Status 01.02.2024
1.1 Unless otherwise agreed in writing, these General Terms and Conditions of Sale and Delivery of FOX B2B Services GmbH (hereinafter referred to as "FOX") apply to all goods and services supplied or provided by FOX (hereinafter referred to as "GTC"). General terms and conditions of the customer are only effective if they are accepted by FOX in writing with a legally valid signature in the particular case.
2.1 Unless expressly agreed otherwise in writing, all quotations and cost estimates from FOX shall be deemed to be an invitation to the customer to submit an offer for such goods or services (invitation to make an offer). The customer's order is deemed to be an offer. A legally binding contract is only concluded when FOX has confirmed acceptance of the offer in the order confirmation (hereinafter the 'contract'). A confirmed offer can only be cancelled or amended with FOX' express written consent. If FOX declares its written consent, this shall not affect FOX' rights to demand full compensation from the customer for all losses or costs incurred as a result of such cancellation or amendment.
3.1 The FOX quotation is valid for 30 calendar days from the date of its submission, unless otherwise stated in the quotation. After expiry of this period, FOX reserves the right to adapt the quotation to the new conditions. These FOX GTC are an integral part of the FOX quotation.
4.1 The scope and execution of the deliveries and services shall be specified by FOX in the order confirmation. Goods or services not listed in the order confirmation which are additionally ordered by the customer after conclusion of the contract will either be rejected by FOX or confirmed and invoiced separately.
4.2 Pictures, drawings and descriptions in brochures and catalogues as well as information on dimensions and weights are approximate values. They are only binding if they are expressly confirmed in writing.
4.3 It is the customer's responsibility to ensure that the drawings, calculations, and specifications are correct. If the customer has approved all specifications, FOX shall not be liable for any errors or omissions. In any case, FOX' liability is limited to the components manufactured by FOX itself and does not extend to other products or components or to general structural or architectural conditions.
5.1 Unless expressly stated otherwise in FOX' quotation, prices are ex works (EXW Granges-Paccot Incoterms 2020) plus VAT, freight inspection, packaging, customs duties, taxes, levies, insurance, installation, commissioning, and other services.
5.2 Unless expressly stated otherwise in FOX' quotation, the price does not include the assembly or installation of the system, commissioning, validation support or personnel training.
5.3 If the costs on which the calculation is based increase in the period between the conclusion of the contract and the acceptance of the goods, FOX shall be entitled to adjust the prices stated in the order confirmation accordingly.
6.1 The terms of payment depend on the object of sale and are defined in the quotation or in the order confirmation from FOX.
6.2 The customer shall make payment(s) to FOX without deductions for discounts, costs, taxes and fees of any kind.
6.3 After expiry of the payment deadline stated in the invoice, the customer shall owe default interest of 6% p.a. plus processing fees without notice of default. This does not affect compensation for further damages. In the event of default of payment, FOX is authorised to suspend all further deliveries with immediate effect and to suspend any rectification of defects.
6.4 Payments may not be withheld, in particular not in the event of late delivery or complaints. Claims of FOX may not be offset against any counterclaims of the customer.
6.5 In the event of late payment, FOX reserves the right to withdraw from the contract and to reclaim the goods handed over in accordance with article 214, paragraph 3 of the Swiss Code of Obligations (CO; cf. clause 12).
7.1 FOX retains ownership of all delivered goods until they have been paid for in full. The customer must take all necessary measures to protect the property rights of FOX.
7.2 FOX is entitled to have the retention of title entered in the relevant public register and the customer is obliged to co-operate in such an entry.
8.1 The delivery time and delivery conditions (if different from EXW Granges-Paccot Incoterms 2020 according to clause 5.1) are defined in the quotation or in the order confirmation from FOX.
8.2 In the case of customised products for the customer, the following additional conditions apply (unless otherwise defined in the quotation or order confirmation):
8.3 The delivery period shall be extended if the terms of payment are not complied with or if the letter of credit is opened too late.
8.4 FOX will endeavour to meet the customer's delivery requirements for the goods in a timely manner, but accepts no liability for failure to deliver the goods on time. Time of delivery shall not be of the essence of the contract unless expressly stated in writing in the customer's purchase request and FOX' order confirmation.
8.5 If the customer does not accept the delivery on the agreed delivery date or if no specific delivery date has been agreed and the goods are ready for handover, FOX shall be entitled to store and insure the goods and invoice the customer for the reasonable costs incurred.
9.1 Packaging cannot be returned, and the customer is liable for its appropriate disposal.
10.1 FOX shall inspect the goods and services in accordance with the FOX standard before delivery or after performance of the services. Additional checks must be agreed and will be invoiced separately.
10.2 Within 20 days of delivery or provision of services, the customer must inspect all deliveries and services received, including partial deliveries and partial services, and must notify FOX immediately in writing of all recognisable defects within this period, otherwise the deliveries and services shall be deemed to have been accepted and approved.
10.3 The deliveries and services shall also be deemed to have been approved as soon as the customer uses or is able to use them.
10.4 The remedies for defective delivery and defective performance set out in clause 11 are exclusive and the customer waives all other remedies.
11.1 FOX warrants that the products supplied under this contract conform to the specifications listed in the order confirmation, provided that the products are used in accordance with these specifications. This warranty becomes effective at the time the products leave the FOX production facility.
11.2 Only those warranties that are expressly mentioned in the FOX order confirmation shall be deemed to be express warranties. This warranty expires upon expiry of the warranty period.
11.3 Any warranty or liability on the part of FOX for damages for which it cannot be proven that it is due to deviations from the specifications that impair proper use is excluded. In particular, any warranty or liability of FOX is excluded for damages caused by wear and tear, inadequate maintenance, violation of the operating instructions, overuse, use outside the specifications, improper operation, damage to property or loss of production, loss of profit or other indirect or consequential damages, as well as for damages for which FOX is not responsible.
11.4 The warranty period for hidden defects is 12 months from the date of delivery; the warranty period for recognisable defects is governed by clause 10.2. The warranty includes the replacement of defective parts, but not the on-site intervention of FOX. Any potential return of the object of the contract to remedy defects shall be carried out in co-operation with the customer. The transport costs incurred shall be borne by FOX. For products not manufactured by FOX, the warranty provisions of the respective manufacturer shall apply.
11.5 If the customer discovers hidden defects within the meaning of clause 11.4 in products supplied by FOX within the warranty period and the customer wishes to assert a warranty claim, he must notify FOX accordingly in writing within seven days of discovery at the latest.
11.6 FOX may, at its own discretion, either repair or replace the affected products or their parts or refund the purchase price for all defects notified to FOX in accordance with clause 10.2 or 11.5. The customer must give FOX the opportunity to remedy the defect. If possible and agreed in advance with FOX, minor defects can be rectified by the customer himself. The replacement or repair of defective products does not extend the warranty period and does not restart it. The time and expenses incurred by FOX due to a complaint that proves to be unfounded will be charged to the customer.
11.7 In the following cases, the warranty expires prematurely and all certificates (ATEX, CE, etc.) become invalid:
12.1 FOX is entitled to cancel the contract immediately by written notice (article 214 CO) if the other party
12.2 If FOX has the right to terminate the contract in accordance with clause 12.1, the following shall apply
13.1 The maximum liability of FOX arising from or in connection with the contract is in any case limited to 60% of the purchase price to be paid in accordance with the respective contract with the customer.
13.2 All cases of breach of contract and their legal consequences are conclusively regulated in these GTC.
13.3 With the exception of the claims expressly set out in these GTC, the customer waives all claims, irrespective of their legal basis, in particular he waives claims for damages, reduction of the purchase price and cancellation or termination of the contract.
13.4 Subject to mandatory provisions on product liability, liability for incidental and consequential damages is expressly excluded. In particular, FOX shall not be liable on any legal grounds for damages caused by defects, including consequential damages such as operational disruptions, loss of production, removal costs, capital costs, loss of profit, claims by third parties (including claims by the customer's customers) or for the customer's interests in being indemnified against such claims.
14.1 FOX products and systems comply with CE regulations if they are expressly labelled as such.
14.2 FOX products and systems that are supplied incomplete (e.g. without protective grille, control panel or machine control as per the technical description in the FOX quotation) are supplied with a CE declaration of conformity in accordance with the Machinery Directive 2006/42/EC on machine safety. This declaration is valid subject to the installation of a CE-compliant protective enclosure. Such enclosure can be ordered at the same time or manufactured and installed by the customer at his own responsibility.
14.3 FOX systems are manufactured in accordance with the EC Machinery Directive 2006/42/EC and the ATEX Directive 2014/34/EU (for Ex versions). The respective underlying risk assessment was prepared by FOX technicians together with an external engineering office specialised in such assessments. If the customer comes to a different assessment, which FOX does not share, he can adapt the product or its safety equipment in consultation with FOX at his own expense so that it corresponds to his assessment. If the customer wishes this adjustment work to be carried out by FOX and if feasible, FOX will carry it out at the customer's expense following a prior quotation by FOX and order by the customer. If the complaint is clear and there is no doubt that the product does not conform, FOX shall establish conformity at its own expense (with the best possible co-operation with the customer).
15.1 Unless expressly stated otherwise in FOX' quotation, FOX shall not be liable for whether and to what extent a product or system is suitable for the customer's intended application or produces the result desired by the customer: no guarantee is given that the products or services are suitable or sufficient for the customer's specific purposes, unless the corresponding purpose or desired result is precisely defined in advance and expressly recognised by FOX in the order confirmation.
16.1 Should individual provisions of these GTC be partially or completely invalid or unenforceable, the parties undertake to replace the invalid provision with a valid provision that comes as close as possible to the purpose of the invalid provision. All other contractual provisions shall remain unaffected by this. The same applies to loopholes.
17.1 If a party waives the right to assert a breach of contract committed by the other party, this may not be interpreted as a waiver of the right to assert subsequent breaches of contract.
18.1 FOX shall not be liable for non-performance of its contractual obligations if the non-performance is due to strike, industrial action, breakdown of systems, transport, or equipment, government restrictions, blockades, war, riots, forces of nature or any event or circumstance beyond the control of FOX, irrespective of whether the latter are of the same nature as the aforementioned.
19.1 Swiss law shall apply to the exclusion of any conflict of laws rules. The place of jurisdiction is the city of Bern (Switzerland).
19.2 However, FOX reserves the right to take legal action before the courts at the customer's place of business or any other competent court.
20.1 The customer may not assign, pass on, transfer, or sell the contract or the rights or obligations associated with it without the prior written consent of FOX.
20.2 The customer undertakes not to resell the goods to third parties who are subject to a foreign jurisdiction and where, if FOX were to make such a sale, this sale would be illegal under Swiss law or, where applicable, under an international trade embargo restricting the sale of goods from Switzerland to a foreign territory.
20.3 If the customer discovers that he has sold the goods in breach of clause 20.2, he is obliged to inform FOX of the details of this resale as soon as he becomes aware of this breach, including the identity of the third-party buyer, the date of the resale, the quantity of the resold goods and any other details requested by FOX.
20.4 If the customer breaches clauses 20.2 and 20.3, the following shall apply:
21.1 The customer shall indemnify FOX and its employees against all claims or pay compensation for losses, costs (including all legal costs incurred), damages, injuries or expenses suffered by FOX, its employees or representatives that:
21.2 If FOX agrees at the customer's request (or by contract with the customer) to supply goods or services to persons who are not parties to the contract, FOX shall in all cases be liable only to the customer and the customer shall indemnify FOX against any claims by the third party.
The German version of these GTC shall be authoritative and shall take precedence over other language versions in the event of any inaccuracies or contradictions.
