General Terms of Offer and Sale for Equipment and Spare Parts
ASSUMPTIONS OF RISKS:
Anyone or any entity or affiliate (“Customer”) therewith involved in or with any goods or services of SwissBob AG (SwissBob) understands that operating sports equipment at or near the speeds at which it is capable presents inherent and inevitable risks that can never be completely eliminated.
CUSTOMER UNDERSTANDS AND ACCEPTS ALL RISKS ASSOCIATED WITH ANY GOODS OR SERVICES OF SWISSBOB. Factors beyond the control of SwissBob will affect the operational safety of the bobsleigh under these conditions. Such factors include, but are not limited to: (a) the skill, experience and proper licenses of the pilot; (b) the performance by or on behalf of SwissBob of inspections, maintenance procedures, and repairs; (c) weather conditions; (d) the proper storage, transport, and functional test of the equipment before every start; (e) the proper condition of the official track or bob run and (f) the speed at which the bobsleigh is driven. Customer further understands that a driver may lose control while operating the equipment and he assumes and accepts all risks associated with this or any other risk.
RELEASE OF LIABILITY AND COVENANT NOT TO SUE: Customer and his heirs, affiliates and representatives, past, present and future successors, assigns, members, partners, servants, agents, employees, spouses, partners, attorneys, insurers, executors, administrators, associates and any other related persons, corporations, firms or entities, whether known or unknown, hereby release and covenant not to sue SwissBob or its affiliated entities, its respective divisions, subsidiaries, affiliated and related companies, past, present and future predecessors, successors, assigns, officers, directors, shareholders, principal’s members, partners, servants, agents, employees, suppliers, representatives, attorneys, insurers, heirs, assigns, executors, administrators, representatives, associates, and any other related persons, corporations, firms or entities whether known or unknown, for any and all damages, liabilities, causes of action, judgments and any and all claims arising under, arising out of, or related to Customer’s use and operation of the race vehicle or participation in the driving experience, including but not limited to, claims or actions for personal injury, loss of consortium, death and property damage, whether now existing or arising in the future.
INDEMNITY: Customer further hereby agrees to indemnify and hold SwissBob, or its affiliated entities, its respective divisions, subsidiaries, affiliated and related companies, past, present and future predecessors, successors, assigns, officers, directors, shareholders, principals members, partners, servants, agents, employees, suppliers, representatives, attorneys, insurers, heirs, assigns, executors, administrators, representatives, associates, and any other related persons, corporations, firms or entities whether known or unknown, as well as any joint tort-feasors, and their respective divisions, subsidiaries, affiliated and related companies past, present, and future predecessors, successors, assigns, officers, directors, shareholders, principals, members, partners, servants, agents, employees, suppliers, representatives, attorneys, insurers, heirs, assigns, executors, administrators, representatives, associates, and any other related persons, corporations, firms or entities, whether known or unknown, harmless from any and all damages, liabilities, causes of action, judgments and any and all claims arising under, arising out of, or related to Customer’s use and operation of the equipment, including but not limited to, claims or actions for personal injury, loss of consortium, death and property damage, whether now existing or arising in the future, as well as from any fees, expenses, or costs of any kind, including reasonable attorney’s fees, incurred in connection with any damages, liabilities, causes of action, judgments and claims brought, claimed or asserted at any time after the execution of this document.
1.1 These General Terms of Offer and Sale (hereinafter referred to as General Terms) are binding if they have been declared applicable in the offer or order confirmation. Any other terms defined by the customer or in other documents are only valid if they have been expressly accepted by SwissBob AG (“SwissBob”) in writing or electronically.
THESE GENERAL TERMS EXPRESSLY LIMIT ACCEPTANCE TO ITS TERMS AND CONSTITUTES NOTICE OF OBJECTION TO ANY ADDITIONAL OR DIFFERENT TERMS IN CUSTOMER’S DOCUMENTS SO AS TO PRECLUDE THE INCLUSION OF ANY DIFFERENT OR ADDITIONAL TERMS IN ANY RESULTING CONTRACT. IF THESE GENERAL TERMS ARE CONSTRUED AS AN ACCEPTANCE OR AS A CONFIRMATION OF AN EXISTING CONTRACT, SUCH ACCEPTANCE OR CONFIRMATION IS EXPRESSLY CONDITIONED ON CUSTOMER’S ASSENT TO ANY ADDITIONAL OR DIFFERENT TERMS CONTAINED HEREIN.
If any one or more of the provisions of these General Terms or any part or parts thereof shall be declared or adjudged to be illegal, invalid or unenforceable under any applicable law, such illegality, invalidity or unenforceability shall not vitiate the remainder of these General Terms and the illegal, invalid or unenforceable provision shall be replaced by a new provision the content of which shall be as close to the legal and economic effect of the replaced provision as possible.
2. Placing of order and scope of supply and services
Only the written or electronic confirmation of order is binding for the scope of supply and services quoted therein . If SWISSBOB does not give an order confirmation the invoice shall serve as the confirmation of order.
3. Technical documentation
3.1 Sales brochures and catalogues are not binding unless expressly stated otherwise. Specifications in technical documents are only binding as far as they have been expressly guaranteed.
3.2 SWISSBOB reserves all rights to any technical documentation supplied to the
customer. Without prior written consent of SWISSBOB, such documentation shall neither in whole nor in part be disclosed to others or used for any purposes other than those for which they have been supplied to the customer. In particular the customer is not entitled to reproduce or replicate components or parts thereof and services specified therein.
Each party shall keep confidential the manufacturing and business secrets as well as any other proprietary information received from the other party to the contract and shall neither directly nor indirectly disclose the same to any third party whomsoever nor publish them in any manner whatsoever nor use them for any other purpose, in particular but without limitation for the reproduction or replication of machines, systems, components and parts thereof.
5. Norms and standards in force in the country of destination
The goods are constructed in accor-dance with the European norms and standards (EC marking) unless otherwise provided for in writing.
6.1 Prices are net, EXW SwissBob as determined by SwissBob, according to INCOTERMS 2010, and exclusive of value added tax, sales tax and packing, unless expressly otherwise provided for in SWISSBOB offer.
6.2 Payment shall be made in effective Swiss francs without any deductions whatsoever.
6.3 Any and all additional charges, such as, but not limited to, freight charges, insurance premiums, fees for export, transit, import and other permits, as well as for certifications, shall be borne by the customer. Likewise, the customer shall bear any and all taxes, fees, levies, customs duties and the like, which are levied out of or in connection with the contract, or shall refund them to SWISSBOB against adequate evidence in the event that SWISSBOB is liable for them.
6.4 The prices will be adjusted appropriately if:
– the term of delivery has been subsequently extended due to any reason for which the customer is responsible, or
– the nature or the scope of the agreed supplies or services has changed, or
– the material or the execution has undergone changes because the information and/or documents provided by the customer were not in conformity with the actual conditions or were incomplete.
7. Terms of payment
7.1 Payments have to be effected in accordance with the confirmation of order or invoice as the case may be. Payment will be deemed to be made when the total price agreed on has been paid to SWISSBOB in effective Swiss francs.
7.2 No interest will be reimbursed for advance payments.
7.3 Any dates agreed for payment shall remain in full effect even where through no fault of SWISSBOB delays arise in the performance of the contract. The late delivery of minor components, the absence of which does not restrict the use of the goods or any further work within the scope of SWISSBOB’s warranty obligations do not affect the time fixed for payment.
7.4 If SWISSBOB does not receive payment by the date stipulated interest shall thereafter accrue on the sum due and owed and shall be charged immediately to the customer at the current base lending rate in the customer’s domicile plus 4%, provided that such rate shall not be less than 1.5% per month.
7.5 The retention of or deduction from payments because of complaints, disputes or claims on the part of the customer which have not been expressly agreed by SWISSBOB is inadmissible. The customer may only set off possible counterclaims against payments due under this contract where SWISSBOB has expressly agreed to the same in writing.
8. Reservation of title
8.1 SWISSBOB shall remain the owner of all goods until having received the full payments in accordance with the contract.
8.2 The customer shall cooperate in any measures necessary for the protection of SWISSBOB title. In particular upon entering into the contract it authorizes SWISSBOB to enter or notify the reservation of title in the required form in public registers, books or similar records, all in accordance with relevant national laws, and to fulfill all corresponding formalities, at the customer’s cost.
8.3 During the period of the reservation of title, the customer shall, at its own cost,
maintain the goods and insure them for the benefit of SWISSBOB against theft, breakdown, fire, water and other risks. It shall further take all measures to ensure that SWISSBOB title is in no way prejudiced.
9. Delivery time
9.1 The time for delivery shall start as soon as the contract is entered into, the scope of supply and the specifications are defined, all relevant official formalities have been completed, payments due with the order have been made and any agreed securities have been given. The date of delivery shall be deemed to be observed if by that time SWISSBOB has sent a notice to the customer informing that the goods are ready for dispatch.
9.2 SWISSBOB’s compliance with the time for delivery is conditional upon customer’s fulfilling its contractual obligations.
9.3 The time for delivery will be extended correspondingly in case of, and SWISSBOB is not responsible for claims or damages resulting from, contingencies beyond the reasonable control of SWISSBOB. As soon as the contingencies delaying the delivery no longer exist, the date of delivery will be fixed anew in writing.
9.4 Unless otherwise explicitly provided for in writing, agreed delivery dates are not binding. However, six weeks after failure to deliver by an agreed non-binding delivery date, the customer shall be entitled to request SWISSBOB in writing to make delivery within a reasonable period. Failure to deliver within a reasonable period after the notice shall constitute late performance by SWISSBOB.
9.5 If this has been agreed expressly in writing, the customer is entitled to claim liquidated damages for delayed services in so far as it can be proved that the delay has been caused by the fault of SWISSBOB and that the customer has suffered a loss caused by such delay.
9.6 In the case of delayed goods or services the customer has no rights and claims other than those expressly stipulated in this clause 9; in particular he has no right to rescind the contract. This limitation, however, does not apply to gross negligence or willful misconduct of SWISSBOB.
Packing shall be charged for separately by SWISSBOB and shall be non-returnable. However, if it is declared as SWISSBOB property, it shall be returned by the customer, carriage paid to the place of dispatch.
11. Passing of benefit and risk
11.1 Benefit and risk of the goods shall pass to the customer by the date of shipment EXW SwissBob according to INCOTERMS 2010 at the latest.
11.2 If delivery is delayed at the request of the customer or otherwise due to no fault of SWISSBOB, the risk shall pass to the customer at the date originally agreed for delivery EXW. From this date onwards the goods shall be stored and insured at the customer’s expense and risk and all payments shall become due at the agreed date of delivery.
12. Shipping, transport and insurance
12.1 All goods will be shipped in export packing. SWISSBOB must be notified for special requests in relation to forwarding, transport and insurance.
12.2 Transport shall be at customer’s expense and risk. Objections regarding forwarding or transport shall upon receipt of the goods or of the shipping documents be immediately submitted by the customer to the last carrier.
12.3 The customer shall be responsible for taking an insurance against risks of any kind.
12.4 Customer as importer of record shall comply with all applicable domestic, foreign, import, export, security and controller access laws and regulations, including obtaining all necessary security clearances for airports, cargo transport areas, and related facilities, governmental approvals and licenses in connection with the purchase of goods.
13. Inspection and acceptance of goods and services
13.1 SWISSBOB shall check the goods before dispatch and the services upon completion as far as usual. Any further controls requested by the customer have to be agreed upon separately and paid for by the customer.
13.2 The customer shall inspect the goods and services within a reasonable period and shall notify SWISSBOB immediately of any defects in writing. If the customer fails to do so, the goods and services shall be deemed to have been accepted. Hidden defects shall be reported immediately after their discovery.
13.3 SWISSBOB shall rectify defects notified in accordance with clause 13.2 as soon as possible and the customer shall give SWISSBOB the possibility of doing so.
13.4 The customer has no other rights and claims in respect of any defects whatsoever in relation to goods or services than those expressly named in clause 13 and clause 14 (Warranty).
14.1 Warranty period
The period of warranty is 6 months and shall commence upon dispatch of the goods ex works. If dispatch is delayed for reasons beyond SWISSBOB control, the warranty period shall terminate not later than 18 months after SWISSBOB has notified the customer that the goods are ready for dispatch.
For replaced or repaired parts, the warranty period shall run for another period of
3 months after replacement or completion of the repair but not longer than the expiry of a period being twice the warranty period pursuant to the preceding clause.
The warranty under this contract expires prematurely with immediate effect if the customer or third parties make inappropriate modifications or repairs or if the customer, in case of a defect, does not immediately take appropriate steps to mitigate the damage and give SWISSBOB the possibility to make good such defect.
14.2 Liability for express warranty and defects in material and workmanship
SWISSBOB warrants the technical specifications expressly specified in the confirmation of order or the specific technical specification mutually agreed upon in writing only as well as the material and workmanship of the delivered goods and undertakes to repair or replace at its option free of charge to the customer any defective parts during the warranty period at its earliest convenience, subject to the provisions of clause 14 which shall be applicable mutatis mutandis. Any parts replaced shall become property of SWISSBOB.
14.3 Exclusions from the liability
Expressly excluded from SWISSBOB’s warranties and liability for defects are damages caused by normal wear, defective maintenance and handling by the customer, failure to observe the operating instructions, electrostatic effects, excessive voltage or current, excessive use, chemical or electrolytic influences, contamination as well as any damages caused by arcing, electron beams, crucible breakage, etc., application of material, equipment and spare parts not recommended by SWISSBOB, defective repairs which have not been carried out by SWISSBOB or its agents, or resulting from other reasons beyond SWISSBOB’s control as well as in case of modifications made by the customer or improper system integration, construction, assembly and installation work not undertaken by SWISSBOB, provided that the respective burden of proof is with the customer if a dispute regarding exclusion of warranty may arise.
14.4 Supplies and services of subcontractors
SWISSBOB warrants for goods and services of subcontractors requested or provided by the customer to the extent of such subcontractor’s warranty and liability obligations only.
14.5 Exclusivity of warranty claims
The customer shall not be entitled to any warranty, express or implied, except those specifically set forth in clause 14.1 to 14.4 and SWISSBOB shall have no liabilities for any other claims, including but not limited to, claims arising out of injury to or interference with customer’s production or any other consequential damages. This limitation, however, does not apply to gross negligence or willful misconduct of SWISSBOB.
15. Exclusion of further liability
16.1 SWISSBOB makes no representation or warranty of any character with respect to infringement or to the exemption of the goods and services from third parties’ protective rights.
15.2 SWISSBOB ASSUMES NO RESPONSIBILITY FOR ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE EXCEPT AS SPECIFICALLY PROVIDED IN THESE GENERAL TERMS.
Without limiting the generality of the foregoing, this exclusion from liability includes, but is not limited to, claims, arising out of interference with the customer’s production, expenses for downtime, lost profits, lost sales, injury to person or property or any other incidental or consequential loss.
15.3 These exclusions, however, shall not apply to gross negligence or willful misconduct of SWISSBOB.
15.4 Notwithstanding the foregoing, nothing herein shall limit SWISSBOB’s liability if, and only to the extent that, limitation or exclusion of such liability is prohibited by or contrary to the Product Liability Act or other applicable law, provided that the customer will indemnify SWISSBOB for all non-contractual claims for product liability raised by third parties if the occurrence of the damages is not clearly imputable to SWISSBOB.
16. No liability for additional obligations
SWISSBOB is not liable for claims of the customer arising out of insufficient information or faulty advice and the like or out of breach of any additional obligations whatsoever except where caused by SWISSBOB’s gross negligence or willful misconduct.
17. Applicable law and place of jurisdiction
17.1 These General Terms shall be construed and the legal relations between the parties shall be determined in accordance with the substantive law provisions of Switzerland, with the exclusion of the conflict of laws provisions of Switzerland. The uniform UN law of sales (CISG) shall not be applicable.
17.2 Any dispute arising in connection with these General Terms or any related contract shall be submitted to the courts of Switzerland having jurisdiction over SWISSBOB, provided that SWISSBOB shall always be permitted to bring any action or proceedings against customer in any court of competent jurisdiction.
17.3 In any action or arbitration brought under or in connection with these General Terms or any related contract, the prevailing party shall be entitled to recover its actual costs and attorneys’ fees and all other litigation costs, including expert witness fees, and all actual attorneys’ fees and costs incurred in connection with the enforcement of a judgment arising from any action or proceeding.
17.4 The parties acknowledge that the only official text of these General Terms and related documents is that written in English and that any translations into other languages, even if signed by both parties shall not be binding. In case of difference between the various texts, the English text shall prevail.
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