These General Conditions of Sale (hereinafter: GCS) apply exclusively to all legal relations between the purchaser and MOWA HEALTHCARE AG (hereinafter: MOWA) in connection with the sale of services or products (hereinafter: goods). Agreements or subsidiary agreements deviating from these conditions are only valid if they have been confirmed in writing by MOWA. The present GCC apply for the entire duration of the business relationship between the contracting parties. They take precedence over any other general terms and conditions of business which may be worded differently.
II. CONCLUSION OF A CONTRACT
The offers made by MOWA are subject to change and are not to be understood as a binding offer. A contract is not concluded until MOWA has confirmed it in writing or the goods have been dispatched.
- The prices listed in the written confirmation are binding prices. Any additional services provided by MOWA or necessary ancillary costs which are not listed in the written order will be invoiced separately.
- If the documents prepared by the purchaser do not correspond to the actual circumstances or if the purchaser has not informed MOWA of relevant & circumstances which are likely to have an effect on the execution of the order, all costs resulting from the necessary changes to the order shall be borne by the purchaser.
- Unless otherwise agreed, the prices are net and without value added tax ex works (EXW), in Euro (€), for customers within Switzerland in Swiss Francs (CHF). Unless otherwise agreed, freight, transport, customs and insurance costs as well as similar costs shall be borne by the customer.
IV. DELIVERY DATES - TRANSFER OF RISK
- Benefit and risk shall pass to the customer at the latest upon dispatch of the delivery ex works (place of performance).
- Unless otherwise agreed, MOWA will deliver the ordered goods to the purchaser at the purchaser's expense. The delivery is deemed to have been made when the delivery note (issued by MOWA, SCHWEIZER BAHN (SBB), POST, etc.) is signed by the purchaser; the transfer of use and risk is governed independently of this by clause 1 above.
- The delivery date is determined when the order is confirmed. Agreed delivery dates shall not be deemed fixed dates within the meaning of Art. 108 No. 3 of the Swiss Code of Obligations (OR).
- If the delivery is delayed for one of the reasons mentioned under point 5 below, a reasonable extension of the delivery period will be granted, taking into account all circumstances. This provision shall also apply if the cause of the delay occurs after the agreed delivery date.
- In the event that the purchaser does not accept the delivery on the agreed date, he must nevertheless comply with the agreed or usual payment deadline. MOWA will store the goods concerned at the risk and expense of the purchaser. The transfer of risk takes place in accordance with paragraph 1 above.
- The events listed below entitle MOWA to cancel the delivery obligations in whole or in part or to postpone them at its discretion: war, civil war, terrorist attacks, labour dispute, lockout as well as all other extraordinary events, such as fire, mobilisation, forced delivery, embargo, prohibition of currency transfers, riot, unrest, lack of means of transport, restrictions on employment or power supply, provided that the contracting parties are not responsible for these circumstances. This provision also applies to delays caused by the following reasons:
- lack of market availability of tools
- acts or omissions of the customer, in particular if he has not fulfilled his obligations with regard to the delivery or has not fulfilled them in time.
V. RIGHT OF REFUSAL
- The customer is entitled to cancel his order within 7 days without giving reasons. The period begins at the earliest upon receipt of this instruction, but not before receipt of the goods by the customer. The timely dispatch of the revocation of the goods is sufficient to comply with the revocation period.
- The return of custom-made products is generally excluded.
- The cancellation must be made in writing, but without giving reasons, by letter, fax, e-mail or by returning the goods. The original invoice and the original packaging must be enclosed with the cancellation.
- The costs of the return shipment are to be borne by the customer.
VI. WARRANTY AND LIABILITY
- The warranty of MOWA is excluded to the extent permitted by law. MOWA limits its warranty to the quality of the materials used, the design, the appearance, the exactness of the dimensions, the agreed physical and mechanical properties and the robustness of the goods. The warranty period is 12 months. It begins with the dispatch of the delivery ex works or with the possibly agreed acceptance of the delivery and services. This list is conclusive. Claims for defects that go beyond this are excluded.
- The purchaser must inspect the delivered goods immediately after receipt. This inspection shall extend in particular to the quality of the materials used, the design, the appearance, the exactness of the dimensions, the agreed physical and mechanical properties and the robustness of the goods. The purchaser must notify MOWA in writing of any defects, in a written and substantiated manner, within fifteen (15) days of receipt of the goods. If he fails to do so within the fifteen (15) day period, the delivered goods shall be deemed to be free of defects in all functions and approved.
- If the delivery turns out to be defective and MOWA becomes liable under the above-mentioned conditions, MOWA is exclusively obliged to make a replacement or subsequent delivery for the defective goods. Any further claims of the purchaser due to defective delivery, in particular compensation for damages, consequential damages and withdrawal from the contract are excluded. In particular, the customer agrees to waive the right to claim damages in court.
- Furthermore, MOWA is under no circumstances liable for claims by the purchaser or third parties for compensation for damage which has not occurred to the delivered goods themselves, for consequential damage arising from product liability, for direct or indirect damage resulting from the goods delivered to the purchaser, or for acts or omissions of its auxiliary persons as defined in Art. 101 OR.
VII. PAYMENT TERMS AND CONDITIONS
- Payment must be made within 10 days of the invoice date. Unless otherwise agreed, all deliveries are made against cash payment or by transfer to the account specified by MOWA.
- Should the customer be in arrears with his or her payment, MOWA may refuse to pay its contractual benefits until payment has been made in full,unless the delay in payment is due to an act or omission of MOWA. If the delay in payment is due to one of the reasons mentioned in Chapter IV, paragraph 6 above, MOWA will not be entitled to claim interest on the outstanding amounts.
- If MOWA's rights are threatened by insolvency of the purchaser, MOWA may refuse to provide its contractual benefits until such benefits are secured by a bank guarantee or other security from the purchaser. If this guarantee is not provided within a reasonable period of time, MOWA may withdraw from the contract in whole or in part and claim damages for non-performance.
- Unless otherwise agreed, payment is made in Euro (€), for customers within Switzerland in Swiss Francs (CHF).
- With the due date of an invoice, which is equivalent to the expiry of the payment period, the purchaser is in default without further reminder from MOWA. From this date, he is obliged to pay interest on arrears at an annual rate of 8% on invoices in euros or Swiss francs. In the case of invoices in other currencies, the current account credit rate applicable to first-class debtors, as applied in the country of the invoicing currency, is owed, provided this interest rate is higher than 1% per month, otherwise default interest of 1% per month is also applicable.
VIII. RETENTION OF TITLE
MOWA remains the owner of its entire delivery until the purchaser has fulfilled all contractual obligations, in particular the full payment of the sales price and ancillary costs. MOWA has the right to have the reservation of ownership entered in the appropriate public register, for which the purchaser gives his express consent.
IX. INTELLECTUAL PROPERTY RIGHTS
Nothing in these terms and conditions grants the purchaser any right to the intellectual property rights of MOWA.
X. APPLICABLE LAW AND JURISDICTION
- The legal relationship between the parties shall be governed exclusively by substantive Swiss law. This applies in particular even if the purchaser is domiciled abroad. The provisions of the Vienna Sales Convention (UN Convention on the International Sale of Goods of 11 April 1980) are excluded.
- The place of jurisdiction for the assessment of all disputes arising from the business relationship between the contracting parties, their authorised representatives or legal successors is the registered office of MOWA in CH-4500 Solothurn. MOWA may also sue the purchaser at his registered office or at any other legal place of jurisdiction.
MOWA Healthcare AG
Tel: +41 (0)32 625 24 00
Fax: +41(0)32 623 00 58
Status February 2020