General Terms and Conditions of Sale and Delivery of BRUAG AG 1. General a) BRUAG AG, Bahnhofstrasse 8, CH-8594 Güttingen (hereinafter BRUAG ) provides its deliveries and services on the basis of these General Terms and Conditions of Sale and Delivery (GTC). Any contradictory or deviating General Terms and Conditions of Sale and Delivery of the purchaser shall not apply even if the purchaser makes any reference thereto, unless BRUAG has expressly approved the applicability thereof in writing. b) These General Terms and Conditions of Sale and Delivery shall also apply to future orders of the purchaser. c) Orders accepted by BRUAG are non-binding. The contract with the purchaser shall come into effect only after receipt of the written Order Confirmation by BRUAG. 2. Deliveries and services The scope of the deliveries and services to be provided by BRUAG shall be exhaustively listed in the Order Confirmation. BRUAG reserves the right to make any design changes made necessary by technical constraints that do not affect the proper use of the goods manufactured by BRUAG and delivered to the purchaser ( contract goods ) and that do not constitute a defect. 3. Technical data / Color fidelity a) Any Information about the goods or the services on the website of BRUAG, in prospects, catalogues and similar documents is non-binding and subject to changes. b) Any Information in technical documents is only binding if explicitly assured by BRUAG in the Order Confirmation. c) As far as the goods ordered are colored goods, the color design is based on the information of the purchaser. The purchaser is aware of the fact that deviations of the color impression of the goods delivered from that of the color charts may occur, in particular due to the support and the thickness of the material, on which the color is applied. Such deviations do not legally constitute a defect. In these cases, BRUAG is not liable for any rectification, replacement or compensation. 4. Prices a) As consideration for the services rendered in accordance with the contract and/or the contract goods delivered by BRUAG, the purchaser pays to BRUAG the purchase price fixed in the Order Confirmation. Unless provided otherwise in the Order Confirmation, the prices are to be understood ex works excl. VAT (INCOTERMS), excluding freight, insurance and customs clearance costs where applicable. 1
b) The prices indicated in the Order Confirmation are fixed prices. Should more than six months have elapsed between the Order Confirmation and the delivery of the contract goods or in case of significant exchange rate changes in the period between the Order Confirmation and the delivery with effects on the contract with the purchaser, in particular due to material price increases, BRUAG reserves the right to change its prices. Additional charges for express deliveries will be charged separately. 5. Transport and packaging a) BRUAG commits itself to make the contract goods available at a mutually agreed date, suitably packaged for transport and ready to load, for collection by the purchaser according to the contract. b) Unless otherwise stipulated in the Order Confirmation, the delivery of the contract goods takes place ex works according to INCOTERMS (hereinafter the referred to as EXW ) by making the contract goods available at Bahnhofstrasse 8, CH-8594 Güttingen. 6. Delivery dates a) The delivery dates indicated in the Order Confirmation are for information purposes only. The Order Confirmation by BRUAG is subject to the timely and correct delivery to BRUAG of the materials necessary for the manufacturing of the contract goods. b) The delivery period shall start with the written approval by the purchaser of the drawings for the contract goods and the forwarding of the Order Confirmation by BRUAG to the purchaser. The purchaser shall help BRUAG to clarify all the technical matters in relation with the contract goods (for ex. indications of size and material thickness for the contract goods) by providing the necessary information. c) The non-binding delivery date indicated for information in the Order Confirmation shall be appropriately extended if the delay in delivery is due to circumstances for which BRUAG is not responsible and BRUAG could not avert despite the exercise of due diligence. 7. Terms of payment/retention of title a) The purchaser commits itself to pay the purchase price according to the terms of payment agreed upon in the Order Confirmation. b) Should the purchaser fail to meet the agreed dates of payment, BRUAG shall charge the purchaser, without any further notice, a default interest at the rate of the default interest rate according to Art. 104 (1) Swiss Code of Obligations, i.e. 5% p.a., starting with the due date of the late payment. c) The purchaser is only entitled to set-off, reduction of the purchase price, retention and refusal of performance if its counterclaims have been established as legally final, uncontested or recognized by BRUAG. 8. Order changes 2
a) Should the purchaser require from BRUAG order changes later than two working days after the issuing date of the Order Confirmation, in particular changes to the specifications of the goods to be delivered, to quantity, delivery dates and/or to the point of delivery, purchaser shall be solely responsible for all the related additional costs. b) As far as BRUAG has to deliver contract products according to drawings, models or samples handed over by the purchaser, the purchaser shall represent and warrant to BRUAG that property rights of third parties are not infringed and shall indemnify BRUAG from any compensation claims of third parties in relation thereto. 9. Retention of title The contract goods delivered remain the property of BRUAG until they are paid in full. The purchaser entitles BRUAG to enter the retention of title into the official register and to fulfill all related formalities. 10. Transfer of benefits and risks a) BRUAG undertakes to immediately inform the purchaser as soon as the contract goods are ready for collection. b) The purchaser undertakes to immediately take over the contract goods. The purchaser shall be charged additional costs for any delayed takeover of the contract goods. c) Benefits and risks related to the contract goods are transferred to the purchaser with the delivery EXW, i.e. with the making available of the contract goods for collection. 11. No returns Purchaser acknowledges that the contract goods are usually goods that are specially manufactured according to the specifications of the contractual partner and that may not be used for other purposes. Therefore, contract goods may not be returned to BRUAG. 12. Inspection and acceptance a) The purchaser has to make an optical examination of the goods delivered immediately upon delivery (visual inspection) for detecting damages of the packaging and/or of the goods delivered; possible damages shall be immediately reported to the freight forwarder and to BRUAG. b) Additionally to the visual inspection upon delivery, the purchaser has to check the content of the deliveries of BRUAG within seven (7) working days at the latest (acceptance inspection). The purchaser shall report possible defects in a defect report and classify in the defect report the ascertained defects of the contract goods as minor defects or major defects. The defect report shall be sent to BRUAG without delay. c) Should the purchaser fail to timely conduct the acceptance inspection, deliveries of the contract goods shall be deemed to be accepted - subject to possibly hidden defects (Art. 370 Swiss Code of Obligations). 3
13. Liability/Warranty Any liability of BRUAG in connection with alleged defects of the contract goods is limited to the remedies provided in section 13 a). and b). In any event, any claims by purchaser, especially regarding the rectification of the contract goods is subject to the full compliance by purchaser with his obligations of inspection and acceptance in accordance with 12 of these general terms and conditions of sale and delivery (GTC). a) BRUAG has to remedy minor defects that have been ascertained during the acceptance inspection within a period of rectification of 30 working days at its own expense. Date and duration of the rectification work are to be mutually agreed by the purchaser and BRUAG. As far as minor defects that have been ascertained by the purchaser during the acceptance inspection have been remedied by BRUAG within the rectification period (optionally also by a replacement delivery), the purchaser may not assert any warranty claims. b) BRUAG has to remedy major defects that have been ascertained during the acceptance inspection within a period of rectification of 30 working days at its own expense. Date and duration of the rectification work are to be mutually agreed by the purchaser and BRUAG. As far as major defects that have been ascertained by the purchaser during the acceptance inspection have been removed by BRUAG within the rectification period (optionally also by a replacement delivery), the purchaser may not assert any warranty claims. c) As far as the claims asserted by the purchaser do not relate to a liability of BRUAG for death and bodily injury and/or for damages caused intentionally, the liability of BRUAG is limited to the amount of the maximal cover of the business liability insurance of BRUAG per event of damage. BRUAG shall not be liable for any consequential damages. d) Penalties for the non-conforming delivery of the contract goods and/or an unsuccessful rectification or subsequent delivery are not agreed. e) BRUAG guarantees that the contract goods are manufactured by using appropriate materials and that the contractual works are carried out with the necessary diligence, and that the contract goods are free from defects of title (exception: Contract goods manufactured by BRUAG according to specifications provided by purchaser, see also 8). BRUAG undertakes no additional responsibility and/or warranty, in particular for the practicability or the usability of the contract goods. f) Claims of the purchaser for material defects and defects of title of the contract goods shall be time-barred upon expiry of the minimum statutory period, even in case of deliberate deception. The limitation period starts running on the date of delivery (EXW) of the contract goods to the purchaser, regardless of when the goods are effectively processed and/or mounted. Only to the extent that the Order Confirmation specifically provides for warranty periods that extend beyond the minimum statutory period, these additional provisions shall apply. g) In any case, any warranty and/or liability of BRUAG does not extend to damages that do not have their origin in the contract goods themselves. no liability whatsoever is undertaken by BRUAG with respect to, for example, damages of the contract goods due to wear and tear/weathering, improper installation and/or assembly of the contract goods, defective maintenance, non-observance of the operating and/or maintenance instructions and/or of operating rules and in comparable cases. Furthermore, any warranty and liability of BRUAG 4
does not extend to damages to the contract goods either that are caused by mechanical stress beyond the predictable usual extent. 14. Swiss Product Safety Act (PSA) and traceability a) Should a current or a possible risk for the safety of individuals or a health risk caused by a product defect arise in the course of the product lifetime of the contract goods, the purchaser undertakes to immediately notify BRUAG thereof and to cooperate with BRUAG to remove such risk. b) In accordance with the Swiss Product Safety Act (PSA), the purchaser undertakes in particular to ensure a complete traceability of the contract goods delivered. c) BRUAG is entitled to check the observance of this obligation of the purchaser with appropriate measures after the purchaser has been notified thereof in writing. 15. Exclusion of further liability a) Regarding any defects of the contract goods delivered any claims by purchaser are limited to warranties by BRUAG expressly mentioned in 13 hereof. b) Any further claims of the purchaser in connection with asserted defects of the contract goods, in particular claims for compensation, price reduction and/or withdrawal from the contract, are excluded to the fullest extent permitted by law. c) In no case, the purchaser can assert claims for compensation of damages that extend beyond the rectification or the replacement delivery of the contract goods. In particular, the purchaser cannot assert any claims in connection with production downtime, loss of orders, lost profit or other direct or indirect damages. The mandatory provisions of the Swiss Product Liability Act (PLA) (see 14) remain unaffected. d) Neither party shall be liable for any delay in performing or failure to perform its contractual obligations if the delay or the failure is attributable to Force Majeure. Force Majeure means an event that is unforeseeable by the party involved at the time of execution of the contract, that is unavoidable and beyond the reasonable control of the party involved. 16. Property rights Any rights of use and exploitation of all patents, design rights, trademarks, logos, photos and texts of BRUAG in connection with BRUAG and/or the contract products (hereinafter individually and collectively referred to as content ), in particular as far as this content is contained in display material, sales promotion material and POS material of BRUAG as well as on websites, flyers and similar documents, exclusively belong to BRUAG. 17. Modifications of these General Terms and Conditions of Sale and Delivery BRUAG reserves the right from to time to make alterations and additions to these General Terms and Conditions of Sale and Delivery (GTC). BRUAG shall notify the purchaser of the modified GTC or to the amended clauses and the purchaser shall be given the reasonable opportunity for acknowledgement. 5
18. Place of jurisdiction and applicable law/severability a) The contractual relationship between BRUAG and the purchaser is subject to material Swiss law, excluding any rules on conflict of laws and the United Nations Convention on Contracts for the International Sale of goods (CISG) dated April 11th, 1980 and the amendments thereof. German is the contract language. Even for the interpretation of translated versions of these General Terms and Conditions of Sale and Delivery, the German version shall be exclusively legally binding. b) The exclusive place of jurisdiction for any disputes between the parties about validity, content and enforceability of the contract between the parties is St. Gallen, Switzerland. BRUAG can also prosecute the purchaser before the courts competent for its place of business and/or its domicile. Mandatory statutory venues are reserved for consumer contracts. c) The invalidity or unenforceability of a provision of this contract between BRUAG and the purchaser and/or of these General Terms and Conditions of Sale and Delivery as an integral part of the contract shall not affect the validity or the enforceability of the remaining provisions. The contract shall be executed as if the invalid or unenforceable provision had been replaced by a valid regulation that is as close as possible to the economic intention of the original provision. Güttingen, 2017 6