General Terms and Conditions of Sales Contracts of PCI Bauprodukte AG
1. General These General Terms and Conditions of Sales Contracts shall apply to all business relationships with PCI Bauprodukte AG (hereinafter referred to as “PCI”) and shall, unless otherwise agreed in writing, be an integral part of all present and future contracts for the sale of goods (hereinafter referred to as “Contracts”). The Purchaser hereby expressly waives the application of any other contract conditions in deviation from these General Terms and Conditions. Without limitation of the generality of the foregoing, any general terms and conditions of purchase contracts of the Purchaser shall not apply.
2. Offer and conclusion of contract
Offers made by PCI shall be non-binding; orders and oral agreements shall not be binding on PCI until and unless they are confirmed by PCI in writing. An invoice issued by PCI shall also be deemed to be an order confirmation.
PCI shall charge the prices which are valid on the date of the order plus value-added tax at the applicable rate.
4. Shipment/partial deliveries
4.1 Goods shall be shipped at the expense and risk of the Purchaser. In the case of sales including the carriage of goods, the risks associated with the goods shall be transferred to the Purchaser at the time when the goods are handed over to the haulier, forwarder or other person or company entrusted with the dispatch of the goods but no later than at the time when the goods leave the premises of PCI. This shall also apply in the event that the goods are dispatched by PCI itself.
4.2 PCI shall be entitled to make partial deliveries except where the Purchaser cannot reasonably be expected to accept partial deliveries in view of its own justified interests.
5. Delivery deadlines
5.1 PCI shall take all the action required to comply with delivery deadlines agreed in Contracts. Delivery deadlines agreed under a Contract shall be extended by a reasonable period in the event that information required by PCI for the performance of the Contract is not received by PCI in good time or the Purchaser amends the Contract retroactively, or if obstacles arise which are beyond the reasonable control of PCI, irrespective of whether such obstacles arise with PCI, the Purchaser or third parties. Such obstacles shall, without limitation, include delayed or incorrect delivery of raw materials, semi-finished goods and merchandise required, acts of authorities, force majeure, industrial disputes, significant disturbances of business, accidents, acts of God, etc.
5.2 PCI shall notify the Purchaser as soon as possible of the beginning and end of any circumstances of the types referred to in Section 5.1 hereinabove.
6. Inspection of goods
6.1 Upon the receipt of goods, the Purchaser shall inspect the goods immediately to ensure that they are complete and to identify any transport damage. The Purchaser or recipient of goods shall ensure that any complaints concerning the goods are confirmed by the haulier or forwarder on the delivery note for the goods. In the case of deliveries by rail, the Purchaser shall request a damage report from the responsible railway station on the date of delivery.
6.2 The Purchaser shall submit evidence of damage to PCI no later than within one week of the receipt of the goods. If the Purchaser fails to comply with this requirement, any obligation of PCI to repair or replace the goods or pay compensation shall be excluded.
7. Terms of payment
7.1 Invoices issued by PCI shall be payable within 30 days of the date when the goods covered by the invoice have been completely delivered, but no later than 30 days after the receipt of the invoice by the Purchaser without any deduction. The deduction of cash discount of 2% shall be subject in each case to a separate written agreement.
7.2 In the event that the Purchaser does not comply with the terms of payment stated in Section 7.1 hereinabove, the Purchaser shall pay to PCI delay interest on the amount outstanding at a rate of 8% per annum from the date when the invoice is payable, without it being necessary for PCI to issue a reminder to the Purchaser. PCI reserves the right to provide evidence that it suffered greater loss or damage than said delay interest and to charge such greater loss or damage to the Purchaser.
8. Default of the Purchaser
8.1 In the event that the Purchaser is in default with the payment of one or more invoices issued by PCI, any and all amounts owed by the Purchaser to PCI in connection with their business relationship shall become due and payable immediately irrespective of the payment conditions concerned.
8.2 Should it become apparent following the conclusion of a Contract that the payment of the consideration under the Contract to PCI is jeopardized by the poor performance capabilities of the Purchaser, PCI shall be entitled to refuse to deliver the goods until the consideration under the Contract has been paid or the Purchaser has provided security for the payment of said consideration. In the event of delay in payment, PCI shall be entitled to revoke any periods granted for payment and to require advance payment or security for any further deliveries.
The Purchaser shall not be entitled to set off amounts claimed by the Purchaser from PCI except in the case of such claims which have been accepted by PCI in writing or determined by an enforceable judgement. Except as provided for herein, any set-off by the Purchaser on the basis of Art. 126 OR (Swiss Law of Obligations) shall be excluded.
10. Pledging of goods to PCI and assignment of amounts payable
10.1 The Purchaser hereby irrevocably undertakes to pledge to PCI, upon first request by PCI, all goods supplied by PCI to the Purchaser by way of security for any and all amounts payable under the business relationship between PCI and the Purchaser. Said (conditional) pledge shall also extend to the recognized balance outstanding to PCI in the event that PCI operates a current account for amounts payable by the Purchaser. This shall also apply in the event that the Purchaser makes payments with respect to designated amounts payable. The Purchaser shall be obligated to take any and all action which may be required for the establishment of said pledge upon first request by PCI.
10.2 The Purchaser shall be entitled to sell goods subject to a conditional pledge to PCI in the ordinary course of its business. The Purchaser shall not be entitled to pledge or transfer title to such goods to third parties by way of security. Upon request by PCI, the Purchaser shall notify any third-party purchaser of such goods of the pledge held by PCI.
10.3 The Purchaser hereby irrevocably undertakes, upon first request by PCI, to assign to PCI in writing any and all claims to amounts payable to the Purchaser by its customers or third parties in connection with the resale of goods in the amount of the total amount invoiced to such customers or third parties, irrespective of whether or not the goods concerned have been processed by the Purchaser prior to resale. The Purchaser shall remain entitled to collect such amounts payable following the assignment thereof without prejudice to the rights of PCI to collect such amounts payable itself. PCI hereby undertakes not to collect any such amounts payable itself always provided that the Purchaser meets its payment obligations to PCI and it is not in default with payment. PCI shall be entitled at any time to request the Purchaser to notify PCI of the amounts payable assigned and the debtors concerned, to provide any information required for the collection of such amounts payable, to hand over the appropriate documents and to notify the debtors concerned of the assignment of amounts payable.
10.4 The Purchaser hereby undertakes also to assign to PCI any amounts payable to the Purchaser by a third party arising in connection with the combination of the products pledged to PCI with land or buildings.
10.5 The establishment of a pledge or taking-back of goods by PCI shall not be deemed to constitute rescission of the Contract except where such rescission has been expressly declared by PCI in writing. The Purchaser hereby irrevocably declares that it agrees to PCI or a person authorized by PCI entering the premises of the Purchaser for the purpose of collecting goods pledged to PCI.
11. Release of securities
PCI hereby undertakes to release securities granted to it by the Purchaser upon request by the Purchaser to the extent that the value of such securities exceeds the amount of amounts outstanding to PCI for which security has been granted by more than 20%.
12. Information sheets and advice
12.1 Information sheets and advice provided by PCI are intended to assist the Purchaser with the processing of goods. Information sheets and advice are provided in each case to the best of the knowledge and belief of PCI on the basis of the experience gained and tests carried out by PCI. Such information sheets and advice shall not release the Purchaser from its obligation to test PCI products itself to ensure that they are fit for the purposes and processes intended by the Purchaser.
12.2 Processing recommendations issued by PCI are based on tests and practical experience and shall not be deemed under any circumstances to constitute a guarantee or warranty of specific properties as the processing of products on site is affected by site conditions and the performance of work, over which PCI has no control. Any instructions in deviation from the processing recommendations of PCI shall not be valid unless made in writing. Under no circumstances shall any information provided orally be binding on PCI.
12.3 The Purchaser shall remain solely responsible for compliance with statutory obligations and the requirements of authorities in the use of PCI goods.
13. Warranties of title and quality
13.1 Following the delivery of the goods under the Contract, the Purchaser shall inspect said goods no later than seven days after the delivery thereof. Any complaints shall be submitted to the registered office of PCI in writing no later than 10 days after the delivery of the goods (determined on the basis of the date of receipt/postmark). Any latent defects which are not immediately apparent upon inspection shall be reported to PCI in writing no later than within three days after the detection thereof.
13.2 Any liability of PCI in connection with defects which have not been reported to PCI in good time is expressly excluded.
13.3 PCI shall be under no warranty obligations whatsoever with respect to goods processed without prior inspection. Goods in respect of which the Purchaser has submitted complaints to PCI shall not under any circumstances be processed without the prior written permission of PCI, failing which any and all warranty claims of the Purchaser with respect to said goods shall be forfeited.
13.4 Transport damage shall be governed by the provisions of Section 6 hereinabove. In the event of defects which have been wilfully concealed, the mandatory provisions of the Obligationenrecht (Swiss Law on Obligations) shall apply.
13.5 In the event of defects in the goods supplied under the Contract, PCI shall be entitled, at the option of PCI, to repair or replace the goods concerned.
13.6 PCI shall not be under any warranty obligations with respect to defects for which the Purchaser is responsible including without limitation defects arising as a result of a failure to use the goods properly or in accordance with the recommendations of PCI.
13.7 In the event that the Purchaser, following the failure of subsequent performance with respect to a defect in title or a quality defect, opts to rescind the Contract, the Purchaser shall only be entitled to the repayment of the purchase price of the goods concerned already paid by the Purchaser. Any further claims for compensation or damages by the Purchaser in any such case shall be excluded.
13.8 In the event that the Purchaser, following the failure of subsequent performance, opts to reduce the price payable under the Contract, the goods concerned shall remain with the Purchaser and the amount of such reduction shall be limited to the difference between the purchase price paid or payable by the Purchaser for the defective goods and the value of said goods.
13.9 In order to avoid unnecessary shipment costs, the Purchaser shall not ship any goods back to PCI without the prior written permission of PCI.
13.10 In the event of a justified complaint by the Purchaser made in good time, PCI shall process said complaint as rapidly as reasonably possible and ensure that the goods concerned are replaced or repaired promptly. In the case of the replacement of goods, the defective goods shall be collected by PCI or shipped to a destination designated by PCI at the expense of PCI.
13.11 Except as provided for herein and except for liability arising in connection with wilful acts or omissions or gross negligence, any liability of PCI shall be excluded. In the case of personal injury, the mandatory provisions of the Produkthaftpflichtgesetz (Swiss Product Liability Act) shall apply.
14. Force majeure
in the event that circumstances and events, the occurrence of which is beyond the reasonable control of PCI (including without limitation Acts of God, war, industrial dispute, shortage of raw materials and energy, disturbances to traffic or business, fire and explosion damage, acts by authorities), reduce the availability of the goods to be supplied from the plant from which PCI obtains such goods, as a result of which PCI is unable to perform its obligations under the Contract (taking any other internal or external delivery obligations of PCI into account on a pro rata basis), PCI shall (i) be released from its obligations under the Contract for the duration of the circumstances concerned and with respect to the extent of the effects of such circumstances and (ii) shall not be obligated to purchase the goods to be supplied under the Contract from third parties. The first sentence of this Section 14 shall also apply in the event that circumstances and events arise which make it not commercially viable for PCI to perform the Contract in the long term or such circumstances and events arise with respect to the suppliers of PCI. In the event that the duration of any such circumstances exceeds three months, PCI shall be entitled to rescind the Contract.
Any and all claims by the Purchaser shall be forfeited unless made within one year of the delivery of the goods. Without limitation, any warranty claims of the Purchaser shall be forfeited after one year even if the Purchaser only detects defects in the goods concerned after said period of one year has expired.
In the event that any provisions of these General Terms and Conditions of Sales Contracts are ineffective or void, the other provisions of these General Terms and Conditions of Sales Contracts shall remain in full force and effect. In any such case, the Parties hereto hereby agree to agree upon a new provision to replace such ineffective or void provision having as near as reasonably possible the commercial and financial effect intended by the provision so replaced.
17. Applicable law and venue for disputes
17.1 Any and all legal relationships between the Purchaser and PCI, including without limitation any Contracts and these General Terms and Conditions of Sales Contracts, shall be governed by and construed and interpreted solely in accordance with Swiss law, provided however that the UN Convention of 11 April 1980 on the International Sale of Goods (CISG) shall not apply.
17.2 Any disputes arising between the Purchaser and PCI out of or in connection with Contracts and these General Terms and Conditions of Sales Contracts shall be subject to the jurisdiction of the Commercial Court (Handelsgericht) of the Canton of Zürich, provided however that PCI shall also be entitled to bring proceedings against the Purchaser before a court of ordinary jurisdiction at the place where the Purchaser has its registered office.
Valid from 1 January 2018