1.1 These General Terms and Conditions of Sales (“GTC”) apply to all sales and deliveries of Andrew Alliance SA, together with Andrew Alliance SA’s affiliates and subsidiaries (collectively, “Seller”) to any individual or entity (“Customer”). Conditions of the Customer are not binding on Seller even if the order is based upon them or if the Customer refers to them on forms or in other documents.
1.2 The GTC of Seller likewise apply to all subsequent business, even if no further reference is made to them at the time when such transactions are concluded.
1.3 Secondary agreements, together with amendments and additions to the agreement and GTC of Seller, are valid only if they are agreed in writing by Seller.
2. Offers, Documentation
2.1 Absent any express revocation made in writing, offers of Seller are valid for 60 days from the date of the offer made by Seller unless specifically stated otherwise in the offer.
2.2 No particulars given in catalogues, price lists and further documentation are binding, but are provided “as is” only. Amendments to the specifications, product designs and other changes are reserved. They may influence delivery dates and prices.
2.3 Drawings, documentation, samples and other materials remain the property of Seller. No licenses are granted in any intellectual property rights of Seller. Intellectual property rights must be respected. In particular, the duplication or disclosure of supporting materials, documents or samples, especially of materials which are protected by copyright, is prohibited without the consent of Seller. On request, all such documents and samples must be returned to Seller at no cost.
3.1 Prices are quoted in the offered currency with packaging, exclusive of VAT and any applicable taxes to be borne by Customer.
3.2 All agreed prices and payment terms remain valid for not more than sixty (60) days from the date of the Seller offer. If costs incurred by Seller undergo changes, Seller is entitled to request an appropriate change of the agreed product prices. If the Customer declines such price changes or if negotiations between the parties on such price changes do not result in a new agreed price within one month of the notice to take part in such negotiations, Seller is entitled to give unilateral written notice of termination of the agreement with immediate effect and without any liability. The foregoing is without prejudice
to individual orders confirmed by Seller but not yet fully processed at the time notice is given. The parties may extend the one-month negotiation period for price changes by mutual agreement in writing.
4. Delivery Lead-Times, Part-Delivery, Force Majeure
4.1 If the delivery lead-time is indicated as a period (and not as a specific date) it begins upon the date of the written order confirmation based on the unchanged offer.
4.2 Every delivery lead-time shall be suitably extended if required information or documents are not received in due time by Seller, if these are subsequently amended by the Customer with the consent of Seller or if a down payment is received late.
4.3 If failure to comply with the delivery lead-time is not caused by the sole fault of Seller, the Customer shall not derive from that fact a right to withdraw from the agreement or to waive delivery or seek compensation. The limitation of liability stated in Sec. 10 shall apply.
4.4 In the event of force majeure or other exceptional events for which Seller is not responsible (including strikes or embargo) which make delivery impossible or substantially more difficult, Seller may restrict or suspend the delivery for the duration of such obstacle or withdraw from the agreement. Force majeure includes, but is not limited to, war, unrest, rebellion, acts of sabotage and similar events, strikes or other industrial conflicts, newly enacted laws and regulations, delay caused by actions or omissions on the part of a government/authorities, fire, explosion or other unavoidable events, flood, storm, earthquake or other exceptional natural events. Under no circumstances shall Seller be held liable for claims related to non-performance, improper performance or belated performance of contractual obligations.
4.5 Part-deliveries are permitted. In the case of long-term supply contracts each part-delivery shall be regarded as a separate transaction. The impossibility of making a part-delivery or delay in effecting a part-delivery does not entitle the Customer to withdraw from the whole agreement or to claim compensation.
4.6 Customer shall be responsible to contract transport insurance and Seller shall not be liable for any damage resulting from the shipment of the goods.
5. Dispatch, Acceptance of the Goods by the Customer
5.1 If acceptance is either delayed or rendered impossible for reasons for which Seller is not responsible, Seller is entitled to store the goods for the account and at the risk of the Customer on its own premises or with third parties. The relevant obligations of Seller shall then be deemed to have been performed.
5.2 If the Customer does not announce his requirements in good time, the goods will be packaged and sent through ordinary mail courier. The standard Seller packaging consists of cartons which are not suitable for stacking.
6. Payment, Offsetting, Interest on Late Payment
6.1 All invoices are payable net within 30 days from the date of the invoice. Different agreements may be reached between the parties. Instructions given by Seller concerning bank accounts must be respected.
6.2 Offsetting of counter-claims of all kinds is excluded.
6.3 Where several claims are outstanding, Seller is entitled to decide which particular claims are settled by the Customer’s payments.
6.4 Upon the expiration of the payment period, the Customer shall be deemed to be in arrears without a warning to that effect being necessary on the part of Seller. From that point in time the Customer shall be liable to Seller for interest on arrears at the rate of 5 percent.
6.5 The withholding or reduction of payments because of complaints is permitted only with the express consent of Seller.
7. Retention of Title
The goods which have been sold remain the property of Seller until full payment of the sale price has been received. If the Customer fails to fully meet its payment obligation, Customer acknowledges and agrees that Seller, at its sole discretion, may require the immediate return of the goods concerned at Customer’s sole cost and expense and to arrange for the refund of any installment payment already received, less costs and expenses incurred by Seller in connection with such goods. Seller is entitled to request the disgorgement of any profits resulting from the usage of the goods to be returned. Customer bears all risks related to the goods for the period running between the shipping of the products and the return of the goods.
8. Late Performance by the Customer, Insolvency
8.1 If the Customer is late in making a payment, either in whole or in part, all payment obligations existing in relation to Seller, including those arising from other contracts, shall fall due for immediate settlement. The same provision applies if the Customer is in cessation of payments or if legal composition, bankruptcy or similar proceedings are applied for or imposed with respect to his assets and if other circumstances which threaten to result in the Customer’s insolvency become known.
8.2 In the event of late payment by the Customer, Seller, without prejudice to its other statutory and contractual rights, may decline in whole or in part to make further deliveries under this or any other contract or make them dependent upon an advance payment or provision of surety.
9.1 The warranty period is one year calculated from the date of the shipping of the goods. Any extended warranty beyond those explicitly stated in these GTC must be agreed upon in writing between the parties.
9.2 Seller makes no express or implied warranty extending beyond the product specifications or agreed product specifications. In no case does the warranty of Seller extend to merchantability or fitness for a particular purpose.
9.3 Seller must be notified of any defects in the goods without delay in writing. Defects must be reported within five working days of handover. Hidden defects must be reported immediately but no later than within five working days of the time when they were detected or could have been detected. If this is not done, the Customer shall forfeit all claims arising out of the warranty.
9.4 In the event of defective performance, Seller shall, at its option, either provide a replacement free of charge or effect repairs or grant an appropriate price reduction. If the substitute delivery or repair is likewise defective, the Customer may request an appropriate price reduction. Further claims of the Customer, in particular for termination of the contract are specifically excluded, regardless of the legal basis on which they are made. The limitation of liability pursuant to clause 10 likewise applies.
9.5 Complaints regarding part-deliveries do not entitle the Customer to decline performance of the whole contract by Seller.
10.1 To the extent permissible, liability of Seller shall be limited in every case – even in the event of liability based on the infringement of intellectual property rights – to compensation for direct damages (i.e. re-installation or product exchange costs, sorting costs, direct labor costs or direct recall costs where recalls are mandatory under the applicable law). Any liability for indirect or consequential damages, including but not limited to, loss of profit, is hereby excluded. Seller is only liable for damages to the extent that it has caused such damages by willful misconduct or gross negligence.
10.2 In no event shall Seller be liable for more than 5 percent of the value of the individual delivery concerned.
11. Intellectual Property Rights
Seller or its affiliated companies are and remain the owners of all intellectual property rights. In the case of orders whose performance includes development services, Seller is the sole proprietor of the development results including, but not limited to, all concepts, drawings, samples, ideas, software, documentation and all other material, together with all intellectual property rights relating thereto or filed thereon. Rights of use or licenses for the Customer in the developing result or in intellectual property rights are not granted either implicitly or explicitly but to the extent and only to the extent required to use the products.
Trademark rights of Seller or of companies affiliated to it are not transferred with the purchased object. The acquisition of products identified with trademarks of Seller or with trademarks of its affiliated companies does not mean the acquisition of rights in such trademarks or the right to use them independently of the acquired product. The removal of Seller’s trademarks fixed on the products is strictly prohibited. To acquire the right to use Seller’s trademark separate from the products, a separate trademark right agreement must be concluded.
13.1 The Customer must keep secret all confidential information received from Seller in the context of the business relationship and refrain from disclosing it to third parties.
13.2 The above does not apply to information which is or becomes lawfully known to the Customer nor to confidential information which is or becomes known in the public domain otherwise than through a breach of this clause. The obligation likewise does not apply to confidential information disclosed to the Customer by an authorized third party with no obligation of secrecy.
14. Invalidity, Severability
Should any provision of these GTC be or become invalid, that fact shall not affect the validity of the other provisions. The invalid provision shall be replaced by a valid provision which as far as possible satisfies the same legal, economic and originally intended purpose.
15. International Trade Restrictions
15.1 The Customer shall comply with all applicable export control, trade, and financial sanctions laws, rules, and regulations (collectively, “International Trade Restrictions”) in performance of these GTC.
15.2 The Customer represents, and continues to represents as long as these GTC remain in effect, that: neither the Customer nor any of its affiliates, subsidiaries, subcontractors, subdistributors, directors, officers, employees, agents or any other person acting on behalf of the Customer (collectively, “Relevant Agents”) is (i) identified on the Specially Designated Nationals and Blocked Persons List or the Foreign Sanctions Evaders List, both maintained by the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) (as defined on www.treasury.gov/resource-center/sanctions/Pages/default.aspx) or on comparable European Union lists (collectively, “Sanctioned Persons”); (ii) a member of any military, paramilitary, intelligence, or law enforcement entity of the Government of Iran, or an official, agent, or affiliate thereof (such persons together with Sanctioned Persons, “Restricted Parties”); (iii) directly or indirectly owned or controlled by any such Restricted Party; (iv) located in, organized under the laws of, or ordinarily resident in Cuba , North Korea, Sudan, Syria, or the Crimea region of Ukraine (each a “Prohibited Country”); or (v) directly or indirectly owned or controlled by, or acting on behalf of, the government of any Prohibited Country.
15.3 Neither the Customer nor any of its Relevant Agents will directly or indirectly, sell products to (i) a Restricted Party; or (ii) a person majority owned or controlled by any such Restricted Party.
15.4 Customer shall not export, re-export, or otherwise deal with any products in connection with these GTC, directly or indirectly, without first obtaining all necessary written consents, permits, and authorizations, and completing such formalities as may be required by any applicable International Trade Restrictions.
15.5 Customer shall require its Relevant Agents to comply with applicable International Trade Restrictions and this clause 15.
16. Place of Performance, Applicable Law and Place of Jurisdiction
16.1 The place of performance for the performance by the Customer or by Seller is Geneva, Switzerland.
16.2 Legal relations between Seller and the Customer shall be governed solely by Swiss law to the exclusion of the conflict of laws principles. The Vienna Purchasing Convention (United Nations Convention on Contracts for the International Sale of Goods, 11 April 1980 (CISG)) is hereby specifically excluded.
16.3 All disputes arising out of the contractual relationship, relating to it or affecting its validity or the validity of these GTC shall fall within the sole jurisdiction of the Court of Justice of Geneva, Switzerland, to which the parties hereby irrevocably agree to be submitted.