General Terms and Conditions of sale
1. General - Scope of application
All - including future - offers, deliveries and other services of GF MS Sales Switzerland SA, Via Zandone, 1 CH-6616 Losone (hereinafter referred to as "GF MS Sales") - are based exclusively on these General Terms and Conditions. Any terms and conditions of the contractual partner (hereinafter referred to as "Customer" or "Purchaser") that deviate from, contradict or are not included in our General Terms and Conditions shall not be recognised unless GF MS Sales has specifically agreed to their validity in writing. Counter-confirmations by the Customer with reference to its terms and conditions of business or purchase are hereby rejected.
These General Terms and Conditions shall also apply if GF MS Sales carries out a delivery without reservation in the knowledge of conflicting or deviating terms and conditions of a customer. GF MS Sales reserves the right to amend these General Terms and Conditions from time to time. The current version of these General Terms and Conditions shall apply in each case.
These General Terms and Conditions only apply to customers who are acting in the exercise of their commercial or independent professional activity (companies) when concluding the contract, as well as to legal entities under public law.
If the customer is a reseller, the customer undertakes not to deliver contract goods to war zones or to countries that are subject to a delivery boycott. The customer shall indemnify GF MS Sales against any liability for third-party claims arising from the breach of this obligation.
If the customer is a reseller, the customer shall not, for the duration of the co-operation with GF MS Sales, advertise or offer any product that directly or indirectly competes with the Contractual Goods (under the same Internet address) or directly or indirectly support a third party in such activities without having obtained the prior written consent of GF MS Sales in each individual case, stating the respective product.
2. Product descriptions, technical application notes, subject to change
Brochures, catalogues, technical data sheets, outline drawings (3D data), instructions for use and other written information ("information material") are not binding unless otherwise agreed and do not constitute a quality specification. No warranty is given for the correctness of the documents provided. GF MS Sales is expressly not liable for any deviations in the Information Materials provided to the customer that arise because of errors in electronic transmission. Technical application information and recommendations provided by GF MS Sales in words and pictures to support the customer are based on our current state of knowledge. They are non-binding and do not establish any contractual rights or secondary obligations arising from the purchase contract, unless expressly agreed otherwise in writing. GF MS Sales reserves the right to adjust the specifications of the contractual goods and the information material at any time.
GF MS Sales reserves title and/or copyright to all illustrations, drawings, calculations, and other documents relating to the Contract Goods, including but not limited to design drawings, plans or other technical or commercial documents ("Documents") provided or made available to the Customer. The customer acknowledges these rights and undertakes not to make the information and documents received accessible to third parties in whole or in part without the prior written authorisation of GF MS Sales or to use them for purposes other than those for which they were provided to the customer.
Insofar as the customer is a reseller, it shall ensure that the design of the website or other sales documents corresponds to the high regard for the contractual goods with regard to the advertising and offer of the contractual goods via the Internet as well as offline. Furthermore, that in the case of the online offer of Contractual Goods, the electronic processing procedure complies with the legal requirements applicable in all call-off areas for error-free and unambiguous advertising, presentation, and selection of the Contractual Goods, including a correct presentation of the business conditions.
GF MS Sales reserves the right to make changes to the design and materials, provided that the normal use of the delivery item or the use assumed under the contract is not significantly and adversely affected and the change is reasonable for the customer.
3. Intellectual property rights
GF MS Sales retains in full all intellectual property rights to which it is entitled in connection with the Contractual Goods, expressly patent, design, copyright, name, and company rights, insofar as these exist, and does not grant the Customer any rights thereto without express prior written consent in individual cases, with the exception of the right pursuant to Clause 2 below.
GF MS Sales permits the Customer to market and/or advertise the Contractual Goods in the Contractual Territory using the trade names, product numbers, trademarks and other symbols and product designations (hereinafter referred to as "Contractual Trademarks") specified by GF MS Sales without any changes. Insofar as guidelines on the correct use of the contractual trademarks exist, the customer undertakes to comply with them. Except for the limited rights of use in connection with the sale and advertising of the contractual goods, the customer does not acquire any rights to the contractual goods and/or the contractual trademarks.
GF MS Sales does not guarantee the existence or legal validity of the contractual trademarks or that GF MS Sales' industrial property rights do not infringe the rights of third parties. GF MS Sales does not assume any obligation to register trademarks in connection with the contractual goods.
The customer undertakes not to change, falsify or otherwise modify the contractual marks, nor to remove, change, falsify or otherwise modify the contractual marks or numbers and other identification marks affixed to the contractual goods or their packaging. The customer further undertakes not to attack the industrial property rights of GF MS Sales (patents, trademarks, designs, etc.) for the duration of the supply relationship. Any breach of the above provisions shall entitle GF MS Sales to terminate the supply relationship with the customer without notice. The right to assert further claims remains reserved.
If the customer becomes aware of infringements of the contractual trademarks by third parties, it shall inform GF MS Sales immediately. If claims are asserted against the customer by third parties due to the alleged infringement of industrial property rights in connection with the contractual goods, the customer shall inform GF MS Sales immediately and the parties shall agree on further measures. Insofar as GF MS Sales is at fault about the claims asserted by the third party, GF MS Sales shall indemnify the Customer against any claims of the third party in this respect. The Customer is not authorised to enter into any agreements with the third party in individual cases without the written consent of GF MS Sales. A settlement with a third party in individual cases requires the prior written consent of GF MS Sales.
4. Delivery time, specifications, delay, spare parts
Orders placed by the customer shall only become effective upon receipt of the customer's order confirmation signed by GF MS Sales.
The confirmed delivery dates are ex works. The Customer shall inform GF MS Sales in writing of the standards and regulations applicable in the country of destination at the latest when placing the order. Otherwise, GF MS Sales shall manufacture the contractual goods exclusively in accordance with the mandatory applicable regulations and standards at the place of manufacture.
The delivery date is approximately eight (8) weeks after conclusion of the contract, but in no case before all information and/or documents and approvals to be provided by the customer have been provided. The delivery dates shall be extended accordingly if GF MS Sales does not receive the information it requires for the fulfilment of the contract in due time or if the Customer subsequently changes it and thus causes a delay in the deliveries or services, if obstacles occur which GF MS Sales cannot avert despite exercising due care, irrespective of whether they occur at GF MS Sales, at the Customer or at a third party - such as a supplier of GF MS Sales. Such obstacles are, for example, labour disputes, war, riots, significant operational disruptions, accidents, late or defective delivery of the required raw materials, semi-finished or finished products, official measures or omissions and natural disasters.
In cases in which GF MS Sales suffers a disruption of operations through no fault of its own, the customer is entitled to withdraw from the contract after setting a reasonable grace period. The customer is only entitled to claims for damages due to non-fulfilment in the amount of the foreseeable damage if the delay is based on intent or gross negligence, on a material breach of duty by GF MS Sales. If the disruption of operations through no fault of GF MS Sales lasts longer than eight weeks, GF MS Sales is entitled to withdraw from its performance obligations.
If the Customer is in default with the payment of the contractual goods (see 7.3.), GF MS Sales is entitled to refuse performance regarding outstanding orders from the Customer under the respective order confirmation.
The customer has no rights and claims due to delayed deliveries or services, except for those expressly mentioned in the above clauses 3 and 4. This restriction does not apply to unlawful intent or gross negligence on the part of GF MS Sales, but it does apply to unlawful intent or gross negligence on the part of auxiliary persons.
GF MS Sales undertakes to keep available existing spare parts for the contractual goods to an economically reasonable extent for a period of ten (10) years after the order date. GF MS Sales shall inform the Customer in good time of the intended discontinuation to enable the Customer to place stock orders before discontinuation.
5. Transport, transfer of risk, incoming goods inspection, partial deliveries
Unless otherwise agreed, all deliveries of contractual goods by GF MS Sales shall be made "Ex Works" in accordance with Incoterms 2010. The place of delivery and thus the place of transfer of risk shall be Schaffhausen, unless otherwise agreed by way of exception. Proper transport from the place of delivery to the place of destination, as well as customs clearance and insurance of the contractual goods shall be the sole responsibility of the customer, unless expressly agreed otherwise in writing.
If, by way of exception, delivery of the contractual goods by GF MS Sales is owed due to a deviating agreement, GF MS Sales shall deliver to the agreed place of destination, i.e. delivery to the kerbside of the place of destination, against reimbursement of costs. Notwithstanding the above, the transfer of risk takes place upon collection of the contractual goods at the registered office of GF MS Sales. Provided the customer so wishes, GF MS Sales will cover the delivery with transport insurance; the costs incurred in this respect shall be borne by the customer. Customs duties and other costs and charges of any kind associated with the delivery of the delivery item (e.g., import and/or value added taxes) are to be borne by the customer and will be charged to the customer to the extent that they are disbursed by GF MS Sales or a third-party company commissioned by GF MS Sales.
Immediately after delivery of the contractual goods to the place of delivery or destination (Clause 2) in accordance with this agreement, the customer shall carry out a comprehensive incoming goods inspection for damage or deviations in quantity. Quantitative deviations do not constitute a defect and do not entitle the customer to assert warranty claims. The customer shall inform GF MS Sales immediately of any shortfall in quantity and GF MS Sales shall, as a rule with the next delivery, at the latest after completion of production of the shortfall, provide a replacement delivery at no extra cost to the customer. If GF MS Sales does not receive a written notification from the customer within 5 working days after the delivery date, the delivered batch of contractual goods shall be deemed approved. Notification of defects after this period shall be deemed late. In the event of a defect in the delivery recognised by GF MS Sales, GF MS Sales shall rectify the defect in accordance with Section 9.2. of these General Terms and Conditions. Further claims by the customer, for compensation for consequential damages, loss of profit, etc. are excluded.
GF MS Sales does not assume any obligation to take back packaging. The customer must ensure that the emptied packaging is disposed of in accordance with the regulations applicable in the country of destination. If necessary for operational reasons, GF MS Sales reserves the right to make partial deliveries and/or render partial services at any time.
6. Documents/Assembly
Upon receipt of the order, GF MS Sales shall provide the Customer with certain information on technical specifications and product characteristics of the Contract Products.
At the same time as the delivery pursuant to § 5 (1), GF MS Sales shall provide the Customer or a third party authorised by the Customer (e.g. forwarding agent) with the following documents for the Contract Products: Commercial invoice (incl. certificate of origin) and, in the case of more complex Contract Products, the respective operating instructions. The customer is responsible for the procurement and processing of accurate, complete, and customs-certified documents, in particular for the export of the contractual goods.
If the customer requires further documents (e.g. export certificates, dual-use declarations, etc.) for the transport of the contractual goods, GF MS Sales shall support the customer within the scope of its possibilities in completing the relevant documents to a reasonable extent.
Unless expressly agreed otherwise in the contract, the assembly of the contractual goods shall be carried out exclusively by the customer or by a third-party company commissioned by the customer. If, by way of exception, delivery, assembly or installation services by GF MS Sales are part of the contract on the basis of a written agreement, the customer is obliged to make all arrangements (e.g. electrical connections, hydraulic connections, compressed air connections, sufficient lighting, etc.) for the assembly at the assembly site. Any delays or cost increases resulting from non-compliance with this obligation shall be borne solely by the customer.
If the customer is in default of acceptance or violates other obligations to co-operate, GF MS Sales is entitled to demand compensation from the customer for the resulting damage, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the object of sale shall also pass to the customer at the point in time at which the customer is in default of acceptance.
7. Prices and Payment
With the publication of a price list for resellers, all previous price lists lose their validity. The price list applies together with our general terms and conditions valid at the time of the order, which apply exclusively.
The delivery prices stated in the order confirmation apply to the delivery of the contractual goods (plus VAT, if applicable). Invoicing is carried out in euros (EUR), unless otherwise agreed in the order confirmation. If the purchasing conditions contain deviating provisions from the customer, these are expressly contradicted.
In the event that the delivery relationship between the customer and GF MS Sales extends over a longer period of time than two months and, as an exception, the invoicing according to the order confirmation is not made in Swiss francs, GF MS Sales reserves the right to change the delivery prices for its range at any time and at short notice including the contractual goods (price escalation clause). To the extent that there are discrepancies between the customer's purchasing conditions and the order confirmation, the individual conditions contained in the order confirmation apply, particularly regarding prices.
If services (e.g. concept studies, test devices, system tests, etc.) are carried out at the request of the customer or on the mutual recommendation of GF MS Sales, these become contractual goods subject to payment.
The deduction of cash discounts and/or discounts from the delivery price by the customer is not permitted unless expressly agreed in writing between the parties in individual cases. The prices stated only apply to the delivery of the contractual goods from the delivery location Schaffhausen. Further delivery and/or assembly, if agreed in an individual case, will also be billed based on the time required, unless a flat rate price has been agreed in an individual case.
Unless the order confirmation states otherwise, the following payment conditions apply: The agreed delivery price (plus VAT, etc.) is due for payment to GF MS Sales in full and without deductions on the invoice date. Invoicing occurs at the same time as GF MS Sales notifies customers that contract goods are available for collection at the delivery location. Transfer fees are borne by the purchaser. If the due contribution is not credited to the GF MS Sales account within the above-mentioned deadlines, the customer is automatically in default.
If the customer defaults on payment, GF MS Sales is entitled to demand at least the statutory default interest. Payment by customers is only deemed to have been made as soon as GF MS Sales can dispose of the amount. A one-time or multiple granting of a payment term only applies to the invoice amount referred to and not to other claims (claims from other or future services).
GF MS Sales is entitled to offsetting and retention rights towards customers to the extent permitted by law. An offsetting to customers or the retention of payments that act as an offsetting is only permitted if the customer's legal claims are recognized by GF MS Sales, are not disputed, are ready for decision or have been legally established. Furthermore, the customer is only authorized to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
GF MS Sales is entitled, even contrary to the customer's terms and conditions to the contrary, to initially offset the customer's payments against older debts and will inform the customer about the type of offsetting that took place. If costs and interest have already been incurred, GF MS Sales is entitled to offset the payment first against the costs, then against the interest and finally against the main claim.
8. Retention of title / default in payment / cancelation rights
GF MS Sales remains the owner of the contractual goods delivered (“reserved goods”) until receipt of the full invoice amount.
The customer is obliged to inform GF MS Sales immediately in the event of seizure, confiscation, damage, or loss of the reserved goods; If this obligation is breached, GF MS Sales has the right to withdraw from the contract.
The customer is obliged to cooperate in measures necessary to protect the property of GF MS Sales; In particular, he authorizes GF MS Sales, upon conclusion of the contract, to register or note the retention of title in public registers, books or the like, in accordance with the laws applicable in the recipient country, and to fulfil all relevant formalities.
The customer will insure and maintain the reserved goods at their new value against theft, breakage, fire, water and other risks at their own expense for the duration of the retention of title in favour of GF MS Sales. He will also take all measures to ensure that GF MS Sales's claim to ownership of the reserved goods is neither impaired nor cancelled. If maintenance and inspection work is necessary, the purchaser must carry this out in a timely manner at his own expense.
If the purchaser behaves in breach of contract, particularly in the event of late payment, GF MS Sales is entitled to demand the return of the reserved goods from the customer. The taking back of the purchased item by GF MS Sales does not constitute a withdrawal from the contract unless GF MS Sales has expressly stated this in writing. The seizure of the reserved goods by the customer by GF MS Sales always constitutes a withdrawal from the contract.
After taking back the contractual goods, GF MS Sales is authorized to utilize them. The proceeds from the sale must be offset against the customer's liabilities - less appropriate realization costs.
The customer will ensure that the customer's advertising and sales activities do not damage the good reputation of GF MS Sales and/or the contract goods, which has been built up due to its long-standing presence in the precision tools market. If the customer violates this obligation and a corresponding warning does not help within a period of 10 working days, GF MS Sales is entitled to terminate the delivery relationship with the customer without notice. The same applies in the event of repeated violation of another main service obligation of the customer, in particular payment obligation, which is not remedied despite the customer's warning. The right of each party to terminate for good cause remains unaffected.
9. Notification of defects/ warranty for defects
The customer must immediately report any defects of any kind in the contractual goods in writing - however, hidden defects must only be reported upon discovery. Otherwise, the delivered goods are considered approved. The customer's warranty rights require that he has properly fulfilled his legally regulated and/or contractually agreed inspection and complaint obligations.
If the delivered goods have a not insignificant defect and this was reported in a timely manner, the customer can choose to request subsequent performance from GF MS Sales either the elimination of the defect (repair) or the delivery of a defect-free item (replacement delivery). In the event of remedying the defect, GF MS Sales is obliged to bear all expenses necessary for the purpose of remedying the defect, in particular transport, travel, labour and material costs, provided that these do not increase as a result of the purchased item being transported to a location other than the place of performance became.
If subsequent fulfilment fails, the customer is entitled, at his discretion, to withdraw from the contract or to demand a corresponding reduction in the purchase price (reduction). Liability for insignificant defects is excluded.
10. Limitations of Warranty
GF MS Sales complies with the mandatory legal regulations applicable in the country of origin (Switzerland) for production and delivery Ex Works (Incoterms 2010). Furthermore, GF MS Sales will observe the applicable safety, accident prevention and other mandatory technical regulations when producing the contractual goods.
If the customer expressly informs GF MS Sales of additional legal requirements for the contract goods in certain recipient countries at the time of the order, and GF MS Sales confirms compliance with these additional requirements in writing, GF MS Sales will also make corresponding modifications in production for a corresponding additional charge of the contract goods. Unless expressly agreed otherwise, the customer is solely responsible for ensuring that the contractual goods meet all applicable requirements in all those countries in which the customer uses the contractual goods and/or forwards them to third parties.
GF MS Sales does not assume any further obligations and/or warranties in connection with the contractual products. Unless expressly agreed in writing, GF MS Sales assumes no liability for the commercial and/or technical suitability of the contractual goods.
11. Liability/ Limitations of Liability
The customer indemnifies GF MS Sales from all third-party claims that arise in connection with the international distribution of the contractual goods, except for those claims which are solely due to the breach of a guarantee or essential contractual obligation assumed by GF MS Sales hereunder in relation to the contractual goods are.
In all cases of established contractual or non-contractual liability of GF MS Sales, GF MS Sales will pay compensation exclusively in accordance with the following limits: -1 liability for simply negligent behaviour is limited to 30% of the net invoice value, for financial losses to a maximum of 10% of the net value. invoice value limited; -2 In addition, to the extent that GF MS Sales is insured against the damage that has occurred, GF MS Sales is liable within the scope of the insurance coverage and subject to the insurance payment; -3 GF MS Sales is not liable for lost profits; -4 Claims due to negligent failure to provide information about negative characteristics of the contract goods are excluded, provided this does not constitute a material defect.
The limitations of liability in accordance with paragraph 2 do not apply to liability for fraudulent concealment of a defect, intent, gross negligence and injury to life, body or health, as well as liability under the Product Liability Act. This applies accordingly if the customer requests damages instead of performance due to the lack of guaranteed quality of the item, or if GF MS Sales has violated an essential contractual obligation that is essential to achieving the purpose of the contract. The liability of GF MS Sales is in any case limited to the damage typical for the contract. The violation of an “essential” contractual obligation within the meaning of these General Terms and Conditions occurs when GF MS Sales culpably violates such obligations on whose proper fulfilment the customer trusted and was also entitled to trust because they shape the contract. GF MS Sales remains unaffected by the objection of contributory negligence on the part of the customer.
12. Joint Liability
Unless otherwise stated in the above provisions, customer claims – regardless of the legal grounds – are excluded. GF MS Sales is not liable for damage that did not occur to the delivery item itself, as well as for lost profits or other financial losses to the customer.
The regulation in paragraph 1 does not apply to claims under the Product Liability Act. It also does not apply if GF MS Sales is liable for physical injury or damage to health for other legal reasons. To the extent that customers have claims against GF MS Sales arising from product liability for property damage, GF MS Sales' liability is limited to the amount of coverage provided by the business liability insurance.
The regulation according to paragraph 1 does not apply in the event of initial inability or impossibility.
To the extent that GF MS Sales' liability is excluded or limited, this also applies, to the extent permitted, to the personal liability of employees, representatives and vicarious agents.
The customer undertakes to maintain enough business liability insurance for all types of damage that could arise from the customer's business activities in connection with the advertising and distribution (including internationally) of the contract goods. The existence of the insurance must be proven in writing to GF MS Sales upon request.
13. Place of jurisdiction, place of performance, applicable law, relationship between the parties
In addition to these General Terms and Conditions, substantive Swiss law applies, excluding the United Nations Convention on Contracts for the International Trade in Goods (CISG).
If the customer is a merchant or a legal entity (including under public law), the courts in Will SG, Switzerland, are responsible for all disputes arising from the contract and these general terms and conditions. However, GF MS Sales is entitled to sue the customer at his registered office.
Unless otherwise stated in the order confirmation, the place of performance is the registered office of GF MS Sales.
All agreements made by the customer and GF MS Sales in the execution of the respective order and/or these General Terms and Conditions must be in writing to be effective.
GF MS Sales and customer are independent contracting parties. The cooperation under the respective order or framework agreement, as well as under these General Terms and Conditions, does not constitute an employment law relationship, an agency relationship or a joint venture or a corporate law or fiduciary connection between the parties. Neither party has the right to act in the name or on behalf of the other party. Neither party has the right to enter into obligations to the detriment of another party or to make promises, guarantees or other declarations on their behalf.
14. Data Protection
The customer agrees that the data provided by him will be collected, stored and used by GF MS Sales for the purpose of establishing, managing and processing the contractual relationship. GF MS Sales undertakes to comply with the applicable data protection regulations.
15. Severability clause
If the above general terms and conditions do not become part of the contract in whole or in part or are or become ineffective, these terms and conditions and the contract between GF MS Sales and the customer supplemented by these terms and conditions remain valid. If individual provisions of these General Terms and Conditions have not become part of the contract or if they become ineffective, the content of the contract is based on the statutory provisions.
Losone, Switzerland, February 1, 2024 Management of GF MS Sales Switzerland SA