1. Scope of application
1.1 These General Terms and Conditions form the basis for all legal transactions between ITRIS Tradmed AG (hereinafter "ITRIS") and the contracting party (hereinafter the "Customer"). Any deviating terms and conditions of the Customer are only valid if accepted in writing by ITRIS. Changes and additions to a concluded agreement, including ones concluded in other forms, must be made in writing.
1.2 A contract is deemed to have been concluded upon the Customer receiving the written order confirmation from ITRIS, an individual agreement being signed by both parties or the delivery being received by the Customer, depending on which occurs first.
2. Deliveries and services
2.1 The content of the agreement is based on the written contract; in the absence thereof, on the written order confirmation of ITRIS. Details in brochures, catalogues and technical documents are only binding if assured in writing.
2.2 A written contract or the order confirmation will fully replace any express or implied agreements, assurances or offers that exist between the parties.
2.3 If ITRIS did not expressly agree to perform the installation of the delivered goods free of charge, the cost thereof will be borne by the Customer. Unless agreed otherwise, this cost will be invoiced separately by ITRIS.
2.4 In the event that deliveries and services are delayed, ITRIS will be entitled to issue a reminder and set a reasonable grace period. If, for reasons attributable to ITRIS, the contract is still not fulfilled after the grace period has expired, the Customer will be entitled to withdraw from the contract. If individual deliveries or parts thereof are delayed, the right of withdrawal will only exist in relation to the prevented partial delivery. After commencement of installation work or other agreed services, the right of withdrawal will lapse in full, even if the work cannot be concluded on time.
Any other rights of the Customer relating to the delay of deliveries or services are hereby expressly excluded. In particular, the Customer is not entitled to assert any claims for damages as a result of delayed deliveries or services.
3. Warranty, liability for defects
3.1 ITRIS warrants that the delivered goods and services will conform to the announced specifications upon handover. ITRIS does not warrant that these will function without interruptions.
3.2 The warranty period lasts until the successful commissioning at the customer, maximum 1 month from the date of shipment of goods or the service is completed by ITRIS. The warranty will lapse prematurely in the event that the delivered goods or services are used inappropriately by the Customer.
3.3 The Customer will inspect the delivered goods and services within a reasonable period and immediately notify ITRIS of any defects in writing. If the Customer fails to do so, the delivered goods and services will be deemed to have been accepted.
3.4 ITRIS may choose to either repair or replace all parts of the delivered goods and services that lack contractually assured characteristics or which are proven to have become defective before the warranty period expires due to poor materials, design errors or faulty workmanship. If neither is possible, with reasonable effort, ITRIS can make the sale undo. Any replaced components will become the property of ITRIS.
Depending on the maintenance category, these warranty services will be performed by ITRIS either at the location of the delivered goods (on-site maintenance) or at an ITRIS service centre (service centre maintenance), or by third parties. In the case of on-site maintenance, ITRIS will perform the services within normal business hours at the location of the delivered goods. In the case of service centre maintenance, the Customer is responsible for disassembly, transportation, installation and recommissioning.
3.5 If any secondary obligations relating to a delivery are breached (e.g. inadequate advice or suchlike), ITRIS will only be liable in the case of unlawful intent or gross negligence.
3.6 For direct damage or loss incurred by the Customer in respect of defects to delivered goods or services for which ITRIS is at fault, ITRIS will be liable for a maximum amount of CHF 5,000,000 per incidence of damage or loss. However, ITRIS assumes no liability for indirect or consequential damage and loss, such as lost profits, lost data, recovery of destroyed data, claims of third parties and damage or loss resulting from the non-fulfilment of contractual obligations by the Customer.
3.7 If manufacturers and sub-suppliers of goods and services provide warranty provisions that are more limited in comparison to this clause 3, ITRIS will only provide warranty within the scope of the warranty obligations assumed by the manufacturers and sub-suppliers. The Customer confirms that it has made itself aware of the corresponding warranty provisions before conclusion of the contract.
3.8 For defects of any kind to delivered goods and services, the Customer has no rights or entitlements except those expressly specified in clauses 3.4 to 3.7 above.
4. Prices and payment terms
4.1 The Customer is obligated to pay the price specified in the individual contract; this will become due 10 days after ITRIS sends the goods or concludes the service.
4.2 If the Customer fails to make the payment despite being issued with a reminder, ITRIS will have all rights pursuant to Art. 107 et seq. OR (Swiss Code of Obligations). In the event of withdrawal from the contract, the Customer is obligated to pay ITRIS a contractual penalty amounting to 10% of the contract value. The obligation to pay the contractual penalty will exist irrespective of whether or not the Customer is responsible for the default. Assertion of the contractual penalty will not prevent ITRIS from claiming damages for an amount that exceeds the contractual penalty.
4.3 All prices are quoted net, i.e. all additional costs such as packaging, transportation, insurance, taxes, duties, etc. will be borne by the Customer.
4.4 Transportation takes place at the Customer's own risk and expense. The Customer is responsible for taking out insurance against damage and loss of any kind.
5. Preparatory measures and acceptance
5.1 If the delivered goods are being installed by ITRIS, the Customer will make the necessary premises available on time and in accordance with the instructions of ITRIS and, at its own expense, equip these in advance with all technical facilities (e.g. electricity supply, air conditioning, etc.) required to operate the delivered goods.
If the installation of the delivery is delayed due to the Customer being in breach of the aforementioned obligation, the delivery period will extend accordingly and the price agreed in the individual contract will become payable immediately and in full.
5.2 Installation work or other services must be accepted by the parties immediately after their completion. The acceptance must be performed in the presence of a representative of each of the parties; a written acceptance certificate must be created.
6. Retention of title
Ownership of the delivered goods will only transfer to the Customer upon payment of the full price. By concluding the contract, the Customer authorises ITRIS to enter the retention of title in the public registers at the Customer's expense without prior notice.
7. Transfer of title and risk
Benefit and risk will transfer to the Customer upon the goods being dispatched from ITRIS. In the case of delivery and agreed installation by ITRIS, the benefit and risk will transfer upon the goods being unloaded from the means of transportation at the delivery location.
If the dispatch of the goods is delayed for reasons not attributable to ITRIS, the risk will transfer to the Customer at the time that the delivery was originally intended for or upon notification that the goods are ready for collection.
The re-exportation of deliveries is subject to international export regulations. The partner is obligated to apply for an export permit from the appropriate authority if necessary (currently the Swiss State Secretariat for Economic Affairs SECO, Export Controls / Industrial Products Division). When transferring the deliveries to a buyer, the same obligation shall also be imposed on the buyer, who in turn shall be obligated to impose it further.
9. Assignment of rights and obligations
The Customer agrees to any rights and obligations that ITRIS is entitled to under this contract being transferred to a third party. Rights and obligations may only be transferred by the Customer with the written consent of ITRIS.
10. Exclusion of further liability of ITRIS
All breaches of contract and their legal consequences, as well as all claims of the Customer, irrespective of what legal grounds they are made on, are governed conclusively in these terms and conditions. In particular, all claims for damages, abatement, or annulment of the contract that are not expressly mentioned are hereby excluded.
This exclusion of liability does not apply in the case of unlawful intent or gross negligence on the part of ITRIS; it does, however, apply for unlawful intent or gross negligence on the part of vicarious agents.
11. Applicable law, place of jurisdiction
If the wording of any translation of these GTC gives rises to disagreement regarding their interpretation, the original German text shall be the binding version. This contract is subject to Swiss law. The parties agree upon the registered office of ITRIS as the exclusive place of jurisdiction.