General Terms and Conditions of Purchase

1.     Aim and purpose of the document

·        These General Terms and Conditions of Purchase (from now on referred to as "GPC") apply generally to procurement.

·        The companies of SwissFactory.Group (from now on referred to as "Purchaser") does not recognise any terms and conditions of the Supplier that conflict with or deviate from these GPC and shall not be valid unless agreed in writing.

·        These GPCs shall also apply if the customer accepts the Supplier's delivery without reservation in the knowledge of conflicting or deviating terms and conditions of the Supplier.

·        The scope of delivery, specifications, objectives, delivery dates and prices shall be set out in separate orders. The individual supply contracts shall come into existence upon acceptance of these orders. These GPCs form an integral part of these contracts.

2.     Scope of application

·        All deliveries, services, and offers of the Supplier shall be made exclusively based on these GPCs in their currently valid version. They are an integral part of all contracts we conclude with our suppliers regarding their deliveries and services. They shall also apply to all future deliveries, services or offers to us, even if they are not mutually agreed upon.

·        The Supplier's terms and conditions of business shall not apply, even if we do not separately object to their validity in individual cases, and even if we or our customers accept the Supplier's delivery without reservation in the knowledge that the Supplier's terms and conditions conflict with or deviate from our terms and conditions of purchase.

3.     Offer, order and contracts

·        Enquiries from the customer for a quotation from the Supplier are non-binding. The Supplier is requested to submit a free offer as a specialist through the enquiry. In the offer, the Supplier shall be guided by the descriptions and objectives of the Purchaser and, in the event of deviations, shall expressly point this out; the Supplier recognises an obligation to provide information. By submitting the offer, the Supplier also declares the product's feasibility. Insofar as the Supplier prepares drafts, calculations, costings, project models, etc., this is done free of charge and without obligation, even if such services are usually provided for a fee. If the Supplier does not specify a deadline in its offer, this shall be binding for 90 days.

·        The origin of the goods must be stated in the offer.

·        Orders must be made in writing; in principle, this also applies to the Supplier's acceptance of the order. Irrespective of this, an order shall also be deemed accepted if the Supplier does not object within five days after receipt of the order.

·        The order documents signed by us and the Supplier (confirmed offers, service description or similar) are decisive for the services owed. Deviations from an order signed by us shall require our express written confirmation to be valid, as shall deviations from the order documents signed by both contracting parties.

·        The Purchaser shall provide the Supplier with all technical documents necessary to fulfil the work ordered.

·        The Supplier shall notify the Purchaser in writing before making any changes to the raw materials, product manufacture, relocation, and testing. In the event of such changes, an order may only be placed after written approval by the Purchaser.

4.     Prices, terms of payment and origin of goods

·        The price stated in the order is binding and is understood to be in the agreed currency and Incoterms in the respective valid version. The Supplier shall bear all ancillary costs such as freight, insurance, all types of taxes, duties, fees, customs duties, inspection costs, and the like, export, transit, import and other authorisations, as well as certifications. If the Purchaser has become liable for costs, these shall be reimbursed by the Supplier to the Purchaser against appropriate proof.

·        All correspondence, confirmations, delivery notes and invoices must state the order number, exact description of the goods and the number of the drawing or product stated in the order; the Supplier shall be responsible for all consequences arising from non-compliance with this obligation unless he can prove that he is not responsible for them. All goods will be accepted with a delivery note and the order number identified.

·        A separate invoice in duplicate must be issued for each order and each delivery.

·        Payment by the customer shall be made 60 days net after delivery or by the agreed payment terms on each or call-off order. 

·        The Supplier undertakes to list the declaration of origin on all invoices, stating the underlying free trade agreement, or to submit a long-term Supplier's declaration.

·        Changes to the origin of the goods are only permitted with the customer's express authorisation.

5.     Delivery, transfer of risk and assembly work

·        The delivery date or delivery period specified in the order is binding. In the event of a delay in delivery, default shall occur automatically unless the parties agree on a different solution in the event of early notification of difficulties.

·        In the event of a delay in delivery by the Supplier, the Purchaser shall be entitled to demand a contractual penalty of 1% of the net purchase price per calendar day of delay, up to a maximum of 10% of the net purchase price. The Purchaser reserves the right to claim the contractual penalty until final payment. Once the maximum contractual penalty has been reached, the customer may, at its discretion, either adhere to the contract or withdraw from the agreement. The right to claim damages resulting from the delay remains reserved.

·        Early or partial deliveries are only permitted by agreement.

·        The provision of installation services, the general conditions to be observed for installation services, and the remuneration for installation services are included in the delivery price unless a special remuneration has been agreed upon. Any general terms and conditions of delivery and assembly of the Supplier in this respect shall expressly not become part of the contract.

·        Acceptance of plant and machinery shall occur after installation and trial operation. An acceptance report to be signed by us and the Supplier shall be drawn up on acceptance. Upon acceptance, the risk of loss and deterioration of the delivered parts shall pass to us. Suppose no acceptance has been agreed in individual cases. In that case, the risk shall pass to us when the goods are handed over to us at the agreed destination, even in the case of contractually agreed despatch.

·        Packaging of any kind, particularly transport packaging, must be taken back by the Supplier at its own expense at our request. If agreed, we shall return the same type and quality reusable packaging (pallets, crates, etc.).

·        The Supplier shall bear the travelling and living expenses of its employees and representatives involved in assembly, acceptance and trial operation.

·        The Supplier shall provide the tools and lifting equipment required for delivery and assembly at its own expense.

6.     Scope of delivery, fulfilment of requirements and right of access

·        Before the start of production, design drawings shall be made available to the Purchaser for approval upon request. Approval by the Purchaser shall not release the Supplier from its responsibility for the functional suitability and feasibility.

·        Upon request, the documents drawn up by the Supplier based on the specifications/the specification sheet shall be made available to the Purchaser as drawings and electronic data in a suitable form. 

·        The Supplier is obliged to take all necessary precautions for environmental protection, accident prevention, and health protection regarding the delivery item and to take into account and fulfil all official and statutory requirements.

·        The Supplier undertakes to comply with the conventions of the International Labour Organisation (ILO), the UN Declaration of Human Rights, the UN Conventions on the Rights of the Child and the Elimination of All Forms of Discrimination against Women, the UN Global Compact and the OECD Guidelines for Multinational Enterprises.

·        Where applicable, all materials, components, assemblies or services ordered are always:

-        RoHS complies with the directive on restricting certain hazardous substances in electrical and electronic equipment (2011/65/EU and (EU)2015/863).

-        Free of nanomaterials according to the Recommendation on the definition of nanomaterials (2011/696/EU).

-        Registered according to the REACH Regulation EC No. 1907/2006.

-        Free from conflict minerals 3tg according to 2017/821 (EU).

The currently valid version of the EU (eur-lex.europa.eu), including its annexes, must be observed.

·        The customer is entitled to request certificates confirming compliance with the applicable provisions.

·        If deviations from a standard are necessary in individual cases, the Supplier must obtain our prior written consent. Our consent shall not affect the Supplier's warranty obligation.

·        The delivered goods shall be free from defects if they comply with the specifications and other information and are suitable for the intended use recognisable under the contract.

·        The product tests specified in reports, protocols and certificates are carried out exclusively with calibrated test equipment. Calibration is traceable to national and international standards.

·        All necessary documentation, declarations, tests, and labelling are included in the scope of delivery and issued in electronic form (pdf) in German and English. The Supplier's documentation may be reproduced and published without prior consultation.

·        To guarantee constantly high and consistent quality, the Supplier must provide the information and details requested by us entirely and truthfully and keep them up to date at all times. We must be informed of any changes immediately and without being asked.

·        The Customer shall be entitled to inspect the work progress at the Supplier's premises and operating sites during normal operating and business hours by prior appointment. The Contractor shall grant the Customer the right to audit the part of the production relevant to its products. The Contractor acknowledges that if products fall under the EU MDR Act, audits by the authorities may be unannounced.

·        The Supplier maintains the following procedures and checks to avoid counterfeit parts:

-        Procurement only from authorised dealers or directly from the manufacturer.

-        The inspection of parts is performed upon receipt of goods. These include at least the identification of the part and delivery documents and drawings and accompanying documents. Particular attention must be paid to tampering with the labelling, date of manufacture, country of origin or manufacturer on labels, packaging and accompanying documents.

-        Ensure the identifiability and traceability of parts and documentation throughout the entire value chain at every stage of the process.

-        Ensure that all employees are aware of their contribution to product and service compliance, their contribution to product safety, including counterfeit or potentially counterfeit parts and the importance of ethical behaviour.

-        That identified counterfeits are immediately reported to the Purchaser and withdrawn from circulation.

·        The Supplier shall also transfer all these obligations to its subcontractors.

Additional requirements for mechanical engineering:

·        The necessary safety and health requirements for the design and construction of machines by the applicable EC machinery directives must be complied with, as must the requirements for hygienic machine design. The Supplier must verify compliance with the relevant accident prevention regulations using the "GS" mark or "CE" mark with the declaration of conformity by EN 45014.

·        Unless otherwise specified, the Supplier's scope of delivery shall include safe system performance, the preparation of all maintenance and circuit diagrams and operating instructions in German, the preparation of cleaning instructions and spare parts lists, good accessibility for operating, cleaning and maintenance work, low-wear system operation and the use and suitability of machines and materials with chemical and wet cleaning suitability.

·        All software required to operate the machine (e.g. control system) is part of the scope of delivery owed. The Supplier shall procure the rights of use to the software necessary for the application of the software for an unlimited period. We are authorised to transfer the rights of use to the software to the purchaser of the machine if the machine is resold. The purchase price covers the corresponding licences and rights granted.

·        The Supplier guarantees to keep the spare parts listed on the spare parts list included in the scope of delivery available for at least ten years from delivery.

·        Unless otherwise agreed, the Supplier shall provide the required spare parts within 24 hours and the fitters needed within 12 hours of the request at the machine location.

7.     Warranty and liability

·        The Supplier warrants compliance with the properties and specifications warranted in the respective delivery contracts and that the product he delivered has no defects which impair the functionality, operational reliability or the usual service life under the known conditions of use. Irrespective of this, the Supplier warrants that the product to be delivered is tested and inspected and that it complies with the recognised rules of technology, the regulations of the legislator and the existing laws and guidelines about design, occupational safety, fire protection and environmental protection. The Supplier also warrants that the product is designed so that life and health are not endangered when used as intended and with due care.

·        Within the scope of the Supplier's obligations in the previous chapter, the Purchaser is not subject to the immediate obligation to inspect and give notice of defects to maintain its warranty claims. However, this shall not apply to apparent defects or defects which the Purchaser can reasonably be expected to report in good faith for other reasons. Notification of defects shall be deemed to have been made in good time if it is made within five working days of receipt of the goods in the case of apparent defects or of discovery in the case of hidden defects.

·        Defects notified during the warranty period, which also include the non-achievement of guaranteed data and the absence of warranted characteristics, must be remedied by the Supplier immediately and free of charge upon request (including all ancillary costs such as the associated transport, personnel, travel and accommodation costs). In all other respects, the Purchaser shall be entitled to the statutory warranty claims in full. Irrespective of this. However, at his discretion, the customer may demand replacement delivery of a defect-free item or rectification of the defect. When exercising this right of choice, reasonable consideration shall be given to whether the Supplier is in a position to rectify the defect by the nature of its business operations. In any case, the Supplier shall bear all expenses necessary for repair or replacement.

·        The rectification/replacement delivery shall be deemed to have failed in particular if the Supplier delays it beyond reasonable deadlines set by the Purchaser or refuses to carry it out.

·        If the Purchaser cannot reasonably be expected to accept subsequent improvement by the Supplier due to particular urgency or for other urgent operational reasons, the Purchaser shall have the right to have the subsequent improvement carried out by a third party at the Supplier's expense without setting a grace period. In this case, however, the Purchaser must notify the Supplier of the defect immediately.

·        The Supplier shall be liable for all damage – including consequential – caused by the product he supplied within the scope of the properties he warrants in the individual contract.

·        If persons are injured or property of third parties is damaged by actions or omissions of the Supplier, and if a claim is made against the Purchaser for this reason, the Purchaser shall have a right of recourse against the Supplier.

·        The Supplier shall be liable to subcontractors for its performance.

·        Upon receipt of our written notification of defects by the Supplier, the limitation period for warranty claims regarding the defects covered by the notification of defects shall be suspended. In the event of replacement delivery and rectification of defects, the warranty period for replaced and repaired parts shall begin anew.

·        The Supplier shall be liable for ensuring that neither the goods he supplied (including software) nor their use, onward delivery or processing by us infringe the industrial property rights of third parties, in particular utility models, patents or licences. If corresponding claims of third parties are asserted against us, the Supplier shall indemnify us and bear all costs incurred in this connection. In the event of conflicting third-party industrial property rights, the Supplier shall obtain consent or authorisation at its own expense, which is also effective for us for further delivery, processing, and use from the entitled party.

·        The limitation period for warranty claims is 24 months from the risk transfer. The limitation period for claims relating to industrial property rights is ten years from the risk transfer.

8.     Product liability, indemnification and insurance cover

·        Insofar as the Supplier is responsible for product damage, it shall be obliged to indemnify the Purchaser on first demand against claims for damages by third parties to the extent that the cause of the damage was within the Supplier's sphere of control and organisation.

·        Within the scope of this obligation, the Supplier shall also reimburse the Purchaser for all expenses incurred in connection with a recall action carried out by the Purchaser. To the extent reasonable, the Purchaser shall inform the Supplier of any recall measures to be carried out.

·        To cover the claims above and all other claims arising in connection with the product, the Supplier undertakes to take out general business and product liability insurance with appropriate cover per loss event, but at least four million Swiss francs per loss event, and to maintain this insurance cover in full for at least five years after expiry of the corresponding supply contracts.

9.     Retention of title, provision of materials and tools

·        Any documents, tools, drawings, models, samples or material provided by the customer to the Supplier shall remain the customer's property. They must be returned at the latest after completion of the order or upon first request.

·        If a part provided by the Purchaser or goods supplied by us are culpably damaged or destroyed in the Supplier's area of responsibility, the Supplier's liability shall also extend to the repair or replacement of the provided part/goods.

·        The Purchaser retains title to the tools paid for or provided by the Purchaser. The Supplier must use the tools exclusively to manufacture the goods ordered by the Purchaser. The Supplier shall be obliged to handle and store the tools belonging to the Purchaser located in its plant in compliance with the obligations of a prudent businessman and to insure them at replacement value against fire, water damage, and theft at its own expense. At the same time, the Supplier now assigns to the Purchaser all claims for compensation arising from this insurance; the Purchaser accepts the assignment. The Supplier is obliged to carry out any necessary maintenance and inspection work on our tools and all servicing and repair work at his own expense and in good time. It must notify the Purchaser immediately of any malfunctions.

10. Confidentiality and product-related exclusivity agreement

·        The Supplier undertakes to keep all information from the cooperation strictly confidential unless it is generally known, has been lawfully acquired from third parties or independently developed by third parties, and uses it exclusively for the contract. The protected information includes technical data, illustrations, drawings, calculations, operating instructions, customer data and other documents, purchase quantities, prices, products and product developments, current and future research and development projects, and all our company data.

·        The Supplier shall oblige its sub-suppliers accordingly.

·        At our request, which may be made at any time, but at the latest on termination of the contract, all information originating from us (including any copies or records made) and items provided on loan must be returned to us immediately and in whole, unless the Supplier still requires them to fulfil its contractual obligations. We reserve all rights to such confidential information, including copyrights, industrial property rights, patents, utility models, etc.

11. General provisions

·        The Supplier may not pass on the order to third parties without our written consent.

·        As soon as the Supplier suspends payments, a provisional insolvency administrator is appointed, or insolvency proceedings are opened, and we shall be entitled to withdraw from the contract in whole or in part.

·        The contractual relationship shall be governed exclusively by Swiss law to exclude the conflict of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods (CISG, UN Sales Convention).

·        The place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Bern (Switzerland). The customer also has the right to bring an action at any other permissible place of jurisdiction.

·        The place of fulfilment for all obligations arising from the delivery contract is the customer's registered office.

·        Should individual parts of these GPC be legally invalid, this shall not affect the validity of the remaining provisions. In this case, the parties undertake to agree on an analogous substitute provision that comes as close as possible to the invalid provision and is legally permissible.

12. Miscellaneous

In the event of textual ambiguities, the German version of this text shall take precedence.