Standard Terms and Conditions of PCI Bauprodukte AG for the Sale of Products and Services in the PCI and THOMSIT Product Lines
These Standard Terms and Conditions shall apply to all business relationships with PCI Bauprodukte AG (hereinafter referred to as “PCI”) and shall be an integral part of all contracts for present and future deliveries except as otherwise agreed in writing between the Purchaser and PCI. The Purchaser hereby expressly waives the application of any contract conditions in deviation from these Standard Terms and Conditions, including without limitation any standard terms of purchase contracts of the Purchaser.
2. Offer and conclusion of contract
The quotations of PCI shall be non-binding; orders and oral agreements shall not be binding on PCI until and unless they have been confirmed by PCI in writing. An invoice issued by PCI shall also be deemed to be an order confirmation.
PCI shall charge the Purchaser the prices valid on the date of the order plus value-added tax at the applicable rate.
4. Product characteristics, samples and guarantees
Except as otherwise agreed between PCI and the Purchaser, the characteristics of the products shall be determined solely by the product specifications of PCI. Any public statements or applications of the goods identified other than in the contract (for example in accordance with the European Regulation on chemicals (REACH)) shall not be deemed to be an agreement concerning the properties of the goods or a presupposed use of the goods under the contract. The properties of samples shall not be binding unless they have been expressly agreed to represent the properties of the products. Statements concerning properties and durability shall not be deemed to constitute guarantees unless they have been expressly agreed and designated as guarantees.
5. Shipment/partial deliveries
5.1 Goods shall be shipped for the account of and at the risk of the Purchaser. In the event that goods are shipped, the risk of loss or deterioration of the goods shall be transferred to the Purchaser when the goods are handed over to the forwarder, haulier or other person commissioned to ship the goods, but no later than the time when the goods leave the premises of PCI. This shall also apply in the event that goods are carried by PCI itself.
5.2 PCI shall be entitled to make partial deliveries under the contract except where the Purchaser cannot reasonably be expected to accept such partial deliveries in view of the Purchaser’s own legitimate interests.
5.3 The Purchaser shall bear any additional cost incurred in connection with delay in taking delivery of goods.
6. Delivery periods
6.1 The delivery period stated in the contract shall be extended by a reasonable period in the event that information required by PCI fur the performance of its obligations under the contract is not received by PCI in good time, the Purchaser changes any order retroactively or in the event of obstacles not caused by PCI and which are beyond the reasonable control of PCI. Such obstacles may include, without limitation, delay in the delivery to PCI of the raw materials or semifinished goods required, the delivery of incorrect raw materials or semifinished goods to PCI, acts of authorities, force majeure, industrial disputes, severe disturbances to business, accidents, acts of God, etc.
6.2 PCI shall notify the Purchaser as soon as possible of the beginning and end of any such circumstances.
7 Inspection of goods
7.1 Promptly upon the receipt of goods supplied by PCI, the Purchaser shall inspect said goods for completeness and to identify any transport damage. The Purchaser or recipient of the goods shall have any complaints noted by the forwarder or delivery company on the delivery note for such goods. In the event that goods are delivered by rail, the Purchaser shall cause a damage report to be issued by the railway station responsible on the date of delivery of such goods.
7.2 The Purchaser shall submit the damage report to PCI within seven days of the receipt of the goods or seven days from the identification of defects in goods in the event of defects which could not have been detected by proper inspection upon delivery. All claims in connection with damage to the goods shall be submitted in writing and shall precisely state the type and extent of any damage. In the event that the Purchaser fails to comply with these provisions, PCI shall be released from any and all liability in connection with damage to the goods.
8. Terms of payment
8.1 Invoices issued by PCI shall be paid within 30 days of the complete delivery of the goods covered by said invoices but no later than within 30 days of the receipt thereof by the Purchaser without any deduction. The Purchaser shall not deduct any cash discount from invoices issued by PCI without the written approval of PCI.
8.2 Should the Purchaser fail to comply with such payment deadlines, the Purchaser shall be obligated to pay delay interest at 8% per annum on the amount outstanding from the date when payment becomes due without it being necessary for PCI to issue any reminder to the Purchaser. PCI shall be entitled to provide evidence of higher loss or damage in the event of such delay and to claim compensation for such higher loss or damage from the Purchaser.
9. Delay by the Purchaser
9.1 If payment of one or more invoices by the Purchaser is delayed, any and all amounts owed to PCI by the Purchaser in connection with their business relations shall become due and payable immediately irrespective of the terms of payment for any such amounts.
9.2 Should it become apparent, following the conclusion of the contract, that the claim of PCI to the payment of the purchase price is jeopardized by poor creditworthiness of the Purchaser, PCI shall be entitled to refuse to perform the contract until the Purchaser has paid the consideration under the contract or provided security for such payment. In the event of delay in payment by the Purchaser, PCI shall be entitled to revoke any terms of payment granted to the Purchaser and to require advance payment or security for any further deliveries.
The Purchaser shall not be entitled to set off any claim from amounts due to PCI except where the claim by the Purchaser has been accepted by PCI in writing or an enforceable judgment has been granted in respect of such claim.
In the event of justified concerns as regards the solvency of the Purchaser, including without limitation delay in payment by the Purchaser, PCI shall, without prejudice to further claims, be entitled to revoke terms of payment granted to the Purchaser or to refuse to make further deliveries to the Purchaser unless the Purchaser provides security.
12. Processing recommendations
12.1 Processing recommendations issued by PCI are based on tests and practical experience. Under no circumstances shall such recommendations release the Purchaser from its obligation to investigate the fitness of the goods for use for the intended purposes and processes. Such recommendations shall only be deemed to be general notes and shall not be deemed to constitute any warranties or guarantees as to the properties of the goods as the processing of goods on site depends on local conditions and the performance of the work, which are beyond the control of PCI.
12.2 The Purchaser shall bear sole responsibility for compliance with applicable statutory requirements and requirements of authorities in the use of the goods.
13.1 If the goods are processed without inspection or goods subject to a complaint by the Purchaser are processed without the written permission of PCI, the Purchaser shall forfeit all warranty rights with respect to such goods.
13.2 The liability of PCI shall be limited to defects in the goods which are proven to have been caused by circumstances for which PCI is responsible by reason of willful act or omission or gross negligence. Except as provided for herein, any contractual or non-contractual liability or warranty obligations of PCI shall be excluded. Any liability of PCI for indirect or consequential loss or damage shall be excluded except where such liability is required by compulsory provisions of the applicable law.
13.3 In the event that PCI is liable for defects in goods supplied by PCI in accordance with these Standard Terms and Conditions, PCI shall repair or, at the sole discretion of PCI, replace such goods.
13.4 PCI shall be under no warranty obligations whatsoever with respect to defects for which the Purchaser is responsible including without limitation defects caused by failure to use the goods properly or in accordance with the recommendations of PCI.
13.5 Should the Purchaser, in the event of a defect in the goods or a defect in title to the goods, following the failure of subsequent performance by PCI, exercise the option to rescind the contract for said goods, the Purchaser shall be entitled to claim reimbursement of the purchase price already paid for said goods and shall but not be entitled to make any further claims going beyond said purchase price.
13.6 Should the Purchaser, in the event of failure by PCI to execute subsequent performance, exercise the option to abate the purchase price payable for the goods concerned, the goods concerned shall remain with the Purchaser and the abatement of the purchase price shall not exceed the difference between the purchase price and the value of the defective goods concerned.
13.7 Goods shall not be returned to PCI without the written permission of PCI.
14. Force majeure
In the event that the availability of goods from the plant from which PCI obtains the goods is reduced by circumstances and events which are beyond the reasonable control of PCI (including without limitation acts of God, war, industrial disputes, shortages of raw materials and energy, disturbances to traffic and business, fire and explosion damage or acts of authorities), and PCI is therefore unable to perform its obligations under the contract, taking into account PCI’s other internal or external delivery obligations on a pro rata basis, PCI shall (i) be released from its obligations under the contract for the duration of such circumstances and to the extent corresponding to the effect of such circumstances and (ii) not be obligated to procure the goods concerned from third parties. This shall also apply in the event that it becomes permanently not economically viable for PCI to complete the business concerned as a result of such events and circumstances for which PCI is not responsible or such events affect PCI’s suppliers. In the event that such circumstances persist for longer than three months, PCI shall be entitled to rescind the contract.
Any and all claims of the Purchaser shall be forfeited unless made within one year from the delivery of the goods concerned. Without limitation, any warranty rights of the Purchaser shall be forfeited one year after the delivery of the goods concerned even in the event that the Purchaser identifies defects in said goods at a later date.
16. Applicable law and venue for disputes
16.1 The entire legal relationship between the Purchaser and PCI, including without limitation any contracts concluded between the Purchaser and PCI and these Standard Terms and Conditions, shall be governed solely by and construed and interpreted solely in accordance with the law of Switzerland, provided however that the UN Convention on the International Sale of Goods of April 11, 1980 (CISG) shall not apply.
16.2 The venue for any and all disputes arising between the Purchaser and PCI out of or in connection with the contract or these Standard Terms and Conditions shall be the place where PCI has its registered office, provided however that PCI shall, at its own option, be entitled to bring any proceedings against the Purchaser before the court of ordinary jurisdiction at the place where the Purchaser has its registered office.
Version: January 2021