under the scope of Article 12g of Regulation (EU) No 833/2014 or Regulation (EU) No 756/2006 of the Council.

6. The Purchaser / Importer shall undertake its best efforts to ensure that the purpose of paragraph 10.5 is not frustrated by any third parties further down the commercial chain, including by possible resellers.

7. The Purchaser / Importer shall set up and maintain an adequate monitoring mechanism to detect conduct by any third parties further down the commercial chain, including by possible resellers, that would frustrate the purpose of paragraph 10.5.

8. Any violation of paragraphs 10.5, 10.6 or 10.7 shall constitute a material breach of contract, and the Supplier / Exporter shall be entitled to seek appropriate remedies, including, but not limited to: (i) termination of the Contract; and (ii) a penalty of 5 % of the total value of the Contract or price of the goods exported, whichever is higher.

9. The Purchaser / Importer shall immediately inform the Supplier / Exporter about any problems in applying paragraphs 10.5, 10.6 or 10.7, including any relevant activities by third parties that could frustrate the purpose of paragraph10.5. The Purchaser / Importer shall make available to the Supplier / Exporter information concerning compliance with the obligations under paragraph 10.5, 10.6 or 10.7 within two weeks of the simple request of such information.

11. Place of fulfillment, place of jurisdiction and closing regulations

1. The place of fulfillment and place of jurisdiction for both parties shall be at the registered office of our company, or, based on our choice, at the registered office of the branch office that concluded the contract. However, we shall also be entitled to bring an action before the courts in the country where the customer has its registered office or place of residence.
2. The contract as well as the legal relationships between the parties, including those that do not arise directly from the contract, shall be subject exclusively to Swiss substantive law, to the exclusion of international private law and the United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention).

Stäfa, 1 May 2024

Supplementary clauses concerning Section 1.3 GTC - JUMO Schweiz AG

Supplementary clauses concerning Section 1.3 Download (pdf 49 kByte) Version 10/2018

1. Object of the supplementary clauses

1. The purpose of these supplementary clauses is to supplement and amend the “General Terms and Conditions for Delivery and Service” of JUMO Schweiz AG, hereinafter referred to as “GTC”, in accordance with the provisions below.
2. The object of these supplementary clauses is software which is regularly provided as part of a product.
3. These supplementary clauses do not oblige the Supplier in any way to provide software services. Such services shall only be provided subject to a separate agreement.

2. Transfer of risk

1. By way of supplement to Section 5 GTC, the following shall apply:
   Upon delivery of software via electronic communications media (e.g. via the internet, email, storage media, etc.) the transfer of risk occurs once the software has left the sphere of influence of the Supplier (e.g. the Supplier’s server in the case of downloads).

3. Liability for loss of data

1. By way of supplement to Section 8 GTC, the following shall apply:
   Should any defect in the software provided cause loss of or damage to data and programs belonging to the Customer, the Supplier shall only be liable to the extent outlined in Section 8 et seqq. GTC.

4. Documentation

1. The Customer must purchase the documentation relating to a piece of software separately from the software unless the order confirmation specifies that the documentation will be supplied with the software.

5. Single license

1. The Customer shall be granted the rights of use for the software agreed in the order confirmation or on the software product sheet.
2. The Supplier shall grant the Customer the perpetual, non-exclusive right to use the software with any devices specified in the order confirmation or on the product sheet, whereby each piece of software delivered to the Customer may only be used on one device at a time (single license). If there are multiple workstations for one device on which the software may be used independently, the single license shall only cover one workstation.
3. The Customer may make copies of the software, which may only be used for backup purposes (backup copies). In other respects, the Customer may only create copies of the software if they hold a multi-user license.
4. The Customer shall not be entitled to modify, reverse engineer or translate the software or remove parts of it. The Customer must not remove alphanumeric or other identifiers from the data carrier and must transfer these unchanged to any backup copies made.
5. The Supplier shall grant the Customer the irrevocable right to transfer to third parties the rights of use initially transferred to the Customer. If the Customer received the software together with a device, the Customer may only transfer the software to a third party together with the device. The Customer must conclude a written agreement with the third party in which the third party accepts the obligations arising from this Contract. If the Customer transfers the software to a third party, the Customer shall be responsible for ensuring that any relevant export requirements are fulfilled and must exempt the Supplier from any obligations in this respect.

6. Multi-user license

1. In order to use the software on multiple devices or at multiple workstations, the Customer must hold a multi-user license. The prerequisite for a multi-user license is the granting of a single license as well as a written confirmation from the Supplier regarding the number of copies the Customer is permitted to make of the software supplied with the single license. The multi-user license grants the Customer the perpetual, non-exclusive and non-transferable right to create the number of copies specified in the written confirmation and to use the copies created in accordance with the rules for single licenses or transfer them to third parties for such use.
   
2. Simultaneous use of the software on multiple devices is equivalent to using the software on multiple workstations on networks without needing to duplicate the software (network license). The rules for multi-user licenses also apply to network licenses accordingly. In this context, the number of permitted workstations corresponds to the number of copies that may be made.
3. The Customer shall observe the instructions on creating copies of the software provided by the Supplier together with the multi-user license. The Customer must keep records of the locations of all copies made and must provide these to the Supplier on request. The Customer must transfer all alphanumeric and other identifiers of the data carriers to all copies without change.

7. Liability for defects

1. By way of supplement to Section 8 GTC, the following shall apply:
   
2. The Supplier and Customer agree that it is not possible to develop software such that it is defect-free for all application conditions. Defects in the software include deviations from the most recent version of the related documentation that have been demonstrated by the Customer, can be reproduced and – where the defect is not caused by the absence of a guaranteed property – cannot be considered insignificant. The Customer shall be obliged to provide the Supplier with verifiable documents concerning the nature and occurrence of deviations from the documentation and to offer assistance with the isolation of defects. Liability for defects shall not extend to defects caused by deviation from the intended application conditions for the program as specified in the documentation.
3. In the event that data carriers supplied are defective, the Customer may only request that the Supplier replace the defective copies with defect-free copies.
4. In other respects, the Supplier may choose at its discretion to correct the defect by providing either an update or an upgrade by way of replacement. Where possible with reasonable effort and in cases where the Customer is unable to perform urgent tasks because of the defect, the Supplier shall provide the Customer with a workaround to circumvent the defect until the update or upgrade is provided. If the workaround fails, the Customer shall be entitled to demand a reduction in price or withdraw from the Contract. If the Supplier has provided the Customer with a multi-user license, the Customer may make the same number of copies of the upgrade provided by way of replacement as the number of licenses originally granted.
5. The identification and elimination of the defect shall be performed either on the Customer’s premises or on the Supplier’s premises, at the Supplier’s discretion. If the Supplier opts to perform defect correction on the Customer’s premises, the Customer must provide hardware and software as well as any other operating requirements, together with suitable operating staff, free of charge where necessary to correct the defect within an appropriate timeframe. The Customer must provide the Supplier with any documents and information it holds that are necessary to correct the defect. The Supplier may demand reimbursement from the Customer for any transport, travel and accommodation costs incurred in the course of correcting a defect on the Customer’s premises.
6. If it is not possible to reproduce a defect reported by the Customer, if a defect proves to be due to improper use by the Customer or if a defect is not covered under the liability for defects for any other reason, the Supplier may demand appropriate remuneration from the Customer for performing the investigation and may also demand the reimbursement of the transport, travel and accommodation costs incurred as a result.
7. For software which the Customer or a third party is making available via an interface provided by the Supplier for this purpose, the Supplier’s warranty shall only extend as far as the interface.
8. The Supplier shall not be responsible for ensuring that the software provided is compatible with the data processing environment used by the Customer, particularly with respect to the software and hardware products used by the Customer.
9. The Customer must take all necessary and reasonable measures to prevent or limit damage arising from defects in the software, particularly by notifying the Supplier immediately of any defect that may arise and by ensuring that programs and data are secure.