General Conditions of Sale and Delivery
Issue 01.01.2022
1. General
1.1 Unless otherwise agreed in writing, these General Conditions of Sale and Delivery of FUCHS Maschinen AG shall apply to all goods and
services supplied or rendered by FUCHS Maschinen AG (hereinafter referred to as "FUCHS"). The customer's general terms and conditions
shall only be effective if they are accepted by FUCHS in writing.
1.1 All agreements and legally binding declarations of the parties must be in writing in order to be effective.
2. Offers and Conclusion of a Contract
2.1 Unless otherwise expressly stated in writing, all quotations and estimates by FUCHS are to be treated as an invitation for the Customer
to place an order to purchase the Goods.
The Customer’s order is an order to purchase the Goods.
A legally binding contract will only be formed upon FUCHS posting its confirmation of acceptance of the order (the “Contract”).
A confirmed order to purchase the Goods may only be cancelled or varied with FUCHS’s written consent. The giving of the FUCHS’s
written consent shall not in any way prejudice FUCHS’s right to recover from the Customer full compensation for any loss or expense
arising from such cancellation or variation.
3. Validity of the Offer
3.1 The validity of the FUCHS offer is 30 calendar days from the issuance date. Beyond that date, FUCHS reserves its right to adjust the
offer to the new conditions. The present FUCHS General Conditions of Sale and Delivery are an intrinsic part of the FUCHS offer.
4. Scope of Delivery
4.1 Scope and delivery of goods and services are defined by the order confirmation by FUCHS. Goods or services not specified therein will
be invoiced separately.
4.2 Pictures, drawings, and descriptions in brochures and catalogues, as well as data of dimensions and weights are to be regarded as
approximate. They are binding only if expressly confirmed in writing.
4.3 It is the Customer’s responsibility to satisfy itself that the drawings, calculations and specifications are correct. No responsibility for
errors or omissions will be accepted by FUCHS once the Customer has approved details submitted. In any event, FUCHS’s responsibility
is solely confined to its own manufactured components and does not extend to other products or components or overall structural or
architectural considerations.
5. Prices
5.1 Unless otherwise expressly stated in the FUCHS offer, the prices quoted are ex works (EXW Incoterms 2010) excluding VAT, cargo
inspection, packaging, customs duties, taxes, fees, insurance, installation, commissioning and other services.
5.2 Unless otherwise expressly stated in the FUCHS offer, the price does not include mounting or installation of the equipment, commissioning,
validation support or staff training.
5.3 If, between the conclusion of the Contract and the acceptance of the goods, the costs underlying the calculation increase, FUCHS has
the right to adjust accordingly the prices stated in the order confirmation.
6. Terms of Payment
6.1 The terms of payment depend on the object of sale and are defined in the offer or in the order confirmation by FUCHS.
6.2 The customer shall make the payment(s) to FUCHS without deductions for discounts, costs, taxes and fees of any kind.
6.3 Upon expiry of the payment term set forth in the invoice, the customer shall owe default interest at the rate of 6% p.a. plus processing
charges without formal notice. Compensation for further damages shall remain reserved. In the event of default of payment, FUCHS
shall be entitled with immediate effect to stop further deliveries and to suspend any remedy of defects.
6.4 No payments may be withheld, in particular not in the event of delayed delivery or complaints. Counterclaims of the customer against
claims of FUCHS shall be excluded.
6.5 In the event of default of payment, FUCHS reserves the right to rescind the Contract, while demanding the return of the goods in
accordance with Art. 214 para 3 of the Swiss Code of Obligations.
7. Retention of Title
7.1 FUCHS retains title to all goods delivered until such time as they are fully paid. The customer is required to take all necessary measures
to protect the ownership of FUCHS.
7.2 FUCHS has the right to enter the retention of title in the appropriate public register, and the customer shall be obliged to cooperate
with this entry.
8. Term of Delivery
8.1 The delivery time is defined in the offer or in the order confirmation of FUCHS, whereby the following conditions apply (unless otherwise
defined in the offer or in the order confirmation):
· All equipment clearly specified at the time of the order.
· Request for approval for the layout is approx. 2 weeks after customer’s order to purchase the Goods and clarification of all technical
details.
· Within one week of receipt of the request for approval, the customer must give his consent to the equipment and the technical aspects.
If the client does not comply with this one-week deadline, the defined delivery date will be postponed.
8.2 The term of delivery will be extended if the terms of payment are not met or if letters of credit are opened too late.
8.3 FUCHS will endeavour to fulfil the Customer’s delivery requirements for the Goods promptly, but no liability is accepted for failure to
deliver within quoted times. Time of delivery shall not be of the essence unless expressly stipulated in writing in the Customer’s order
to purchase form and FUCHS’s order confirmation.
8.4 If the Customer fails to take delivery on the agreed delivery date or, if no specific delivery date has been agreed, when the Goods are
ready for dispatch FUCHS shall be entitled to store and insure the Goods and to charge the Customer the reasonable costs of so doing.
9. Packing
9.1 The packing is non-returnable and its appropriate disposal is the customer’s responsibility.
10. Inspection and Acceptance of Delivery
10.1 FUCHS inspects the goods and services in accordance with standard practice before dispatch or after performing the services. Any
additional tests have to be agreed upon and will be invoiced separately.
10.2 The customer must inspect all deliveries and services supplied, including partial deliveries and partial services, within 20 days of delivery
or performance, respectively, and must inform FUCHS in writing of any defects without delay, failing which the deliveries and services
are deemed to have been accepted.
10.3 FUCHS must correct the defects notified in accordance with article 10.2 as quickly as possible, and the customer must give FUCHS the
opportunity to do so. As far as possible, the customer shall remedy minor defects itself and in consultation with FUCHS.
10.4 Deliveries and services are also deemed to have been accepted if the customer uses or is able to use them.
10.5 The remedies for defective delivery and defective performance set out in Clauses 11 are exclusive and the customer waives all other
remedies.
11. Warranty for Defects
11.1 FUCHS warrants that the products delivered hereunder shall be free from defects in material or workmanship that could affect their
proper use. The warranty starts when the products leave our factory.
11.2 Express representations are only those expressly mentioned as such in the confirmation of the order by FUCHS. This warranty expires
no later than the lapse of the term of warranty.
11.3 Any warranty or liability of FUCHS is excluded for damages that cannot be proved to result from defects in material or workmanship
affecting the proper use of the products. In particular, any warranty or liability of FUCHS is excluded for damages resulting from wear
and tear, deficient maintenance, noncompliance with operating instructions, overexertion, undue operation, damage to property or loss
of production, as well as for damages resulting from other causes beyond the reasonable control of FUCHS.
11.4 The term of warranty is 12 months from the date of delivery. The warranty includes the replacement of the defective parts, but not the
on-site service. Any return of the subject matter of the Contract for the purpose of remedying defects shall be carried out in cooperation
with the customer. The transport costs incurred shall be borne by FUCHS. For products not manufactured by FUCHS, the warranty
provisions of the respective manufacturer shall apply.
11.5 If, within the term of warranty, the customer discovers defects within the meaning of articles 11.1 and 11.2 in products supplied by
FUCHS and wishes to make a warranty claim, then he must notify FUCHS at the latest within seven days of this occurrence.
11.6 FUCHS shall, at its discretion, either repair or replace such products or parts thereof. The replacement of defective products does not
constitute an extension nor give rise to a recommencement of the term of warranty. Time spent and expenditures incurred by FUCHS
as a result of notifications of defects that turn out to be unfounded, shall be charged to the customer.
11.7 The term of warranty expires prematurely and all certificates (ATEX, CE and others) become null and void:
11.7.1 if the customer or third parties do not handle the products in accordance with the instructions given by FUCHS
11.7.2 if the products have been used beyond their specifications
11.7.3 if the customer or third parties make improper modifications or repairs
11.7.4 if the customer has used non-original FUCHS spare parts or components
11.7.5 if the customer fails to issue a written complaint about a defect in good time (see article 11.5)
11.7.6 if the customer, in the event of a defect, does not immediately take all suitable measures to mitigate the damage and fails to give
FUCHS the opportunity to remedy the defect.
12. Termination
12.1 Either party may immediately terminate the Contract by written notice if the other party
i) breaches a substantial contractual obligation (and the breach, if capable of remedy, is not remedied within 90 days of receipt of a
request for remedy)
ii) persistently breaches any one or more terms of the Contract
iii) fails to make any payment when due
iv) is declared or becomes insolvent or bankrupt, has a moratorium declared in respect of any of its indebtedness, enters into liquidation
proceedings [or similar] or any of the above is likely to occur
v) ceases or threatens to cease to carry on business.
12.2 If FUCHS has the right to terminate the Contract under Clause 12.1, the following shall apply:
i) FUCHS may withhold delivery of any undelivered Goods and stop any Goods in transit
ii) FUCHS may terminate the Customer’s right to re-sell and retain possession of any of the Goods owned by FUCHS
iii) FUCHS may enter the Customer’s premises or any other premises where the Goods are or may be stored and may repossess and sell
or dispose of any Goods owned by FUCHS to discharge any sums owed by the Customer to FUCHS under the Contract or any other
agreement with the Customer
iv) all monies owed by the Customer to FUCHS shall immediately become due and payable.
13. Exclusion of Further Liability
13.1 All cases of breach of contract and the legal consequences thereof are conclusively regulated by these General Conditions.
13.2 With the exception of those expressly stipulated in these General Conditions, the customer expressly waives all claims, regardless of
their legal basis, in particular any claims for damages, reduction of purchase price, and cancellation of or rescission of the contract.
13.3 Subject to any mandatory strict product liability provisions, any liability for incidental or consequential damages is expressly excluded.
In particular, FUCHS is not liable, on any legal ground whatsoever, for damages caused by defects including damages spreading out or
consequential damages such as business disruption, loss of production, capital costs, lost profit, third-party claims (including claims of
the customer's clients) or any interests of the customer to be held harmless against such claims, respectively.
14. CE Conformity
14.1 FUCHS standalone equipment (as technically described in the FUCHS offer) is provided with a CE Marking, in full conformity with the
CE norms.
14.2 FUCHS equipment supplied as partially complete (for instance without safety grids, electrical panel or machine control system as
technically described in the FUCHS offer) will be delivered with a CE Certificate of Incorporation in accordance with CE Directive
2006/42/EC on machine safety. This is valid subject to the installation of a CE-compliant safety cage. In such case, the final integrator
is responsible for the whole CE certification of the equipment.
14.3 FUCHS equipment is manufactured in accordance with the EC Machinery Directive 2006/42/EC and the ATEX Directive 2014/34/EU (for
Ex versions). The respective underlying risk assessment was prepared by FUCHS technicians together with an external engineering
office specialised in such assessments. If the customer arrives at a different assessment which FUCHS does not share, he may, in
consultation with FUCHS and at his own expense, adapt the machine or its safety equipment so that it corresponds to his assessment.
If the customer requests that this adjustment work be carried out by FUCHS and if this is feasible, FUCHS shall carry out this work at
the customer's expense following a prior offer by FUCHS and commissioning by the customer. If the complaint is clearly and unequivocally
non-conforming, FUCHS shall bring the goods into conformity at its own expense (with the best possible cooperation with the
customer).
15. Equipment Performance
15.1 Unless otherwise expressly stated in the FUCHS offer, FUCHS does not to take any responsibility for the process performances of the
Goods sold. No warranty is given that products or services are suitable or sufficient for any specific purpose unless such purpose is
defined in the Contract and expressly accepted by FUCHS in writing.
16. Severability
16.1 If any provision of these General Conditions of Sale and Delivery is held invalid in whole or in part, or if it cannot be implemented, the
parties will replace it with a new one which comes as close as possible to the intention of the invalid provision. All other provisions
hereof are not affected thereby.
17. No Waiver
17.1 No waiver by either party of any breach of the Contract by the other party shall be considered as a waiver of any subsequent breach of
the same of any other provision.
18. Force Majeure
18.1 FUCHS shall not be liable for any failure to fulfil its obligations under the Contract if such failure is due to strike, lock-out, industrial
dispute, breakdown of plant, transport or equipment, restraints of government, blockades, war, civil disturbance, forces of nature or,
whether being of the same nature as the foregoing or not, to any event or circumstance beyond FUCHS’s reasonable control.
19. Applicable Law and Jurisdiction
19.1 All contracts concluded in accordance with these General Conditions of Sale and Delivery are governed by the laws of Switzerland with
the place of jurisdiction Fribourg (Switzerland).
19.2 However, FUCHS reserves the right to take legal action before the courts having jurisdiction over the place of domicile of the customer
or before any other competent court.
20. Assignment and Onward Sales
20.1 The Customer shall not assign, subcontract, delegate, transfer or dispose of the Contract and/or any of its rights or obligations under
it without prior written consent of FUCHS.
20.2 The Customer irrevocably warrants, represents, undertakes and guarantees that it will not sell the Goods onto a third party domiciled
in a foreign jurisdiction, where, if FUCHS were to make such a sale it would be unlawful to do so pursuant to the laws of Switzerland or
under any International trade embargo restricting the sale of the Goods from Switzerland to a foreign jurisdiction from time to time.
20.3 In the event that the Customer discovers that it has resold the Goods in breach of Clause 20.2 it shall notify FUCHS as soon as such
breach is discovered, of the detail of such resale including the identity of the third-party purchaser, the date of the resale, the quantity
of Goods resold and any further details requested by FUCHS.
20.4 In the event that the Customer breaches Clauses 20.2 and 20.3 the following shall apply:
i) FUCHS shall be entitled to withhold the supply of any undelivered Goods, under the Contract to which the breach relates or any other
contract made between FUCHS and the Customer.
ii) without prejudice to any remedy which FUCHS is entitled to under these conditions the parties agree that damages for breach of Clauses
20.2 and 20.3 shall be an inadequate remedy.
21. Customer Indemnity
21.1 The Customer shall indemnify and hold harmless FUCHS and its employees against any claim made against or any loss, cost (including
any legal costs incurred), damage, injury or expense suffered by FUCHS or its employees or agents:
i) howsoever arising on the Customer’s site or any site to which delivery is made or on which services are provided at the request of the
Customer
ii) caused or contributed to by the negligence of the Customer, its employees or other persons for whom the Customer is responsible
iii) arising out of any breach by the Customer or any liability of the Customer under the Contract or these conditions, save in any case, to
the extent directly caused by the negligence of FUCHS, its employees or agents
iv) arising out of any breach of the Customer’s obligations under Clause 20.
21.2 If at the request of (or by contract with) the Customer, FUCHS agrees to provide Goods or services to any person who is not a party to
the Contract , the Customer shall procure that such person agrees to be bound by these conditions as though a party to the Contract
and the Customer shall indemnify FUCHS against any consequences of the Customer failing so to do, including any claim made by such
person.
