(Version November 2016)
A contract between LECLANCHÉ SA (“Leclanché”) and its customer regarding the purchase of goods is concluded if Leclanché issues a receipt of acknowledgement of order. These General Terms and Conditions apply to every delivery and all services of Leclanché. Other general terms and conditions only apply if accepted by Leclanché in writing. Any contractual provisions, which differ from these General Terms and Conditions, are only valid if in writing. If any terms in these General Terms and Conditions are invalid all or part, the contractual parties agree to replace such terms by new terms, which serve best the legal and economic purpose of the invalid terms.
Leclanché states all products to be delivered and all services to be rendered in its acceptance of order. The customer is not entitled to any additional service or product. Leclanché may provide enhanced products, if available, for the same price.
3. TECHNICAL DOCUMENTATION
Date in technical plans and brochures are only binding for Leclanché if Leclanché expressly guarantees this data. Leclanché owns all rights to technical plans and brochures which are handed over to the customer. The customer agrees not to disclose any information or data specified in such plans and brochures to any third party and confirms to use such information and data only for the purpose agreed upon with Leclanché.
4. REGULATIONS AT POINT OF DESTINATION
The customer is obligated to inform Leclanché about any rules, regulation or provisions at the point of destination, which may have an impact on the delivery of products, the use of products as well as health and safety regulations at the point of destination. The customer pays the cost for special labelling, package, adapting of the products.
Prices are net in Swiss Francs, Euros or a currency agreed with the customer. VAT will be added where applicable. The customer pays any other cost, such as cost for delivery and for transport, insurance cost, cost of export or import license, cost of transit, recycling fees, fees for any necessary official permission and for any necessary notarization. The customer also pays any tax, divestiture, customs and any other fee payable in connection with Leclanché’s delivery of products or reimburses Leclanché if Leclanché pays such fees upfront. The customer is responsible for installation and operation of the products. Leclanché may adapt the prices if production cost change (for example raise of wages or prices of raw material) between the offer and the acceptance of the offer. Exceptions to these rules may be negotiated between Leclanché and the customer on a case by case basis and shall be included in the sales contract.
6. PAYMENT CONDITIONS
The customer agrees to pay Leclanché’s invoices within 30 days after invoice date at Leclanché’s domicile without any deduction of, for example, allowance, discount, taxes, dues, fees, customs unless agreed otherwise. The customer agrees to pay the invoice in the requested currency by bank transfer. If the parties agree on any other payment method, the customer agrees to pay any applicable taxes, fees, interest, collection expenses and any other cost which is caused by the alternative payment method. The customer agrees to settle the invoices within 30 days even if transport, delivery, installation or operation is delayed or impossible and if Leclanché is not responsible. Full payment is also due if Leclanché must provide additional work or if the delivery is not complete but only minor parts are missing which do not impeach use of the products. If the customer does not settle advanced payments or does not provide agreed securities, Leclanché has the right to cancel the contract and may claim damages. If the customer is in arrears with payments or if Leclanché has reasons to believe that the customer will not meet his payment duty under the contract, Leclanché may stop to provide services. The customer agrees to pay interest on arrears of 5% from the moment Leclanché’s invoice is mature. A reminder shall not be sent and Leclanché is entitled to damages.
7. TITLE RETENTION
Leclanché remains the owner of its products until full payment. The customer is obligated to use all reasonable means to protect Leclanché’s property and the safeguard Leclanché’s property rights. Leclanché may register the title retention.
8. TERMS OF DELIVERY
Terms of delivery start the moment the customer receives the acknowledgement of order and after all technical details have been clarified.
The terms of delivery are extended in the following situations: (1) If the customer fails to timely produce information necessary for the execution of the order; (2) if the customer requests changes after the acknowledgement of order; (3) if the customer fails to adhere to the payment terms; (4) if necessary import licences and or other permits are not received by Leclanché in time; (5) in the event of force majeure, such as epidemics, mobilisation, war, uprising, significant disruptions in operations, accidents, industrial action, natural disaster; (6) if necessary raw materials or semi-finished or finished goods are delivered late to Leclanché or are faulty;
(7) if important tools or machines fail; or (8) in the event of governmental measures.
Packaging will be invoiced separately. If designated as the property of Leclanché, the customer shall send it back to the point of departure or otherwise agreed.
10. TRANSFER OF BENEFIT AND RISK
The moment the products are ready for shipping, all benefits and risks concerning the products shall be with the customer unless agreed otherwise.
11. SHIPPING, TRANSPORT AND INSURANCE
Shipping, transport and insurance are to be paid by the customer. Particular requests concerning shipping, transport and insurance shall be communicated to Leclanché in time. Transport is on the account and at the risk of the customer. Complaints concerning shipping or transport are to be addressed to the freight carrier immediately upon receipt of the goods or the freight documents.
12. TESTING OF PRODUCTS
Leclanché tests its products according to current industry standards. Further testing according to customer’s requests shall be specifically agreed upon and paid by customer. The customer shall inspect the products within five working days from delivery and shall inform Leclanché immediately in writing in case of any defects. If the customer fails to do so, any products and services are deemed accepted. Leclanché undertakes to remedy any existing defects as soon as possible. The customer agrees to give Leclanché the opportunity to amend the defect. After a defect has been remedied, both the customer and Leclanché may request an inspection of the repair. The repair is deemed to be accepted (1) if the inspection has not taken place on the designated date for reasons not attributable to Leclanché; (2) if the customer declines the inspection without reason; (3) if the customer declines to sign the inspection protocol without reason; or (4) as soon as the customer uses Leclanché’s products or services. Customer’s rights concerning defects which occur later are exclusively covered by para. 13 (Warranty, Liability for Defects).
13. WARRANTY, LIABILITY FOR DEFECTS
Unless agreed otherwise, the warranty period is 12 months and begins when the products are ready for shipment. If Leclanché undertakes the installation (purchase with installation obligation), the warranty period begins with the completion of the installation. Under contracts for work and services, the warranty period begins with the acceptance of the work. If the start of the warranty period is delayed for reasons not attributable to Leclanché, the warranty period ends 3 months after readiness for shipment or the completion of the installation has been notified, as the case may be. Any warranty is void immediately if product has been altered or modified by an unauthorized party or if the customer, in case of a defect, fails to take the appropriate measures to contain the damage and to give Leclanché the opportunity to correct the defect. Leclanché, upon written notification from the customer, undertakes to immediately replace or repair at its discretion any parts of the product which have become damaged or defective within the warranty period due to poor material or faulty construction.
Leclanché pays the costs for repairs made in its factory. If repairs cannot be effected in Leclanché’s factory, the customer pays the cost to the extent that the cost exceed the usual costs for transport, personnel, travel and accommodation as well as the costs for the dismantling and reassembly of the defective parts. Only such characteristics are warranted as declared to be warranted in the order acknowledgement. If a formal acceptance has been agreed, the warranty is fulfilled if the respective characteristics are proven to be present on acceptance. Leclanché’s liability is in any event limited to the value of the product. Damage is excluded from the warranty if it is not caused by poor material, faulty construction or poor execution, but, for example, by normal wear and tear, faulty maintenance, disregard of operating instructions, excessive operational demands, unsuitable operating material, chemical or electrolytic influences, works and installations not executed by Leclanché and any other causes not attributable to Leclanché. Leclanché assumes no warranty and no liability for deliveries and services from subcontractors which have been employed on the request of the customer. Customer’s rights concerning poor material, faulty construction or installation and concerning the lack of warranted characteristics are exclusively covered by para. 13. Leclanché’s liability for faulty advice or for breach of contractual or pre-contractual obligations is limited to wilful intent or gross negligence. Any liability for consequential harm caused by a defect is excluded in any event.
14. MATERIAL ADVERSE CHANGE (CLAUSULA REBUS SIC STANTIBUS)
If unforeseen events arise, Leclanché has the right to alter or to terminate the contract. If Leclanché intends to terminate the contract, it shall inform the customer as soon as it has knowledge of the respective event. In the event of termination, Leclanché shall be compensated for products already delivered and services already provided. Customer’s claims for damages due to a modification of the contract or due to Leclanché rescinding the contract are excluded.
15. EXCLUSION OF FURTHER LIABILITY
All cases of breach of contract and their legal consequences as well as any claims of the customer irrespective of their legal basis are conclusively being dealt with in these General Terms and Conditions. Under no circumstance has the customer any claim for damage not occurring on the product itself such as e.g. loss of production, loss of usage, loss of orders, lost profit or any other direct or indirect damage suffered. This exclusion of liability does not apply to wilful intent or gross negligence by Leclanché, but it does apply to illegal intent and gross negligence on the part of auxiliary persons. If a product is altered or modified by an unauthorized party, any liability of Leclanché is excluded.
The customer agrees to instruct the user of the products concerning safety measures according to Leclanché’s specifications in order to avoid personal injury, damage to property and environmental damage. If Leclanché is made liable for personal injury or damage to property of third parties caused by acts or omissions of the customer or its auxiliary persons, the customer is obligated to indemnify Leclanché.
17. JURISDICTION AND APPLICABLE LAW
For any dispute between the customer and Leclanché, the courts at Leclanché’s corporate domicile shall be competent or alternatively the courts in the city of Zurich. Leclanché has the right to sue the customer at his place of business. Swiss law applies. The Swiss conflict of law rules and the Convention on the International Sales of Goods do not apply.
Avenue des sports 42 – 1401 Yverdon-les-Bains – Switzerland Tél. +41 (0) 24 424 65 00 Fax. +41 (0) 24 424 65 20