AGBs
General Terms and Conditions (GTC) of esave ag
1. scope of application
1.1 All existing and future legal relationships between esave ag with its registered office in Chur, Switzerland (hereinafter referred to as "esave") and the purchaser concerning the products sold, including software components (hereinafter referred to as "products"), shall be governed exclusively by the following General Terms and Conditions (hereinafter referred to as "GTC") and any other written agreements between the parties (collectively referred to as "contractual relationship").
1.2 By placing an order, the Buyer acknowledges the binding nature of these GTC.
1.3 General terms and conditions or other terms and conditions of the Buyer shall only apply if this has been explicitly agreed between the parties in writing.
1.4 In the event of contradictions between these GTC and any other parts of the contractual relationship, the GTC shall take precedence, unless the parties have explicitly agreed otherwise in writing.
2. offer and conclusion of contract
2.1 esave's offers are subject to change. By placing an order, the seller submits an offer to which he is bound for two weeks from receipt by esave. A contract only comes into effect with the written order confirmation from esave (incl. fax or e-mail) and is based exclusively on the content of the contractual relationship. Contact: esave ag, La-Nicca-Strasse 6, 7000 Chur, Switzerland. Telephone +41 81 511 55 50, F: +41 81 511 55 51, e-mail: info@esaveag.com. Agreements or promises require written confirmation by esave (incl. fax or e-mail) to be effective.
2.2. esave reserves all rights to its own sales documents (in particular illustrations, weights and dimensions) and samples. These may not be made accessible to third parties.
3. delivery periods and dates
3.1 Delivery dates and delivery periods shall only be binding if they have been confirmed by esave in writing (including fax or e-mail) and the purchaser has provided esave with all information, quality specifications, approved plans, documents, approvals and releases required for the execution of the delivery in good time and has paid any agreed advance payments as agreed. Agreed deadlines shall commence on the date of the order confirmation or declaration of acceptance by esave. In the case of additional or extension orders placed at a later date, the deadlines shall be extended accordingly.
3.2 Unforeseeable, unavoidable events beyond esave's control and for which esave is not responsible, such as force majeure, war, natural disasters, strikes, lockouts, official measures or similar events, shall release esave from its obligation to deliver or perform on time for their duration. Agreed deadlines shall be extended by the duration of the disruption; the purchaser shall be informed of the occurrence of the disruption in an appropriate manner. If the end of the disruption is not foreseeable or if it lasts longer than two months, each party shall be entitled to withdraw from the affected orders. Claims for damages by the buyer are excluded in any case.
3.3 If esave's deliveries are delayed, the purchaser shall only be entitled to withdraw from the corresponding order if esave is responsible for the delay and a reasonable deadline set by the purchaser, but at least 20 days, for delivery has elapsed without success. Further rights and claims of the purchaser other than this right of withdrawal are excluded in any case.
3.4 If the purchaser is in default of acceptance or violates other obligations to cooperate, esave shall be entitled, without prejudice to its other rights, to store the product appropriately at the risk and expense of the purchaser or to withdraw from the contractual relationship or individual orders.
4. shipment of the products
4.1 Delivery of the purchased products shall be made in accordance with the current INCOTERMS (2020): DAP (place of delivery), unless the parties have explicitly agreed otherwise in writing.
4.2 The costs for packaging and shipping shall be borne by the purchaser and shall be shown separately on the invoice by esave.
4.3 Transport insurance shall only be taken out at the request and expense of the Buyer.
5 Prices and terms of payment
5.1 The prices agreed between esave and the purchaser are fixed prices, unless the parties have agreed otherwise.
5.2 All esave prices are quoted in Swiss francs, unless otherwise agreed in writing. The applicable statutory value added tax, if applicable, will be charged separately.
5.3 Each invoice from esave shall be due for payment without deduction within 15 days of receipt of the invoice. If this period expires without payment, the customer shall be in default without a reminder. Payments by the purchaser shall only be deemed to have been made when esave can dispose of the amount.
5.4 If the purchaser is in default of payment, esave shall be entitled to demand default interest at the statutory rate and to refuse further deliveries until the outstanding amounts, including default interest, have been settled. The assertion of damages caused by default shall remain unaffected.
5.5 The Buyer shall only be entitled to withhold payments or offset them against counterclaims to the extent that its counterclaims are undisputed or have been legally established.
5.6 If esave becomes aware of the risk of the purchaser's inability to perform after the conclusion of the contract, esave shall be entitled to make outstanding deliveries only against advance payment or the provision of security. If the advance payments or securities have not been provided even after the expiry of a reasonable grace period, esave may withdraw from individual or all affected contracts in whole or in part. esave reserves the right to assert further rights.
6. reservation of title
6.1 The products shall remain the property of esave until all claims of esave arising from the business relationship with the purchaser have been paid in full.
6.2 In the case of current accounts, the reserved title shall serve as security for the balance due to esave.
7 Warranty and claims for defects
7.1. esave warrants that the product has the agreed quality upon transfer of risk and for 24 months thereafter (hereinafter referred to as "warranty"). This quality shall be measured exclusively in accordance with the specific agreements made in writing between the parties regarding the properties and characteristics of the product. Any further warranty, in particular regarding the value or suitability for the intended use, is expressly excluded. Exception: For iFux 2.0 lights and SLC-DC and SLC-DC GPS controllers, the warranty period is extended to a total of 60 months.
7.2 The validity of the warranty presupposes that the purchaser has used the purchased products in accordance with esave's specifications and in other respects without fault. In particular, the warranty is void if the purchaser makes unauthorized changes to the delivered product or its components (including software). Wearing parts are excluded from the guarantee in all cases.
7.3 Notwithstanding the provisions of this Section 7, certain software components and other components that esave purchases from third parties and that are part of the products are exclusively subject to the warranty provisions of the manufacturers of these components (hereinafter referred to as "manufacturer's warranty"). The manufacturer's warranty can only be asserted by the purchaser against the manufacturer of the components and not against esave. Upon written request, esave shall disclose to the purchaser which components esave has purchased from third parties and provide the purchaser with a copy of the corresponding warranty provisions.
7.4 Information in catalogs, price lists and other information material provided to the purchaser by esave, as well as information describing the product, are in no way to be understood as guarantees for a particular quality of the product; such quality guarantees must be expressly agreed in writing.
7.5 The validity of the warranty and the rights of the purchaser contained therein requires that the purchaser inspects the product immediately after delivery and notifies esave of any defects immediately, in writing and with a detailed description, stating the invoice number. Obvious product or transport damage must be reported to esave in writing within 10 days of acceptance of the product. Hidden defects must be reported to esave in writing immediately after their discovery, but at least within 10 days, otherwise the purchaser forfeits the rights arising from the guarantee.
7.6. esave shall have the right to inspect and test the product complained about in the event of any notification of defects. The purchaser shall grant esave the necessary time and opportunity to do so. esave may also require the purchaser to return the defective product to esave at its own expense.
7.7 Defects covered by the warranty shall be remedied by esave, at its own discretion, either by eliminating the defect free of charge for the purchaser or by supplying a defect-free product (collectively referred to as "subsequent performance"). Warranty or guarantee claims other than subsequent performance, in particular any replacement or compensation claims, are excluded. esave may also refuse subsequent performance if this would involve disproportionate effort and/or costs.
7.8 esave shall bear the transport, travel, labor and material costs incurred for the purpose of subsequent performance. If the notice of defect proves to be unjustified, e.g. because it is not covered by the warranty, the purchaser shall be obliged to reimburse all expenses incurred in this connection (e.g. travel or shipping costs).
7.9 If the subsequent performance fails or if esave has refused it in accordance with Section 7.7, the purchaser may withdraw from the corresponding order. In this case, the purchase price shall be refunded to the purchaser. Further claims, in particular any claims for damages, are excluded.
7.10. The limitation period for the Buyer's rights due to defects is 24 months from delivery of the product to the Buyer.
8. liability
8.1. esave shall only be liable in the event of unlawful intent or gross negligence. Any further liability is excluded. Liability for auxiliary persons is excluded. Any further liability for defects or other breaches of contract (e.g. reduction in price, compensation for indirect and consequential damages, for late delivery, etc.) is expressly excluded to the extent permitted by law.
8.2 The buyer is obliged to take appropriate measures to avert and minimize damage.
9. non-disclosure agreement
The confidentiality agreement between the parties shall remain valid for five years after the termination of the contractual relationship.
10. protection of intellectual property rights
10.1 The purchaser acknowledges that all rights to the products, in particular intellectual property rights, belong exclusively to esave.
10.2 The contractual relationship between the parties does not lead to any transfer of rights to the Buyer. No licenses shall be granted to the Buyer unless this is expressly stated in the contractual relationship.
11. support and spare parts delivery
11.1. esave undertakes to provide the purchaser with support for the products and to sell spare parts for a period of ten years from the last sale of the products in return for reasonable compensation. The support also relates in particular to software settings, software installations and dongle deliveries.
11.2 The above obligation shall also apply beyond any termination of the contractual relationship.
12. modification of the products
12.1. esave is entitled to change the products at any time and at its own discretion. Where possible, esave shall inform the purchaser of product changes in advance in an appropriate manner.
12.2 Product changes do not affect products that have already been ordered. Ordered products must therefore always comply with the agreed specifications.
13. amendment of the GTC
13.1. esave is entitled to amend these GTC at any time and at its own discretion. The purchaser shall be informed of the amended version of the GTC by esave in an appropriate manner.
13.2 The amended version of the GTC shall only be binding for the Buyer if it has accepted them in a legally permissible manner.
14 General provisions
14.1 The purchaser may not assign his claims against esave to third parties without the written consent of esave.
14.2 A fax or e-mail is sufficient for all deliveries made within the scope of this contractual relationship. Written form within the meaning of these GTC or the contractual relationship shall also be deemed to exist in the case of faxes or e-mails.
14.3 Amendments and supplements to the contractual relationship and ancillary agreements must be made in writing. This shall also apply to any amendment to this written form requirement.
14.4 If a provision of the contractual relationship is invalid in whole or in part, this shall not affect the validity of the remaining provisions. In this case, the parties undertake to replace the invalid provision with a valid provision that comes closest to the economic purpose of the invalid provision.
14.5 Should a party fail to exercise rights to which it is entitled under the contractual relationship or fail to exercise them in good time, this shall not result in the forfeiture or loss of these rights. The non-exercise or delayed exercise of a right shall in no case result in this right no longer being exercisable.
14.6 The exclusive place of jurisdiction for all disputes arising from the contractual relationship shall be the registered office of esave. esave shall, however, be entitled to sue the purchaser at any other legal place of jurisdiction.
14.7 The contractual relationship between the parties shall be governed exclusively by substantive Swiss law, to the exclusion of private international law, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG).