General Terms and Conditions (GTC) of Lamello AG

I. General Terms of Business

1. The following conditions shall apply exclusively to the legal relationships between Lamello AG (hereinafter referred to as the Supplier) and the Purchaser in connection with offers, deliveries and/or services of the Supplier (hereinafter referred to as deliveries). The Purchaser’s General Terms and Conditions only apply to the extent that the Supplier has expressly agreed to them in writing. The scope of the deliveries is governed by the mutually agreed written declarations.
    
2. These General Terms and Conditions as well as any and all separate contractual agreements shall be deemed to be the basis for all deliveries and services. Differing terms and conditions of the Purchaser are not part of the contract, even if an order is accepted. A contract is concluded, even without a separate agreement, after receipt of the Supplier’s written order confirmation.
    
3. Unless expressly stated otherwise, the Supplier’s offers are non-binding.
    
4. The Supplier reserves its ownership and copyright rights
   to offers, drawings, samples and other information and documents, including in digital form (hereinafter: documents), without restriction. The documents may only be made accessible to third parties with the prior consent of the Supplier and must be returned to the Supplier immediately upon request if the order is not given to the Supplier. Digital data must be deleted immediately and securely.
    
5. Any acceptance of an order as well as contract amendments, representations and supplementary agreements (including on the waiver of the requirement of written form) require the written confirmation of the Supplier. The content of this confirmation is exclusively decisive. Verbal agreements shall be legally effective upon written confirmation by the Supplier. If no written confirmation has been given, a contract under these terms and conditions shall nevertheless come into effect upon delivery of the goods to the Purchaser.
    
6. The Purchaser cannot derive any expectations for certain product characteristics from general, public descriptions, representations and statements by the Supplier.

II. Prices, payment terms and offsetting 

1. Unless otherwise agreed, the prices in the price list valid at the time of conclusion of the contract shall apply. Unless otherwise agreed, the Supplier shall invoice the goods “gross for net”.
    
2. Payment shall be made within 30 days without deduction, unless otherwise agreed in writing between the Purchaser and the Supplier.
    
3. Unless otherwise confirmed, the agreed prices apply ex factory without packaging. Insofar as the Supplier submits an offer or an order confirmation to a Purchaser who is a merchant within the meaning of the law, statutory value added tax is not included in the prices stated in each case.
    
4. Unauthorised deductions will be charged subsequently.
   All costs arising from late or incorrect payments shall be borne by the Purchaser.
    
5. All payments are due in accordance with the agreement made. Insofar as the due date is determined by the calendar, the Purchaser shall also be in default on the following day without a reminder. Payments shall be made free of charge to the Supplier’s paying agent.
    
6. In the event of overdue payment or late payment, the Supplier shall be entitled to charge default interest in the amount of the bank rates for overdrafts applicable at the time from the due date. We reserve the right to claim further damages for delay.
    
7. The Purchaser may only offset claims that are undisputed or legally established.

III. Retention of ownership 

1. The objects of the deliveries (goods subject to retention of title) shall remain the property of the Supplier until all claims to which it is entitled against the Purchaser from the business relationship have been fulfilled. Insofar as the value of all security rights to which the Supplier is entitled exceeds the amount of all secured claims by more than 20%, the Supplier shall release a corresponding part of the security rights at the request of the Purchaser; the Supplier shall be entitled to choose between different security rights for release.
    
2. During the existence of the retention of title, the Purchaser is prohibited from pledging or transferring the title as security and the resale is only permitted to resellers in the ordinary course of business and only on the condition that the reseller receives payment from its customer or makes the reservation that the property is only transferred to the Customer when the latter has fulfilled its payment obligations.
    
3. If the Purchaser sells the goods subject to retention of title, it shall assign its future claims arising from the resale against its customers with all ancillary rights – including any balance claims – to the Supplier for security purposes without the need for any further special declarations. If the reserved goods are resold together with other objects without an individual price being agreed for the reserved goods, the Purchaser assigns the part of the total price claim to the Supplier that corresponds to the price of the reserved goods invoiced by the Supplier.
    
4. (a) The Purchaser is permitted to process the reserved goods or to blend or combine them with other objects. Processing takes place on behalf of the Supplier. The Purchaser shall store the new item for the Supplier with the care of a prudent businessman. The new item shall be deemed to be a reserved item.
   
   (b) The Supplier and the Purchaser already agree that, in the event of a combination or blending with other objects not belonging to the Supplier, the Supplier shall in any case be entitled to co-ownership of the new object in the amount of the proportion resulting from the ratio of the value of the combined or blended reserved goods to the value of the other goods at the time of the combination or blending. In this respect, the new item shall be deemed to be reserved goods.
   
   (c) The provision on the assignment of receivables in accordance with No. 3 also applies to the new item. However, the assignment shall only apply up to the amount corresponding to the value invoiced by the Supplier of the processed, combined or blended reserved goods.
   
   (d) If the Purchaser combines the reserved goods with fixed or movable property, the Purchaser shall, without the need for further special declarations, also assign to the Supplier its claim to which it is entitled as remuneration for the combination, with all ancillary rights for security purposes in the amount of the ratio of the value of the combined reserved goods to the other combined goods at the time of combination.
    
5. Until revoked, the Purchaser is entitled to collect assigned claims from the resale. In the event of good cause, in particular in the event of late payment, suspension of payment, application for the opening of insolvency proceedings, protest of a bill of exchange or reasonable indications of over-indebtedness or impending insolvency of the Purchaser, the Supplier shall be entitled to revoke the Purchaser’s collection authorisation. In addition, the Supplier may, after prior warning and in observance of a reasonable period of time, disclose the security assignment, utilise the assigned claims and demand the disclosure of the security assignment by the Purchaser to the Customer.
    
6. The Purchaser is obliged to treat the object of purchase with care and to insure it at its own expense against natural hazards such as fire, water and theft damage at a sufficient new value.
    
7. The Purchaser must notify the Supplier immediately in the event of seizures, confiscations or other disposals or interventions by third parties. If a legitimate interest is proven, the Purchaser must immediately provide the Supplier with the information required to assert its rights against the Customer and hand over the necessary documents.
    
8. In the event of breaches of duty by the Purchaser, in particular in the event of late payment, the Supplier shall be entitled to withdraw from the contract in addition to taking back the goods after the expiry of a reasonable period of grace set for the Purchaser; the statutory provisions concerning cases where it is not necessary to allow a period of grace remain unaffected. The Purchaser is obliged to surrender the goods. The Supplier’s withdrawal or assertion of the reservation of title or the seizure of the goods subject to retention of title does not constitute a withdrawal from the contract, unless the Supplier has expressly declared this.

IV. Deadlines for deliveries; delay

1. Delivery periods and delivery dates are always approximate, unless a fixed period or a fixed date has been expressly agreed. However, the Supplier shall make all reasonable efforts to ensure that delivery can take place on the day requested by the Purchaser.
    
2. Partial deliveries are permitted insofar as they are reasonable for the Purchaser.
    
3. Compliance with deadlines for deliveries requires the timely receipt of all information to be delivered by the Purchaser (documents, technical data, etc.), the necessary approvals and releases, in particular of plans, as well as compliance with the agreed payment terms and other obligations by the Purchaser. If these conditions are not met in good time, the deadlines shall be extended appropriately; this shall not apply if the Supplier is responsible for the delay.
    
4. If the non-compliance with the deadlines is due to:
   
   (a) information that the Supplier requires for the performance of the order is not provided and transferred by the Purchaser in good time or if the Purchaser subsequently amends the order.
   
   (b) force majeure, e.g. mobilisation, war, acts of terrorism, riots or similar events (e.g. strike, lockout), (local) pandemics and resulting official orders or instructions, disruptions to the Supplier’s own production or its upstream Suppliers and other disruptions to internal and external processes, in particular in the Supplier’s sphere, delays in the delivery of essential raw materials or aids on the transport routes normally chosen for this purpose, energy supply difficulties, failure or delay in the services owed
   by upstream Suppliers and contractors of the Supplier
   
   (c) virus attacks and other attacks by third parties on the Supplier’s IT system, insofar as these took place despite compliance with the usual due diligence for protective measures,
   
   (d) official measures and obstacles due to Swiss, US and other applicable national, EU or international foreign trade law regulations or due to other circumstances for which the Supplier is not responsible, or late or proper delivery by the Supplier, the deadlines shall be extended appropriately. 
    
5. The Supplier shall immediately notify the Purchaser of the occurrence of these circumstances, their expected duration and the foreseeable extent of their effects. In such cases, any agreed delivery period shall be extended accordingly.
    
6. If such an impediment lasts longer than 3 months or it is clear that such an impediment will last longer than 3 months, both parties have the right to withdraw from the contract.
    
7. Both claims for damages by the Purchaser due to delayed delivery and claims for damages are excluded in all cases of delayed delivery, even after expiry of a deadline set for delivery by the Supplier. This does not apply if liability is incurred in cases of intent, gross negligence or due to injury to life, limb or health. Within the framework of the statutory provisions, the Purchaser may only withdraw from the contract if the delay in delivery is attributable to the Supplier. A change in the burden of proof to the detriment of the Purchaser is not associated with the above provisions.
    
8. At the request of the Supplier, the Purchaser is obliged to declare within a reasonable period of time whether it shall withdraw from the contract or insist on the delivery as a result of the delay in delivery.
    
9. If dispatch or delivery is delayed by more than one month after notification of readiness for dispatch at the request of the Purchaser, the Purchaser may be charged a storage fee in the amount of 0.5% of the price of the items in the deliveries, but no more than 5% in total, for each additional month that has started. The Parties shall be free to prove higher or lower storage costs.

V. Transfer of risk, transport, receipt, returns

1. The risk also passes to the Purchaser in the case of freight-free delivery if it has been brought for shipment or collected (INCOTERMS 2020 EXW). At the request and expense of the Purchaser, the delivery shall be insured by the Supplier against the usual transport risks.
    
2. If the storage period is exceeded, the Supplier is entitled to charge a storage fee after prior agreement with the Purchaser. The same applies if the shipment is postponed at the Purchaser’s instruction.
    
3. The Purchaser may not refuse to accept deliveries due to insignificant defects.
    
4. The Supplier is entitled to dispose of the delivery item elsewhere after setting a reasonable period and its unsuccessful expiry and to claim damages for non-fulfilment in the amount of 20% of the net purchase price, even beyond this if evidence is provided. The Purchaser reserves the right to prove that damage has not occurred or has occurred to a lesser extent.
    
5. Returns of the delivery items without prior mutual agreement are excluded, insofar as the Purchaser is not entitled to a statutory right of return. If, in individual cases, the Supplier agrees to return the delivered goods as goodwill with prior written consent, the following provisions shall apply:
   
   (a) The Supplier’s consent to the return of delivered goods against a credit note is always subject to the annulling condition that the goods arrive at the Supplier in their original packaging and in new condition. The costs and risk of the return are borne by the Purchaser.
   
   (b) Specification of the invoice and delivery note number of the relevant delivery;
   
   (c) After packaging and quality control, returns are reimbursed in the form of a credit note at the net value less 20% of the value of the goods for internal expenses, unless otherwise agreed between the Purchaser and Supplier. Goods that can only be sold as new will not
   be taken back.
   
   (d) Custom-made products manufactured according to the Buyer's specific specifications are excluded from the right of return and cannot be taken back.

VI. Liability for defects 

The Supplier shall provide a warranty for deliveries, i.e. new equipment, parts and services, for a period of 24 months, beginning on the date of handover or on the date of termination of the service.
 

1. The goods delivered by the Supplier must be carefully inspected immediately upon arrival at the Purchaser’s premises. It shall be deemed to be accepted if a notice of defects has not been received in writing by the Supplier within 10 working days of receipt of the goods, or if a defect was not discernible during the immediate careful examination, but within the warranty period, after discovery of the defect. Replaced parts become the property of the Supplier.
    
2. The Supplier does not accept liability for damage in the following cases: – Deviations from and disregard of (warning) notices, operating instructions and/or other technical documents – Inappropriate and improper use, in particular in the event of external force, fall or impact – Improper storage – Neglected maintenance, care and servicing – Use of unsuitable materials and/or operating equipment – Unsuitable construction surface and unsuitable production equipment – Chemical or electronic influences – In the event of maintenance measures, modifications and/or repairs by the Buyer or third parties – In the event of excessive use. The same shall apply to defects attributable to the Buyer or defects attributable to a cause other than the original defect.
    
3. All devices and parts that have a material defect must be repaired free of charge at the Supplier’s discretion, provided that the cause of the defect was already present at the time of the transfer of risk.
    
4. In the event of defects or the absence of a guaranteed property of the delivered goods after the transfer of risk, the Supplier may, at its discretion, request that the defective product be sent to the Supplier for rework or replacement with subsequent return – at the Supplier’s expense – or that the Purchaser keeps the defective product available and the rework or replacement is carried out there by the Supplier or a person appointed by the Supplier. The Purchaser is entitled to this if it cannot reasonably be expected to send the defective product to the Supplier. The expenses required for rectification (in particular transport, travel, labour and material costs) shall be borne by the Supplier. This does not apply to increased expenses that arise as a result of the purchased item being moved to a place other than the recipient’s home or business premises after delivery, unless the transfer corresponded to the intended use of the item.
    
5. The Purchaser must ensure that, regardless of whether it uses the product supplied by the Supplier itself or sells it, generally applicable or known safety regulations and precautions or measures etc. are observed. Insofar as there are ambiguities in this context or the impression may arise that information given by the Supplier on safety precautions is inaccurate or incomplete, the Purchaser must inform the Supplier of this in writing and, if a hazard or damage cannot be ruled out, wait for further information from the Supplier.
    
6. In the event of complaints about defects, the Purchaser may withhold payments to an extent that is proportionate to the material defects that have occurred. The Purchaser may only withhold payments if a claim for defects is asserted, the eligibility of which cannot be doubted. The Purchaser shall not have a right of retention if its claims for defects have expired. If the notice of defects is unjustified, the Supplier is entitled to demand compensation from the Purchaser for the expenses incurred.
    
7. The Supplier shall be given the opportunity to perform subsequent fulfilment on several occasions within a reasonable period of time. The place of subsequent performance is the Supplier’s registered office.
    
8. If subsequent performance fails, the Purchaser may withdraw from the contract or reduce the remuneration without prejudice to any claims for damages in accordance with No. 10.
    
9. Recourse claims of the Purchaser against the Supplier shall only exist insofar as the Purchaser has not entered into any agreements with its Purchaser that go beyond the statutory claims for defects.
    
10. Claims for damages by the Purchaser due to a material defect are excluded. This does not apply insofar as the Supplier is legally liable, such as in the event of fraudulent concealment of the defect, in the event of non-compliance with a quality guarantee, in the event of injury to life, limb or health and in the event of an intentional or grossly negligent breach of duty by the Supplier. A change in the burden of proof to the detriment of the Purchaser is not associated with the above provisions. Claims of the Purchaser due to a material defect that go beyond those regulated in this Art. VI are excluded.

VII. Product liability

1. As the systems form a technical unit, the Supplier’s products must not be used for purposes other than those recommended by the Supplier or in combination with products that are not suitable for the purpose. The Supplier declines all liability for damage or losses that may arise due to non-compliance with this notice.
    
2. Claims for damages by the Purchaser – regardless of the legal basis – in compliance with 1 shall only exist
   
   (a) if the Supplier is legally liable,
   
   (b) if the damage was caused by a culpable breach of an essential contractual obligation in a manner that jeopardises the achievement of the purpose of the contract or
   
   (c) if damage has occurred as a result of injury to life, limb or health
   
   (d) if damage is due to intent or gross negligence
    
3. If the Supplier is liable in accordance with Clause 2 b) for the breach of a material contractual obligation without gross negligence or intent, the amount of liability shall be limited to the damage that the Supplier would typically have had to foresee at the time of conclusion of the contract based on the circumstances known to the Supplier at that time.
    
4. The Supplier shall not be liable for lost profits or other financial losses of the Purchaser.
    
5. The aforementioned limitations of liability shall also apply mutatis mutandis to the actions and personal liability of the Supplier’s employees, representatives, vicarious agents or other agents.
    
6. The above limitation of liability does not apply insofar as the Supplier is liable in accordance with the product liability laws and regulations.
    
7. The assignment of claims for damages and warranty claims by the Purchaser is not permitted.
    
8. Supplier products must be sold on only with original packaging/labelling, including the original operating manual, original accessories and original tools. Any deviations from this (private label / neutral packaging, etc.) require express written approval from the Supplier.

VIII. Industrial property rights and copyrights 

1. Unless otherwise agreed, the Supplier is obliged to provide the delivery only in the country of the place of delivery free
   of industrial property rights and copyrights of third parties (hereinafter: industrial property rights).
    
2. Claims of the Purchaser are excluded insofar as he is responsible for the infringement of industrial property rights.
    
3. Claims of the Purchaser are also excluded insofar as the infringement of property rights is caused by special specifications of the Purchaser, by a use not foreseeable by the Supplier or by the delivery being modified by the Purchaser or used together with products not supplied by the Supplier.

IX. Fulfilment and reservation of fulfilment

1. The place of performance and place of subsequent performance for delivery and payment shall be the Supplier’s registered office.
    
2. The performance of the contract is subject to the condition that no obstacles or disruptions within the meaning of Section IV. of these General Terms and Conditions arise or exist.
    
3. The Purchaser is obliged to provide all information and documents required for export, transfer or import.

X. Data protection

Personal data is stored as part of the contractual relationship with the Buyer. The privacy policy can be found on the website
https://lamello.com/privacy-policy

The responsible controller within the meaning of the applicable data protection legislation, in particular the EU General Data Protection Regulation (GDPR), is: Lamello AG – Hauptstrasse 149 – CH-4416 Bubendorf – datenschutz@lamello.com. Our representative in the EU in accordance with Article 27 GDPR is: Lamello Services GmbH Gewerbestrasse 24 DE-79618 Grenzach-Wyhlen
 

XI. Jurisdiction and applicable law

If the Purchaser is a merchant, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the Supplier’s registered office. However, the Supplier is also entitled to take legal action at the place where the Purchaser has its registered office.

This contract, including its interpretation, is subject to Swiss law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
 

XII. Binding character of the contract

Should any provision of these General Terms and Conditions be or become invalid in whole or in part, this shall not affect the validity of the remainder of the contract. The remaining parts of the contract shall remain binding even if individual provisions are legally invalid. This does not apply if adherence to the contract would constitute unreasonable hardship for one of the parties.