AEB

Purchasing Terms and Conditions of Feller AG

Version the first February, 2019

1. GENERAL

These Purchasing Terms and Conditions (PTC) apply to all our business relations with our business partners and suppliers (referred to below jointly as the 'supplier'). By accepting an order from us, the supplier declares themselves to be in agreement with the following and all conditions listed specifically on our order forms and explicitly waives any assertion of their own General Terms and Conditions of Sale. An order is regarded as accepted if it is not rejected in writing within 5 working days of receipt.
Only orders in writing on our order forms are valid. Orders made by telephone or verbally and amendments or additions will not be valid unless confirmed by us in writing.
Other differing conditions are only binding if the supplier refers to them explicitly and in writing and we approve them explicitly and in writing.
We must be immediately informed in writing of any changes to products which have already been seen as samples or were part of prior deliveries. If we have not been notified of them before despatch of the order, we will be entitled to withdraw from the order or to refuse delivery.
Any drawings that have either been issued or approved by us will be binding for execution of the purchase order. Sample parts are solely for the purpose of illustration.
If we have provided products, components or materials to enable execution of the purchase order, these must not be modified or replaced without our written consent.

2. PRICES AND PAYMENT CONDITIONS

The prices count as fixed prices, provided that nothing different has been agreed and, subject to the same reservation, they include all incidental costs, for example, packaging, transport and insurance costs etc. If assembly is part of the scope of supply, this is fully covered by the supply price, provided nothing to the contrary has been agreed in writing.
Unless the purchase order contains some contrary stipulations, payments will be by bank transfer within sixty (60) days net.

3. DELIVERY AND DESPATCH / TRANSFER OF RISK AND TITLE / CHANGES

Delivery is effected on behalf of the supplier, "Provided nothing to the contrary has explicitly been agreed in the order."
The transfer of risk and title is effected after delivery and unloading at the destination location, "Provided nothing to the contrary has explicitly been agreed in the order."
The quantity delivered must correspond precisely to the quantity ordered, "Provided nothing to the contrary has explicitly been agreed in the order."
A detailed delivery note must be attached to each delivery. The delivery note must state the purchase order, consignment and order number, order item, article designation, number of items, gross and net weights and delivery location. Agreed part or follow up deliveries must be designated as such.
The supplier shall take back their packaging free of charge upon our request and dispose of it in an environmentally appropriate manner.
At any time during execution and where this seems practical, Feller reserves the right to alter the volume and/or type of the goods without the supplier having any entitlement to demand indemnity because of it or without the need for the item prices agreed in the underlying purchase order to be changed.

4. DELIVERY PERIOD AND CONSEQUENCES OF DELAY

Delivery becomes dues on the agreed delivery date or at the end of the delivery period at the destination location. Upon failure to keep to the agreed delivery period and date, the contractor is automatically in default.
The supplier can only invoke the failure of the orderer to supply necessary services required of them if the supplier has demanded this in good time in writing and issued a warning.
Part deliveries and early deliveries are not acceptable unless covered by a corresponding written agreement. If such deliveries are accepted despite the above, then deadlines dependent on the delivery date (e.g. section III 8.) and delivery period are still determined by the contractually appointed date.
If late delivery is made for reasons for which we are not responsible the supplier will be liable for compensation for delayed fulfilment amounting to 1% per week or part week of the contract value of the order affected by the delay, limited however to a maximum of 10% of the contract value.
Above this maximum amount, Feller reserves the right to claim their actual loss incurred from the supplier and to cancel, either wholly or in part, the purchase order unilaterally at any time and by legal right by virtue of the supplier's breach of contract (irrespective of damages) whereby in this case the extent of the default solely and only is regarded as a default by the supplier.

5. ACCEPTANCE REVIEW AND NOTICES OF DEFECTS

The supplier shall check or have others check the supply at their own expense. The supplier's obligation to check the goods will lapse only where this has been explicitly agreed.
We have no obligation to check the delivery ourselves. Acceptance of the delivery does not constitute approval. Art. 201 or Art. 367 Swiss Code of Obligations (OR) and, where applicable, Art. 38 and Art. 39 United Nations Convention on Contracts for the International Sale of Goods will not apply.
Special reviews and attestations and their costs are defined in the order.
The period for notifying defects corresponds to the warranty period.

6. WARRANTY AND LIABILITY

For themselves and their sub-suppliers, the supplier accepts full responsibility for freedom from defects, i.e. for the delivery conforming fully and in all regards to the order and especially that the contractual service features no defects impairing the value or the suitability of the supply, that it features the assured characteristics and that it corresponds to the prescribed services and specifications of the order. In addition, the supplier warrants that the contractual service is suitable without reservation for the intended use and meets the laws, accident prevention regulations, rules etc. in force at the destination location, such as, for example, the regulations of SEV, EVED, SUVA etc.
The warranty period lasts for 12 months, unless something to the contrary has been agreed in writing. It begins with the successful use of the supply and there, where the supply is not directly further processed or put into service, only after further processing or successful commissioning and ends at the latest 36 months after delivery has taken place. Where acceptance through a function test has been agreed, the term of the warranty period begins upon signature of the acceptance protocol or upon issue of the operating permit.
Feller's warranty claims apply alternatively to subsequent improvement or, if no improvement is made, to demanding a price reduction or withdrawal from the contract and additionally to compensation for any loss, including consequential loss. Because of the supplier's obligation to make subsequent improvements, the supplier is required to eliminate defects there and then at their own expense or - if no full-value repair can be expected within a useful period of time - to supply Feller with a defect-free replacement and assemble it at no cost to Feller. In urgent cases or tardiness on the part of the supplier, Feller will be entitled to have the defects eliminated themselves at the expense of the supplier. Once replacement has taken place, the supply items complained about will be at the disposal of the supplier at the location of use.
The supplier will be liable for replacement deliveries and subsequent improvement work to the same extent as for the original supplies. In the event of replacement supplies and delivery of individual spare parts necessary for operation, the warranty period will begin anew. The supplier must provide all spare parts, specifically for a period of ten (10) years from delivery / acceptance of the goods.

7. INTELLECTUAL PROPERTY

Feller alone will have all rights to developments (including any results such as drawings, diagrams, models, prototypes etc. deriving physically from them) which are created by or for the supplier in connection with the contract ('work results').
The supplier is prohibited from using or exploiting the work results for any purposes other than fulfilment of the contract. Where the subject of the contract is the supply or installation of software, the supplier transfers to Feller, upon acceptance of the order, irrevocably, exclusively, without spatial restriction and for an unlimited period the usage rights to the software for all known and unknown usage types.
The above named grant of rights also relates to the source and object codes associated with the software. The supplier shall also provide Feller with the source and object codes including the associated user documentation.
The supplier shall, on first demand, indemnify Feller against all claims and other rights of third parties (including the associated costs such as, for example, appropriate lawyer and court costs) which the said third parties assert against Feller by virtue of the above named grant of rights or supply of software.

8. WAIVERS AND WITHDRAWAL

We are entitled to monitor progress of the work at the supplier's site without that creating liability on our part.
If before the due date for delivery it is definitely foreseeable that the supplier will overrun the delivery deadline or that the delivery will not be usable, then we may set the supplier a period to remedy this, along with the warning that we may refuse to accept delivery or may withdraw from the contract (Art. 107 OR).

Feller may unilaterally and automatically cancel the purchase order, specifically in the following cases without the supplier acquiring claims for damages as a result:

  • Fifteen (15) days after despatch of a formal notification that the supplier has breached their obligations
    under the purchase order and as a result of this notification no remedy was applied.
  • With immediate effect in the following cases:

- Winding up or insolvency by court or out-of-court decision,

A force majeure event with consequences lasting for more than six (6) weeks,

- In the event of overrunning the contractual delivery times if this has reached the maximum penalty amount.

9. CONFIDENTIALITY

All details, drawings, tools, models etc. provided by us are our property and are to be treated confidentially as business secrets.
Products produced to our specifications or with our tools or adapted tools must neither be used by the supplier nor offered or delivered to third parties. Drawings, tools and models which we have provided or for which we have made a cost contribution towards their manufacture, must be rendered to us, on first demand and without compensation, subject to any differing written agreements.

10. PLACE OF FULFILMENT

The place of fulfilment for the delivery is the goods acceptance location determined by us. In the absence of such a location, fulfilment will be at our place of business.
The place of fulfilment for payment is our place of business.

11. CONCLUDING PROVISIONS

No delay or omission by one of the parties in the exercise of one of the rights regulated in these PTC or of any authority regulated herein will impair such a right or authority and also cannot be interpreted as constituting a declaration waiving such a right or authority.

Without the prior written consent of Feller, the supplier shall not assign / transfer, either wholly or in part, any rights and/or obligations arising from the purchase order.

If a provision under these PTC proves to be invalid or unenforceable, the parties shall replace the invalid or unenforceable provisions with such valid and enforceable provisions which come closest to the intentions at the time of the contractual parties. The validity of the other provisions will not be impaired by this.

Swiss law applies to this contract / order to the exclusion of conflicting laws and the UN Convention on Contracts for the International Sale of Goods of 1980 ('CISG').
The place of jurisdiction for disputes arising from this contract is: CH-8810 Horgen, Canton of Zürich (Switzerland)

12. Insurance

On first demand by Feller and in any case within ten (10) days of acceptance of the purchase order, the supplier shall submit to Feller a copy of their insurance policies and/or certificates to be issued by their insurers - in addition, the supplier shall take out additional insurance protection with this insurance at the expense of the supplier which Feller may well regard as necessary given the background of the risks associated with implementation of the purchase order.

13. Sustainable development

The supplier shall adhere to the following guidelines:

  • OECD guidelines concerning sustainable development, which can be inspected on the following web page: http://www.oecd.org/topic/0,3699,en_2649_37425_1_1_1_1_37425,00.html

  • The ten principles of the Global Compact of the United Nations on human rights, work norms, environment protection and anti-corruption measures, which can be inspected on the following web page: http://www.unglobalcompact.org/Languages/french/index.html

  • The rules defined in ISO norm 14001.

  • In addition, the supplier is aware that the energy efficiency of the goods was taken into account as part of the selection criteria applied by Feller (ISO norm 50001).

To enable absolutely safe usage of the goods, the supplier commits to the following:

  • Adherence to all national laws and regulations applicable at the delivery address indicated in the purchase order.

  • Guarantee that no goods contain one or more hazardous substances specified in Directive 2011/65/EU of the European Parliament and the Council dated 8th June 2011 in appendix II.

  • EAdherence to all obligations regarding substances restricted and/or prohibited in the European Union and in particular substances which are listed in the REACH regulation (EU 1907/2006) and in their amended versions, appendices XIV and XVII,

  • General systematic adherence to the laws and regulations concerning the prohibition or restriction concerning the use of certain products or substances which are in force at the time when the purchase order order is passed, both in the European Union and in other countries, if this is more precisely indicated in the purchase order and/or specifications, or which could be applied up to the delivery date of the goods.
    Within forty-five (45) days of receipt of an enquiry from Feller, to which a list may be attached which Feller may have sent to the supplier and otherwise on the basis of the valid lists of restricted substances, the supplier must inform Feller if their goods contain such substances.
    Within forty-five (45) days of receipt of an enquiry from Feller, to which a list may be attached which Feller may have sent to the supplier and otherwise on the basis of the valid lists of restricted substances, the supplier must inform Feller if their goods contain such substances.

The supplier must compensate Feller for all costs, detriments and losses incurred by Feller and/or claims of third parties against Feller which have occurred through an omission by the supplier to adhere to the provisions of this section 20.

Should the supplier also decide to change the composition of the goods, they must inform Feller at least nine (9) months before the day on which such a change takes effect.

14. Product management / Methodological changes

The supplier must inform Feller in writing of decisions relating to any cessation to market the goods or any material changes to the goods or their manufacturing method, especially of changes which concern the method, including material changes to their IT processes, the sourcing of important components, the design of the goods, the location(s) of the production sites(s) - or to those of their sub-contractors -, if such changes to the technical specifications can adversely affect adherence to norms, the life cycle, the reliability or quality of the goods - or the above named matters. The supplier must inform Feller in writing nine (9) months before the end of marketing or the date of implementation of a material change. Feller reserves the right to reject any type of material changes. All material changes are totally the responsibility of the supplier. The supplier must reimburse Feller for all costs incurred by Feller during or in connection with the re-classification of the goods and/or the corresponding components affected by the material change.

15. Export control

The supplier confirms and agrees that they (including their managerial employees, staff, representatives and authorised agents) are responsible for adherence to all applicable national and international export and re-export control laws and control provisions and that the supplier has to obtain all possible approvals required for the export, re-export or import of goods.

16. Bribes and inducements

Feller confirms that neither they themselves nor their managerial employees, staff, representatives and authorised agents have offered or paid or set bribes or inducements to a staff member, authorised agent or representative of the supplier or third parties nor will they do so in the future. 

The supplier warrants that their authorised agents, managerial employees, staff, representatives and any other persons who supply services for them or on their behalf have not offered, paid or set, or will not offer, pay or set bribes or inducements to the managerial employees, staff, representatives and authorised agents and that they will not take steps or will not be guilty of any omission which lead or leads to they themselves or Feller breaching any anti-bribery or anti-corruption laws or in this connection committing a crime.

17. Data protection

When processing the contract, the supplier must adhere to the data protection provisions in force at the time and take steps to ensure that persons they engage also adhere. In particular, the supplier will take sufficient technical and organisational steps to guarantee a level of protection appropriate for the risk to personal data.
Where the supplier, in the context of their supply of services, comes into contact under the provisions with personal data of Feller (especially of staff or contractual partners), the supplier will - where this is necessary under the current data protection laws - reach an agreement with Feller for processing the purchase order.
Feller is entitled to cancel the contract, either wholly or in part, if the supplier culpably breaches their obligations arising from this section and also still does not meet them within a reasonable period set by Feller or if the supplier wilfully or with gross negligence breaches their mandatory data protection obligations.






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