TERMS AND CONDITIONS OF INNOTAS AG | AS OF SEPTEMBER 2020 1/6
GENERAL TERMS AND CONDITIONS OF INNOTAS AG
1.1. These general terms and conditions (GTC) apply to all sales by Innotas AG (Innotas).
1.2. These terms and conditions do not apply if the buyer acquires the object of purchase for personal use or for use in the family or in the household and Innotas knew or should have known this when the contract was concluded.
1.3. These terms and conditions apply to all offers and deliveries from Innotas. They also apply to all future contracts with the buyer, even if they are not expressly agreed again.
1.4. Any provisions in the buyer’s terms and conditions that contradict or deviate from the provisions of these GTC only apply if Innotas expressly agrees to their validity in writing (e.g. in writing or by email).
1.5. If regulations deviating from individual conditions of these GTC are agreed between Innotas and the buyer, this shall not affect the validity of the remaining provisions of these GTC.
2. Conclusion of contract, offer documents
2.1. Innotas’ offer is non-binding.
2.2. Changes and errors relating to the images and drawings relating to the purchase item in brochures, advertising material and price lists as well as the data contained therein, e.g. We reserve the right to provide information on material, dimensions and shapes, unless they are expressly designated as binding.
2.3. The documents belonging to the offer do not constitute a guarantee of quality or durability.
2.4. Innotas’ documents are only intended for the buyer and may not be passed on to third parties without the consent of Innotas.
2.5. The buyer is obliged to inform Innotas before the conclusion of the contract if the item to be delivered is not intended to be suitable exclusively for normal use or if it is used under conditions that are unusual, pose a particular health, safety or environmental risk or require increased use or if the contract may be associated with untypical possibilities of damage or unusual amounts of damage that are known or should be known to the buyer.
2.6. The buyer is bound to an order for two weeks from receipt by Innotas.
2.7. The contract is concluded either by sending our order confirmation in text form (e.g. by email or in writing) or when the order is fulfilled, whichever occurs first.
3. Delivery times and unavailability of the service
3.1. The delivery period is agreed individually or is indicated by Innotas when accepting the order.
3.2. The delivery period begins subject to the following paragraph. 3.3. with the dispatch of the order confirmation by Innotas.
3.3. Is the buyer obliged to provide certain documents, such as To procure permits, approvals, etc. yourself or to make a down payment, the delivery period begins at the earliest at the time when Innotas has received all of the documents to be procured by the buyer or Innotas has received a down payment to be made.
GENERAL TERMS AND CONDITIONS OF INNOTAS AG | AS OF SEPTEMBER 2020 2/6
3.4. The delivery deadline is met if the delivery has been made in accordance with the agreed clause of Incoterms 2020 by its expiry.
3.5. If Innotas cannot meet binding delivery times for reasons that are beyond its control and that Innotas cannot foresee when concluding the contract or that Innotas could not avoid or overcome (hindrance), Innotas will inform the buyer immediately and at the same time the expected , notify new delivery date. If the service is also not available within the new delivery period, Innotas is entitled to withdraw from the contract in whole or in part; Innotas will immediately reimburse any consideration already provided by the buyer. In particular, force majeure (Clause 4) and the failure to deliver to our customers in spite of a timely order or if neither Innotas nor the supplier have any influence on the impediment are considered to be a hindrance.
3.6. The existence of a breach of contract due to a delay in delivery is determined by the statutory provisions. In any case, however, a reminder with a reasonable deadline is required by the buyer.
3.7. In the event of a breach of contract due to a delay in delivery, In-notas’ liability for compensation for each full week of delay is limited to 0.5% of the net order value, but no more than 5% of the net order value. If the buyer claims damages in addition to the cancellation of the contract in the cases mentioned, this claim for damages is limited to 10% of the order value net. The limitations of liability according to the preceding sentences 1 and 2 do not apply in the event of willful intent or gross negligence, and also not in the event of injury to life, body or health.
3.8. In the event of partial default or partial impossibility, the buyer can only cancel the entire contract and therefore demand compensation if the partial non-fulfillment is a material breach of contract.
4. Force Majeure
4.1. “Force majeure” means the occurrence of an event or circumstance that prevents a party from fulfilling a contractual obligation if and to the extent that the party affected by the hindrance (hereinafter referred to as “the party concerned”) can prove (a) that such a Obstacle is beyond their reasonable control and (b) that the effects of the obstacle could not reasonably have been avoided or overcome by the party concerned. As an obstacle within the meaning of lit. (a) apply i.a. Wars, civil wars, uprisings, acts of terrorism, piracy, currency and trade restrictions, embargo, sanctions, official measures and orders, expropriation, epidemic, pandemic, natural disasters, fire, unless the unaffected party proves this Opposite.
4.2. If a party does not fulfill its contractual obligation due to the failure of a third party whom it has commissioned with the fulfillment of the entire contract or part of the contract (including upstream suppliers), the party can only invoke force majeure to the extent that the requirements according to No. 4.1 are given both for the contracting party and for the third party.
4.3. As far as no. 4.1 or 4.2 is fulfilled, the affected party is exempt from the contractual obligation and from any liability due to its breach from the point in time at which the hindrance caused the inability to perform and to the extent to which the hindrance caused the service prevented, provided that it notifies the other party immediately. If the notification is not given immediately, the exemption will only become effective from the point in time at which the notification is received by the other party. The other party may, if applicable, suspend the performance of its obligations from the date of notification.
4.4. If the effect of the asserted obstacle or event is temporary, no. 4.3 only as long as the alleged obstacle prevents the affected party from fulfilling the contractual obligation. The affected party must notify the other contracting party as soon as the obstacle in question no longer exists.
GENERAL TERMS AND CONDITIONS OF INNOTAS AG | AS OF SEPTEMBER 2020 3/6
4.5. The affected party is obliged to remedy the force majeure as far as possible and to limit its effects as far as possible.
5. Delivery, transfer of risk, partial delivery
5.1. The agreed Incoterms clause applies to delivery and transfer of risk. Incoterms 2020 apply.
5.2. If shipping is delayed for reasons beyond In-notas’ control, especially at the request of the buyer, the risk of making the object of purchase available and receiving notification of readiness for dispatch shall pass to the buyer; this also applies if another delivery clause has been agreed. However, Innotas is obliged, at the buyer’s request and expense, to obtain the insurance that the buyer requests. This does not affect the buyer’s payment obligations.
5.3. If the shipment is delayed at the request of the buyer, he has to reimburse the costs for the storage of the purchased items or, if the storage takes place in the warehouse of Innotas, to pay the local storage costs.
5.4. If the purchase item is dispatched at the buyer’s request, Innotas will choose the dispatch route and means of dispatch in case of doubt, without Innotas assuming any liability for the cheapest shipping.
5.5. Packaging is charged according to expenditure.
5.6. Innotas is entitled to partial delivery and partial performance, provided this is reasonable for the buyer and he has an objective interest in the partial delivery.
6. Prices, terms of payment
6.1. All prices are in EURO / CHF / USD (will be adjusted in individual cases) in accordance with the agreed clause of Incoterms 2020 at the agreed delivery location plus applicable sales tax.
6.2. The purchase price is to be paid to the account specified on the invoice without deductions and costs within 8 days of the invoice date; the credit on our account is decisive.
6.3. For special models (products that deviate from the standard products due to individual buyers’ wishes), the terms of payment specified in the order confirmation apply.
6.4. If the buyer misses the payment deadline, he has to pay default interest in the amount of 9% -points above the base rate of the European Central Bank as a lump-sum compensation. The contracting parties reserve the right to provide evidence of a significantly higher or significantly lower damage.
6.5. Offsetting against counterclaims is only permitted if these are based on the same contractual relationship or have been legally established or are undisputed.
6.6. The buyer is only entitled to withhold payments due to effective and due counterclaims from the same contractual relationship.
7. Transfer of ownership, securing the purchase price claim
7.1. In the event that cash or advance payment has been agreed, ownership is transferred in full to the buyer upon delivery.
7.2. If there is no retention of title according to the following provisions at the destination of the delivery, the buyer must provide Innotas with another functionally equivalent means of security (e.g. letter of credit or bank guarantee).
7.3. Insofar as a retention of title is recognized at the destination of the delivery, Innotas retains ownership of the object of purchase until the purchase price has been paid in full within the meaning of No. 6.1 and 6.2 (hereinafter “reserved goods”).
7.4. The buyer is obliged to take all necessary measures to preserve this retention of title or in the country of destination (seat of
GENERAL TERMS AND CONDITIONS OF INNOTAS AG | AS OF SEPTEMBER 2020 4/6
Buyer’s) recognized, functionally equivalent security interest. If the buyer violates this obligation, there is a material breach of contract.
7.5. The buyer is obliged to treat the reserved goods with care, in particular to insure them adequately at their replacement value against fire, water and theft damage.
7.6. In the event of seizure, confiscation, damage and / or loss of the delivered items, the buyer must inform Innotas immediately; a breach of this duty gives Innotas the right to cancel the contract. The buyer bears all costs that have to be expended for the successful lifting of a seizure and, if necessary, for a successful replacement of the goods subject to retention of title, insofar as they cannot be collected by third parties.
7.7. If Innotas has effectively rescinded the contract, Innotas is entitled to take back the reserved goods if the withdrawal was threatened with a reasonable period of time. The buyer bears the costs arising from exercising the right to take back, in particular for transport. Innotas is entitled to dispose of the goods subject to retention of title taken back and to satisfy itself with their proceeds, provided that the utilization was previously threatened with a reasonable period of time. If the proceeds exceed the outstanding claims from the contractual relationship, this excess will be returned to the buyer.
8. Examination and notification of defects
8.1. The buyer must examine or have examined the delivered items and any documents sent without delay after they have been taken over.
8.2. The liability for a lack of conformity of the delivered objects and / or documents does not apply, without the buyer being able to invoke an excuse, if the buyer does not promptly disclose this lack of conformity, but at the latest within 7 working days (Saturday is not a working day), after it has or should have determined it, indicates it in text form, specifying the type of lack of conformity precisely, regardless of the reasons the buyer puts forward for non-compliance with these requirements. The buyer’s notification of defects must have been sent by the buyer within the aforementioned period; it is also necessary that Innotas has actually received the notification of defects that was sent on time.
8.3. By negotiating a complaint, Innotas in no case waives the objection of a delayed, insufficient or unfounded complaint.
8.4. In any case, the buyer loses the right to invoke the lack of conformity of the delivery item if he does not notify this at the latest within 24 months after the delivery item has actually been handed over to him.
9. Non-conformity of the delivered item
9.1. In the event that the delivered item or the documents are not in conformity with the contract, Innotas is entitled to remedy these after the agreed delivery time by means of subsequent improvement or – in the event of a significant breach of contract – by means of a replacement delivery. The right to refuse fulfillment under the legal requirements remains unaffected.
9.2. There is no breach of contract in the case of unsuitable or improper use and storage, incorrect assembly or commissioning by the buyer or third parties commissioned by him, natural wear and tear, incorrect or negligent treatment or maintenance according to the documentation, chemical, electrochemical or electrical influences.
9.3. Replacement delivery or repair does not lead to the deadline according to Point 8.4 starts again.
9.4. Claims from legal recourse against the supplier are excluded.
GENERAL TERMS AND CONDITIONS OF INNOTAS AG | AS OF SEPTEMBER 2020 5/6
9.5. The buyer must give Innotas the time and opportunity required for the subsequent performance owed, in particular to hand over the objected items for inspection purposes. If the delivery item cannot be found to be in breach of contract after notification of a defect, the buyer must reimburse Innotas for the costs incurred in connection with the inspection of the delivery item.
9.6. In the event of a replacement delivery, the buyer must return the defective items to Innotas in accordance with the statutory provisions.
9.7. If the buyer has set Innotas a reasonable grace period to fulfill the contract and the fulfillment of the contract has not taken place within this period or is unjustifiably refused by Innotas, he has the right to reduce the purchase price or – in the case of a significant breach of contract – to cancel the contract to demand. There is no material breach of contract if Innotas remedies the lack of conformity within a reasonable grace period set by the buyer, which must be at least six weeks. A longer grace period must be expected for special models (Section 6.3), as these products may have to be produced later.
9.8. The amount of the reduction in the purchase price is limited to the damage suffered by the buyer.
9.9. Complaints about partial services do not justify the rejection of the remaining services, unless the buyer is entitled to withdraw from the entire contract due to the defective partial service.
9.10. Innotas is only liable for damage due to a lack of conformity of the contract with the items specified in no. 10 mentioned limits.
10. Scope of liability
10.1. Innotas is fully liable for damage to life, limb or health that is based on a negligent breach of duty by Innotas or on an intentional or negligent breach of duty by its legal representative or vicarious agent, and in the case of legally prescribed strict liability, in particular according to Product Liability Act and in the case of guarantee liability.
10.2. Innotas is liable for other damages that are based on an intentional or grossly negligent breach of duty by Innotas or on an intentional or grossly negligent breach of duty by its legal representative or vicarious agent. In this case, liability is limited to the foreseeable, typically occurring damage at the time the contract was concluded.
10.3. In all other liability cases, claims for damages due to breach of a contractual obligation are limited to the amount of our insurance in the amount of EUR 5 million. In the event that greater damage is to be expected, Innotas shall have the buyer thereupon prior to the conclusion of the contract in accordance with Point 2.5.
10.4. Innotas is not liable for consequential damage, additional expenses, lost profit or other financial losses of the buyer.
10.5. The limitation of liability for late delivery according to No. 3.6 remains unaffected by this.
10.6. In all other cases the liability of Innotas is excluded.
10.7. Insofar as Innotas’ liability is excluded or limited, this also applies to the personal liability of its employees, representatives and other vicarious agents.
10.8. The terms “damage” or “claims for damages” in these terms and conditions also include claims for reimbursement of wasted expenses.
11. Statute of Limitations
11.1. The statutory limitation period applies.
GENERAL TERMS AND CONDITIONS OF INNOTAS AG | AS OF SEPTEMBER 2020 6/6
12. Asset and credit rating deterioration
12.1. If the purchaser’s financial situation deteriorates after the conclusion of the contract, the statutory provisions of the UN sales law apply.
12.2. The same applies if Innotas becomes aware of facts after the conclusion of the contract that give rise to reasonable doubts about the solvency or creditworthiness of the buyer, unless the buyer can prove that Innotas was already aware of these facts when the contract was concluded.
13. Property Rights
13.1. In the case of delivery of items that Innotas manufactures based on drawings, models or other information provided by the buyer, Innotas is not liable for the infringement of third-party property rights. The buyer has to release Innotas from third party claims.
13.2. Innotas guarantees that the purchased items do not infringe any third-party property rights in the territory of the EU and EFTA. In the event of a violation of third-party property rights, Innotas is only liable in accordance with the statutory regulations. In no case of violation of third-party property rights, Innotas will compensate the buyer for lost profit.
14. Place of performance, choice of law and place of jurisdiction
14.1. The place of performance for deliveries and payments is Tägerwilen, CH.
14.2. For these export conditions and the entire legal relationship between Innotas and the buyer contract, Swiss law applies exclusively, including the United Nations Convention on Contracts for the International Sale of Goods (UN Sales Convention / CISG).
14.3. The place of jurisdiction for all disputes arising from the contractual relationship is the headquarters of Innotas. Innotas can also assert claims in the legal place of jurisdiction of the buyer.
15. Severability Clause
15.1. The ineffectiveness of one or more provisions of these terms and conditions does not affect the effectiveness of the rest of the contract.
15.2. The parties are obliged to replace the ineffective provision with a provision that comes closest to the economic purpose of the contract. The same applies to any gaps that may arise