Conditions
Status: December 2021
General Terms and Conditions of XENONPOWER AG, CH
§1 Validity of the conditions
1. The following terms and conditions apply to the business relationship between XENONPOWER and the customer to the exclusion of all deviating terms and conditions of the customer. They apply to all our current and future deliveries and services, unless they are modified or excluded by an express written agreement with us. Orders placed on the basis of standard terms and conditions of purchase are always deemed to have been placed under our terms and conditions of sale, even if we do not expressly reject them.
2. If the customer is already familiar with our terms and conditions, they apply to future transactions even without new notification. Acceptance of our deliveries or services is deemed to be acceptance of our terms and conditions.
3. Agreements that change or supplement these conditions only apply in writing. Should our terms and conditions change, XENONPOWER will send the buyer a copy of the amended version.
§2 Offer and conclusion of contract
1. Price lists and offers as well as other documents from XENONPOWER are subject to change and non-binding unless the opposite is expressly stated or an order confirmation does not state otherwise. The sending of catalogues, brochures or price lists does not oblige us to deliver. Declarations of acceptance and all orders require our written confirmation to be legally valid. The same applies to supplements, modifications or subsidiary agreements. In the case of immediate delivery, the written confirmation can also be replaced by an invoice.
2. The documents associated with the offers, such as illustrations, drawings, brochures, dimensions and weights and other descriptions of services only serve as orientation for the customer and in particular do not represent any assurances of properties unless they are expressly designated as binding in writing.
§3 Prices
1. XENONPOWER is bound to its offers for 30 days. Deliveries and services are charged separately. Only the prices stated in the order confirmation apply. Additional
2. The prices apply ex works plus the currently applicable VAT.
3. The place of performance for payments is Herisau/CH.
4. The ordered services, quantities and numbers of items are decisive for the calculation.
§4 Delivery and service time, shipping, transfer of risk
1. Dates and delivery periods are non-binding. The specification of specific delivery periods and delivery dates by XENONPOWER is subject to the correct and timely delivery of XENONPOWER by suppliers and manufacturers or timely collection of the goods by the commissioned freight forwarder. If we are prevented from timely delivery by unforeseeable events or events for which we are not responsible and which are unavoidable with reasonable care, the delivery time shall be extended appropriately.
2. In the event of agreed collection, the risk of accidental loss and accidental deterioration of the delivery items passes to the customer upon notification of the readiness for delivery. For the rest, the risk passes to the customer at the point in time at which the goods are handed over by us from the carrier. Shipping method and shipping route are chosen by us. Additional costs due to deviating wishes of the customer are at his expense.
3. The delivery time begins when the order confirmation is sent, but not before receipt of an agreed advance payment (deposit), not before clarification of all technical details and not before the customer has fulfilled all the requirements for the execution of the transaction.
4. Delivery and service delays due to force majeure and due to other unforeseeable events that make delivery significantly more difficult for XENONPOWER or make it impossible and for which XENONPOWER is not responsible (this includes in particular war, warlike events, official orders, non-issuance of -, import or transit permits, national measures to restrict trade, strikes, pandemics, lockouts and other operational disruptions of any kind, traffic disruptions, regardless of whether these events occur at XENONPOWER, their suppliers or their sub-suppliers), XENONPOWER is entitled to the delivery or service to postpone the duration of the hindrance plus a reasonable start-up period or to withdraw from the contract - insofar as it has not yet been fulfilled - in whole or in part. The delivery period is also extended by the period of time in which the buyer is in arrears with the fulfillment of his contractual obligations.
5. If the hindrance lasts longer than 3 months, the buyer is entitled, after setting a reasonable period of grace (at least 14 days), to withdraw from the contract - insofar as it is not fulfilled - in whole or in part. If the delivery time is extended as a result of paragraph 2 or if XENONPOWER is released from its obligation, the buyer cannot derive any claims for damages from this. XENONPOWER can only refer to the mentioned circumstances if the buyer was informed immediately.
6. XENONPOWER is entitled to make partial deliveries and partial services.
7. If the customer does not accept the delivery items immediately when they are ready for dispatch, we will store them at his own risk and expense if possible. This storage does not release the customer from his payment obligation, which occurs at the time the goods are made available.
8. If the seller does not accept the goods, we are entitled, after the unsuccessful expiry of a deadline set for acceptance, to withdraw from the contract and to demand compensation for damages, in particular including additional expenses incurred by us or wasted expenses.
§5 delivery quantity
When accepting the goods, the customer is obliged to check them and must notify XENONPOWER and the carrier immediately (according to the provisions of the German Commercial Code) in writing of any differences in quantity and defects. Acceptance of the goods by the forwarding agent or carrier is considered proof of the quantity, proper packaging and loading.
§6 Packaging
Crate packing, carton packing, pallet packing and crating will be charged. A return against reimbursement of the calculated amount is not possible. The customer must dispose of the packaging, including crates, cardboard boxes, pallet packaging and crates. The type and scope of the packaging is reserved for the supplier.
§7 Warranty
1. The warranty period begins when the ordered goods are accepted. XENONPOWER withdraws from the warranty, among other things, if one of the following points occurs:
-Failure to follow our operating or maintenance instructions, make changes to the products, change parts or use consumables that do not meet the original specifications,
- In case of improper use
- Faulty further processing, assembly (assembly guidelines see guarantee certificate), treatment
- Normal usual wear and tear or excessive wear not related to production
- or material defects can be traced back.
- Excessive stress
Deviations in color, dimensions and/or quality and performance characteristics of the goods do not trigger any warranty rights.
2. The buyer must notify defects immediately in writing.
3. If the customer does not comply with his inspection, complaint and inspection obligations, or does not do so in a timely or proper manner, all warranty claims expire.
4. If the buyer asserts defects, he must deliver the defective part or goods and a precise description of the fault, stating the model and serial number, a copy of the invoice with which the goods were delivered to XENONPOWER. When sending in the goods to be repaired, the buyer must ensure that the goods arrive free of charge and that we deliver them again freight collect. The goods must arrive free of charge and will be returned by us freight collect, unless the transport costs are disproportionate to the order value. Replacing parts, assemblies or entire devices will not result in new warranties.
5. In the case of defective goods, XENONPOWER shall, at its own discretion, provide a guarantee by remedying the defect or by taking it back and delivering a replacement.
6. XENONPOWER cannot be held liable in any way for consequential damage, in particular the costs of removal, conversion or installation and loss of earnings.
§8 Retention of title
1. All delivered goods remain our property (reserved goods) until the complete and final fulfillment of all claims, for whatever legal reason, including future or conditional claims, also from contracts concluded at the same time or later. The buyer is entitled to dispose of the delivery items or products as long as he meets his obligations from the business relationship with us in good time. The authorization to resell and the direct debit authorization can be revoked if the dealer fails to meet his payment obligations to us
is in arrears or we become aware of other circumstances which, according to our best commercial judgement, are likely to significantly reduce the creditworthiness of the buyer. The claims of the buyer from the resale of the reserved goods are hereby assigned to us. They serve to secure our claims in the same way as the reserved goods. If the value of the goods subject to retention of title and/or the assigned claim exceeds the value of the claims to be secured by more than 20%, we are obliged to release fully paid deliveries to this extent at the dealer's request.
2. The customer is obliged to keep the reserved goods safe and to insure them against loss and damage at his own expense. He hereby assigns his claims from the insurance contracts to us in advance. We already accept this assignment.
3. The customer's right to dispose of the delivery items or products that are subject to our retention of title and to collect the claims assigned to us expires as soon as the customer is more than 14 days in arrears with overdue payment obligations to us, stops making payments in general and /or falls into financial collapse. If the aforementioned conditions occur, we are entitled to demand the immediate return of all goods subject to our retention of title or the assignment of those claims for return of the customer against third parties which relate to the reserved items. This applies to the exclusion of any right of retention on the part of the customer, insofar as this is not based on the same contractual relationship. Setting a grace period or exercising a withdrawal from the contract are not required for the immediate return request or with regard to the above-mentioned assignment of return claims. The above demand for return or assignment does not constitute a withdrawal from the contract. If these conditions occur, we are entitled, excluding the customer's right of retention, unless this is based on the same contractual relationship, to demand the immediate return of all goods subject to our retention of title or the assignment of claims for return without setting a grace period or exercising withdrawal. This request does not constitute a withdrawal from the contract.
4. If third parties access the goods subject to retention of title, the buyer will point out XENONPOWER's ownership and notify XENONPOWER immediately. The customer bears the costs of investments if they cannot be collected from the third party.
5. If the buyer is in default of payment or culpably fails to fulfill other essential contractual obligations, XENONPOWER is entitled to take back the delivery item or, if necessary, to demand the assignment of the buyer's claims for return against third parties. Taking back or pledging the goods subject to retention of title by us does not constitute a withdrawal from the contract.
6. If the retention of title is not effective according to the law of the country in which the goods are located, the customer must provide equivalent security. If he does not meet this obligation, we can demand immediate cash payment of all outstanding invoices regardless of agreed payment terms.
§9 Payment
1. Invoices are payable prior to delivery unless otherwise agreed. The delivery is generally not prepaid, i.e. at the expense of the buyer by parcel service or forwarding agent, unless something else has been expressly agreed. The goods can be insured against damage in transit for a small fee if sent by post (e.g. value package).
2. We are entitled, despite the buyer's provisions to the contrary, to offset payments against older debts. If costs and interest have already been incurred, we are entitled to offset the payment first against the costs, then against the interest and finally against the main service.
3. A payment is only deemed to have been made when XENONPOWER can dispose of the amount.
4. In the case of partial deliveries, XENONPOWER is entitled to invoice partial payments according to the delivered goods.
§10 Obligation to examine and give notice of defects
1. The customer must inspect the goods immediately and notify XENONPOWER in writing of any defects immediately, no later than three days after acceptance.
2. In order to meet the notice period, it is sufficient to send a written notice of defects in good time, with a precise description of the defects complained about.
3. If complaints or notices of defects are not reported in good time, the delivery shall be deemed approved and free of defects.
4. If necessary, the customer must carry out a trial processing to check whether the delivered goods are suitable for the intended use.
§11 Application-Technical Advice
1. We provide application-related advice to the best of our knowledge. All details and information about the suitability and application of our goods do not release the customer from his own examination and testing of the suitability of the products for the intended processes and purposes.
§12 Limitation of Liability
Claims for damages from impossibility of performance, positive breach of contract, culpa in contrahendo and from tort are excluded both against us and our vicarious agents, unless intentional or grossly negligent action is involved.
§13 data protection
1. The buyer is obligated to keep secret for an indefinite period of time all information that he has access to in connection with deliveries from XENONPOWER, which, due to other circumstances, are clearly recognizable as business or trade secrets of XENONPOWER and must be kept confidential, and - unless this is necessary for Achieving the purpose of the contract is necessary - neither to be recorded nor passed on to third parties or used in any way.
2. We are entitled to process the data relating to the business relationship or in connection with the data received about the customer, regardless of whether these come from the customer himself or from third parties.
§14 Place of performance, place of jurisdiction and applicable law
1. Swiss law applies exclusively. Place of jurisdiction is Herisau/CH.
2. Swiss law applies exclusively to the contractual relationship with our customers, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) and international private law.
§15 Export
When exporting various products that require official approvals, the customer undertakes to obtain these relevant approvals himself and to indemnify and hold harmless XENONPOWER with regard to all claims resulting from failure to obtain approvals.
§16 Withdrawal from contract
If the customer withdraws from the contract before the start of delivery, he must pay the supplier a lump-sum compensation of at least 20% of the order total including taxes. Irrespective of this, the right of the supplier to demand further damage remains. However, the supplier has the choice of continuing to insist on fulfillment of the contract, fulfilling his performance obligation himself and demanding the agreed payment from the customer.
§17 Other Claims for Damages
In the event of a merely negligent breach of duty by us or our vicarious agents, unless there is a grossly negligent breach of duty, our liability is limited to the foreseeable damage that is typical for the contract. This does not apply in the event of a breach of an essential contractual obligation or in the event of injury to life, limb or health. The exclusion of liability also does not apply in cases in which, according to the Product Liability Act, there is liability for defects in the delivery item for personal injury or property damage to privately used items.
§18 General
If one of the provisions of these General Terms and Conditions contradicts mandatory legal provisions (protection provisions in favor of consumers), and is therefore void or ineffective, this does not affect the validity of the usual provisions of these General Terms and Conditions. Any invalid or ineffective provision will be replaced by an effective provision that comes closest to the meaning and purpose of the invalid or ineffective provision by way of interpretation.