General conditions of sale of Coat-X SA
(The “Company”) CH - 2300, La Chaux-de-Fonds
(1) Coat-X’s conditions of sale apply to sales contract and excludes all other conditions. Coat-X does not recognize any conditions imposed by purchasers which either contradict or in some way differ from the current conditions, except if Coat-X has expressly acknowledged their validity in writing. Coat-X’s conditions of sales shall apply even if, fully cognizant of conditions imposed by the purchaser that either contradict or in some way differ from its own, it has unconditionally supplied the said purchaser. These conditions apply for Coat-X equipment and services.
(2) All agreements made between Coat-X and the purchaser concerning implementation of a sales contract are to be included in this contract in writing or have to refer explicitly to a complementary agreement signed by both parties.
(3) Should any provision of the present conditions of sale be or become invalid or contain a loophole, the validity of the remaining provisions shall remain unaffected. Any invalid provision shall be replaced by a valid provision that comes as close as possible to the economic purpose intended by the parties. The same shall apply in case of a loophole.
(4) The respective conditions of sale in the version valid at the time of conclusion of the contract shall apply. Subsequent changes or amendments to the conditions of sale shall form an integral part of the contract, if the purchaser does not object to the changed provisions within 30 (thirty) days after taking note of them.
2. Supply and related documents
(1) Proprietary rights and copyright shall apply to all illustrations, drawings, calculations and other documents, which shall not to be made available to third parties and shall not be used by the purchaser (without contractual basis). This applies in particular to written documents marked as “confidential”. The latter may be provided to third parties only after obtaining the express consent of Coat-X. The purchaser shall not make available to third parties and shall not use (without contractual basis) commercial and technical information that are not publicly known and that are obtained in connection with the business relationship. The purchaser shall impose these obligations on third parties engaged by him.
3. Prices, conditions of payment
(1) Prices are “ex factory” (EXW CH – 2300 La Chaux-de-Fonds, Incoterms 2010) and do not include the packaging, except if explicitly mentioned in the quotation.
(2) Unless otherwise stated in the confirmation of the order the net purchase price (without deduction) is to be paid within 30 days of the date of the invoice. If payment is delayed beyond 30 days of the date of the invoice, a reminder will be sent including an additional CHF 50.- to cover administrative cost. If payment is delayed beyond 60 days of the date of the invoice, Coat-X is entitled to demand the payment of interest on arrears at 5 per cent p.a. above the current interest rate of the Swiss National Bank.
(3) In case of any delay in payment or in case of liquidity problems of the purchaser, Coat-X is entitled to request full or partial advance payment for further deliveries and is entitled to only deliver against advance payment even if other payment terms have been agreed upon at the conclusion of contract and this without being in default itself.
(6) Upon purchaser’s delay in payment, any and all claims of Coat-X become due immediately. Purchaser’s non-compliance with payment terms shall authorize Coat-X to suspend the order and all other orders of the purchaser. Coat-X is also entitled to rescind the contract and to claim damages.
(7) The purchaser is only entitled to offsetting rights if his counterclaims are legally established by a Court or if the counterclaims are unopposed or have been accepted by Coat-X.
4. Reservation of title Prices, conditions of payment
(1) Coat-X will remain the owner of the equipment until it receives payment in full of the purchase price.
(2) The purchaser must participate in all measures necessary to protect Coat-X’s title. In particular, the purchaser authorizes Coat-X to register the reservation of title at the public registry and in the company books or other similar documents, in accordance with the applicable legislation, and to carry out the necessary formalities, at the purchaser’s expense.
(3) So long as Coat-X retains title, the purchaser will keep the equipment in the condition in which it was delivered and insure it at its own expense for the benefit of Coat-X against theft, breakage, fire, water damage and other risks. The purchaser will also take all appropriate measures to prevent any infringement of Coat-x’s rights of ownership.
5. Delivery time
(1) For coating services, the delivery time stated by Coat-X takes effect only once all technical questions have been resolved and the purchaser’s parts to process have been received at Coat-X.
(2) For equipment, the delivery lead time runs from the date of the confirmation of order provided by the Company. The Company reserves the right to extend the delivery date for any fortuitous event or force majeure occurring either at the Company or its suppliers. The Company will inform the purchaser as soon as a possible delay is identified.
(3) The fulfilment of Coat-X’s commitments with regard to deliveries depends on the purchaser fulfilling his commitments in a suitable manner and at the proper time.
6. Transfer of risk, documents
(1) Insofar as nothing to the contrary is stated in the confirmation of the order, it is agreed that the delivery shall be “ex factory” (EXW CH – 2300 La Chaux-de-Fonds, Incoterms 2010).
(2) If the purchaser so desires Coat-X shall arrange for the delivery to be covered by transport insurance, the cost of which is to be borne by the purchaser.
7. Warranty for defects
(1) If there is a defect in the goods/services purchased for which Coat-X is responsible, Coat-X may at its sole discretion either remedy the defect or provide replacements. If Coat-X decides to remedy the defects, Coat-X shall then be obliged to bear all related costs and in particular the transport, travel, labor and material costs.
(2) If Coat-X is not willing or not able to remedy the defect / provide replacements, and in particular if such action is delayed beyond a reasonable period for reasons for which Coat-X is responsible, or if the remedying of defects or replacement fails in some other way, the purchaser is entitled to demand an appropriate reduction in the purchase price. Any other claims of the purchaser, such as execution by substitution through a third party at the expenses of Coat-X, are excluded.
(3) Unless otherwise stated below, further claims by the purchaser, on whatever legal grounds, are excluded. The Company thus accepts no liability for any damage that does not specifically concern the goods (equipment)/services (thin-film coating) delivered, and in particular can accept no responsibility for unrealized profits or any other pecuniary loss of the purchaser.
(4) The aforementioned exemption from liability shall not apply if the damage is based on intent or gross negligence. Nor shall it apply if the purchaser makes a claim for damages due to non-performance due to the absence of a warranted characteristic designated in the procurement documents.
(5) If Coat-X neglectfully fails to honor a main performance obligation or an essential contractual obligation, its liability to pay damages shall be limited to the foreseeable damages typical for the contract.
(6) Unless specified differently in the quotation, the warranty period shall be 12 months, starting from the transfer of risk. This corresponds to a statute of limitations period and applies equally to claims for indemnification for consequential damage due to a defect insofar as no claims are made for actionable tort.
(7) Warranted characteristics are only those that are designated as such in the specifications/procurement documents.
(8) The warranty does not cover for problems related to abnormal use of the equipment delivered to the purchaser. In particular the Coat-X accepts no liability in case of failure to comply with the operating instructions or maintenance.
(1) There shall be no further liability other than that provided for in § 7 paragraph (3) to (5) above, regardless of the legal grounds for any claim that might be made.
(2) To the extent that Coat-X’s liability is excluded or limited, this also applies to the personal liability of the Company’s staff, employees and assistants in whatever capacity.
9. Place of performance, place of jurisdiction, applicable law
The place of jurisdiction for both the purchaser and Coat-X is 2300 La Chaux-de-Fonds, Switzerland. Coat-X is also entitled to bring an action against the purchaser in the court of the purchaser’s domicile. Insofar as nothing to the contrary is stated in the confirmation of the order, the place of performance shall be the domicile of Coat-X. The contract shall be governed exclusively by the substantive laws of Switzerland excluding the provisions of international private law (to the exception of Art. 116 PILA, which allows such an express choice of law) and the United Nation convention on contracts for the international sale of goods CISG.