General Terms and Conditions

I. General

  1. These general terms and conditions are an integral part of any purchasing contract concluded with the seller and are valid for all business relationships with the purchaser general terms and conditions of the purchaser have no validity. Any modification, alteration or other provision which is inconsistent with or in addition to the terms and conditions here in contained shall have no force or effect unless the same have been expressly confirmed by the seller in writing.
  2. Offers of the seller are not binding. The purchasing contract is deemed to be concluded only if a contract has been signed or when upon receipt of a purchase order its acceptance has been formally confirmed by the seller in writing. m+b reserves the right to:
    ­ transmit small orders to the competent dealer who will execute it according to its own conditions
    ­ invoice a reasonable extra charge for small orders.
  3. In general, delivery is only made by complete package unit standard packages, any resulting deviation from the ordered quantity is deemed to be accepted by the purchaser. Delivery of products especially made for the customer may differ up to 10% from the ordered quantity.
  4. Products which have been sold and delivered cannot be returned.

II. Prices

  1. m+b will charge prices valid at the day of delivery. Prices are understood ex works, exclusive of V.A.T., and include the cost of standard package unless otherwise agreed. If the exchange rate between Swiss francs and the currency agreed upon in the acknowledgement of order goes down and results in a loss for the seller, the purchaser agrees to indemnify the seller for any loss exceeding 3%. If the selling-price includes costs for custom duties, clearance, freight transshipment, insurance or other charges of every kind, any increase occurred between date of contract and delivery shall be borne by the purchaser.
  2. Claims of the purchaser may only be offset against outstanding debts due to the seller if originating from the same legal relationship and if uncontested, resp. recognized as legally binding.

III. Transport and transfer of risk

  1. Risk shall pass to purchaser with acceptance at place of delivery.
  2. Choice of transportation means is due to the seller. If the purchaser wishes another mean of transportation he will bear all additional costs and risks, and moreover risk shall pass to the purchaser with dispatch of the goods. The purchaser is only entitled to return defective, resp. non-defective goods if the seller has given its prior consent. In case of approval by the seller the goods are to be returned in its original state.
  3. For delivery of goods <CIF>, <FOB> etc. interpretation of these abbreviations shall be effected in accordance with the valid INCOTERMS.

IV. Default of the purchaser/cancellation

  1. The purchaser shall make payment within 30 days net from the date of invoice. Should the purchaser fail to meet the specified dates of payment, the seller reserves the right – without formal notice – to charge annual interests of 6% over the discount rate of the Swiss National Bank. Furthermore the purchaser has to bear any consequences like exchange losses, costs for encashment etc.
  2. Should the purchaser fail to claim or accept a consignment at the agreed date, the seller is entitled without any further notification to cancel all pending contracts or to suspend their fulfillment.
  3. The right to cancel all pending, not to yet fulfilled contracts is furthermore reserved to the seller in case of events and circumstances beyond the seller’s control, such as changes of law in the country of the purchaser of the seller, delay in transfer of foreign currencies, exceptional development of market or increases of production costs, deficient supply of the seller with raw materials, etc. and where the purchaser does not consent to a modification to the changed conditions; and furthermore if the purchaser does resell the goods without permission.

V. Default of seller/cancellation

  1. Delivery time is deemed to be duly observed if the goods have left works until that date. Partial consignments are admissible.
  2. If the seller is in default of or is hindered subsequently in the performance of the contract to his own fault the purchaser may cancel the contract after an extension of time given to the seller expires ineffectively. Should the purchaser renounce to cancellation an incur losses due to a delay in delivery by fault of the seller, he is entitled to claim an indemnification for the delay. The indemnification for the demonstrated loss amounts to max. 1% of the price per full week of delay, but is limited to a total 10% of the price for that part of the consignment which has not been delivered in time. Other claims for delay or impossibility of performance, in particular claims for damages due to non-performance, are excluded.
  3. In case of labour conflicts, such as strikes and lockouts, as well as in case of unforeseen obstacles, such as defective supply with raw materials etc. which are beyond seller’s control, the seller is entitled to extend reasonably the date of delivery or to cancel the contract as far as such obstacles are of considerable importance for completion or delivery of the goods. The same applies if such events occur at subcontractors. Any claims for damages due to non-observance of delivery times in case of such unforeseen obstacles are excluded. The seller will communicate beginning and end of such obstacles as soon as possible to the purchaser.

VI. Deficiencies of the goods/warranty/liability

  1. If deficiencies appear during the warranty period and the seller is so notified in writing by the purchaser, the seller undertakes to replace the defective goods free of charge or, if this is not possible for any reason, the seller undertakes to issue a credit note for the quantity in question. Guarantees for properties of the goods are only valid if in written form. Recommendations of the seller’s employees are not binding. Dates published by the seller in his technical bulletins correspond to reliable laboratory results. Samples are always inspection samples without obligation. The seller’s guidelines for storability and conditions of storage have to be followed. The seller refuses all liability for deficiencies resulting from non-observance of these guidelines. The seller declines all guarantee for minor, commercially or technically unavoidable deviations from the agreed indications for quality, color and purity.
  2. Products are supplied by the seller on the condition that the purchaser alone accepts responsibility for any accident arising from their handling or use. It is recommended that prod-ucts supplied by the seller are handled only by persons properly qualified in the handling and use of such chemicals. Tests as to whether a product is suited to a specific application pro-posed by the purchaser or its customers shall fall within the same purchaser’s responsibility. The seller refuses all liability for consequential damages (personal injury and material damage) resulting from inappropriate handling or storage of the products. The purchaser and his custom-ers must be authorized to handle the products according to their national legal regulations.
  3. By no means shall recommendations of the seller’s employees be construed to represent a contract for work and labour.

VII. Complaints concerning quality

  1. The purchaser has to inspect immediately the goods and to notify the seller of any recognizable deficiency within 8 days after acceptance. If a deficiency which was not recognizable at the entry inspection shows up subsequently, it is to be notified immediately to the seller. If the complaint is not made in due time, the goods are deemed to be accepted.
  2. The statute of limitations, resp. forfeiture of the aforementioned purchaser’s claims in case of deficiencies, resp. absence of guaranteed properties is governed by the legal provisions for limitations, resp. forfeiture of warranty claims.

VIII. Retention of title
Products supplied by seller shall remain his property until all payments have been made in full, inclusive of any interests and/or costs payable to the seller, resp. until any drafts have been honored. The seller is entitled to register the retention of title with the appropriate office at the purchaser’s place of residence.

IX. Partial invalidity
Should a provision of these general terms and conditions violate an existing or future legally binding regulation and, thus, be invalid, the remaining provisions shall not be affected thereby. In such case, the purchaser and seller shall negotiate for the purpose of replacing the invalid provision by a provision which comes closest to the meaning and purpose of these general terms and conditions.

X. Place of performance of contract
The place of performance for both parties is Berne. Switzerland, regardless of whether delivery terms is made freight prepaid, CIF, FOB, or under similar terms.

XI. Jurisdiction an applicable low

  1. For any disputes arriving out of a sales or labour contract based on these general terms and conditions the court of jurisdiction for both parties is in Berne, Switzerland. However, the seller also reserves the right to appeal to the competent courts in the purchaser’s country.
  2. In any case, the law applicable is the Swiss law.
  3. For all questions not covered by the sales contract or these general terms and conditions, the provisions of the Swiss Commercial Code shall prevail subsidiarity, in particular those referring to the sales contract (art. 184 and following).