General Terms & Conditions of WILCO AG

18.10.2019

1. Scope of Application

1.1. These terms and conditions apply for all of WILCO plc.’s contracts. They form an integral part of every contract concluded with a customer. The customer’s general reference to his/her own general terms and conditions or purchase conditions is not binding for WILCO plc. Changes and additions to the general terms and conditions must be accepted in writing by WILCO plc. for validity.

1.2. All agreements concluded between WILCO plc. and the customer, in particular the conclusion or amendment of purchase contracts, must be made in writing to be legally enforceable. This also applies to an annulment or waiver of the written form requirement.

1.3. For deliveries abroad, labour and environmental protection provisions are only included if they comply with the applicable Swiss labour law and environmental protection standards. Additional or other protective provisions are provided insofar as expressly agreed. The customer must notify WILCO plc. at the latest upon ordering of the regulations and standards that relate to the execution of deliveries and services, the operation and to sickness and accident prevention.

1.4. WILCO plc.’s deliveries and services are listed in the order confirmation, including any supplements. WILCO plc. is authorized to make changes that lead to improvements, provided they do not instigate a price increase.

1.5. Plans and technical documentation, such as brochures and catalogues, are not binding unless otherwise agreed. Information in technical documents is only binding as far as they are expressly guaranteed in the offer.

1.6. Each party reserves all rights to plans and technical documentation provided to the other party. The receiving contracting party acknowledges these rights and will not make the documents available to third parties in whole or in part without prior written authorization of the other contracting party, nor will they use them outside of the agreed purpose.

2. Offer and Completion of the Contract

2.1. The prices specified in WILCO plc.’s offers are indicative. In principle, the contractually agreed prices apply.

2.2. WILCO plc. may revoke the offer if the customer has not accepted it in writing and without deviation within two weeks of receipt.

2.3. Changes or additions to the order are to be made in writing and are only valid if accepted in writing by WILCO plc. Article 5 shall apply accordingly should the deadline need to be adapted.

3. Documents, Tools, Material

The documents and information provided to the customer by WILCO plc. must be treated confidentially by the customer and may only be used in connection with the current order. In particular, the customer is responsible for ensuring that the documents are neither copied nor brought to the attention of third parties. After usage or after completion of the order, the documents must be returned to WILCO plc. without solicitation.

4. Price and Payment

4.1. The prices are ex works, excluding packaging and in addition to VAT of the valid amount. Packaging costs are shown separately.

4.2. Unless otherwise agreed in writing, payment of the purchase price shall be made net of any deduction for cash discounts, expenses, taxes, levies, fees, duties and the like within 10 working days. The customer is not entitled to offset such payments with any claims against WILCO plc. After expiry of the payment period of 10 working days or the agreed payment period, the customer has to pay a default interest of at least 1% per commenced month. The replacement of further damage remains reserved.

4.3. The payment dates are binding, even if transport, delivery, assembly, commissioning or acceptance of the deliveries or services are delayed for reasons for which WILCO plc. is not responsible or when minor parts are missing or rework is required that have no material effect on the normal functioning of the deliverable.

4.4. If the conditions underlying the price formation change, in particular concerning the currency parities or the state/official taxes, exchange duties, fees, custom duties etc. between the time of the offer and the agreed delivery date, WILCO plc. is entitled to adjust its prices and conditions to the altered circumstances.

5. Delivery Time

5.1. Agreed delivery periods and dates do not constitute fixed transactions and are adhered to by WILCO plc. subject to normal material purchase, fabrication and transport possibilities.

5.2. The beginning of the delivery time specified by WILCO plc. requires the timely and proper fulfilment of the obligation by the customer. The exception of the unfulfilled contract remains reserved.

5.3. Delayed receipt of samples, drawings, test objects, situation plan signatures, as well as down payments may lead a delay in delivery, for which we are not responsible. The delay time will count towards the delivery time.

5.4. In the case of contract amendments or contract supplements, delivery times will be adjusted. The originally agreed delivery times are no longer binding for WILCO plc.

5.5. If the customer is in default of acceptance, we are entitled to demand compensation for the damage incurred, including any additional expenses. Further claims remain reserved. If the above conditions are met, the risk of accidental loss or accidental deterioration of the purchased item shall be transferred at the time when the latter is in default of acceptance or payment.

5.6. WILCO plc. is not liable for late delivery. Further customer claims for damages exist only in cases of gross negligence and intent.

6. Shipment/Transfer of Risk upon Shipment

6.1. The shipment is principally on account. If the goods are shipped to the customer at the request of the customer, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer upon dispatch to him or her, at the latest when leaving the factory or warehouse. This applies regardless of whether the shipment of the goods from the place of fulfilment and/or who bears the freight costs.

6.2. The insurance against damages in transit caused by packaging, shipping, transport and import costs are at the expense of the customer. For price setting ex factory or ex sales or ex WILCO plc.'s warehouse, unless otherwise agreed, will be shipped at the lowest price.

6.3. If the shipment is delayed at the request of the customer or for other reasons for which WILCO plc. is not responsible, the transfer of risk to the customer shall take place at the time originally intended for delivery ex works or warehouse. From this point on, the delivery will be stored and insured at the expense and risk of the customer.

6.4. The packaging is specially billed by WILCO plc. and not reimbursed.

7. Retention of Title

7.1. WILCO plc. retains ownership of the delivered goods until the complete payment of all purchase entitlements, and respectively the supply contract. WILCO plc. may, in the event of a default in payment by the customer, make and register the retention of title at the expense of the customer in public registers, books or the like in accordance with the relevant state laws. WILCO plc. can reclaim the purchased item or conduct ulterior and comparable safeguarding if the customer behaves contrary to the stipulations in the contract.

7.2. The customer bears the obligation, as long as the ownership has not yet passed, to take all necessary precautions so that the purchased item cannot be damaged. In particular, he is obliged to adequately insure these at his own expense against theft, fire and water damage at replacement value. As long as the ownership has not been transferred, the customer has to inform WILCO plc. immediately if the delivered object is seized or exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse WILCO plc. for the legal and out-of-court costs of a lawsuit, the customer is liable for the damage incurred by WILCO plc.

8. Warranty, Liability for Deficiencies

8.1. The customer may assert his warranty rights if he has fulfilled the due inspection obligations within 5 working days and has reported any defects immediately in writing. Claims for defects become statute-barred 12 months or 2000 hours of use, whatever comes first, after delivery, or after notification of readiness for dispatch, if the dispatch, acceptance or assembly is delayed for reasons for which WILCO plc. is not responsible. WILCO plc.’s consent must be obtained prior to any return of the goods. The warranty does not apply to accessories and wear and tear parts, as long as the defect is typical for the age and operational performance of the item.

8.2. For replaced or repaired parts, the warranty period shall be 6 months from replacement or completion of the repair or acceptance. The warranty does not apply to accessories and parts subject to wear-and-tear, as long as the defect is typical for the age and operational performance of the item.

8.3. In the case of demonstrable faulty delivery, the goods, subject to timely notification of defects, will be repaired or replacement goods will be delivered at WILCO plc.’s discretion. WILCO plc. must always be given the opportunity of a retrospective fulfilment within a reasonable period.

8.4. If WILCO plc. does not carry out the corrective action properly within the reasonable deadline set by the customer, then the customer is entitled to demand compensation or a reduction in price.

8.5. Claims for defects do not exist with insignificant deviation from the agreed quality, with insignificant impairment of usability, with natural wear or tear, as with damages that arise after transfer of risk as a result of faulty or negligent treatment, excessive stress, unsuitable equipment or due to special external influences which are not required as stipulated in the contract. If the customer or third parties carry out repair work or changes improperly, then no claims for defects can be made for aforementioned and the resulting consequences.

8.6. In case of a delay in delivery, the customer can claim compensation for the postponement, as far as a delay can be proven to have been caused by WILCO plc. and the customer can prove damages as a consequence of this delay. The right to compensation for delay falls if the customer is helped by a replacement delivery. The postponement compensation for each working day (Monday to Friday) of the delay is not more than 0.1%, but in total not more than 5%, calculated on the contract price of the delayed part of the delivery. The first two weeks of the delay do not entitle you to compensation for late payment.

8.7. Assured features are only those expressly designated as such in the order confirmations and/or specifications. If the warranted features are not fulfilled or only insufficiently fulfilled, the customer has to grant WILCO plc. a reasonable rectification period. If a remedy is only partially possible, the customer may demand a reasonable price reduction. If the defect cannot be negated and the customer cannot or only to a significantly reduced extent use the delivery or service for the agreed purpose, the customer has the right to refuse acceptance of the defective part or if the partial acceptance is unreasonable and he notifies them immediately, withdraw from the contract. The customer will only be reimbursed for the amounts he has paid for the parts concerned.

8.8. Due to defects in material, construction or designs, as well as due to a lack of warranted characteristics, the customer can only make his or her claim based on the entitlements and rights set out in clause 8.

8.9. If the customer has any complaints which are obviously not defects for which WILCO plc. can be held responsible, the customer owes WILCO plc. the remuneration for the work as well as the replacement of further expenses and costs.

8.10. The contracting parties shall not be liable for events concerning a force majeure, which significantly impede the contracting parties in the performance of the contract or temporarily render the proper execution of the contract impossible. A force majeure constitutes all circumstances beyond the control of the involved parties such as natural disasters, governmental measures, decisions made by the authorities, blockades, war and other military conflicts, mobilization, civil unrest, terrorist attacks, strikes, lockouts and other labour disturbances, seizure, embargo or otherwise unpredictable circumstances, serious and non-culpable by the contracting parties and that occur after the conclusion of this contract. To the extent that either party is prevented from performing its contractual obligations due to a force majeure, this shall not be deemed a contract violation. The party affected by a force majeure shall promptly provide the other contractual partner with all details (including its best estimate of the likely extent to performance and delay of delivery) and will use its best endeavours to overcome the difficulties thereby created. The deadlines set out in the contract or on the basis of the contract will be extended appropriately in accordance with the duration of the hindrance. The same applies insofar as one contracting party relies on the advance performance of third parties and this is delayed. Each contracting party will do its utmost to do whatever is necessary and reasonable to mitigate the extent of the consequences caused by the force majeure. If, due to a force majeure, the contract cannot be fulfilled for more than ninety (90) consecutive working days, the contracting parties shall meet in order to negotiate a mutually satisfactory solution to the problem. If the force majeure lasts more than one hundred and fifty (150) working days and the parties have not been able to agree on any solution, each party to the contract shall be entitled to terminate the contract in writing. 

9. Assembly

9.1. The general terms and conditions for services provided by WILCO plc. apply to installation and/or installation supervision.

10. Court of Jurisdiction and Applicable Law

10.1. For all disputes between the customer and WILCO plc. concerning the concluded contract, the place of jurisdiction for both parties shall be WILCO plc.’s.

10.2. The order or the concluded contract is subject to Swiss Substantive Law, in particular the Swiss Code of Obligations. The application of the UN Convention on Contracts for the International Sale dated April 11, 1980 is excluded.

11. Adjustment to the Terms and Conditions

11.1. WILCO plc. is entitled to change its terms and conditions at any time. Changes will be published on the website ten working days prior to the new entry going into force.

11.2. Should a provision of this contract be invalid, the validity of the contract for the remaining contractual provisions remains unaffected. Invalid provisions shall be replaced by those which come closest to the intended meaning of the unenforceable provisions. The same applies to the occurrence of filling in contractual gaps requiring clarification.