General Terms and Conditions of Delivery and Payment

1. Scope of Application / Conclusion of the Contract

(1) Our following Terms and Conditions of Delivery and Payment shall be applicable to all commercial transactions.

(2) Our Terms and Conditions of Delivery and Payment shall apply exclusively. We shall not accept terms and conditions of the customer that conflict with or deviate from our Terms and Conditions of Delivery and Payment, unless we have given our express written consent to their application.

(3) Collateral agreements, amendments to these terms and conditions as well as deviations from these terms and conditions must be agreed upon in writing.

(4) Our offers shall be subject to change without notice, unless otherwise expressly agreed upon. The contract shall come into being when we receive the order confirmation signed by the customer, but no later than when the customer takes receipt of the goods. In this case, the terms and conditions communicated to the customer shall apply.

2. Purchase Price

(1) The agreed prices, in the respective currency, shall b ex-works prices exclusive of value- added tax, which shall be added at the statutory rate valid on the day of delivery. Packaging, transportation, insurance and other incidental expenses shall not be included in the price, and shall be billed separately. Any charges, taxes, customs duties or other lavies in connection with delivery shall be borne by the customer.

(2) The weights, numbers of units and quantities ascertained by us for calculating the purchase price shall apply, unless the customer objects thereto without undue delay, but not later than within 14 days of receipt.

(3) If we generally reduce or increase our price during the term of the contract, the altered prices shall apply to the quantities yet to be purchased. In the case of a price increase, the customer shall be entitled to rescind the contract by written declaration without undue delay, but no later than within three working days of receipt of notification of the Price increase. Rescission shall not apply to deliveries made prior to receipt of such declaration of rescission.

3. Application-related information

Insofar as we give  information, we shall do so on the basis of our best knowladge and our experience. Information given shall be merely of a supportive and informative nature. We shall provide no warranty for the accuracy of such information. The provision of Information on the specific suitability and application of the goods delivered shall not release the customer from the requirement to carry out ist own test and trials. This shall particularly apply if thinners, hardeners, additional paints or other constituents that the customer has not procured from us are admixed.

4. Delivery

(1) The customer shall collect the goods by the agreed delivery deadline or, if a delivery deadline has not been firmly agreed upon, without undue delay after receipt of notification that the goods are ready for collection at the agreed place of performance. If the customer defaults on taking receipt of the goods, we may at our own option and at the customer's expense, ship the goods to the customer's address, store the goods (insofar as no other possibility exists, also in the open air if need be) or rescind the contract, and assert damages. If the customer defaults on taking receipt of the goods, we shall not be liable for accidental destuction of, loss of or damage to the goods. In the event that the goods are stored, the delivery shall be deemed to have been made, and we shall be entitled to invoice for the goods after one week.

(2) If, contrary to subsection 1, it is agreed that we shall ship the goods, transportation shall occur at the customer's expense, and we shall, in the absence of a specific instruction, choose the means of transportation and the route on the basis of our discretion. The risk shall pass to the customer at the time when we hand over the goods to the carrier.

(3) Delivery periods specified shall always be non-binding. Fixed delivery Deadlines shall requireIn the case that goods are delivered in loaned containers, the latter must be returned to us completely empty and carriage paid within 90 days of receipt of delivery. The costs of loss of or damages to loaned packaging will be borne by the customer in the case that he/she is responsible for it/them. Loaned containers shall not be employed for any other purposes, nor for the reception of other products, and are intended exclusively for the transport of the delivered goods. Labels and inscriptions shall not be removed.

(4) Major unforeseeable operational disruptions, delays in delivery or non-delivery by our suppliers, as well as operational interruptions owing to a shortage of raw materials, energy or workers, strikes, lockouts, traffic disruptions, official control measures and cases of force majeure at our company or our suppliers shall cause the delivery deadline to be postponed by the duration of the hindrance to performance, insofar as such events are relevant to our ability to deliver the goods. We shall without undue delay notify the customer when such hindrances begin and end. If delivery is delayed by more than one month as a result thereof, both we and the customer shall be entitled, with the exclusion of damage claims, to rescind the contract in respect of the quantity affected by such disruption to delivery.

(5) If a fixed delivery deadline has been agreed upon, the customer may, in the event of default in delivery for which we are at fault, set in writing a reasonable grace period of a least 10 days and, after this grace period has expired to no avail, rescind the part of the contract that has not been performed. In any event, damage claims due to default in delivery shall be excluded.

(6) Any over- or under-delivery of up to 10% of the goods ordered shall be permissible. Over- or under-deliveries beyond this shall be subject to agreement with the customer.

5. Payment Terms

(1) The amount invoiced shall be paid in accordance with the payment terms recorded in the invoice.

(2) The invoice date shall be decisive for the entitlement to a cash discount, insofar as such an option has been agreed upon. Any cash discount impermissibly deducted shall be subsequently billed.

(3) In the event of default in payment, default interest at the rate of 5% shall be possible. Both we and the customer shall remain free to prove a higher or lower default-related loss. 

(4) Non-payment of due invoices, or any other circumstances that indicate that the customer's net worth situation has considerably deteriorated after the conclusion of the contract shall, at our option, entitle us to declare all our claims immediately due and postpone all our obligations in relation to this customer until our claims have been fully paid or until all contracts not yet fully performed have been rescinded, and to assert damages for the loss ensuing from failure of the contract.

(5) In the event of default, the customer shall reimburse us for the reminder and debt collection charges resulting to us, insofar as thes are necessary for pursuing our rights. Moreover, anyfurther loss, including in particular any loss arising due to correspondingly higher interest on any credit accounts of ours as a result of non-payment, shall be reimbursed, regardless of who is at fault for default in payent.

6. Prohibition of Assignment and Set-off

(1) Claims against us shall not be assigned without express consent.

(2) Set-off of our caims against counter-claims of any kind whatsoever shall be excluded..

 7. Retention of Title

(1) We shall retain title to the delivery item until the purchase price has been fully paid and all claims arising from the current business relations with the customer, along with interest, reminder charges, debt recovery charges, court charges and the like have been fully satisfied.

(2) In the event of processing or mixing with other items not belonging to us, joint title to the new item shall accrue to us in the ratio of the value of the goods under retention of title to the other items processed. The customer shall hold the new item in safekeeping for us.

(3) However, the customer shall be entitled to dispose of these goods in the ordinary course of business, as long as the customer meets in due time ist obligations arising from the business relationship with us.

(4) As security, claims arising from the sale of goods to which we are entitled to rights of title shall be assigned by the customer to us to the extent commensurate with our share of joint title to the goods sold.

(5) At our request, the customer shall provide us with all necessary information concerning the existence of the goods owned by us and concerning the claims assigned to us, and shall inform ist customers of this assignment.

(6) The customer shall diligently hold in safekeeping the goods under retention of title and insure them at ist own expense against loss and damage. The customer hereby assigns to us in advance its claims arising from the insurance contracts. We hereby accept this assignment.

(7) The customer's right to dispose of the products that are under our retention of title and to collect the claims assigned to us shall lapse in the event of insolvency. In this case, we may, subject to exclusion of the right of retention and without setting a grace period or exercising the right of rescission, demand that the entire goods under our retention of title be immediately provisionally surrendered.

(8) The customer hereby undertakes to carry out all necessary acts of co-operation for the protection of our property. By concluding the contract, the customer shall in particular, at its expense, register our retention of title, or lodge a priority notice for our retention or title, in public registers or the like in accordance with the applicable legal system, and shall meet all formalities in this connection.

(9) Insofar as our retention of title is not effective under the law of the country where the good delivered are located, the customer shall provide equivalent security at our reques. If the customer fails to meet this request, we may, regardless of agreed payment terms, demand that all outstanding invoices be immediately paid.

8. Acceptance Inspectionof the Goods

(1) Upon receipt of the goods, the customer shall examine them for defects without undue delay.

(2) Written notification of any obvious defects shall be given without undue delay, but no later than within 14 days of receipt of the goods. Notification of hidden defects shall be given within 14 days of their discovery. Such notification of defects must be in writing and shall precisely specify the type and extent of the defect.

9. Warranty

(1) We shall warrant the proper composition of the goods delivered and their suitability for the purpose of use expressly guaranteed. Any further warranty shall be contracted out, in particular any warranty

  • for the continued existence of features of the goods that exist according to the buyer's experience, but have not been recognised by us, or that are regarded by us as irrelevant and are therefore not expressly guaranteed;
  • for suitability for processing of the goods on treated our untreated underly material that is merely similar or related to the underlay material mentioned in the guarantee;
  • for suitability for use of the material for any purpose of use not known to us or not foreseeable by us.

(2) Warranty claims based on defects in the goods delivered shall become statue-barred one year after the goods have been delivered to the buyer, even if the buyer does not discover the defects until later.

10. Rectificatin, Reduction of the Price, Cancellation of Contract

(1) At our option, we shall rectify or exchange defective goods complained of correctly and in due time, or shall appropriately reduce the purchase price.

(2) The costs in connection with the remedying of proven warranty cases, namely the cost of replacing goods, along with freight charges, shall be borne by us.

11. Exclusion of Further Liability

(1) All cases of breach of contract, as well as the legal consequences thereof and all claims of the customer, regardless of their legal basis, are definitively provided for in these terms and conditions. In particular, all claims to damages, reduction of price, nullificaton of the contract or rescission of the contract that have not been expressly mentioned shall be excluded. Furthermore, the customer shall have no claims to compensation for loss that has not resulted from the delivered goods themselves, such as namely delays in production or loss of production, loss of use, loss of orders, lost profit or other direct or indirect loss.

(2) The limitations and exclusions of liability contained in these Terms and Conditions of Delivery and Payment shall not apply insofar as liability is mandatorily prescribed in cases of wrongful intent, gross negligence, mortal injury, physical harm or health damage, or insofar as liability has been expressly agreed upon as a result of any guarantee provided as regards qualities or durability.

12. Product Liability

(1) The customer hereby undertakes to ensure that the presentation and use of the goods for the purpose envisaged is permissible under the applicable legal provisions. 

(2) Any recourse claims directed against us by contractual partners or third parties on the basis of product liability shall be excluded, insofar as this is permissible under the applicable legal system. This shall not apply, if the party entitled to recourse proves that the fault concerned was caused within our sphere and is due to at least gross negligence.

13. Place of Performance, Place of Jurisdiction and Choice of Law

(1) Wangen is the place of performance for all obligations arising from the business relationship or from the individual contract.

(2) Wangen is agreed upon as the place of jurisdiction.

(3) Swiss law shall exclusively apply, with exclusion of the Vienna Sales Law Convention of 11 April 1980.

14. Severability Clause

If any individual provisons in these Terms and Conditions of Delivery and Payment are invalid, this shall not affect the effectiveness of the other provisions. The parties agree that any invalid provision is to be replaced with, or any omission in the contract filled with, a provision that most closely reflects what they intended or would have intended according to the spirit and purpose of the contract.

Industrielack AG                                                                                                      Wangen, 2016

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