General terms and conditions

 

The General Terms and Conditions of Talbot New Energy AG (TNE) can be downloaded here.

General Terms and Condition (DDP)

 

(I) Scope of application and written form requirement

1. The following General Terms and Conditions (GTC) shall apply to all deliveries and services provided by TNE to its customers. Deviating general terms and conditions of the purchaser shall not become part of the contract even if TNE accepts the order.
2. Individual agreements that deviate from these GTC take precedence over the corresponding GTC. The remaining provisions of these GTC shall apply unchanged to the corresponding business relationship.
3. All agreements and legally relevant declarations of the contracting parties must be in writing in order to be valid. Declarations in text form which are transmitted or recorded by electronic media shall only be deemed equivalent to written form if this has been specifically agreed by the contracting parties.
4. Should any provision of these GTC prove to be invalid in whole or in part, the contracting parties shall replace this provision with a new one that comes as close as possible to its legal and economic purpose.

(II) Offer, Offer Documents and Order Confirmation

1. Offers which are not limited in time are not binding.
2. The documents belonging to an offer (such as illustrations, descriptions, drawings, specifications of dimensions and weights) shall only be binding if this has been expressly agreed in writing.
3. Each Party shall retain all rights in estimates, plans, drawings, samples and other documents which it has supplied or transmitted to the other Party. Such documents may not be made accessible to third parties without the consent of the respective entitled contracting party and must be returned immediately upon request.
4. A contract is only concluded with the written order confirmation of TNE.
5. the deliveries and services of TNE are listed conclusively in the order confirmation. TNE is authorized to make changes that lead to improvements, as far as such changes do not cause a price increase.

(III) Requirements in the country of destination and protective structures

1. The purchaser must draw TNE’s attention to the regulations and standards in the country of destination of the delivery and service, which relate to the execution of the delivery and service, the operation as well as to the prevention of illness and accidents, at the latest with the order.
2. Unless otherwise agreed, the deliveries and services shall comply with the regulations and standards at the purchaser’s place of business to which this TNE has expressly referred. Safety devices are supplied by TNE to the extent that this is expressly agreed.

(IV) Prices and terms of payment

1. 1. Prices are delivered and duty paid (DDP) (Incoterms®2010) and include packaging, freight, postage and value security. In addition to the prices the value added tax in the respective legally prescribed height is added.
2. TNE shall bear all bear all costs and risk of transporting the delivery item to the place of performance, including any customs duties for the import into the country of destination. The Payment of customs duties in this context includes the responsibility and the risk of completing customs formalities as well as the payment of any customs duties, taxes and other levies in connection with the customs clearance of the delivery item.
3. Payments shall be made at the domicile of TNE without deduction of expenses, taxes, levies, fees, customs duties and the like. The invoice amount is to be paid according to the payment plan defined in the offer. The payment schedule shall also be complied with if transport, delivery, assembly, commissioning or acceptance of the delivery or service are delayed or rendered impossible for reasons for which TNE is not responsible, or if insignificant parts are missing or reworking is necessary which does not render the use of the delivery and service impossible or substantially re-
stricted.
4. If the purchaser does not comply with the payment plan, he shall pay interest from the due date without reminder at a rate of 5% above the respective discount rate of the European Central Bank (ECB) and TNE shall have the right to retain or discontinue all deliveries and services. We reserve the right to compensation for further damage.

(V) Reservation of title

1. TNE shall remain the owner of all its deliveries until it has received payment in full in accordance with the contract. The purchaser is obliged to cooperate in measures necessary for the protection of the property of TNE; in particular, he authorizes TNE, upon conclusion of the contract, to make the entry or reservation of the retention of title in public registers, books or the like at the purchaser’s expense in accordance with the relevant national laws and to fulfil all relevant formalities. The purchaser shall maintain the delivered items at his own expense for the duration of the retention of title and insure them in favor of TNE against theft, breakage, fire, water and other risks. Furthermore, he shall take all measures to ensure that TNE’s ownership claim is neither impaired nor revoked.

(VI) Delivery Period and Delivery Delay/ Refusal of Acceptance

1. The delivery period shall commence as soon as the contract has been concluded, all official formalities have been completed and the essential technical questions have been clarified. Compliance with the delivery period by TNE requires that the purchaser has fulfilled all obligations incumbent upon him, such as payments and the provision of any securities, the provision of documents, approvals and releases. If this is not the case, the delivery period shall be extended accordingly. This shall not apply if TNE is responsible for the delay.
2 The delivery period shall be deemed to have been complied with if the delivery item has been made available to the customer for unloading on the arriving means of transport at the named place of performance by the end of the delivery period.
3. If the non-compliance with the delivery period is due to reasons for which TNE is not responsible, the delivery period shall be extended accordingly. TNE will inform the purchaser of the beginning and end of such obstacles as soon as possible. The delivery period shall be extended in particular if
a) TNE does not receive the information it requires for the fulfilment of the contract on time, or if the purchaser subsequently changes this information and thus causes a delay in delivery or performance;
b) Obstacles arise which TNE cannot avert despite the application of due care, irrespective of whether they arise at TNE, the orderer or a third party. Such obstacles include, for example, epidemics, mobilization, war, riots, major breakdowns, accidents, industrial disputes, late or defective delivery of the necessary raw materials, semi-finished or finished products, rejects of important workpieces, official measures or omissions, natural disasters;
c) the Purchaser or third parties are in arrears with the work to be carried out by them or with the fulfilment of their contractual obligations, in particular if the Purchaser does not comply with the terms of payment.
4. If dispatch or acceptance of the delivery and service is delayed for reasons for which the purchaser is responsible, any additional expenses incurred by TNE (e.g. for storage areas, interruptions in production, replanning) shall be invoiced to the purchaser on a time and material basis. TNE is entitled, after setting and fruitless expiry of a reasonable deadline, to otherwise dispose of the delivery item and to supply the purchaser with a reasonably extended deadline; TNE reserves the right to assert further claims for damages.
5. If the purchaser refuses acceptance/acceptance of the delivery and service, TNE may set him a reasonable deadline for acceptance or acceptance. If the purchaser does not accept or accept the delivery and service within the period set, TNE is entitled to withdraw from the contract and demand compensation.
6. Partial deliveries by TNE are permissible, provided that this is reasonable for the purchaser.
7. If the delivery period is not observed by TNE, the purchaser must set a reasonable period of grace of at least 20 calendar days in writing. If this grace period is not observed for reasons for which TNE is responsible, the purchaser is entitled to refuse acceptance of the delayed part of the delivery and service. If a partial acceptance of the delivery and service is unreasonable for the customer, he shall be entitled to withdraw from
the contract and to reclaim payments already made against return of the delivery and service.
8. The purchaser has no rights due to delayed delivery and performance other than those expressly mentioned in this section (VI).

(VII) Transfer of benefits and risks

1. The Purchaser shall bear all risk of loss of damage to the delivery item as well as all costs relating to the delivery item from the time at which it was delivered in accordance with Section (VI) Clause 2. If Incoterms have been agreed for export transactions, the transfer of benefit and risk shall be governed by the agreed Incoterms.
2. If dispatch or acceptance is delayed or fails to take place due to circumstances for which TNE is not responsible, the benefit and risk shall pass to the purchaser from the date of notification of readiness for dispatch. From this point on, the delivery shall be stored at the expense and risk of the customer and insured at the customer’s request and expense.

(VIII) Inspection and acceptance of the delivery and service

1. TNE will check the delivery and service before dispatch. If the customer demands further tests, these must be agreed separately and paid for by the customer.
2. the purchaser must inspect the delivery and service within a reasonable period and notify TNE of any defects immediately in writing. If he fails to do so, the delivery and service shall be deemed to have been approved.
3. TNE shall remedy the defects notified to it in accordance with Clause 2 as quickly as possible (by repair or replacement delivery) and the purchaser shall give it the opportunity to do so. After the defects have been remedied, a customer acceptance test shall take place at the request of the orderer or at the request of TNE in accordance with Clause 4.
4. The performance of a customer acceptance test as well as the determination of the conditions applicable thereto require – subject to Clause 3 – a special agreement. Unless otherwise agreed, the following shall apply:

  • TNE shall inform the purchaser of the performance of the customer acceptance test in good time so that the latter or its representative can participate.
  • A record of the acceptance shall be drawn up which shall be signed by the purchaser and by TNE or its representatives. It shall state that acceptance has taken place, that it has taken place only under reservation or that the customer refuses acceptance. In the latter two cases, the deficiencies alleged shall be recorded in detail in the minutes.

Due to minor defects which do not significantly impair the functionality of the delivery and service, the customer may not refuse to accept and sign the acceptance protocol. Such defects shall be remedied by TNE without delay. In the event of substantial deviations from the contract or serious defects, the purchaser must give TNE the opportunity to remedy these within a reasonable period of grace. Then an acceptance test takes place. If this again shows considerable deviations from the contract or serious defects, the purchaser can demand these from TNE in the event that the contracting parties have agreed a price reduction, compensation payment or other services. If the defects or deviations from the contract are so serious that they cannot be remedied within a reasonable period of time, the customer has the right to refuse acceptance of the defective part of the delivery and service or, if partial acceptance is unreasonable, to withdraw from the contract. TNE can only be obliged to reimburse the respective amounts paid to it for the parts of the delivery and service affected by the withdrawal.
5. The acceptance shall also be deemed to have taken place in this case,

  • if the acceptance test cannot be carried out on the scheduled date for reasons for which TNE is not responsible;
  • if the customer refuses acceptance without being entitled to do so;
  • if the customer refuses to sign an acceptance protocol drawn up in accordance with Clause 4;
  • as soon as the customer uses the delivery and service.

6. The purchaser has no rights and claims due to defects of any kind in deliveries or services other than those expressly mentioned in this Section (VIII).

(IX) Warranty, liability for defects

1. Warranty period (warranty period)
The warranty period is the warranty period given to TNE by the supplier (back to back), yet at a minimum 12 months and begins with the commissioning at the customer’s premises. For replaced or repaired parts, the warranty period shall be the period given to TNE by the supplier and commences from the replacement or completion of the parts, if the warranty period expires earlier in accordance with the preceding paragraph. The original warranty expires with the expiry of the warranty period given to TNE by the supplier, in any case no later than 24 months after the beginning of the original warranty period.
The warranty expires prematurely if the purchaser or third parties make improper changes or repairs or if the purchaser, if a defect has occurred, does not immediately take all suitable measures to reduce the damage and gives TNE the opportunity to remedy the defect.
If dispatch is delayed for reasons for which TNE is not responsible, the warranty period shall be shortened accordingly. If, for reasons for which TNE is not responsible, dispatch cannot take place within 12 months of notification of readiness for dispatch at the latest, the warranty claim shall lapse completely.
2. Liability for defects in material, faulty construction and faulty workmanship
TNE undertakes, at the written request of the purchaser, to repair or replace as quickly as possible at its discretion all parts of the deliveries of TNE which demonstrably become defective or unusable as a result of bad material, faulty design or defective workmanship by the end of the warranty period. Replaced parts become the property of TNE. TNE shall bear the costs of rectification incurred in its works.
3. Liability for warranted properties
Warranted characteristics are only those which have been expressly designated as such in the order confirmation or in the contracts. The warranty is valid until the end of the warranty period at the latest. If an acceptance test has been agreed, the assurance shall be deemed to have been fulfilled if proof of the relevant properties has been furnished on the occasion of this test. If the warranted characteristics are not or only partially fulfilled, the purchaser shall initially be entitled to immediate rectification by TNE.
The purchaser shall grant TNE the necessary time and opportunity to do this. If this repair is not successful or only partially successful, the customer shall be entitled to the compensation agreed for this case or, if no such agreement has been made, to a reasonable reduction of the price. If the defect is so serious that it cannot be remedied within a reasonable period of time and if the delivery or service cannot be used for the stated purpose or can only be used to a considerably reduced extent, the customer has the right to refuse acceptance of the defective part or, if partial acceptance is unreasonable for him, to withdraw from the contract. TNE can only be obliged to reimburse the amounts paid to it for the parts of the delivery affected by the withdrawal.
4. exclusions from liability for defects
Excluded from the warranty and liability of TNE are damages which are not demonstrably caused by bad material, faulty construction or faulty execution as well as by other reasons for which TNE is not responsible. Force majeure also excludes warranty and liability.
5. Deliveries and services of subcontractors
For deliveries and services of subcontractors, which are prescribed by the orderer, TNE assumes the warranty only within the framework of the warranty obligations of the subcontractors concerned.
6. Exclusivity of warranty claims
The customer shall have no rights and claims due to defects in the material, faulty design or defective workmanship as well as due to the absence of warranted characteristics other than those expressly mentioned in this Section (IX), Sections 1 to 5.
7. Liability for secondary obligations
TNE shall only be liable for claims of the purchaser due to defective advice and the like or due to violation of any ancillary obligations in the event of unlawful intent or gross negligence.

(X) Exclusion of further liability

Legal consequences as well as all claims of the customer, no matter on what legal basis they are made, are conclusively regulated in these General Terms and Conditions. In particular, all claims for damages, reduction, cancellation of the contract or withdrawal from the contract not expressly mentioned are excluded. Under no circumstances shall the Purchaser be entitled to compensation for damage not caused to the delivery item itself, such as loss of production, loss of use, loss of orders, loss of profit or other direct or indirect (consequential) damage. This disclaimer does not apply to unlawful intent or gross negligence on the part of TNE; however, it also applies to unlawful intent or gross negligence on the part of auxiliary persons. This exclusion of liability shall not apply if it is contrary to mandatory law.

(XI) Industrial property rights, copyrights, secrecy

1. All rights to know-how, patents, utility and design patents, trademarks, equipment and other property rights as well as copyrights and the like for the delivery and service shall remain with TNE or its licensors. This also applies in particular to product designations, software and name and trademark rights.
2. The contracting parties undertake to treat all commercial and technical details not in the public domain which become known to them through the business relationship as business secrets.
3. Drawings, tools, software, moulds, devices, models, templates, samples and similar objects, in particular steam measuring instruments supplied, used or made available by or for TNE, are and remain the property of TNE. They may not be handed over to third parties or made accessible in any other way. If the aforementioned items are manufactured for TNE, they shall already become the property of TNE at the time of manufacture. The reproduction of such objects is only permitted within the framework of operational requirements and the provisions of patent law, trademark law, copyright law and competition law. 4. contractual partners of the customer are to be obligated accordingly.
5. The orderer may only refer to the business relationship with TNE in an advertising manner with the prior written consent of TNE.

(XII) Place of Performance and Jurisdiction

Place of performance shall be the place of delivery contractually agreed between the parties. Place of jurisdiction is Zug (Switzerland). In addition, TNE may also sue at the court responsible for the domicile of the orderer or at any other legally competent court. The legal relationship is subject exclusively to substantive Swiss law, excluding conflict of law’s provisions and the UN Convention on Contracts for the International Sale of Goods (CISG).

(02/2020)