AGB

TERMS AND CONDITIONS

daCar­boAG

www.dacarbo.ch

Lachen, Decem­ber 10th, 2019

TERMS & CONDITIONS

 

1. GENERAL

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. PAYMENT

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. COMPLAINTS

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. LIABILITY

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.