General terms of business and delivery
1. General
The following conditions apply to all quotations, sales and deliveries of Erich Keller AG. Diverging agreements, additional order-specific conditions or general terms of contract or business of customers are only valid if confirmed in writing by Erich Keller AG.
2. Scope of contract and execution
The written agreement is decisive for the scope and execution of deliveries and services. General catalogues and brochures are not binding.
Changes to design and materials in the sense of progressive further development of the products and of production technology are reserved.
Requests for changes and additions by the customer made after signature of the definitive order confirmation can only be taken into account at additional cost.
Project and detail drawings as well as samples remain the property of Erich Keller AG; without its consent they may neither be used otherwise nor made accessible to third parties.
3. Price and payment terms, ownership
Prices are understood to be without any deductions, payable in accordance with the order confirmation. In the event of late payment, the customer will be charged 2 % default interest above the applicable discount rate p.a. from the due date. In debt collection cases, external collection costs will likewise be charged to the customer.
Ownership of all contractually agreed deliveries and services remains with Erich Keller AG until payment has been received in full.
4. Delivery period
The delivery periods stated in the order confirmation become binding upon its signature. Compliance with the delivery period presupposes the fulfilment of the contractual obligations by the customer. Delivery delays for which Erich Keller AG is not demonstrably responsible entitle the customer neither to withdraw from the contract nor to damages or other claims.
If timely performance of the contract is delayed during its execution by missing or late information, contract signature, plans, specifications, agreed advance payments, works to be provided on site or changes thereto by the customer, etc., the contractual deadlines are extended accordingly.
If the delivery date is postponed by the customer later than 6 weeks (plus any period for transport and customs clearance) before the agreed delivery, the resulting storage costs as well as the effort for placing into and removing from storage may be charged.
Cases of force majeure interrupt the performance of the contractual obligations affected, without however granting the parties the right to withdraw from the contract.
5. Warranty
Erich Keller AG guarantees the quality of its products and the careful execution of agreed installations by its personnel. Liability for a particular purpose or particular suitability is assumed only insofar as this has been expressly agreed in writing. Otherwise the risk of suitability and use lies solely and exclusively with the customer.
The customer is obliged to inspect the delivered service without delay. Obvious defects in delivery or performance identified in the process must be reported to Erich Keller AG in writing within seven calendar days. Defects that cannot be discovered within this period even with careful inspection must be notified immediately upon their discovery. In the case of late notification, claims for defects and/or damages are forfeited. When notifying defects, the customer must give the contractor the opportunity to inspect the delivered service without delay. Once a joint acceptance has been carried out, notification of defects that were identifiable at acceptance is excluded.
If a defect exists, Erich Keller AG has the right, at its own discretion, to repair or replace the defective parts of the delivered service, or to declare full or partial rescission of the contract and refund the corresponding work/purchase price to the customer. Further or other claims for defects by the customer beyond the claim to subsequent performance are excluded and waived. Also excluded from Erich Keller AG’s warranty and liability is damage that has not demonstrably arisen as a result of poor material, faulty design or defective workmanship, e.g. as a result of natural wear, improper use or installation or inadequate maintenance, disregard of operating instructions, excessive strain, unsuitable operating materials as well as other reasons for which Erich Keller AG is not responsible. For claims by the customer due to inadequate advice or due to breaches of any ancillary obligations, Erich Keller AG is liable only in the case of unlawful intent or gross negligence. Any warranty obligation lapses if the customer does not fulfil its payment obligations in full.
The limitation period is two years from delivery; if the defect relates to movable work that has been integrated as intended into immovable work, the limitation period is five years from delivery. Upon transfer of risk the service is deemed delivered. Any repairs or replacement deliveries do not restart the limitation period.
6. Liability
All cases of breach of contract and their legal consequences as well as all claims by the customer, irrespective of the legal grounds on which they are made, are governed by these conditions. Under no circumstances does the customer have claims for compensation for damage that has not arisen to the delivered item itself, such as in particular loss of production, loss of use, loss of orders, lost profit as well as other indirect or direct damage. This exclusion of liability does not apply to unlawful intent or gross negligence on the part of Erich Keller AG. Moreover, this exclusion of liability does not apply insofar as mandatory law precludes it.
7. Final provisions
The registered office of Erich Keller AG, Sulgen (Switzerland), is agreed as the place of jurisdiction for all disputes arising from or in connection with this contract. Erich Keller AG is, however, entitled to bring proceedings against the customer at the customer’s registered office as well.
Swiss substantive law applies exclusively to the contractual relationship, to the exclusion of the United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods.
By signing the order confirmation the customer accepts these general terms of business and delivery of Erich Keller AG.