Conditions

General terms of delivery and payment of mwn GmbH, Wolfwil

1. General
(1.) All of our offers and agreements are based exclusively on the following General Terms and Conditions. They are deemed to be accepted without reservation when the order is placed, at the latest when the delivery is accepted.
(2.) Differing terms and conditions of the customer are only binding if we expressly agree to them in writing, otherwise they will not become part of the contract, 
even if we deliver the goods in the knowledge of deviating or conflicting conditions.
(3.) Oral agreements only become effective with our written confirmation.
(4.) These general terms and conditions also apply to all future transactions with the customer.

2. Offers, Samples and Descriptions
(1.) Our offers are always non-binding and do not oblige us to accept orders.
(2.) Trial and sample deliveries are considered approximate and are not binding. They are to be returned to us within one month of the date of dispatch with the freight paid or to be paid for.
(3.) Descriptions of our machines, their performance and their dispatch as well as drawings and plans only contain approximate information that does not justify guaranteed properties. Descriptions, drawings and plans remain our property and may not be reproduced, made accessible to third parties or used for purposes other than placing an order with us without our written consent. The aforementioned documents are to be returned to us upon request.
(4.) The purchaser is responsible for ensuring that the design drawings submitted by him do not infringe on third-party property rights. We are not obliged to the customer to check whether the submission of offers based on execution drawings sent by him in the case of execution violates the property rights of third parties. If we are nevertheless liable, the customer must indemnify us in the event of claims for recourse.

3. Order Confirmation
(1.) Orders only become binding for us after our written confirmation.
(2.) We are entitled to pass on cost increases that occur after the order has been confirmed if the customer does not provide the information required for the execution of the order.

4. Delivery
(1.) Delivery presupposes the timely and proper fulfillment of the customer's obligations. The exception of the unfulfilled contract remains reserved.
(2.) The specified delivery times will be adhered to by us as far as possible; any late deliveries or services do not oblige us to pay damages or a contractual penalty and do not justify any other obligations on our part. The customer is entitled to withdraw from the contract if we have exceeded the delivery period by more than two months and he has given us a reasonable grace period of one month in writing.
(3.) The delivery period begins when the order confirmation is sent, but not before the customer has provided any documents, approvals, releases that may have to be procured and before receipt of an agreed down payment.
(4.) The delivery period is met if the readiness for dispatch has been communicated by the end of the period or the delivery item has left the factory.
(5.) The delivery period is extended in the event of industrial disputes, in particular strikes and lockouts, as well as the occurrence of unforeseen obstacles that are beyond our control, e.g. operational disruptions, delays in the delivery of essential materials and force majeure. The same applies if the circumstances occur at sub-suppliers or transporters. The delivery period is extended according to the duration of such measures and obstacles. We are also not responsible for the aforementioned circumstances if they occur during an already existing delay. In important cases, we will inform the customer of the beginning and end of such hindrances as soon as possible.
(6.) Partial deliveries are permitted within the delivery periods specified by us, provided that this does not result in any disadvantages for use.
(7.) In the event of default of acceptance or other culpable violation of the customer's obligation to cooperate, we are entitled to compensation for the resulting damage, including any additional expenses. We reserve the right to make further claims.

5. Passing of Risk / Dispatch
(1.) The risk of accidental loss or accidental deterioration of the goods passes to the customer   as soon as the goods are ready for collection. In principle, Ex Works according to Incoterms 2010 is deemed to have been agreed, unless something else has been expressly agreed in writing. If the goods are ready for dispatch and dispatch/collection is delayed through no fault of our own, the risk is transferred to the customer upon receipt of notification of readiness for dispatch. (2.) The type and means of dispatch are determined by us to the best of our judgement. If the dispatch is delayed for any reason, we can store the ordered goods with us or with a third party to be determined by us at the expense and risk of the customer. We are only responsible for the selection of the third party. (3.) Postage and packaging expenses will be invoiced separately. The packaging becomes the property of the customer and is charged by us at cost price, unless otherwise agreed in writing.
(4.) Our shipments and any returns travel at the customer's risk, even if the transport and assembly is carried out by our employees.
(5.) Delivery is also made from a possible warehouse within the meaning of Section 1 at the risk of des 
customer.
(6.) Transport insurance is only provided on the instructions and at the expense of the customer.

6. Cancellation Costs
(1.) If the customer withdraws from the order placed without justification, we can demand ten percent of the repurchase price for the costs incurred by processing the order and lost profit, without prejudice to the possibility of asserting higher actual damages. The customer retains the right to provide evidence of minor damage.

7. Prices - Terms of Payment
(1.) Unless otherwise agreed, our prices are given in Swiss francs. All our prices apply ex works (Ex Works according to INCOTERMS 2010) excluding packaging, shipping, handling, insurance and loading, these will be invoiced separately unless another agreement has been made in writing. The goods will be packaged in a manner customary in the trade and at the expense of the customer, to the extent that this is necessary at our discretion.
(2.) Our prices are net prices; VAT is shown separately on the invoice at the statutory rate on the day of invoicing.
(3.) Our invoices are to be paid as follows without any deductions: For machines 50% upon order confirmation, 40% upon delivery or readiness for dispatch, the remainder within 30 days of the installation date; or 100% of the purchase price on delivery, net without deduction. For spare parts and customer services: The total price without deduction within 14 days from the invoice date. Unless otherwise agreed, the net price is due for payment within 14 days of the invoice date. If the customer is in default of payment, we are entitled to demand 1% of the outstanding claim as damage caused by default for each month of default. If we are able to prove a higher damage caused by delay, we are entitled to assert this against the customer.
(4.) Payments in the form of bills of exchange or checks are not accepted. The sending of a check or bill of exchange by the customer does not result in a debt-discharging effect, nor is there a deferral of the claim. The claim for wages cannot be brought into action.
(5.) Our representatives and employees are entitled to accept payments through special collection authority.
(6.) Circumstances which, at our discretion, cast doubt on the customer's creditworthiness entitle us to immediately assert an outstanding invoice regardless of when it is due. We are also entitled, at our option, to prepayment or 
to demand security due to due claims from contracts concluded under old conditions and to refuse performance on our part until advance payment or security has been provided.
(7.) In the event of breach of contract by the customer, which results in the termination of the business relationship and even the individual contract, all outstanding claims are due for payment immediately and in full upon request.
(8.) Price changes are permissible if there are more than four months between the conclusion of the contract and the agreed delivery date. If wages, material costs or market acquisition prices then increase before the delivery is completed, we are entitled to increase the price appropriately in line with the cost increases. The customer is only entitled to withdraw if the price increase does not insignificantly exceed the increase in general living expenses between order and delivery. If the customer is a merchant, a legal entity under public law or a special fund under public law, price changes are permissible in accordance with the aforementioned regulation if between the conclusion of the contract and the agreed delivery date more 
than six weeks.
(9.) The deduction of cash discount requires a special written agreement.
(10.) The customer is only entitled to set off if his counterclaims have been legally established, are undisputed or have been recognized by us. The customer has no right of retention due to disputed counterclaims.

8. Retention of Title
(1.) We retain ownership of our machines and machine parts until complete 
payment of all deliveries and other services that have already taken place and will take place in the future. In the case of a current account, the retention of title serves as security for the balance.
(2.) The customer undertakes to treat the delivered goods with care. He is particularly obliged to insure them adequately at his own expense against fire, water and theft damage at replacement value and to provide us with the corresponding proof on request. The customer must carry out the necessary maintenance and inspection work in good time at his own expense.
(3.) The customer may not dispose of the goods subject to retention of title without our consent. If the customer resells the delivered goods with our consent, he hereby assigns the resulting claims against his customers with all ancillary rights to secure our claims up to the value of the reserved goods. This assignment also relates to claims against insurance companies. The same applies to claims by the customer against the damaging party if the goods subject to retention of title are damaged or destroyed.
(4.) The treatment and processing of our goods is carried out for us without any obligation on our part. If the customer processes the goods with other goods that do not belong to us, we become co-owners of the new item in the ratio of the value of the reserved goods to the value of the other processed goods at the time of processing. (5.) If the value of our security exceeds our claims by more than 20%, we will release excess security.
(6.) The customer must notify us immediately in writing of seizure and other interventions by third parties so that we can file a suit in accordance with § 771 ZPO. If the third party is not in a position to reimburse us for the court and out-of-court costs for such an action, the customer shall be liable for the resulting loss.
(7.) If third parties access the reserved goods, the customer must refer to our ownership. If the processing/mixing takes place in such a way that the customer's item is to be regarded as the main item, it is agreed that the customer shall keep the co-ownership for us.
(8.) In the event of breach of contract on the part of the customer, in particular default in payment, we are entitled to take back the reserved goods. Taking back or pledging the goods subject to retention of title by us does not constitute a withdrawal from the contract - insofar as the consumer law applies.

9. Taking back the goods
(1.) If our claims are not met or are not met within the deadlines specified in Section 7 (1), we are entitled, in addition to asserting other rights to which we are entitled, to take back the goods delivered under retention of title, without this being considered an exercise of the right of withdrawal is to be seen. We are entitled to the same right if we become aware of circumstances which, in our opinion, make granting a loan no longer appropriate.
(2.) If goods are taken back by us, we will be reimbursed 30% of the order price.

10. Warranty
(1.) All information such as building physical values, dimensions, weights, illustrations, descriptions, calculations, assembly sketches and drawings in sample books and other documents do not constitute a guarantee for the existence of a property.
(2.) The customer must notify us immediately of any defects. If the customer fails to notify us in writing within one week of defects that can be detected during a proper inspection of the goods, he loses his warranty rights as a result. The one-week period begins on the day the goods are delivered. If, exceptionally, the goods are not delivered, the period begins on the day the goods are handed over. The further obligations according to §§ 377,378 HGB remain unaffected.
(3.) The customer assumes liability for the dimensions specified by him. The customer is liable for ensuring that the drawings, samples, illustrations, etc. Documents do not infringe the rights of third parties.
(4.) If the goods have a defect for which we are responsible, we are entitled to choose between remedying the defect or making a replacement delivery. If the elimination of the defect or replacement delivery fails, the customer is entitled to either withdraw from the contract or demand a price reduction. The warranty is always fulfilled at our factory in Wolfwil. If the customer requests on-site services, transport, travel and expenses are at his expense.
(5.) Natural wear and tear is excluded from the warranty in any case.
(6.) Our warranty requires the punctual fulfillment of the agreed terms of payment and other obligations of the customer. In particular, the performance of the inspections (every 250 operating hours) by our specialist staff at the request of the customer is a prerequisite for the acceptance of the warranty.
(7.) We guarantee flawless material and proper assembly for a maximum of 12 months or a maximum of 1000 operating hours in single-shift operation after delivery of a machine, whichever comes first. A warranty period of 1 year or 1000 operating hours applies to spare parts and work. If the installation is delayed for reasons for which we are not responsible, the warranty period expires no later than 12 months after the date of shipment from the factory. Within the framework of the warranty, the delivery of spare parts and the carrying out of the repair are free of charge. Travel, accommodation and shipping costs or customs clearance fees and taxes are not included unless otherwise agreed.
(8.) We are not liable for any defects in the sale of used machines or machine parts.
(9.) The warranty is based on our choice of replacement of the defective part - replaced parts become our property - or repair. We reserve the right to make repeated attempts at rectification. The customer is obliged to return defective parts to us upon request.
(10.) Insofar as warranty work is carried out by third parties with our written consent, we must be informed immediately, at the latest within 8 days after the work is due, if the third party does not fulfill its obligations or if the customer raises objections to his work. After this period, claims against us are excluded.
(11) No liability is assumed for delivery parts that are subject to premature wear due to their material composition or the type of use, nor for damage resulting from natural wear and tear, overloading, incorrect or negligent treatment, unsuitable operating resources, defective construction work or as a result of influences the temperature, the weather, chemical and electrical nature or as a result of other natural influences. Interventions by unauthorized third parties or negligence on your part, neglect of maintenance or upkeep, fault in operation or other improper interventions are not covered by our warranty obligation.

11. Claims for Damages
(1.) If the customer asserts claims for damages, our liability is limited to intent and gross negligence. Except in cases of intentional breach of contract, we are only liable for foreseeable, typically occurring damage. The same limitation of liability applies in the event of a culpable and material breach of contract on our part. This limitation of liability does not begin if we cause damage to the life, body or health of the customer.
(2.) Liability for damages is otherwise excluded. In particular, we are not liable for damage that has not occurred to the delivery item itself.
(3.) Claims for damages due to consequential damage, including in the course of assembly or repairs, are excluded, taking into account the restrictions listed under Section 11. Paragraph (1), even if they are attributable to the fault of vicarious agents.
(4.) Any claim for damages, for whatever legal reason, is always limited to a maximum amount of €1,000,000.00 per case of damage.
(5.) Should a third party acquire the machine as an end customer and tell us 
Claims for damages, regardless of the legal reason, are already released from any third party liability for damage to the goods, other (foreign) goods or loss of profit, with the exception of the damage that we are entitled to claim in accordance with Section 11 Para .(1),(3) are responsible for.