TERMS AND CONDITIONS
Lachen, December 10th, 2019
TERMS & CONDITIONS
1.1 The present general terms and conditions apply to all offers and/or contracts of purchase and delivery between daCarbo AG as the seller and the customer as the buyer. The present general terms and conditions are published on our web site www.dacarbo.ch
1.2 daCarbo AG having its registered office at Beulweg 58, 8853 Lachen, Switzerland.
1.3 The customer: the natural (or legal) person in his role as buyer and customer of products made and/or services provided by daCarbo AG.
1.4 The contract: the contract of purchase and delivery and/or provision of products and/or services between daCarbo AG as the seller and the customer as the buyer.
1.5 Changes of the contract only be valid if they are confirmed in writing by daCarbo AG.
General terms and conditions other than those of daCarbo AG, shall not apply. By placing an order, you shall accept the present agreement, unless otherwise agreed upon in writing.
2. OFFERS / ORDERS / AGREEMENT / PRICES
2.1 All offers made by or on behalf of daCarbo AG orally or on the internet, in newspapers and/or weeklies, periodicals, announcements, letters, faxes and e‑mail and/or offers relating to prices, shall be free of obligation. They shall, however, always constitute an invitation to enter into negotiations, which shall not be binding on daCarbo AG in any way whatsoever, unless explicitly stipulated otherwise.
2.2 Offers and pricing information shall be based on the data provided by the customer. daCarbo AG shall be entitled to assume that said data be correct and complete.
2.3 The agreement between the customer and daCarbo AG shall come into being the moment daCarbo AG has confirmed by e‑mail the order placed by the customer by e‑mail or on our web site.
2.4 Modifications of the original agreement of any nature whatsoever, introduced orally or in writing by or on behalf of the buyer, which entail costs higher than those one could take into account the moment an estimate was submitted, can be charged extra to the customer by daCarbo AG.
2.5 Prices shall read in the specified currency and shall include VAT. The website www.dacarbo.ch uses cookie technology in order to show website visitors product prices based on the IP-location of the website visitor that is being used as key indicator for the shipping destination country. The products are invoiced in a currency determined by daCarbo AG.
2.6 daCarbo AG shall be entitled to charge factors that increase the price, such as government import duties, levies, taxes, surcharges and insurance and freight rates, on to the customer.
3.1 When you have placed an order, you shall receive a confirmation by e‑mail as soon as possible, with an overview of your order and the overall costs.
3.2 Each order shall only be delivered when the corresponding payment has been received, i.e. when the amount owed by the buyer has been credited to the daCarbo AG bank account. You can pay via transfer into our bank account.
3.3 The payment shall have to be effected in full within 10 days from confirmation as referred to in section 1 of the present article. daCarbo AG shall send a confirmation by e‑mail when your payment has been received.
3.4 If the purchase price is not paid in full within 10 days, the customer shall be in default without any warning or notice of default being required. That moment, all outstanding invoices owed to daCarbo AG shall become immediately due and payable in full.
3.5 As from the moment he is in default, the customer shall owe daCarbo AG an interest for overdue payment on the full amount owed, of 1.5% per month.
3.6 If daCarbo AG is obliged to call in the services of a collection agency or external legal assistance because the customer fails to comply with his obligation to pay pursuant to article 3 section 3, the costs to be incurred by daCarbo AG in this respect shall be for the customer′s account due to the fact that the latter fails to comply with his obligations in accordance with the agreement and/or the present general terms and conditions.
4. RETENTION OF TITLE
4.1 daCarbo AG shall remain the owner of the goods it has delivered up to the moment the customer has complied with all of his obligations vis à vis daCarbo AG regarding the transactions concerned, the preceding transactions and the subsequent transactions. Up to said point in time, the customer shall be held to store the products delivered by daCarbo AG separately from other products, clearly marked as being the property of daCarbo AG and to insure them properly.
4.2 If the customer fails to comply with any of the obligations vis à vis daCarbo AG by virtue of article 4 section 1, or if there is reasonable fear that the customer shall not comply with aforementioned obligations, daCarbo AG shall be entitled to forthwith take back the products delivered, regardless where they may be stored, without giving notice of default. Repossession costs will be charged to the customer.
4.3 As long as the above-mentioned debts have not been paid, the customer shall not be allowed to dispose of the products concerned or to establish a right of pledge or a non-possessory pledge on said products.
5. DELIVERY AND TRANSPORT
5.1 The order shall be shipped within 5 to 180 days after receipt of the corresponding payment.
5.2 Said period may be longer if the product ordered is not in stock. daCarbo AG will contact buyer after payment with estimated date of delivery.
5.3 If a product has to be manufactured in accordance with specifications given by the customer in writing that deviate from the standard, the period of delivery agreed upon with respect to that specific case, shall apply.
5.4 The periods of delivery given shall apply approximately and shall not be terms to be observed on penalty of forfeiture of rights, unless explicitly agreed upon otherwise.
5.5 daCarbo AG offers customers free shipping worldwide on orders with a minimum order value of USD 500.00. The costs of transport within and outside Switzerland shall be for the account of daCarbo AG. daCarbo AG reserves the right to refuse free shipping if the estimated cost of shipping to the destination country exceeds 10% of the value of the goods. In this case, daCarbo AG will contact the buyer and negotiate the terms of shipping and/or offer cancellation of the order. All products shall be shipped using the services of a professional transport company. The products shall only be shipped outside Switzerland in accordance with the rules and on the conditions of the transport company. daCarbo AG shall not be responsible for any act or omission on the part of the transport company.
5.6 daCarbo AG shall determine the transport method, unless parties explicitly agree otherwise. All transport shall be insured by the standard insurance taken out by the transport company. If the customer requests a higher insurance than the standard insurance, the corresponding additional costs shall be for the customer′s account. The provisions included in the conditions of the transport company cannot impair the stipulations of the present section.
5.7 daCarbo AG will ship either DDP (Delivered Duty Paid) or DAP (Delivered At Place) depending on delivering country address location. daCarbo AG as such will declare on the invoice before payment if Import or Duty costs will be covered by daCarbo AG or if purchaser needs to cover import & duty costs as followed cost invoiced by transport company before delivery.
6. EXCHANGE / RETURN
6.1 If the wrong or a damaged product has been delivered, daCarbo AG shall take said product back for its own account and ship a replacement product to the buyer, provided the conditions as set out in section 4 of the present article be met.
6.2 If an event as referred to in Article 6 section 1 mentioned happens: a. products can only be exchanged if they are packaged (again) in the original packaging; b. products can only be exchanged if they are in the same condition as they were in upon delivery.
7. FORCE MAJEURE
7.1 Force majeure shall be understood to mean circumstances that prevent compliance with the agreement and that cannot be attributed to daCarbo AG.
7.2 Force majeure shall in any case, but not exclusively, be understood to be: industrial action, war, terrorism, natural disasters, problems with suppliers / transport / production, fluctuations in the exchange rate, government or regulatory measures, riots, acts of war, fire, water damage, and any other industrial turmoil at daCarbo AG and/or its suppliers as well as breach of contract on the part of the daCarbo AG suppliers.
7.3 In the event of force majeure, daCarbo AG shall be entitled to suspend performance of the agreement or to (partially) dissolve the agreement without judicial intervention and without being held to pay the customer any damages in this respect.
7.4 If the circumstances of force majeure last for more than six months, or if it has become an established fact that the circumstances of force majeure will last longer than six months, both parties shall be entitled to (partially) dissolve the agreement. In that case too, daCarbo AG shall not be held to pay the customer any damages.
8.1 All products delivered by daCarbo AG, shall be checked for quality prior to shipping them.
8.2 Complaints concerning visible defects to delivered products shall have to be filed with daCarbo AG by e‑mail the moment they are detected or in any case within seven days from receipt.
8.3 Defects to part of the goods delivered shall not give the buyer the right to reject the entire shipment delivered.
9.1 daCarbo AG shall not be liable for the damage sustained by the customer, unless to the case said damage is the consequence of gross negligence or intention on the part of daCarbo AG.
9.2 daCarbo AG shall under no circumstances be liable for trading loss, losses due to delay, loss of profits or losses due to stagnation or for any other consequential damage sustained by the customer.
9.3 The liability for damage shall explicitly be limited to the invoice amount exclusive of duties and taxes for the delivery that gave rise to the claim for damages.
9.4 Each and every further liability shall be explicitly excluded.
10. DISSOLUTION OF THE AGREEMENT
10.1 daCarbo AG shall be authorised to dissolve the agreement without judicial intervention and without prior notice of default, if the customer fails to comply with his obligations by virtue of the agreement, if the customer has filed for suspension of payments or if he has been granted suspension of payments, if the customer has been declared bankrupt or an application to that effect has been filed, or if (a part of) the products being the property of the customer have been attached. daCarbo AG shall not owe the customer any damages in any of the above situations.
10.2 In the event the agreement is dissolved by virtue of article 11 section 1, daCarbo AG shall be entitled to demand payment by the customer to compensate daCarbo AG for the activities carried out and the performance of the agreement up to that moment.
10.3 daCarbo AG can invoke the above-mentioned dissolution vis à vis the customer with a written statement.
10.4 The customer shall not be entitled to claim dissolution of the agreement with retroactive effect.
11. INTELLECTUAL PROPERTY
11.1 All intellectual property rights to the ordered and delivered products, shall continue to be vested in daCarbo AG, including in the event a product has been manufactured on the buyer′s instructions or in accordance with his specifications.
11.2 All pictures on the www.dacarbo.ch web site shall be the property of or licensed to daCarbo AG and must not be used or copied without the consent to that effect of daCarbo AG. The same shall apply to all texts on said web site.
12. 2‑YEAR WARRANTY
12.1 The goods to be delivered by daCarbo AG shall meet the usual requirements and standards that may be imposed on them in reason the moment they are delivered.
12.2 daCarbo AG shall guarantee the reliability of the products it delivers as well as the quality of the material used to manufacture them, to the extent said products show visible defects in respect of which the customer proves that they appeared within two (2) years from purchase.
12.3 daCarbo AG shall remedy the defects that are covered by the guarantee as referred to in article 12 section 2, either by repairing them or replacing the faulty component, all this at the company of daCarbo AG or not, or by shipping a component to replace the faulty component. daCarbo AG shall be at liberty to opt either for repair or replacement. All costs exceeding the sole obligation of daCarbo AG as set out in the present section, shall be for the customer′s account.
12.4 The following shall in any case not be covered by the guarantee (defects that appear in or are wholly or partially the consequence of): normal wear and tear assembly / installation or repair by a third party adjustments made by the customer, improper use, exposure of the products to extreme temperatures or degrees of humidity, malicious damage or otherwise damage as a result of the (improper) use of accessories.
12.5 The customer shall have to inform daCarbo AG in writing of defects to delivered products as soon as possible after they are detected but in any case within the period of the guarantee. If said period of guarantee is exceeded, the possibility to rely on the guarantee vis à vis daCarbo AG shall lapse.
12.6 daCarbo AG shall not give any guarantee for the research done, advice given and similar activities carried out by daCarbo AG at the provision of services level.
12.7 Defects or any other damage caused by negligent or improper treatment of the goods, improper installation, the use of unsuitable accessories or changes made to the original parts by the customer or a third party not commissioned by daCarbo AG are not covered by the warranty. Signs of wear and tear from normal use are also excluded from the warranty.
13. DISPUTES AND THE COMPETENT COURT
13.1 Swiss Law shall apply to all agreements to which the general terms and conditions fully or partially apply.
13.2 All disputes (including those that are only considered to be one by one of the parties) relating to or resulting from the agreement(s) concluded between daCarbo AG and the customer, shall be settled by the Court in the District in which the registered office of daCarbo AG is located, unless daCarbo AG opts for the competence of another Court.
14. FINAL STIPULATION
14.1 If and in so far as any part and/or any stipulation of the present general terms and conditions would appear to be contrary to any mandatory rules of national or international legislation, said part and/or stipulation of the present general terms and conditions shall be deemed not to have been agreed upon and all the other stipulations of the present general terms and conditions shall continue in effect for both parties.
14.2 daCarbo AG, December 10th, 2019.