AGB – General Terms and Conditions of Harvesta AG
The following General Terms and Conditions shall apply exclusively to all offers, purchases and deliveries of Harvesta AG (hereinafter also referred to as “Seller”). Seller hereby expressly rejects any general terms and conditions of the Costumer or any other party that conflict with these General Terms and Conditions.
Should any provision of these General Terms and Conditions or of any further agreements be invalid, the validity of the remaining provisions and agreements shall not be affect. In case of any invalid provision, a valid provision shall be deemed to have been agreed which comes as close as possible to the economic regulation intended by the Parties.
- Offers and Order Confirmation
All information provided by the Seller on prices, products, delivery and other terms and conditions, whether general or specific with regard to any request by the Costumer or any other Party, shall not be binding unless the Seller expressly submits a binding offer. Contracts and orders shall only be deemed to have been accepted when the Seller has confirmed them in writing.
Orders, contracts and call-offs, as well as changes and additions to them, are made in writing or by means of written communication (fax, e-mail etc.). Verbal agreements of any kind, including subsequent changes and additions require Seller’s written confirmation or a confirmation by means of written telecommunication.
- Prices, Transport Costs, Delivery Surcharges
Offered and agreed prices refer to the indicated or agreed Incoterm.
If any changes occur in the existing import or export conditions, price increases at the Seller’s suppliers, additional fiscal charges, charges due to official measures, customs increases or currency fluctuations, the Seller expressly reserves the right to increase the prices accordingly.
The Customer shall be responsible for obtaining necessary import or other permits and shall bear the cost thereof. The Customer shall bear any and all taxes, fees, levies customs duties except the Parties agreed otherwise.
Unless otherwise specified the goods shall be delivered in accordance with the offered and agreed Incoterm and must be accompanied by delivery documents.
The delivery periods and dates are communicated and observed by the Seller to the best of his ability, but are non-binding and therefore do not entitle the Costumer to withdraw from the contract or to claim damages or other claims in the event of non-compliance.
If delivery of the goods on call-off by the Costumer has been agreed upon, the Costumer shall be obliged to call-off the goods within the agreed period. If dispatch or delivery is delayed at the request of the Costumer, so that intermediate storage of the goods is necessary, the relevant storage costs shall be charged to the Costumer. In the event of non-call-off of the intended quantity within the agreed period, the seller may charge such costs in full.
If the seller undertakes to deliver the goods and if the goods are not accepted during the agreed or usual delivery periods, the additional expense of a further delivery shall be reimbursed by the Costumer. Storage charges, loss of interest and other additional costs resulting from the delayed acceptance shall be borne by the Costumer.
- Inspection and Receipt of Goods
The Costumer shall inspect the goods upon receipt and notify the Seller in writing of any complaints as soon as possible, at the latest within 5 working days of receipt of the delivery. If he fails to do so, the delivery shall be deemed to have been approved.
Any complaints must be made as soon as possible and before any processing of the goods. Defects or faults which are not visible on immediate inspection must be reported at the latest within 5 working days in writing upon being discovered.
Complaints and notifications of any faults or defects shall in no case entitle the Customer to refuse acceptance of the goods or payment of the agreed purchase price.
In the event of transport damage, the carrier must also be notified in any case and a corresponding note must be made on the delivery note to be visually inspected. The damage must be confirmed by the carrier.
- Cancellation and return
Cancellations of orders by the Costumer require a prior written consent of the Seller. Any complaints do not entitle the Costumer to cancel remaining or other deliveries.
If the financial situation of the Costumer degrades significantly or is different from that presented to the Seller, the Seller is entitled to withdraw from the contract. In the event of a legitimate cancellation by the Seller, the Costumer shall bear any costs incurred to the Seller.
Any return of goods subject to a contract between Seller and Costumer shall only be permitted with the prior written consent of the Seller and if the freight costs have been paid by the Customer and the goods are in an unmodified and undamaged condition. Returns without prior consent of the Seller will not be accepted and will not be credited. All costs arising from exchange and return, in particular for handling, packaging and freight, shall be borne by the Costumer.
In case of any defect which can be proven to have already existed at the time of the transfer of risk, and if the Costumer has complied with his obligation to inspect the delivery and report defects, the Seller may, at his discretion, replace defect goods or grant the Costumer a reduction of the purchase price. This obligation of the Seller and the corresponding rights of the Costumer (warranty period) shall expire 12 months after the delivery. After this period, the Costumer shall no longer have any claims, irrespective of whether the defects are obvious or hidden.
The aforementioned rights of the Costumer in respect of defects do not exist in the case of the following defects:
- Natural wear and tear;
- Condition of the goods or damage occurring after the transfer of risk or as a result of improper handling, storage, installation or excessive use;
- The condition of the goods or damage resulting from force majeure, special external influences or from the use of the goods outside the normal use assumed under the contract.
The Costumer shall have no claims in the event of common and/or only insignificant deviation from the agreed quality of the goods or in the event of only insignificant impairment of the usability. All further claims of the Costumer such as rescission, reduction, damages (including liability for consequential damages) etc. are expressly excluded.
Unless otherwise agreed in writing, the Seller’s invoices shall be paid in CHF (Swiss Francs), EUR (Euro) or USD (US Dollars), as indicated on the invoice, within 14 days of the invoice date. The customer is not entitled to any retention or price reduction of invoiced costs.
The payment obligation shall only be considered to have been fulfilled upon receipt of the amount on the Seller’s bank account (value date). The acceptance of cheques or bills of exchange as means of payment is at the sole discretion of the Seller. In case of bills of exchange or cheques, the payment obligation shall only be considered to have been fulfilled when the amounts have been credited after encashment.
The Costumer agrees that the seller shall offset payments made by the Costumer against the oldest claim.
Upon expiry of the payment period, the Costumer shall be in default without further notification. In the event of default, all claims of the Seller against the Customer arising from the business relationship shall become due for payment immediately and the Seller shall be entitled to cancel any granted discounts.
The customer may set-off with any own invoices or claims only if this has been accepted by the Seller in writing.
- Reservation of Title
The goods shall remain the property of the Seller until the purchase price has been fully paid. The Seller is entitled to have a corresponding reservation of title entered in the public register. The Costumer shall be obliged to cooperate in the registration upon Seller’s request.
Before full payment of the purchase price, the Costumer shall neither sell nor pledge the purchased goods nor assign them to third parties for security purposes. In the event of a seizure or other claim by third parties, the Customer shall notify the Seller immediately.
- Place of Performance
Unless the parties have mutually agreed otherwise the place of performance for both parties and for all rights and obligations arising from the contract (e.g. for the delivery and for any payments) shall be at the Swiss domicile of the Seller (currently Landschlacht, Canton of Thurgau, Switzerland).
- Applicable law and Jurisdiction
The legal relationship between the Costumer and the Seller shall in all cases be governed by Swiss substantive law, excluding the conflict of laws rules and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
All disputes arising out of or in connection with the individual contracts shall be subject to the jurisdiction of the ordinary courts at the Swiss domicile of the Seller (currently Landschlacht, Canton of Thurgau, Switzerland).