General Terms and Conditions of Sale – Joray & Wyss SA
1. Scope and validity
1.1 These General Terms and Conditions of Sale (hereinafter: the “GTCS”) apply to all sales contracts entered into between Joray & Wyss SA (CHE-101.654.156), Rue Robert-Caze 3, CH-2800 Delémont (hereinafter: “JW”) and its customers (hereinafter: the “Customer”).
1.2 These GTCS also apply to all companies affiliated with JW, meaning any company controlled by JW, as well as any company under the control of the same company controlling JW, it being specified that “control” means any direct or indirect participation conferring more than 50% of the voting rights in a company.
1.3 The Customer expressly waives the right to invoke its own general terms and conditions. Unless otherwise agreed in writing between JW and the Customer, any provisions contrary to or deviating from these GTCS shall not be valid..
2. Quotation and order procedures
2.1 The Customer shall submit a request for quotation to JW, providing all required technical details and specifications. The Customer is responsible for providing JW in due time with all technical documents and drawings necessary to define its needs and/or to execute the order. In the absence of specific indications from the Customer, JW shall apply the standards it uses as a matter of course.
2.2 Based on the information provided by the Customer, JW shall prepare a quotation including in particular the price, payment terms, quantities, the estimated delivery time, and any other specific conditions. Unless otherwise stated, any quotation issued by JW shall remain valid for a period of ninety (90)
days from the issue date indicated therein. JW reserves the right to amend or cancel the quotation upon expiry of this period.
2.3 An order shall be deemed accepted when JW receives the Customer’s written confirmation. Upon receipt of such confirmation, JW shall send the Customer a written order confirmation. Any modification requested by the Customer after receipt of the order confirmation shall be subject to a written addendum duly signed by both parties.
2.4 JW’s brochures, catalogues and other technical documents shall have no contractual value. The information contained therein shall be binding upon JW only to the extent that its binding nature has been expressly guaranteed in writing by JW.
3. Prices and payment terms
3.1 The prices indicated in the order confirmation are expressed in Swiss francs (CHF) and are exclusive of VAT. Unless otherwise stated, the prices indicated in the order confirmation exclude any other taxes, customs duties, insurance costs, transport costs, packaging costs and other ancillary costs.
3.2 JW is entitled to request a down payment or prepayment before the start of production or delivery. Any down payment requested shall be clearly specified in the order confirmation.
3.3 Unless otherwise stated in the order confirmation, JW’s invoices shall be paid by the Customer in Swiss francs (CHF) within thirty (30) days from the invoice date.
3.4 Payments shall be made by bank transfer to the account designated by JW on the invoice. All bank charges related to the transfer shall be borne by the Customer.
3.5 Any late payment shall give rise to the application of default interest at the rate of five percent (5%) per annum, calculated from the due date until the date of actual payment. Such interest shall be applied automatically without the need for prior notice of default. JW also reserves the right to suspend any future deliveries for as long as outstanding invoices remain unpaid.
4. Delivery time and place
4.1 Any order shall be executed within the delivery time and at the place of delivery indicated in the order confirmation. JW is entitled to perform partial deliveries of the order.
4.2 The delivery time indicated in an order confirmation is an estimate and shall not be binding. JW undertakes to use its best efforts to meet such delivery time and shall inform the Customer without delay in the event of the occurrence or identification of circumstances which, in all likelihood, will result in a failure to comply with said delivery time.
4.3 If the delivery time indicated in the order confirmation is not met, JW shall submit to the Customer as soon as possible a revised delivery schedule for the relevant order.
4.4 In the event of late delivery, JW shall not be liable to pay any indemnity or compensation to the Customer, who expressly waives any claim for direct or indirect damages in connection with any such delay.
5. Shipping terms
Any delivery to be made pursuant to these GTCS shall be “EXW / Ex Works”, in accordance with the version of the Incoterms in force on the date of the order confirmation.
6. Retention of title
6.1 The delivered products shall remain the property of JW until full payment by the Customer of all receivables arising from the relevant order.
6.2 The Customer shall cooperate with the measures necessary to protect JW’s ownership; in particular, it authorizes JW, at the Customer’s expense, to register or annotate the retention of title in the public registers of the competent authorities, in accordance with applicable law, and to complete all related formalities. The Customer may neither pledge the products nor assign them to a third party as security for as long as JW’s retention of title remains valid.
6.3 The Customer shall, at its own expense, maintain the delivered products for as long as JW’s retention of title remains in force and shall insure them in JW’s favour against theft, fire, water damage, and any other damage caused by third parties
7. Warranty
7.1 JW warrants to the Customer that, insofar as it has itself manufactured the products sold, such products are free from any manufacturing defect or material defect at the time of delivery..
7.2 JW’s warranty period is twenty-four (24) months. It shall commence on the date of delivery of the products at the agreed place. Where defective products have been replaced or repaired by JW pursuant to Clause 7.3 below, a new warranty period of twenty-four (24) months shall commence for the replaced or repaired products.
7.3 Where the conditions of this warranty are met, JW may, to the exclusion of any other remedy or warranty, and at its sole discretion:
a) replace the defective products at no additional cost to the Customer; or
b) take the necessary measures to repair and restore the defective products at no additional cost to the Customer; or
c) take back the defective products and refund the purchase price of such products to the Customer by means of a credit note..
7.4 This warranty is subject to the express condition that the Customer provides JW with written notice of the alleged defect, such notice having to be received by JW within seven (7) calendar days from the time the Customer discovered or should have discovered the alleged defect..
7.5 This warranty is also subject to the condition that the Customer authorizes JW, to a reasonable extent, to inspect the allegedly defective products and, upon JW’s express request, returns such products to JW, carriage paid by the Customer, so that such inspection may take place at JW’s premises..
7.6 The warranty excludes damage resulting from improper use or improper intervention, erroneous Customer specifications, normal wear and tear, or inappropriate handling. Furthermore, the warranty shall lapse if the products become defective as a result of any modification or alteration carried out by the Customer.
8. Liability
8.1 In all cases, JW shall not assume any liability towards the Customer in connection with these GTCS or with any contract resulting therefrom other than the warranty provided above (Clause 7), on any basis whatsoever (contractual, tortious or otherwise). JW’s liability is
in particular excluded for any loss of income, loss of business reputation, loss of profit, third-party claims, any damage to or corruption of data, or any other indirect or intangible loss or damage of any kind.
8.2 This exclusion of liability shall not apply in the event of wilful misconduct or gross negligence on the part of JW, but shall nevertheless remain applicable in the event of wilful misconduct or gross negligence on the part of JW’s auxiliaries.
9. Force majeure
9.1 If the performance of an obligation arising from these GTCS (other than an obligation to pay a sum of money) is prevented or delayed by an event of force majeure, the relevant obligation shall be suspended to the extent and for as long as its performance remains prevented by the relevant force majeure event.
9.2 In such case, the affected party shall not be held liable for any damage, loss or costs incurred by the other party due to its inability to perform certain obligations (or delay in performing such obligations) caused by the force majeure event, it being understood that this clause may in no event apply to sums of money due and payable under these GTCS.
9.3 A force majeure event within the meaning of this Clause 9 shall mean any cause or event beyond the reasonable control of the affected party, including, but not limited to, natural phenomena, governmental measures, embargoes or other boycott measures, war or national emergency, acts of terrorism, demonstrations, riots, fires, explosions, floods, epidemics and/or pandemics including all resulting governmental measures and restrictions, as well as delays in the delivery of raw materials, equipment or appropriate and necessary components for the execution of an order caused by such restrictions, factory blockades, strikes and other similar events
10. Intellectual property
10.1 All intellectual property rights belonging to JW at the time a contract based on these GTCS enters into force shall remain the exclusive property of JW. The conclusion of such contract shall not constitute any transfer of rights, in any form whatsoever, in favour of the Customer.
10.2 All intellectual property rights resulting from a contract based on these GTCS are and shall remain the exclusive property of JW. JW alone shall decide on the appropriateness and extent of the registration of intellectual property rights resulting from the contract with the competent authorities.
10.3 “Intellectual property rights” within the meaning of this Clause 10 shall mean all rights and prerogatives, whether registered or not, arising under Swiss and/or international legislation relating to copyright, trademark protection, designs, patents and all other similar rights, as well as the protection of know-how and trade secrets.
11. Tooling
11.1 Tooling within the meaning of this provision shall be broadly understood as all means necessary for the proper execution of the Customer’s orders. This notion includes in particular the technical file, machining computer programs, tools designed and manufactured internally by JW, as well as tools procured by JW from third parties.
11.2 Unless otherwise agreed in writing, the tooling as defined above (Clause 11.1) used and, where applicable, developed for the manufacture of the products ordered by the Customer shall remain at all times the property of JW, even if the Customer has contributed to the related costs.
12. Confidentiality
12.1 Each party undertakes to keep confidential and not disclose to third parties all confidential information to which it has had access in the course of the execution of orders placed on the basis of these GTCS.
12.2 Each party shall in particular take due care of all documents containing confidential information and shall ensure that its employees comply with this confidentiality obligation. Where applicable, each party shall ensure that any subcontractors also comply with this confidentiality obligation.
12.3 This confidentiality obligation shall not be limited in time and shall survive the performance of any relevant order.
13. Corporate social responsibility
JW acknowledges the importance of its corporate social and environmental responsibilities in the conduct of its business. In this respect, it undertakes to comply with the principles of corporate social responsibility (CSR) in accordance with international standards and applicable Swiss law.
14. Data protection
JW collects and processes personal data solely in accordance with applicable legal provisions, with particular regard to compliance with the Swiss Federal Act on Data Protection (FADP; SR 235.1). Further information regarding the processing of personal data, and the rights and questions arising therefrom, can be found in JW’s data protection statement, available at the following address: [link].
15. Final provisions
15.1 JW reserves the right to amend these GTCS at any time. Any new version shall be published in due time on JW’s website (www.joray-wyss.ch).
15.2 Any modifications or additions to an order shall be valid only if made in writing and signed by both parties. Oral agreements shall not be valid.
15.3 In the event of any contradiction between the documents relating to an order, the text of the order confirmation shall prevail, followed, in order, by any framework agreement, these GTCS and, lastly, the Customer’s order.
15.4 The fact that a party has not exercised a right granted to it by these GTCS or has not required compliance with or performance of any provision of the GTCS shall in no way be construed as a waiver of such right or of the performance of the relevant provisions.
15.5 Should any provision of these GTCS be or become illegal, invalid or void, the validity of the remaining provisions shall not be affected. The parties shall replace the invalid or void provision with a valid clause that corresponds as closely as possible to the economic purpose pursued by the original clause.
16. Applicable law and jurisdiction
16.1 Any contract based on these GTCS shall be governed by Swiss law, excluding conflict of laws rules. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 is excluded.
16.2 The exclusive place of jurisdiction for all disputes shall be at JW’s registered office.