GENERAL TERMS AND CONDITIONS
Unless agreed otherwise in writing, Zimmerli Textil AG, 4663 Aarburg, Switzerland, supplies all of its goods and services on the basis of these General Terms and Conditions of Sale and Supply (GTCs).
§2 CONCLUSION OF CONTRACT AND CONTENT
Orders placed by the purchaser constitute a binding offer to purchase. Zimmerli Textil AG is free to decide to what extent it accepts such offers. A contract is first concluded upon written confirmation or immediate delivery of the purchaser’s order by Zimmerli Textil AG.
1) The price is the price shown in the price list in force on the date the order is placed plus value added tax at the rate applicable from time to time. The prices for an order will be shown in the written order confirmation. There is a minimum order amount of CHF 300.00 or EUR 300.00 or GBP 300.00 or USD 600.00. For small orders, Zimmerli Textil AG adds a minimum order surcharge.
2) Unless agreed otherwise, all prices stated are net prices, i.e. excluding value added tax, customs duties and other types of charges.
§4 PAYMENT TERMS
The payment terms are those set out in the order confirmation. The rule is: payment in full within 30 days from the invoice date or payment in advance. The purchaser is not permitted to withhold payment or offset payment against any counterclaims it may have against Zimmerli Textil AG.
§5 DEFAULT IN PAYMENT
1) Where payment by the purchaser is overdue, Zimmerli Textil AG is entitled to charge interest of 2% per month if it has first sent the purchaser a written payment reminder. In addition, Zimmerli Textil AG is in this event entitled to stop all further de- liveries under any standing contracts. In such cases, Zimmerli Textil AG may require payment prior to delivery – payment in advance – in respect of all outstanding deliveries of goods, as well as initiating debt recovery procedures.
2) Where the parties agree to pay all or part of the purchase price by means of a bill of exchange or cheque, acceptance by Zimmerli Textil AG of same will be solely on account of payment. By accepting a bill of exchange or cheque, Zimmerli Textil AG does not in any way consent to a deferral of payment. The purchaser is responsible for any discount or exchange charges and must pay these to Zimmerli Textil AG.
1) The place of performance is the warehouse of Zimmerli Textil AG, CH-6850 Mendrisio, Switzerland. Goods are delivered duty paid within Switzerland and the European Union. In the case of all other countries, delivery is ex works, duty unpaid (Incoterms 2010), uninsured and at the purchaser’s expense. The purchaser bears all risk of loss or damage to the goods after Zimmerli Textil AG has packaged them and made them available for collection at the place of performance.
2) The purchaser undertakes to collect the goods on the agreed delivery date. If the purchaser fails to do so, Zimmerli Textil AG may allow the purchaser a reasonable grace period and, following its expiry, rescind the contract.
3) The purchaser will accept delivery up to 30 days after the agreed delivery date. Following the expiry of this period, the purchaser will be entitled to rescind the contract if it has given Zimmerli Textil AG written notice of this before the period expires.
4) Zimmerli Textil AG will notify the purchaser of the expected delivery date in its order confirmation and do its utmost to comply with this delivery date.
5) To the extent permitted by law, all claims by the purchaser for damages for delay in delivery or non-delivery are excluded.
6) Zimmerli Textil AG is entitled to make partial delivery.
7) Zimmerli Textil AG has no duty to accept the return of goods that are in conformity with the contract and free from defects. In any event, the goods may only be returned to Zimmerli Textil AG after it has given its express written consent. In case of returned goods a handling fee of 10-50% of the original value of the goods will be charged.
8) Changes may only be made by mutual agreement. If the purchaser does not request or take delivery of the goods on the agreed delivery date, or does not pay for them, Zimmerli Textil AG will be immediately entitled to rescind any outstanding contracts or suspend its performance of them.
§7 INSPECTION OF THE GOODS, NOTICE OF DEFECTS AND WARRANTY
1) The purchaser must report any defects immediately. Zimmerli Textil AG can only take such defects into account if the purchaser gives it written notice of them within 10 days from receipt of the goods, at the latest. The purchaser must give written notice of hidden defects immediately after they are discovered or, at the latest, within six months from the date the goods were dispatched. In any event, the goods may only be returned to Zimmerli Textil AG after it has given its ex- press written consent. Any slight, customary or technically unavoidable deviations in quality, shade, width, weight, etc. do not entitle the purchaser to bring warranty claims.
2) The warranty period is six months from the date the goods are ready for dispatch. The warranty obligations of Zimmerli Textil AG are conditional on the purchaser’s timely compliance with its payment obligations. Zimmerli Textil AG agrees to repair or replace goods that are demonstrably defective prior to the expiry of the warranty period. If goods are still defective in spite of repair or replacement, Zimmerli Textil AG will be entitled to take back the defective goods and credit the monies received from the purchaser.
3) Zimmerli Textil AG excludes any warranty and any liability for loss or damage arising from circumstances over which it has no control, for example incorrect storage.
§8 PASSING OF RISK AND INSURANCE
The risks and rewards pass to the purchaser as soon as the goods are available at the agreed place of destination and the purchaser has been informed of this by Zimmerli Textil AG or the freight forwarder. If the parties agree that the Incoterms will govern delivery modalities by referencing such terms, then the version of the Incoterms published by the International Chamber of Commerce in Paris that are in effect from time to time will apply, subject to any agreement to the contrary.
Subject to any exclusion by another provision, the purchaser will only be entitled to claim damages from Zimmerli Textil AG if the other statutory conditions for damages are satisfied and it can show that Zimmerli Textil AG is guilty of gross negligence or wilful misconduct. In addition, under no circumstances will Zimmerli Textil AG assume liability for indirect or consequential damages.
§10 RETENTION OF TITLE
1) Zimmerli Textil AG will remain the owner of the goods until all of its claims have been satisfied in full, including any ancillary claims or claims for damages, and any cheques or bills of exchange have been honoured. The purchaser is entitled to sell the goods, taking into account the following provisions:
a) Notwithstanding the right of Zimmerli Textil AG to, at any time, revoke the purchaser’s authority to sell goods which are subject to a retention of title in the ordinary course of business, such authority will, in any case, terminate if the purchaser ceases to make payments or a petition for the opening of insolvency proceedings in respect of the purchaser’s assets or a petition for composition proceedings to avert insolvency is filed.
b) The goods which are subject to the retention of title or the assigned claims may not be pledged or assigned as security.
c) The purchaser hereby assigns to Zimmerli Textil AG its claim, including all ancillary rights, to the proceeds from the resale of the goods which are subject to the retention of title.
d) Zimmerli Textil AG will not enforce the assigned claims as long as the purchaser satisfies its payment obligations. However, the purchaser must upon request provide Zimmerli Textil AG with an exact list of the claims to which Zimmerli Textil AG is entitled, which includes the names and addresses of the buyers, the amount of the individual claims, invoice dates, etc.; the purchaser must also inform its buyers of the assignment and provide Zimmerli Textil AG with all of the information needed for enforcing the assigned claims.
e) The retention of title clause will remain in force even if individual claims of Zimmerli Textil AG are included in a current invoice and the balance is calculated and recognised.
f) If the value of the security provided by the retention of title exceeds the value of the claims to be secured by 10%, Zimmerli Textil AG will, at its discretion, release deliveries that have been paid for in full.
g) The purchaser must notify Zimmerli Textil AG immediately if the goods are attached by a third party and provide it with details of the third party.
h) If the purchaser ceases its payments, it must, immediately after announcement of this, provide Zimmerli Textil AG with a list of the goods in its possession which are subject to the retention of title and a list of its claims against third-party debtors together with copies of its invoices.
i) The purchaser must keep amounts received from assigned claims in a separate account until it transfers them.
j) Where Zimmerli Textil AG repossesses delivered goods on the basis of its retention of title, this will only constitute rescission of the contract if Zimmerli Textil AG has expressly stated same in writing.
k) The purchaser must, at its own expense, insure the goods which are subject to the retention of title against fire, theft and water damage. The purchaser hereby assigns to Zimmerli Textil AG any claims it has for compensation against the insurance companies or any other party liable to pay compensation for damage of the kind referred to in the first sentence, in the amounts owing to Zimmerli Textil AG. Zimmerli Textil AG will not be liable for the consequences of delay unless it can be shown to be guilty of gross negligence or wilful misconduct.
§11 DISTRIBUTION RESTRICTIONS
The purchaser agrees to only sell the received goods at its own premises and only to end customers. Unless agreed otherwise, the purchaser is not permitted to supply the goods to any retailers or resellers. The purchaser will be liable for any damage incurred by Zimmerli Textil AG as the result of unauthorised reselling, for example based on exclusivity agreements or similar agreements.
Zimmerli Textil AG is the sole owner of all rights to trademarks, logos, photos and texts connected with Zimmerli Textil AG products in brochures, advertising and POS materials as well as similar documents. Delivery of such materials (including in digital form) is conditional upon the purchaser’s recognition of these rights.
§13 PARTIAL INVALIDITY
The invalidity of any provision of these General Terms and Conditions of Sale and Supply does not affect the validity of the remaining provisions. In the event that any provision proves invalid, the parties will replace it with a new provision which approximates as closely as possible the legal and economic intention of the invalid provision.
§14 PLACE OF PERFORMANCE
The place of performance for all rights and duties under this contract is the place where the registered office of Zimmerli Textil AG is located. The invalidity of any provision of these General Terms and Conditions of Sale and Supply does not affect the remaining provisions.
§15 JURISDICTION AND APPLICABLE LAW
The courts of Aarburg, Switzerland, have exclusive jurisdiction for all disputes arising in connection with this contractual relationship.
With the exception of simple retention of title clauses, expanded retention of title clauses (manufacturing clauses) and extended retention of title clauses (proceeds clauses), this contractual relationship is exclusively governed by Swiss law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
The German version of these General Terms and Conditions of Sale and Supply is legally binding.
Zimmerli Textil AG, Aarburg, Switzerland