1. scope of application / conclusion of contract
(1) The following terms of delivery and payment are only applicable for use in commercial transactions. They apply to all contractual relationships of Industrielack AG (CHE-102.608.354; hereinafter "ILAG").
(2) They shall apply as soon as they have become part of the contract with the customer. This is the case if the terms and conditions of delivery and payment are expressly designated as an integral part of the contract but also if ILAG refers to the terms and conditions of delivery and payment, whether by enclosure to or imprint on offers, order confirmations, delivery notes and invoices or whether by announcement of the link on the following website (https://www.ilag.ch/en/general-terms-and-conditions-of-delivery-and-payment.html).
(3) If individual written agreements contradict these Terms and Conditions of Delivery and Payment in individual cases, the individual written agreements shall take precedence. If these Terms and Conditions of Delivery and Payment contradict general terms and conditions of purchase of the customer, these Terms and Conditions of Delivery and Payment shall take precedence over the customer's terms and conditions of purchase. Deviating provisions in the customer's or third party's terms and conditions of purchase shall only be binding if expressly accepted in writing or by e-mail by a person authorized to represent ILAG. Silence to the general terms and conditions of the customer shall in no case be deemed to be recognition of or agreement to the customer's general terms and conditions.
(4) Ancillary agreements, amendments and deviations from these terms and conditions must be agreed in writing.
(5) Offers made by ILAG are subject to confirmation unless expressly agreed otherwise. The contract shall be concluded upon receipt by ILAG of the order confirmation signed by the Customer, but no later than upon acceptance of the goods by the Customer. In this case, the conditions communicated to the customer shall apply.
2. purchase price
(1) The agreed prices are ex works (Incoterms 2020) plus the statutory value added tax applicable on the day of delivery. The purchase price shall be paid exclusively in the agreed currency. Packaging, transport, insurance and other ancillary costs are not included in the price and will be charged separately. Any fees, taxes, customs duties or other charges in connection with the delivery shall be borne by the customer.
(2) The weights, numbers of items and quantities determined by ILAG shall be decisive for the calculation of the purchase price if the customer does not object without delay, at the latest, however, within 5 calendar days after receipt of the goods.
(3) ILAG may reduce or increase its prices during the term of the contract. If it exercises its right to change, the changed prices shall apply to the quantities still to be purchased. In the event of a price increase, however, the customer shall be entitled to withdraw from the contract by written declaration within three working days after receipt of the notification of the price increase. Deliveries made before receipt of the notice of withdrawal shall not be covered by the withdrawal.
3. technical application information
Insofar as ILAG or its auxiliary persons provide information, this is done to the best of their knowledge and based on the experience of ILAG or its auxiliary persons. Information provided is for information purposes only. No guarantee is given for the correctness of the information. The information on specific suitability and application of the delivered goods does not release the customer from the necessary own tests and trials. This applies in particular if thinners, hardeners, additional varnishes or other components are added which the customer has not obtained from ILAG or if the customer makes changes to the products supplied.
(1) The customer shall collect the goods at the agreed delivery date or, if a delivery date has not been firmly agreed, immediately after notification of the provision at the agreed place of performance. If the customer defaults in accepting the goods, ILAG shall be entitled, at its own discretion and at the customer's expense, to dispatch the goods, to store them (if not otherwise possible, also outdoors if necessary) or to withdraw from the contract. The customer shall hold ILAG harmless.
(2) In the event of default by the Customer, ILAG shall not be liable for the accidental destruction, loss or damage of the goods. In the event of storage of the goods, delivery shall be deemed to have been made at the time of storage and ILAG shall be entitled to invoice the goods. Storage risks shall be borne by the customer. If ILAG ships the goods to the customer in the event of default by the customer in accordance with this paragraph, delivery shall be deemed to have been made at the time of notification of provision at the agreed place of performance.
(3) If, in deviation from paragraph 1, it is agreed that ILAG is obliged to ship the goods, the transport shall be at the expense of the customer and the choice of the means of transport and the transport route shall be at the discretion of ILAG in the absence of special instructions. The risk shall pass to the customer at the time the goods are handed over to the carrier by ILAG.
(3) Information on delivery periods is always non-binding. Fixed delivery dates require a separate written agreement. Binding delivery periods shall commence upon receipt of the order confirmation signed by the customer. Partial deliveries are permissible.
(4) Significant, unforeseeable operational disruptions, delivery delays or delivery failures of ILAG's suppliers for which ILAG is not responsible, as well as operational interruptions due to shortages (in particular shortages of raw materials, energy or labor), strikes, lockouts, traffic disruptions, official control measures, official requirements and cases of force majeure (in particular war, epidemics, pandemics, etc.) at ILAG and/or its suppliers shall postpone the delivery date by the duration of the impediment to performance. ILAG shall inform the customer promptly of the beginning and end of such hindrances. If delivery is delayed by more than two months as a result, both the customer and ILAG are entitled to withdraw from the contract with regard to the quantity affected by the disruption in delivery, to the exclusion of claims for damages.
(5) In the event of non-compliance with delivery dates declared as binding through the fault of ILAG, the Customer may withdraw from the part of the contract not fulfilled by the end of the second period of grace after setting a reasonable period of grace twice (but at least 10 calendar days). Claims for damages due to delayed delivery are excluded in any case.
(6) An over- or under-delivery of up to 10% of the ordered goods is permissible. Over-deliveries and under-deliveries in excess of this must be agreed with the customer.
5. terms of payment
(1) The invoice amount shall be paid in accordance with the payment terms stated on the invoice. If the invoice does not contain any payment conditions, ILAG invoices must be paid within 30 calendar days of the invoice date.
(2) The invoice date shall be decisive for the entitlement to a cash discount if such an option has been agreed. Inadmissibly deducted cash discount will be charged subsequently.
(3) In the event of default in payment, interest on arrears in the amount of 5% is possible. ILAG is at liberty to prove higher damages caused by default.
(4) If the Customer defaults on the payment of an invoice or if circumstances exist which raise doubts about the Customer's creditworthiness (payment defaults, ongoing debt collection, bankruptcy proceedings, deferral proceedings, restructuring, mass redundancies, negative balance, strikes, etc.), ILAG shall be at liberty, optionally or also cumulatively, to make all outstanding services immediately due and payable and to suspend further services or to provide them only on advance payment. Alternatively, ILAG shall also be entitled to withdraw from all contracts not yet completely fulfilled and to claim compensation for the damage resulting from the default of the contract (positive or negative contractual interest).
(5) In the event of default, the customer undertakes to reimburse us for any reminder and collection expenses incurred, including lawyers' and court costs. In addition, any further damage, in particular also the damage resulting from the fact that correspondingly higher interest accrues on any credit accounts on our part as a result of non-payment, shall be compensated irrespective of fault.
6. prohibition of assignment and set-off
(1) Claims against ILAG may not be assigned without the express consent of ILAG's Board of Directors.
(2) A set-off of claims of ILAG against counterclaims of any kind whatsoever is excluded.
7. retention of title
(1) ILAG retains ownership of the delivery item until full payment of the purchase price as well as all claims from the current business relations with the customer, including interest, reminder charges, debt collection costs, court costs and the like.
(2) In the event of processing or mixing with other items not belonging to ILAG, ILAG shall thus be entitled to co-ownership of the new item in the ratio of the value of the reserved goods to the other processed items. The customer is obliged to keep the new item safe for ILAG.
(3) However, the customer shall be entitled to dispose of the products in the ordinary course of business as long as he meets his obligations arising from the business relationship with us in due time.
(4) Receivables from the sale of goods to which ILAG has ownership rights shall be assigned by the customer to ILAG as security to the extent of our ownership share with a signed assignment of claims to the sold goods.
(5) At the first request of ILAG, the customer shall provide all necessary information about the stock of goods (co-)owned by ILAG and about the claims assigned to ILAG, as well as inform his customers of the assignment.
(6) The customer is obliged to keep the reserved goods carefully and to insure them against loss and damage at his own expense.
(8) ILAG is expressly entitled and authorized to take any measures necessary to have the retention of title come into existence, namely to have it entered in the relevant register, without further cooperation of the customer and at the customer's expense. If actions of the customer are necessary for the valid registration, the customer shall carry these out immediately at the first sign and without incurring any costs.
(9) If the retention of title is not effective under the law of the country in which the delivered goods are located, the Customer shall provide equivalent security upon first request. If the customer does not comply with this request, ILAG may demand immediate payment of all outstanding invoices irrespective of the agreed payment terms and may only provide future services under the current contractual relationship via advance payment.
8. inspection upon acceptance of the goods
(1) The customer shall inspect the goods for defects immediately upon receipt.
(2) Obvious defects shall be notified to ILAG in writing without delay, at the latest, however, within 5 calendar days after receipt. Hidden defects shall be notified to ILAG within 5 calendar days after their discovery. The notice of defect must be made in writing and by registered mail and must precisely describe the type and extent of the defect.
(1) ILAG warrants the proper composition of the delivered goods and their suitability for the expressly warranted purpose. The warranty is given at the time of the transfer of risk. Any further warranty is excluded, in particular
- for the continued existence of a characteristic of the goods which is present according to the buyer's experience but which ILAG has not recognized or which is regarded as incidental and therefore not expressly warranted;
- for the suitability of the processing of the goods on processed or unprocessed substrate material which is merely similar or related to the substrate material named in the assurance;
- for the suitability for use of the material for a purpose not known to ILAG or not foreseeable by ILAG;
(2) Warranty claims due to defects in the delivered goods shall become statute-barred one year after delivery to the buyer, even if the buyer discovers the defects later.
10. rectification, price reduction, rescission
(1) ILAG shall, at its own discretion, improve or replace defective goods which have been notified correctly and in good time or reduce the purchase price appropriately. This also applies to defective goods which ILAG has improved or exchanged but which are again defective.
(2) Conversion is excluded
(2) The costs in connection with the remedy of proven warranty cases, i.e. the costs for replacement of goods including freight, shall be borne by ILAG.
11. exclusion of further liability
(1) All cases of breach of contract by ILAG and their legal consequences as well as all claims of the customer, irrespective of the legal grounds on which they are based, are conclusively regulated in these terms and conditions or in the contract. In particular, all claims for damages, reduction, cancellation of the contract or withdrawal from the contract not expressly mentioned are excluded. Furthermore, the customer shall have no claims for compensation for damage that has not occurred to the delivered goods themselves, such as production delays or failure, loss of use, loss of orders, loss of profit and other direct or indirect damage. Liability for auxiliary persons of ILAG is also expressly excluded.
(2) The limitations and exclusions of liability contained in these Terms and Conditions of Delivery and Payment shall not apply in cases of intent or gross negligence.
12. product liability
(1) The customer undertakes to ensure that the presentation and use of the goods for the intended use is permissible under the applicable legal provisions.
(2) Any recourse claims made against ILAG by contractual partners or third parties under the title of "product liability" shall be excluded to the extent permissible under the applicable legal system. Unless the party entitled to recourse proves that the defect was caused in the sphere of ILAG and was at least due to gross negligence.
13. intellectual property rights
The know-how developed and/or provided by ILAG in the context of the provision of services always belongs to ILAG. The transfer of the know-how provided in connection with the order to third parties, including related companies of the customer, is not permitted. The customer is solely responsible for ensuring that its products and services into which ILAG's products are incorporated or on which they are based do not infringe any proprietary rights. In the event of an infringement of third-party property rights, the customer undertakes to take over the dispute with the third party and to indemnify us in full.
The customer shall keep all commercial and technical information about ILAG's business activities of which it becomes aware strictly confidential and shall not disclose it to third parties.
15. data protection
With regard to data protection, reference is made to the corresponding data protection declaration.
16. place of performance, place of jurisdiction and choice of law
(1) The place of performance for all obligations arising from the business relationship or from the individual contract is 8855 Wangen, Canton Schwyz.
(2) It is agreed that the place of jurisdiction shall be 8855 Wangen, Canton Schwyz.
(3) Swiss law shall apply exclusively, to the exclusion of international law (in particular the Vienna Sales Convention of 11 April 1980) and conflict of laws.
17. severability clause
Should individual provisions of the terms of delivery and payment be invalid, this shall not affect the validity of the remaining provisions. The parties agree that an invalid provision or a loophole in the contract shall be replaced by a provision which comes closest to what they intended or would have intended according to the sense and purpose of the contract.