General Terms and Conditions of Sale and Delivery (Effective: April 2018)
1.1 Scope of Application
The general terms of sale and delivery are valid for sales by ThorGroup GmbH (“the Seller”). They apply to all purchase contracts (also subscriptions) entered into with thecustomers (“the Purchaser”) as well as offers. Deviations from the provisions of the general terms and
conditions of sale and delivery must be in writing. Conflicting and deviating terms of the Purchaser are not accepted and have no effect whatsoever.
These general terms of sale and delivery replace all the Seller’s terms and conditions of sale and delivery hitherto. The partial invalidity of clauses of these terms of sales and delivery do not entail the invalidity of the terms as a whole.
1.2 Offer and Price
In the absence of written agreements, prices offered are in US Dollar, ex works, VAT not included. The costs for packing, shipping, insurance, as well as fees for approvals, certificates, statutory taxes and all other applicable shipping costs are not included and will be billed as separate line item. For any item stated as “ECD” (Electronic Content Distribution) no logistics cost will be charged. The prices stated in the Seller’s written offers are valid for the time period stated therein. In case of ECD-items, the prices are stated in the subscription sectors of the affected website. If no time period is specified, the offer will be valid for 30 days from the date of the offer. For orders received after the offer
period has expired, the Seller reserves the right to make price or other adjustments. (Not applicable for ECD-Products)
Drawings, plans and descriptions contained in offers, are solely for information purposes. Only attachments to the order confirmation of the Seller will become part of the contract.
1.3 Order Confirmations
A legal and binding contract will only be effective upon receipt of a written order confirmation by the Seller. In case of ECD-items, the order confirmation comes via email in the context of payment process. Orders confirmed by the Seller can only be postponed, changed or cancelled by the Purchaser if written consent is obtained by both parties and provided that the Purchaser is responsible for all costs and losses resulting from such change, cancellation or postponement.
CONDITIONS OF DELIVERY
2.1 Delivery Scheduling
The Seller will undertake best efforts to adhere to the confirmed delivery schedule. However, the delivery times the Seller specified are target times and not binding promises, unless explicitly declared by the Seller. Should the documents and authorizations required from
the Purchaser in advance, as well as contractual prepayments not be made available to the Seller on the date agreed upon, the delivery will be automatically postponed. In such case the Purchaser is obliged to remunerate the Seller for any damages and additional costs. If the Seller is responsible for the delay, the Purchaser can withdraw from the contract after the additional period of time fixed by the Purchaser in writing has
expired, subject to the provisions of Section 2.3. The Seller is liable for Purchaser’s claims originated
from delay on delivery only if gross negligence can be proven. The burden of proof is on the Purchaser. Any liability for indirect damages is excluded. If the Purchaser does not accept the goods at the point of time agreed upon, the Seller has the right to store the goods at the Purchaser’s own risk and cost. Such failure of acceptance does not entitle the Purchaser to withdraw from the contract or to withhold payments.
In case of ECD Products, the delivery takes places immediately after the full payment process.
2.2 Force Majeure
In all cases of force majeure, specially due to unexpected events in the manufacturing or in sales resulting from late delivery of raw materials or semi-finished products, boycott, lock-ˇout or work rebellions, namely strikes, either in its own facilities, or by suppliers or by transportation companies, as well as events of war or mobilization, the Seller is not obligated to observe the delivery schedule, and the Purchaser
will not have the right to cancel the contract and/or claim damages. in the case of ECD products, unavailability of servers, websites or technical problems does not entitle to full or partial reimbursement of payments.
Requests for Payment
The Seller’s invoices, unless otherwise agreed in writing, are due 30 days from the billing date. See Section 4 for retention of title.
For ECD products applies electronic cash in advance.
The non-ˇobservance of the payment requirement gives the Seller the right to suspend subsequent deliveries, including those for warranty requirements, to repossess the goods already delivered by the Seller, to demand compensation for the corresponding damages, as well as to withdraw from the contract. After the payment period has expired and without further notice the Purchaser has to pay an interest on late payment as
defined by Swiss law. The Purchaser does not have the right to stop payment due to complaints or to offset payments against counterclaims.
For ECD products, delivery is only possible after full payment.
RETENTION OF TITLE
Until payment of the total amount of the purchase price, the Seller has the right to register retention of title for the goods delivered.
Shipping and Insurance (Not applicable for ECD-Products)
When no specific written instructions are established between the Seller and the Purchaser, the Seller will select the form of shipment which is most advantageous, at the Purchaser’s cost and risk. The Purchaser is responsible for the insurance of the transportation risk. Should the Seller make insurance arrangements, such arrangements will be made by order of and for account of the Purchaser. Acceptance of deliveries with damages or losses caused by transportation must be made with reservation, and the transportation company must be notified by the Purchaser in writing immediately. The report of damages should be sent to the corresponding insurance company with copy to the Seller.
Notice of Defects, Customer’s Complaints (Not applicable for ECD-Products)
The Purchaser must examine the delivered goods immediately. Notice of defects for quantity, quality or workmanship must be notified in writing to the Seller within 8 days of delivery of the goods. Hidden damages must be notified in writing immediately upon discovery.
The delivery will be deemed free from defects by failure of the Purchaser to make such notification.
Warranty Provisions (Not applicable for ECD-Products)
The warranty period for the Seller’s products is 12 months from delivery provided there are no written agreements to the contrary.
The Seller guarantees during the warranty period that the product delivered is free from material and/or manufacturing defects. Any further warranty, including fitness of the product for the purpose intended by the Purchases is excluded. In case of material and/or manufacturing defects, the Seller will repair the delivered product free of charge within the warranty period. The warranty does not cover wear and tear,
components damaged mechanically, and defects due to inappropriate use, poor servicing or inappropriate repairing.
All other claims for breach of warranty are excluded, in particular (but not limited to) claims for damages.For replaced or repaired components a warranty of 6 months in accordance with Section 5.3., paragraph 2 is granted. The above warranties expire automatically as soon as the Purchaser or a third person modifies the product (e.g. inappropriate repairing, repair attempts or any other modifications).
Returns (Not applicable for ECD-Products)
Returns not authorized in writing by the Seller will not be accepted and will be returned at Purchaser’s cost. If a return is requested by the Seller (e.g. to repair a product), the return delivery of the goods shall be prepaid Berne and shall be according to the shipping instructions provided by the Seller.
Liability (Not applicable for ECD-Products)
The Seller is not liable either for the losses or the damages caused either by the use or deficiency of the Seller’s products. The Seller’s liability for defective goods is limited to the removal of the defect in accordance with the provisions described in Section 5.3.
Should the Seller be held liable to third parties due to damages caused by Purchaser’s faulty behavior, the Purchaser shall be obligated to indemnify and hold harmless the Seller.
TECHNICAL MODIFICATIONS (Not applicable for ECD-Products)
The Seller reserves the right, prior to delivery, to carry out electrical or mechanical improvements. However, the Seller is not obligated to modify products previously delivered or to deliver new products according to prior specifications.
The Purchaser, through acquisition of the Seller’s products, does not acquire any right on the Seller’s intellectual property, such as patent, trademark, model and design rights, copyrights or his individual content. Software, as well as documentation delivered to be used for the products manufactured by the Seller, remains the Seller’s exclusive property. The Purchaser has the un-ˇassignable and nonexclusive right to use the software and the products delivered by the Seller. (Not applicable for ECD-Products)
CONFIDENTIALITY (Not applicable for ECD-Products)
The Purchaser shall maintain strict confidentiality in respect of all technical specifications of products or knowledge about products and shall respect the Seller’s business secrets. The documents delivered by the Seller and the software provided for use must not be copied or made accessible to third parties but may only be used to fulfill the purpose of the contract. The Purchaser shall impose this obligation also on its company executives and employees as well as on any third parties it may lawfully consult. Any infringement of this obligation will entitle the Seller to claim compensation and to suspend the performance of the Seller’s obligations.
GOVERNING LAW AND JURISDICTION
All legal relationships between the Seller and the Purchaser, in particular (but not limited to) any contracts concluded between the Seller and the
Purchaser shall be governed by Swiss law excluding the provisions of the Vienna Convention on the International Sale of Goods of April 11, 1980. Berne is the exclusive jurisdiction for all disputes arising out of, or in connection with, the individual purchase contract. However, the Seller is entitled to sue the Purchaser at any other competent court.