1. General - Scope of Application
These General Terms and Conditions (GTC) govern all sales of of goods, provisions of services and offers of merz+benteli ag (m+b) to its customers.
These GTC are an integral part of all contracts that m+b concludes with its customers concerning the goods or services offered by m+b. They also apply for all future deliveries of goods, services or offers to the Customer, even if they are not separately agreed again.
These GTC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Customer will become part of the contract only if and to the extent that m+b has expressly agreed to their application. This requirement for consent applies in all cases, for example even if m+b performs a delivery to the Customer without reservation and in full knowledge of the general terms and conditions of the Customer. A consent by m+b extends only to the related individual case and does not lead to the Customer’s general terms and conditions also being applicable to other contracts concluded between m+b and the Customer.
Legally relevant declarations and notifications to be submitted to m+b by the Customer after conclusion of the contract (e.g. setting of deadlines, notices of defects, etc.) must be made in writing to be effective.
2. Offers and Conclusion of Contract
All offers of m+b are subject to change and non-binding unless they are expressly identified as binding or contain a specific acceptance period.
Orders by the Customer can be placed in writing (also by fax, e-mail or via electronic data interchange (EDI)) as well as by telephone. The order placed by the Customer shall be deemed a binding offer of contract. Unless otherwise stated in the order, m+b is entitled to accept this offer of contract within 14 days after it is received by m+b.
Acceptance can either be declared by m+b in writing (also by fax, e-mail or via electronic data interchange (EDI)), e.g. through an order acknowledgement, or through delivery of the goods to the Customer.
The order acknowledgement issued by m+b or, in the case of immediate delivery of the goods to the Customer, the content of Customer's order, determine the scope of deliveries and services, unless the Customer has accepted without amendment a binding offer made by m+b.
As early as in the offer stage, the Customer must inform m+b of any unusual strain, special forms of use and increased risks that may arise from the use of m+b’s goods or services by the Customer.
Statements by m+b regarding the object of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as depictions thereof (e.g. drawings and illustrations) are only approximate values.
Deviations that are customary in the trade, result from legal regulations or represent technical improvements, as well as the replacement of substances or components with equivalent substances or parts, are permitted, provided they do not impair usability and are reasonable for the Customer.
Any and all agreements, additions and subsequent amendments, etc. between m+b and the Customer must be in writing to be effective. Employees of m+b are not authorised to make verbal assurances or declarations that exceed the content of a written contract.
If, after conclusion of the contract, the Customer indicates additional requirements or requests changes with regard to an order, such requirements or changes are subject to the express written consent of m+b and the conclusion of a supplement to the contract, in particular as regards additional remuneration or a change in the delivery time. From receipt of the Customer's request for changes until the conclusion of a supplement to the contract, m+b is entitled to suspend the further processing of the original order. m+b shall not be responsible for any resulting extension of the delivery time. If m+b submits proposals for amendments to the Customer, the above applies accordingly.
3. Quality, Information and Recommendations
Unless otherwise expressly agreed in writing, the quality of the goods sold by m+b is exclusively determined by the Technical Data in the Technical Data Sheets of m+b.
All other information as well as recommendations and instructions for use in the Technical Data Sheets are based on the knowledge and experience of m+b in its laboratory and practice and are subject to change. The subsequent practical conditions of use, processing methods and local conditions are beyond the control of m+b. The Customer is obliged to carry out his own tests and trials for the intended uses under practical conditions. This applies in particular without limitation with regard to the suitability of the delivered goods for the processes and purposes intended by the Customer.
The relevant "identified use" for the goods according to the European Chemicals Regulation (REACH) is neither a warranted property of the products nor a presumed use.
4. Manufacture According to Customer Specifications
To the extent that m+b manufactures goods as a contract manufacturer or otherwise according to customer specifications – e.g. for the chemical composition, formulations or formulas of the goods or for production – according to the instructions of the Customer, this is done exclusively at the risk and responsibility of the Customer.
In addition, the Customer warrants that m+b does not infringe any third-party rights (in particular industrial property rights) by manufacturing such goods. The Customer shall indemnify m+b upon first request from and against all claims that any third parties assert against m+b in this respect.
5. Prices and Terms of Payment
Price lists of m+b are always subject to change unless they have been expressly declared by m+b as binding.
The prices are specified in the offer or in the order acknowledgement. Insofar as list prices are used, the list prices of m+b valid on the day of the order apply.
Unless otherwise agreed, all prices are net ex works (EXW) Niederwangen/Switzerland (Incoterms 2020).
All ancillary costs such as for freight, insurance, export, transit, import and other permits and certifications shall be borne by the Customer.
Likewise, the Customer shall bear all types of taxes, duties, fees, customs duties and the like, as well as the associated administrative costs, which are levied in connection with the contract or its fulfilment. Insofar as such costs, taxes, etc. are levied on m+b, the Customer shall reimburse them to m+b after presentation of the relevant documents.
The payment period is 30 days from the date of invoice. Payments must be made in the currency specified by m+b and to the account specified by m+b. Offsetting is excluded. Payments are to be made in full, without deduction or retention of discount, expenses, taxes, levies, fees, customs duties and the like. If the Customer is obliged by law to make a deduction or retention, the Customer must pay m+b an additional amount so that it is ensured that m+b receives the full amount that m+b would have received without deduction or retention.
If the Customer is in arrears with a subsequent payment for any reason or if m+b must seriously fear that it will not receive the payments of the Customer in full or on time due to a circumstance occurring after conclusion of the contract, m+b is authorised without limitation of its other rights to suspend further performance of the contract and to withhold goods ready for collection. This applies until new payment and delivery conditions have been agreed and m+b has received sufficient securities. If such an agreement is not reached within a reasonable period or if m+b does not receive sufficient securities, m+b is entitled to withdraw from the contract and to claim compensation for damages.
If the Customer does not meet payment deadlines, Customer shall owe default interest at the rate of 4% p.a. m+b reserves the right to claim compensation for further damages. If the Customer is in default of payment, m+b is entitled to suspend the further execution of the contract or to withhold goods.
6. Delivery and Delivery Time
Deliveries are ex works (EXW) Niederwangen/Switzerland (Incoterms 2020), unless expressly agreed otherwise.
m+b is entitled to render and invoice partial services or deliveries unless a uniform contractual object is to be delivered or rendered.
Deadlines and dates for deliveries and services indicated by m+b are always only approximate and subject to confirmation unless a fixed deadline or a fixed date has been expressly agreed. Fixed-date transactions are not concluded. If shipping/transport has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
m+b is entitled – without prejudice to its rights arising from default of the Customer – to an extension of deadlines or a postponement of delivery dates by the period of time of Customer’s non-fulfilment of its contractual obligations towards m+b or of other obligations incumbent on the Customer (such as the timely provision of documents, official approvals, releases).
m+b is not liable for impossibility or delay of a delivery or a service where impossibility or delay have been caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lock-outs, lack of workers, energy or raw materials, epidemics, pandemics, difficulties in procuring the necessary official permits, official measures or non-delivery, incorrect delivery or late delivery by suppliers), for which m+b is not responsible. If m+b cannot comply with binding delivery times for the aforementioned reasons for which m+b is not responsible, it will inform the Customer thereof immediately and at the same time notify the Customer of the expected new delivery time. If m+b remains prevented from delivery in time, m+b is entitled to withdraw from the contract in whole or in part. m+b will reimburse in such a case the consideration (if any) already paid by the Customer for the delivery.
Claims for damages by the Customer due to delay of m+b are excluded, except for cases of intent or gross negligence on the part of m+b. Termination or withdrawal from the contract due to default of m+b is excluded.
Packaging will be invoiced additionally by m+b and will not be taken back. If, however, packaging is designated as the property of m+b, it must be returned by the Customer carriage paid to the place of departure.
8. Transfer of Benefits and Risks
Benefits and risks are transferred to the Customer in accordance with the agreed delivery terms. If no delivery terms have been agreed, the delivery shall be ex works (EXW) Niederwangen/Switzerland (Incoterms 2020).
If the delivery is delayed at the request of the Customer or for other reasons for which m+b is not responsible, the risk shall transfer to the Customer at the time originally intended for the delivery. From this point in time the delivery will be stored at the risk and expense of the Customer. The Customer shall reimburse m+b for any storage costs incurred.
9. Shipping, Transport and Insurance
m+b must be informed in good time of any special requests by the Customer regarding shipping/transport. Transport is at the risk and expense of the party concerned according to the agreed delivery terms. If no delivery terms have been agreed, deliveries shall be made ex works (EXW) Niederwangen/Switzerland (Incoterms 2020).
Complaints in connection with shipping or transport must be made by the Customer to the final carrier immediately on receipt of the deliveries or the freight documents.
Irrespective thereof, the Customer shall in any case be responsible for taking out insurance against damage of any kind from the time the goods leave the factory.
10. Retention of Title
m+b remains the owner of goods delivered until it has received full payment in accordance with the contract.
The Customer is obliged to cooperate in measures which are necessary to protect the property of m+b. In particular, upon conclusion of the contract, the Customer authorises m+b, at the Customer’s expense, to enter or register the retention of title in public registers, books or the like in accordance with the relevant national laws and to carry out all formalities in this respect.
The Customer is responsible for the maintenance of goods at the expense of the Customer for the duration of the retention of title, and for insuring goods for the benefit of m+b against theft, breakage, fire, water and other risks. Furthermore, the Customer shall take all necessary measures to ensure that m+b’ claim of ownership is neither impaired nor revoked.
If a retention of title in the above sense is not possible at the location of the Customer or at the place of delivery, but other economically comparable rights to goods can be reserved or other safeguards are permitted, m+b has a claim thereto and such rights or safeguards are deemed to be agreed.
11. Warranty, Duty of Inspection and Claims for Defects
m+b warrants that its goods comply with the technical data according to the Technical Data Sheets. The warranty period for goods with shelf life specification runs until the expiry of the specified shelf life. In all other cases, the warranty applies exclusively to the time of delivery and there is no warranty period.
The Customer shall subject goods delivered by m+b to an incoming goods inspection within 8 days after receipt and carefully examine them. If m+b does not receive a written notice of defects within 14 days after delivery, the goods shall be deemed to have been approved by the Customer as regards obvious defects and other defects which would have been identified during an immediate and careful examination. In the case of goods with a warranty period, additionally the following applies: with regard to other kinds of defects, the goods shall be deemed to have been accepted by the Customer if the related notice of defect is not received by m+b within 14 days, commencing on the date on which the defect became apparent. When, under normal conditions of use, the defect was already identifiable for the Customer at an earlier date, that earlier date is decisive for the commencement of the period for giving notice of defects.
If there are minor discrepancies which are usually accepted in the normal course of business between contracting parties or as a matter of industry practices, goods shall be deemed to be in conformity with the contract.
After receipt of a notice of defect m+b will examine it and inform the Customer whether and how it will be further pursued. At the request of m+b the affected goods shall be returned to m+b at the expense of m+b or to be disposed of professionally at the instruction and expense of m+b.
In cases of defects, m+b is obliged to - at its sole choice and own discretion - first make a replacement delivery or to rectify the defects. In the event of failure, i.e. the impossibility, unacceptability or refusal of replacement or rectification, or the occurrence of unreasonable delays in the replacement or rectification, the Customer may withdraw from the contract or reduce the purchase price by a reasonable amount. However, the Customer has the right to withdraw from the contract only in case of significant defects.
m+b is entitled to make replacement or rectification dependent on the Customer paying the purchase price due.
If a notice of defect by the Customer proves to be unjustified, m+b shall be entitled to reimbursement of the costs incurred for handling the notice of defect.
Any warranty is excluded if the Customer failed to observe the recommendations, safety instructions or storage and use regulations issued by m+b. Warranty is also excluded if the Customer failed to establish through his own examinations and tests before using the goods that these are suitable for his processes and purposes.
m+b’s warranty does not cover normal aging, normal wear and tear or damage resulting from unsuitable or improper use.
If m+b manufactures goods as a contract manufacturer or otherwise according to customer specifications – for example for the chemical composition, formulations or formulas of the goods or for production – according to the instructions of the Customer, any warranty for defects based on customer specifications is excluded.
The warranties of m+b for goods and the warranty claims of the Customer pursuant to this Clause 11 are sole and exclusive and in place of any other warranties and associated claims of the Customer. m+b makes no further and excludes any and all other representations, warranties or guarantees whatsoever, whether express, implicit or implied. Claims for damages by the Customer due to breach of warranty are excluded.
12. Exclusion and Limitation of Liability
Any liability of m+b for indirect damages, for consequential damages, for loss of data, for additional expenditure or third-party claims (including claims of customers of the Customer), for lost profits or unrealised savings, for operational disruptions or operational failure as well as for damage resulting from delayed delivery or performance is, irrespective of its legal nature and whether such damage was foreseeable, in all cases fully excluded.
For damages which do not fall under the above exclusion of liability (i.e. direct and immediate damages) or which cannot be excluded, the liability of m+b is limited in total and irrespective of the number, the qualification and the time of the damaging events giving rise to liability for all damaging events to an amount equal to the price which the Customer paid m+b for the goods or services concerned.
The above exclusion and limitation of liability do not apply if a damage was caused by m+b intentionally or through gross negligence, as well as in the case of culpable injury to life, body or health.
13. Legal Regulations, Standards and Safety Data Sheets
The Customer is responsible for observing all legal and official regulations concerning import, transport, storage and use of the goods and services of m+b. The Customer must inform m+b in writing in good time of any standards and regulations to be observed by m+b for deliveries or services to the Customer. Irrespective thereof, the Customer remains solely responsible for compliance with such standards and regulations. The Customer must comply with the Safety Data Sheets of m+b and ensure that they are observed.
The Customer shall ensure that the Customers always acts within the framework of the business relationship with m+b in accordance with all applicable legal standards (in particular when using the delivered goods and their packaging).
14. Confidentiality and Data Protection
Goods and services of m+b may include confidential or protected information of m+b or of third parties. The Customer is obliged to take all precautionary measures to ensure that the confidentiality of such information is maintained.
Both parties must keep secret all confidential information of the other party and may not disclose it to third parties. Confidential information may only be disclosed within the own organization and only to persons having a need to know who are obliged to maintain confidentiality.
Confidentiality obligations under a separate non-disclosure or similar agreement between the Customer and m+b shall also apply with regard to all deliveries of goods and to services of m+b.
m+b may process personal data of the Customer and Customer’s personnel for the purpose of contract performance. Furthermore, the Customer agrees that m+b may use such personal data for the purpose of managing the business relationship with the Customer and that m+b may commission third parties to process such personal data in Switzerland or abroad.
15. Intellectual Property and Third-Party Rights
Ownership and all rights to technical documents which one party makes available to the other party remain with the originating party. The party receiving such documents acknowledges such ownership and rights and may not, without the prior written consent of the other party, make such documents available to third parties, either in whole or in part, and may not use them for any purpose other than for the purposes of the contract.
All know-how, all inventions, patents or copyrights, etc. which belong to m+b, originate from m+b or are used or developed by m+b in the execution of the contract, are the exclusive property of m+b. No ownership rights or other proprietary rights are transferred or granted to the Customer regarding such know-how, inventions, patents or copyrights.
If m+b makes any changes to m+b technology based on information of or the exchange with the Customer, the Customer waives any claims to such changes or to demand remuneration therefor. Accordingly, m+b is exclusively entitled to all results, knowledge, inventions, innovations, etc. in relation to m+b technology and they are the sole property of m+b.
To the best of m+b’ knowledge, the goods of m+b do not infringe any third-party rights. Nonetheless, if goods of m+b infringe any third-party rights and this is the fault of m+b, m+b will, at its sole choice and discretion and to the exclusion of any other rights or remedies of the Customer, procure the right for the Customer to use the goods or modify or replace the goods in such a way that third-party rights are no longer infringed.
16. Dispute Resolution, Applicable Law and Place of Jurisdiction
Disputes and controversies of the parties arising from, under or in connection with the contract shall be resolved by mutual agreement. If the parties do not reach an amicable solution, the matter may be referred to the court.
These GTC and all legal relations between m+b and the Customer shall be governed by Swiss law, to the exclusions of the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) and the conflict of laws rules of private international law.
The exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Niederwangen, Switzerland.