GENERAL TERMS AND CONDITIONS OF SALE OF SEIDEL ENGINES LLC’s PRODUCTS & SERVICES
1. GENERAL
1.1 These General Terms and Conditions of Sale (“Conditions”) govern the offering, sale and delivery of all goods and/or services (hereinafter jointly referred to as the “Product(s)”) from or on behalf of Seidel Engines LLC, CH-1228 Plan-les-Ouates (“Seidel Engines “), to customer (“Customer”) and apply to all transactions between Seidel Engines and Customer (Customer and Seidel Engines collectively, the “Parties”).
1.2 By contracting on the basis of the Conditions, Customer agrees to the applicability thereof, in respect of all transactions between Seidel Engines and Customer.
1.3 Seidel Engines explicitly rejects the applicability of any general terms and conditions of Customer. Furthermore, the Conditions supersede any and all terms of prior oral and written quotations, communications, agreements and understandings of the Parties in respect of the sale and delivery of the Products and shall apply in preference to and supersede any and all terms and conditions of any order placed by Customer and any other terms and conditions submitted by Customer. Failure by Seidel Engines to object to the terms and conditions set by Customer shall in no event be construed as an acceptance of any of the terms and conditions of Customer. If the Conditions differ from any of the terms and conditions of Customer, the Conditions and any subsequent communication or conduct by or on behalf of Seidel Engines, including, without limitation, confirmation of an order, performance of services, and delivery of Products, constitute a counter-offer and not acceptance of such terms and conditions submitted by Customer. Any communication or conduct of Customer which confirms an agreement for the delivery of Products by Seidel Engines, as well as acceptance by Customer of any delivery of Products from Seidel Engines shall constitute an unqualified acceptance by Customer of the Conditions.
1.4 The various versions of the Conditions are available on the following websites seidel-engines.com it being specified that the Conditions applicable to the Parties for a specific transaction shall be the last version of the Conditions published on the date of receipt by Customer of the related Confirmed Order. Seidel Engines reserves the right to amend the Conditions at any time. The amended Conditions will take effect on the date of publishing of these amendments on the Website, which means that the amended Conditions shall apply to all transactions concluded between the Parties after the date of such publishing.
1.5 Without prejudice to the Conditions, Seidel Engines draws the attention of Customer on the co-existence of terms of use, available on the Website, which set forth the legally binding terms (i) for accessing, using and visiting any and all web pages and related services and materials of the Website.
1.6 Any electronic communication between the Parties shall be effective as originals and shall be considered to be a “writing” between the Parties. The electronic communication system used by Seidel Engines will serve as sole proof for the content and the time of delivery and receipt of such electronic communications.
2. QUOTATION, ORDERS AND CONFIRMATION
2.1 Unless stated otherwise by Seidel Engines, quotations made by Seidel Engines in whatever form are not binding to Seidel Engines and merely constitute an invitation to Customer to place an order. All quotations issued by Seidel Engines are revocable and subject to change without notice.
2.2 Orders are not binding until accepted by Seidel Engines in writing (the “Confirmed Order”). Seidel Engines shall be entitled to refuse a non-confirmed order without indicating the reasons. Verbal or written agreements and changes to orders that have been placed likewise always require written confirmation by Seidel Engines in order to become valid.
2.3 Seidel Engines may agree in writing to the cancellation or alteration of a Confirmed Order if the state of the works permits. The costs arising from the cancellation or alteration of a Confirmed Order will be exclusively borne by Customer.
3. PRICES – PRICE CHANGES – DISCOUNT
3.1 Prices and currencies of the Products of Seidel Engines are as set out in the Confirmed Order.
3.2 Prices do not include packaging, insurance, and value added tax or any other similar applicable taxes, duties, levies or charges in any jurisdiction levied in relation to the Products or the delivery thereof (“Taxes”). The amount of any Taxes levied in connection with the sale of Products to Customer shall be for Customer’s account and shall either be added to each invoice or separately invoiced by Seidel Engines to Customer.
3.3 Unless the prices have been indicated as firm by Seidel Engines in the Confirmed Order, Seidel Engines is entitled to increase the price of the Products still to be delivered if the cost price determining factors have been subject to an increase between the date of execution and the date of delivery or performance. These factors include but are not limited to: raw and auxiliary materials, energy, products obtained by Seidel Engines from third parties, wages, salaries, social security contributions, governmental charges, freight costs and insurance premiums. Seidel Engines shall notify Customer of such increase which shall not exceed the increase in the determining cost factors.
3.4 If Seidel Engines grants a discount to Customer, this discount only relates to the delivery specifically mentioned in the Confirmed Order.
4. TERMS OF PAYMENT
4.1 Upon confirmation of the order, Customer shall pay an immediate advance payment of the total amount mentioned in the Confirmed Order.
4.2 All payments shall be made without any deduction on account of any Taxes or transfer costs. For the sake of clarity, the place of payment for all payments to be made by Customer is the registered offices of Seidel Engines.
4.3 Unless stated otherwise in the Confirmed Order, payment shall be made on the basis of net cash, to be received by Seidel Engines within the above-mentioned deadline(s).
4.4 With regard to payment for the Products, Customer acknowledges and agrees that time is of the essence. Seidel Engines may, without prejudice to any other rights of Seidel Engines and without a written reminder, charge interest on any overdue payment at 10% (ten percent) per annum from the due date computed on a daily basis until all outstanding amounts due by Customer are paid in full. All costs and expenses incurred by Seidel Engines with respect to the collection of overdue payments (including, without limitation, reasonable attorney’s fees, expert fees, court costs and other expenses of litigation) shall be for Customer’s account.
4.5 If Customer is in default with payments for supplies he/it has already received, Seidel Engines has the right to rescind in writing the part of the Confirmed Order not yet executed without allowing any further time and to cancel all Confirmed Orders, already confirmed but not yet executed. Customer must compensate Seidel Engines fully for damages arising therefrom.
4.6 If Customer does not comply with the terms of payment or if he/it is unable to make payment, all outstanding credit balances become due for payment irrespective of the agreed payment deadlines and may be claimed by Seidel Engines
5. DELIVERY – EXAMINATION – ACCEPTANCE / COMPLAINT
5.1 Dispatch and transportation are at the cost and risk of Customer, EXW Incoterms®2010 at the place notified by Seidel Engines to Customer prior to delivery.
5.2 Unless stated otherwise in the Confirmed Order, any times or dates for delivery by Seidel Engines are estimates and shall not be of the essence. Seidel Engines is entitled to deliver the Products as stated in the Confirmed Order in parts and to invoice separately. Delay in delivery of any Products shall not relieve Customer of his/its obligation to accept delivery thereof, unless Customer cannot reasonably be expected to accept such late delivery.
5.3 Customer shall be obliged to accept the Products and pay the amount specified in the Confirmed Order for the Products delivered by Seidel Engines. If dispatch is delayed at Customer’s request, Seidel Engines will invoice Customer the resulting storage costs, at least a monthly 0.5% (half a percent) of the total amount mentioned in the Confirmed Order, starting with the notification that the Products are ready for dispatch.
5.4 Customer must inspect the Products immediately upon receipt and satisfy himself/itself that the Products delivered meet the agreed specifications for the Products as stated in the Confirmed Order or, in the absence of agreed specifications, to the most recent specifications used by Seidel Engines at the time of delivery of the Products (the “Specifications”).
5.5 Complaints about the Products shall be made in writing and must reach Seidel Engines not later than 10 (ten) days from the date of delivery of the Products in respect of any defect, default or shortage which would be apparent from a reasonable inspection on delivery, and 10 (ten) days from the date on which any other claim (e.g. hidden defects) was or ought to have been apparent, but in no event later than the expiry of (i) a 12-month period running from the date of delivery of the Products or (ii) the warranty period mentioned in the Confirmed Order (if different), whichever occurs first.
5.6 In case of a disaccord between the Parties concerning the quality of a Product supplied by Seidel Engines to Customer, Seidel Engines will submit the purported defective Product to an independent expert reasonably acceptable to Customer to have determined whether or not the Product in question has met the Specifications. The results of such analysis shall be binding upon the Parties, and the Party unable to uphold its position shall bear the related costs of the expert.
5.7 Defects in parts of the Products do not entitle Customer to reject the entire delivery of the Products, unless Customer cannot reasonably be expected to accept delivery of the remaining none defective parts of the Products. Complaints, if any, do not affect Customer’s obligation to pay as defined in Section 4.
5.8 Failure to complain within the appropriate time or any use of the Products shall be deemed to be an unconditional acceptance of the Products as of the date of delivery and waiver of all claims in respect of the Products.
6. CANCELLATION
Customer’s wrongful non-acceptance or rejection of Products or cancellation of the Confirmed Order shall entitle Seidel Engines to recover from Customer, in addition to any other damages caused by such action:
(i) in the case of Products which reasonably cannot be resold by Seidel Engines to a third party, the price of such Products as quoted in the Confirmed Order; or
(ii) in the case of Products which can be resold by Seidel Engines, damages equal to 50% (fifty percent) of the price for the Products as quoted in the Confirmed Order as liquidated damages, unless Customer can demonstrate that the actual damages incurred by Seidel Engines are lower than 50% of the price or were not suffered at all.
7. TRANSFER OF RISK AND PROPERTY
7.1 Benefit and risk are transferred to Customer at the latest when the Products are handed over to the first carrier. If dispatch is not possible and no fault is attributable to Seidel Engines risk transfers to Customer with the notification that the Products are ready for dispatch.
7.2 The title to the Products shall not pass to Customer and full legal and beneficial ownership of the Products shall remain with Seidel Engines unless and until Seidel Engines has received payment in full for the Products, including costs such as interest, charges, expenses, etc. Customer will for the duration of the reservation of title protect the Products supplied at his/its own expense and will insure them against theft, fire, lightning, water and damage from the elements. Furthermore he/it will take all necessary steps to ensure that Seidel Engines ‘s claim to title is neither diminished nor revoked.
8. LIMITED WARRANTY
8.1 Seidel Engines solely warrants that, on the date of delivery and for an additional 24-month period as from the date of delivery, the Products shall conform to the Specifications. If and to the extent Products are in breach with such warranty, as determined in accordance with Section 5, Seidel Engines may at its own option and within a reasonable time either repair or replace the Products at no charge to Customer. Accordingly, Seidel Engines’s obligation shall be limited solely to repair or replacement of the Products, to the exclusion of any other remedy, service or compensation for Customer.
8.2 Seidel Engines’s obligation to repair or replace shall be contingent upon the following two cumulative conditions be met:
(i) receipt by Seidel Engines of a timely notice by Customer of any alleged non-conformance of Products and, if applicable, the return of the Products, in accordance with Section 5, in particular Section 5; and
(ii) absence of abnormal or abusive use of the Products, which is an utilization which does not comply with the instructions listed on the user manual or with the product specifications, deterioration or damage of the Products resulting especially from collisions, objects falling, fire, vandalism, malicious intent, misuse, damages caused by animals, or accidents resulting from a lack or supervision or none appropriate use.
8.3 By way of exception to the foregoing, Seidel Engines gives no warranty on the ignition system provided. The Conditions of its manufacturer applies.
8.4 The foregoing is exclusive and in lieu of all other warranties, representations, conditions or other terms, express, implied, statutory, contractually or otherwise, including, without limitation, any warranty of merchantability, suitability or fitness for any purpose, or absence of infringement of any claim in any intellectual property right covering the Products.
9. LIMITED LIABILITY
9.1 Seidel Engines’s liability for any and all claims arising out of or in connection with the Products and the use thereof shall per occurrence be limited to direct damages of Customer and shall under no circumstances exceed the sales value of the defective relevant Product supplied to Customer.
9.2 Seidel Engines shall under no circumstances be liable to Customer or any other person for any kind of special, incidental, indirect, consequential or punitive damage or loss, cost or expense, including without limitation, damage based upon lost goodwill, lost sales or profit, delay in delivery, work stoppage, impairment of other goods or based on any other cause, and whether arising out of or in connection with breach of warranty, breach of contract, misrepresentation, negligence or otherwise.
10. FORCE MAJEURE
10.1 Neither Party shall be liable in any way for any damage, loss, cost or expense arising out of or in connection with any delay, restriction, interference or failure in performing any obligation towards the other Party caused by any circumstance beyond its reasonable control, including, without limitation, acts of God, laws and regulations, administrative measures, orders or decrees of any court, earthquake, flood, fire, explosion, war, terrorism, riot, sabotage, accident, epidemic, strike, lockout, slowdown, labor disturbances, difficulty in obtaining necessary labor or raw materials, lack of or failure of transportation, breakdown of plant or essential machinery, emergency repair or maintenance, breakdown or shortage of utilities, delay in delivery or defects in goods supplied by suppliers or subcontractors (“Force Majeure”).
10.2 Upon the occurrence of any event of Force Majeure, the Party suffering thereby shall promptly inform the other Party by written notice thereof specifying the cause of the event and how it will affect its/his performance of its/his obligations under the Confirmed Order. In the event of any delay, the obligation to deliver shall be suspended for a period equal to the time loss by reason of Force Majeure. However, should a Force Majeure event continue or be expected to continue for a period extending to more than 60 (sixty) days after the agreed delivery date, either Party is entitled to cancel the affected part of the Confirmed Order without any liability to the other Party.
11. SUSPENSION AND TERMINATION
11.1 If Customer is in default of performance of his/its obligations towards Seidel Engines and fails to provide to Seidel Engines adequate assurance of Customer’s performance before the date of scheduled delivery; or if Customer becomes insolvent or unable to pay his/its debts as they mature, or goes into liquidation (other than for the purpose of a reconstruction or merger) or any bankruptcy proceeding shall be instituted by or against Customer or if a trustee or receiver or administrator is appointed for all or a substantial part of the assets of Customer or if Customer enters into a deed of arrangement or makes any assignment for the benefit of his/its creditors, then Seidel Engines may by notice in writing forthwith, without prejudice to any of its other rights:
(i) demand return and take repossession of any delivered Products which have not been paid for and all costs relating to the recovery of the Products shall be for the account of Customer; and/or
(ii) suspend its performance or terminate the Confirmed Order for pending delivery of Products unless Customer makes such payment for Products on a cash in advance basis or provides adequate assurance of such payment for Products to Seidel Engines.
11.2 In any such event of Section 1, all outstanding claims of Seidel Engines shall become due and payable immediately with respect to the Products delivered to Customer and not repossessed by Seidel Engines
12. INTELLECTUAL PROPERTY
12.1 All intellectual property rights arising out of or in connection with the Products shall be the exclusive property of Seidel Engines.
12.2 Seidel Engines has not verified the possible existence of third party intellectual property rights which might be infringed as a consequence of the sale and/or delivery of the Products and Seidel Engines shall not be held liable for any loss or damage in that respect.
12.3 The sale of Products shall not, by implication or otherwise, convey any license under any intellectual property right relating to the compositions and/or applications of the Products, and Customer explicitly assumes all risks of any intellectual property infringement by reason of the use of the Products, whether singly or in combination with other materials or in any processing operation.
13. MISCELLANEOUS
13.1 Independent Contractors. Seidel Engines and Customer are independent contractors, and the relationship created hereby shall not be deemed to be that of principal and agent.
13.2 Compliance with Laws and Standards. Customer acknowledges that the use of the Products may be subject to requirements or limitations under any law, statute ordinance, regulation, code or standard (“Laws and Standards”). Customer shall be exclusively responsible for (i) ensuring compliance with all Laws and Standards associated with his/its intended use of the Products; and (ii) obtaining all necessary approvals, permits or clearances for such use.
13.3 Non-Assignment. Neither Party may assign any of the rights or obligations under the Confirmed Order without the prior written consent of the other Party, except that either Party may assign such rights and obligations to any of its affiliates or to a third party acquiring all or a substantial part of its assets or business relating to the Products.
13.4 Severability. If any provision of the Conditions is held to be unenforceable for any reason, it shall be adjusted rather than voided, if possible, in order to achieve the legal and economic intent of the Parties to the fullest extent possible. In any event, all other provisions of the Conditions shall remain valid and enforceable to the fullest extent possible
13.5 Heading. The headings contained in the Conditions are included for mere convenience of reference and shall not affect the latter’s construction or interpretation.
§3.6 Waiver. Failure by Seidel Engines to enforce at any time any provision of the Conditions shall not be construed as a waiver of Seidel Engines’s right to act or to enforce any such term or condition and Seidel Engines’s rights shall not be affected by any delay, failure or omission to enforce any such provision. No waiver by Seidel Engines of any breach of Customer’s obligations shall constitute a waiver of any other prior or subsequent breach.
14. APPLICABLE LAW AND JURISDICTION
14.1 The Confirmed Order and the Conditions shall be governed by and construed in accordance with the substantive laws of Switzerland, without regard to the conflict of laws provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 (CISG) shall not apply.
14.2 Any dispute arising out of, or in connection with, the Confirmed Order and/or the Conditions shall be exclusively submitted to the courts of Lausanne, Switzerland, without prejudice to a possible appeal to the Swiss Federal Tribunal.
15. LANGUAGE
The original version of the Conditions is made in the English language. In the event of any inconsistency or contradiction between the English version and any translation thereof, the English version shall prevail.
Version: 8th August 2017