General Terms and Conditions of Delivery of Schmid AG, energy solutions, and its group companies (valid from April 1, 2022)
1. scope of application
1.1 These General Terms of Delivery (hereinafter referred to as “Terms of Delivery”) of Schmid AG, energy solutions, with its registered office in CH-8360 Eschlikon TG (“SCHMID”) apply to every delivery of goods and systems by SCHMID to a contractual partner (hereinafter referred to as “PURCHASER”). These Terms and Conditions of Delivery shall therefore become an integral part of every purchase or work contract or order concluded by SCHMID (as seller/contractor/contractor).
1.2 These Terms and Conditions of Delivery shall also apply to the delivery of goods and systems by Schmid GmbH & Co. KG, energy solutions, en-70794 Filderstadt, Schmid France Sàrl, FR-68840 Pulversheim, Schmid Italia S.r.l., IT-10090 San Giorgio Canavese (TO), Schmid energy solutions GmbH, AT-8501 Lieboch, and / or Schmid Polska Sp.zo.o., PL-82-300 Elblag (all hereinafter also referred to as “SCHMID”). These terms of delivery are binding if they are declared applicable in the offer or in the order confirmation.
1.3 Any contractual provisions between SCHMID and the PURCHASER that deviate from these Terms and Conditions of Delivery must explicitly refer to these Terms and Conditions of Delivery and be signed by both parties in a legally valid manner.
1.4 These Terms and Conditions of Delivery shall take precedence over any General Terms and Conditions of Business or General Terms and Conditions of Purchase or Procurement etc. of the CUSTOMER. The CUSTOMER’s General Terms and Conditions of Business or General Terms and Conditions of Purchase or Procurement etc. shall only be binding if they have been expressly recognized by SCHMID (in whole or in part) in writing as binding contractual content.
2. general
2.1 The contract between SCHMID and the CUSTOMER shall (only) be concluded and become legally binding when SCHMID sends written confirmation that it accepts the order (order confirmation).
2.2 Offers made by SCHMID that do not include an acceptance period are non-binding.
3. scope of delivery and services
3.1 The scope of SCHMID’s deliveries and services shall be governed exclusively by SCHMID’s order confirmation. If no written counter-notification is received within eight days of dispatch of the order confirmation, all specifications stated in the order confirmation shall be binding and shall be deemed to have been accepted by the PURCHASER.
3.2 Deliveries, materials and/or services not explicitly included in the order confirmation shall be invoiced separately by SCHMID; this also applies in particular to any expenses for assembly, transportation, commissioning of the system and acceptance.
4. illustrations, plans, properties and technical conditions
4.1 The technical details, illustrations, dimensions, standardized diagrams, weights and other specifications contained in SCHMID’s advertising or documents are only binding if and insofar as they have been expressly agreed and guaranteed as binding in the order confirmation. We reserve the right to make technical changes. Materials may be replaced by other equivalent materials at the discretion of SCHMID. In special cases, the PURCHASER shall request binding dimensional sketches.
4.2 The PURCHASER shall inform SCHMID in full of the functional conditions of the investment system. This shall apply in particular, but not only, if these deviate from the general recommendations of SCHMID or from the usual or customary conditions to be expected.
5. copyright and ownership of technical drawings and documents, confidentiality obligation
Technical drawings and documents handed over to the PURCHASER remain the property of SCHMID and are protected by copyright. Their (unaltered or altered) use and disclosure is only permitted with the written consent of SCHMID. The PURCHASER shall be obliged to maintain confidentiality with regard to all documents and information received from SCHMID.
6. prices
6.1 Unless expressly agreed otherwise in writing, all prices are net, free carrier Eschlikon (FCA CH8360 Eschlikon Incoterms 2010), without packaging, insurance etc. and without any deductions.
6.2 All ancillary costs, e.g. for freight, transport, insurance, export, transit, import and other permits and certifications, shall be borne by the PURCHASER. SCHMID shall be entitled to make subsequent charges at any time.
6.3 The PURCHASER shall also bear all types of taxes, duties, fees, customs duties and the like which are levied in connection with the deliveries or reimburse them to SCHMID against appropriate proof if SCHMID has become liable to pay them or has made advance payment. SCHMID shall be entitled to make subsequent charges at any time.
6.4 SCHMID reserves the right to adjust prices if the wage rates, material prices or calculation bases change between the time of the offer and the contractual performance. Prices shall also be adjusted if
– the delivery period is subsequently extended by the PURCHASER (any storage costs shall be borne by the PURCHASER) or
– the nature or scope of the agreed deliveries or services have changed, or
– the material or the execution undergo changes because the documents supplied by the PURCHASER did not correspond to the actual circumstances or were incomplete.
6.5 All prices are exclusive of statutory VAT. In the event of a change in the VAT rate, the VAT owed and payable by the CUSTOMER shall be adjusted automatically.
7. terms of payment
7.1 Payments shall be made by the CUSTOMER in accordance with the agreed terms of payment at SCHMID’s domicile without any deductions. The PURCHASER shall only be entitled to deduct a discount if SCHMID has explicitly granted him such a discount in writing. Unauthorized deductions shall be demanded subsequently. In addition, the PURCHASER shall owe SCHMID a processing fee of CHF 70 per individual case if a discount is deducted without authorization. The payment obligation shall be deemed to have been fulfilled if the amount owed has been made freely available to SCHMID in the agreed currency at the domicile of SCHMID on the payment date.
7.2 Unless otherwise agreed in these Terms and Conditions of Delivery and/or in individual cases, the price shall be paid in the following installments:
– 40% upon receipt of the order, payable immediately upon receipt of the invoice,
– a further 40 % when the main components are ready for dispatch, payable after notification by SCHMID and immediately after receipt of the invoice and before shipment,
– a further 10 % after completion of the raw assembly of the main components, payable immediately after receipt of the invoice and before commissioning of the system by SCHMID,
– the final 10% immediately after notification of completion of the installation by SCHMID, but no later than six weeks after completion of the installation work. This (remaining) amount is to be paid by the
This (remaining) amount must be secured by the PURCHASER by means of a bank or insurance guarantee in favor of SCHMID, unless SCHMID waives this in individual cases.
In the event that the PURCHASER fails to provide the necessary cooperation and/or defaults on payment, all outstanding installments shall automatically and immediately become due for payment.
If a system cannot be delivered for reasons for which SCHMID is not responsible, SCHMID shall be entitled to invoice and claim 90% of the material share.
Unless otherwise agreed in individual cases, spare parts are payable within 14 days of delivery and without any deductions (strictly net).
7.3 The payment deadlines must always be met, even if manufacture, transportation, delivery, assembly, commissioning or acceptance of the deliveries or services are delayed or rendered impossible for reasons for which SCHMID is not responsible, or if minor parts are missing or reworking proves necessary, provided that the use of the deliveries is not rendered impossible. The PURCHASER shall not be entitled to withhold payments due to alleged defects; he may only offset against such claims which have been recognized by SCHMID in writing or have been legally established by a court of law.
7.4 If the CUSTOMER is in arrears with an agreed payment or other performance, SCHMID may either insist on performance of the contract and
a) postpone the fulfillment of its own obligations until receipt of the overdue payments or provision of the other services and
b) claim a reasonable extension of the delivery period and / or
c) demand security for the entire outstanding price
or declare withdrawal from the contract and demand compensation, granting a reasonable grace period.
7.5 If the PURCHASER fails to meet one of the agreed payment deadlines, it shall pay interest at a rate of 4% above the respective discount rate of the Swiss National Bank, but at least 5% p.a., from the agreed due date without a reminder. SCHMID reserves the right to claim further damages. 7.6 If SCHMID is forced to store the equipment or parts thereof due to the CUSTOMER’s default of acceptance, the CUSTOMER shall be obliged to reimburse the usual market storage costs. The CUSTOMER’s obligation to pay storage costs shall continue from the beginning of the second week after the agreed delivery date until the end of storage.
8. reservation of title
8.1 SCHMID shall remain the owner of all its deliveries until all payments arising from the contract have been received.
8.2 The PURCHASER shall be obliged to cooperate in measures which are necessary to protect SCHMID’s property. In particular, he authorizes SCHMID, upon conclusion of the contract, to enter or register the reservation of title in public registers, books or the like in accordance with the relevant national laws at the expense of the PURCHASER and to fulfil all formalities in this regard. The assertion of the retention of title and the seizure of the delivery by SCHMID shall not be deemed a withdrawal from the contract.
8.3 The PURCHASER shall maintain the delivered items at his own expense for the duration of the retention of title and insure them in favor of SCHMID against theft, breakage, fire, water and other risks. Furthermore, he shall take all measures to ensure that SCHMID’s claim to ownership is neither impaired nor revoked. If the CUSTOMER fails to do so, SCHMID shall be entitled to take out such insurance at the CUSTOMER’s expense.
9. delivery period
9.1 The delivery period begins with the dispatch of the order confirmation, provided that all official formalities such as import, export, transit and payment authorizations have been obtained and the payments to be made by the PURCHASER and any securities have been provided. Furthermore, the delivery period shall not commence until all technical and commercial information and details have been definitively clarified. The delivery deadline shall be deemed to have been met if the delivery item has left SCHMID’s works by the time it expires or if the CUSTOMER has been notified of readiness for dispatch.
the PURCHASER has been notified of readiness for dispatch.
9.2 If a delivery date is agreed, this shall be deemed to have been specified as accurately as possible in accordance with the best possible foresight. However, it is not guaranteed. Delivery dates are only binding if they are expressly designated as fixed dates in the order confirmation.
9.3 Compliance with the delivery period and the delivery date is conditional upon the CUSTOMER fulfilling its contractual obligations.
9.4 The delivery period shall be extended appropriately, i.e. any delivery date shall be postponed by the duration of the delay:
– if SCHMID does not receive the information it requires to fulfill the contract – in particular the technical information – in full and/or on time, or if the CUSTOMER subsequently amends it, thereby causing a delay in the deliveries or services,
– if obstacles arise which SCHMID cannot avert despite exercising due care, irrespective of whether they affect SCHMID, the CUSTOMER or a third party. This includes
These include – but are not limited to – accidents, significant operational disruptions, labor disputes, late or faulty delivery of necessary raw materials, semi-finished or finished products, the loss of important workpieces, official measures or omissions, natural disasters, etc.,
– Various current developments, including the Sars-CoV-2 pandemic, the war in Ukraine and the current inflation trend, and their effects have a serious impact on the international flow of goods / supply chains and make it impossible to reliably plan operations and guarantee delivery dates. These are unavoidable obstacles that cannot be influenced by our company (force majeure), which is why we are not and cannot be held responsible for delays due to such restrictions. The delivery dates are automatically adjusted. In addition and independently of this, SCHMID reserves the right to make ongoing price adjustments if, for whatever reason, the wage rates, material prices or calculation bases change between the time of the offer and the contractual fulfillment. If the CUSTOMER or third parties are in arrears with the work to be carried out by them or are in default with the fulfillment of their contractual obligations.
9.5 If the PURCHASER can prove damage due to a delay caused by SCHMID’s own gross negligence, it shall be entitled to claim compensation for delay after having previously set a grace period by registered letter. This shall amount to half a percent for every full 14 days of delay, but not more than 5% in total, calculated on the contract price of the delayed part of the delivery. The first two weeks of delay do not entitle the customer to compensation for delay.
9.6 Once the maximum compensation for delay has been reached, the CUSTOMER shall set SCHMID a reasonable period of grace in writing to fulfill the contract. If this deadline is not met for reasons for which SCHMID alone is responsible, the CUSTOMER shall be entitled to refuse to accept the delayed part of the delivery. If partial acceptance is economically unreasonable for him, he shall be entitled to withdraw from the contract and to reclaim payments already made against the return of deliveries already made.
9.7 The CUSTOMER shall have no rights and claims due to SCHMID’s default other than those expressly stated in this clause 9. These restrictions shall not apply to unlawful intent or gross negligence on the part of SCHMID.
9.8 If dispatch is delayed due to or at the request of the PURCHASER, he shall be charged the costs incurred for storage at SCHMID’s works after notification of readiness for dispatch, but at least half a percent of the invoice amount for each month. SCHMID shall be entitled to otherwise dispose of the delivery items after the fruitless expiry of a reasonable period.
10. packaging
Packaging shall be invoiced separately by SCHMID and shall not be taken back. However, if it has been designated as the property of SCHMID, it must be returned by the PURCHASER carriage paid to the place of departure.
11 Transfer of benefit and risk
Benefit and risk shall pass to the PURCHASER at the latest upon dispatch of the delivery ex works of SCHMID. If the delivery is delayed due to circumstances for which the PURCHASER is responsible, the risk shall pass to the PURCHASER on the day originally scheduled for dispatch ex works. From this time onwards, the deliveries shall be stored and insured at the PURCHASER’s expense and risk.
12. shipping, transportation and insurance
12.1 Transportation shall be at the expense and risk of the PURCHASER. Complaints in connection with the shipment or transportation must be addressed by the PURCHASER to the last carrier immediately upon receipt of the deliveries or the freight documents.
12.2 The PURCHASER shall be responsible for insuring against damage of any kind.
13 Further obligations of the PURCHASER
13.1 The PURCHASER must inform SCHMID of all regulations and standards relating to the delivery, the execution of the assembly and other services at the place of installation and/or on the way there, at the latest when placing the order.
13.2 The CUSTOMER shall be responsible for the professional provision of all necessary on-site and other preparatory work and shall carry this out at its own expense (where applicable, in accordance with the documents supplied by SCHMID). In particular, the PURCHASER shall carry out all necessary structural work on the buildings, whereby the suitability of the boiler room floor (with regard to its load-bearing capacity and temperature resistance) for the installation of the SCHMID system must be checked in advance by a qualified structural engineer at the expense of the PURCHASER. Furthermore, the PURCHASER must relocate all cylinder anchors and inserts for moving floors and create all fire barriers for penetrations of components (such as screws, pipes, fire dampers, cables, ducts, ventilation pipes, etc.). The CONTRACTOR is responsible for ensuring that fresh air is supplied to the boiler room at all times. The
The CONTRACTOR shall also be responsible for the hydraulic connection of the boiler to the heating system (including all safety devices), the connecting pipe from the post-heat exchanger to boiler, the piping and connection of the grate cheek cooling system and the cooling of the ESC slide-in unit (including pumps and valves), the insulation of the flue gas pipes from the boiler to Stack, the fire protection cladding of all system components, the insulation on fittings, the insulation of the flue gas recovery (recirculation pipe) of the connection of the fire protection device to the water network (to be installed upstream of the extinguishing water valve) and an additional water valve for fire compartment protection.
13.3 The CUSTOMER shall also be responsible for the assembly and fixing of the switch cabinet, the emergency power supply, the supply line to the switch cabinet and the connection of the cables, the laying and connection of all electrical connections from the switch cabinet to the various motors and devices (including cable glands) and the creation of equipotential bonding of all system components. The CUSTOMER must ensure that an electrician commissioned by him is on site during commissioning. Commissioning is understood to mean the testing of the basic functionality of the system by SCHMID.
13.4 During installation, the CUSTOMER shall provide the site electricity (including power connection at the installation site) and lighting at its own expense.
13.5 The CUSTOMER shall take the necessary accident prevention measures and protective measures (including all occupational safety measures) at its own expense. The CUSTOMER shall be responsible for securing the power panel and providing all necessary assembly scaffolding, platforms, etc. in accordance with the relevant statutory regulations and the regulations of SUVA (or the analogous regulations in countries other than Switzerland). The PURCHASER shall provide all necessary fixed platforms and barriers at the installation and shall cordon off the construction site adequately and in accordance with the applicable regulations. In particular, he must expressly draw SCHMID’s attention to the fact that special consideration must be given to him and/or other suppliers or contractors.
/ or other suppliers or contractors or if relevant regulations must be observed. SCHMID shall be entitled to refuse or suspend work if, in its judgment, the safety of the personnel is not guaranteed.
13.6 The CUSTOMER guarantees that the installation and water quality comply with SCHMID’s guidelines (in accordance with the operating instructions) (including for new and refill installations) and that heat dissipation is ensured at all times in the event of boiler pump failure and/or power failure. The PURCHASER is responsible for the feed water treatment.
13.7 The PURCHASER shall be obliged to provide operational cranes and lifting gear with operating personnel, suitable scaffolding and means of transportation for unloading and assembly in accordance with the safety regulations.
13.8 The PURCHASER shall ensure that the transport routes to the installation site are in usable condition and that the installation site is ready for work, that access to the installation site is unhindered and that the necessary access and exit routes are adequately ensured at all times. Unless otherwise agreed, access for trucks must be guaranteed.
13.9 The PURCHASER shall ensure that SCHMID is granted the appropriate authorizations for the import and possible export of tools, equipment and material in good time and shall bear any duties, customs duties, fees, etc. in this regard.
13.10 Any additional costs incurred by SCHMID as a result of obstructions or delays on the part of the customer (hourly costs, travel costs including time spent, expenses and overheads, etc.) shall be reimbursed by the CUSTOMER at the agreed rates or – if no agreement exists – at SCHMID’s usual rates.
14. inspection and acceptance of deliveries and services
14.1 SCHMID shall inspect the deliveries and services prior to dispatch as far as is customary. If the PURCHASER requests more extensive inspections, these shall be agreed separately and paid for by the PURCHASER.
to be compensated.
14.2 The PURCHASER must inspect the goods and services within eight days of receipt and notify SCHMID immediately in writing of any defects. If he fails to do so, the deliveries and services shall be deemed to have been approved and warranty claims forfeited.
14.3 SCHMID shall rectify the defects notified to it in accordance with clause 14.2 above and the CUSTOMER shall give it the opportunity to do so. Once the defects have been rectified, acceptance of the rectification work shall take place at the request of the PURCHASER or SCHMID.
14.4 Acceptance shall be initiated by oral or written notification of completion of the system by SCHMID. The execution of the acceptance procedure and the determination of the conditions applicable thereto shall require a special agreement. In the case of official acceptance tests, these shall be paid for by the PURCHASER. Emission measurements and acceptances by the competent authority or by an officially recognized or prescribed company or an officially recognized or prescribed institute shall also be paid for by the PURCHASER.
14.5 When the system is commissioned by SCHMID, the agreed fuel (the term “waste wood” refers to the fuels permitted by law in the country concerned, analogous to Annex 5 of the Swiss Ordinance on Air Pollution Control of December 16, 1985) and the required electricity must be provided by the CUSTOMER at its own expense.
14.6 Unless otherwise agreed, the following shall also apply:
– SCHMID shall notify the CUSTOMER in good time of the acceptance procedure so that the CUSTOMER can attend.
– A record of the acceptance shall be drawn up and signed by the CUSTOMER and SCHMID. It shall state that acceptance has taken place or that it has taken place with reservations or that the CUSTOMER has refused acceptance. In the latter two cases, the defects claimed must be recorded individually and clearly identified in the minutes.
The PURCHASER may not refuse acceptance and signature of the acceptance report due to minor defects, in particular those which do not significantly impair the functionality of the deliveries or services. Such defects shall be rectified by SCHMID as quickly as possible.
In the event of significant deviations from the contract or serious defects, the PURCHASER shall give SCHMID the opportunity to rectify these within a reasonable period of grace.
within a reasonable period of grace. If significant deviations from the contract or serious defects become apparent again after completion of the rectification work, the CUSTOMER may
may only demand a price reduction or other services from SCHMID if this has been expressly agreed. If partial acceptance is economically unreasonable for the CUSTOMER, he may withdraw from the contract. SCHMID can only be obliged to refund the amounts paid to it for the parts affected by the withdrawal. Claims against SCHMID shall in any case be limited to the net order amount (net factory price).
14.7 Acceptance shall otherwise be deemed to have taken place
– if the CUSTOMER refuses acceptance without being entitled to do so or unduly delays its execution,
– if the CUSTOMER refuses to sign an acceptance report drawn up in accordance with this clause 14,
– as soon as the CUSTOMER uses deliveries or services of SCHMID.
14.8 If the system cannot be commissioned by SCHMID due to circumstances for which the CUSTOMER is responsible (such as a lack of heat acceptance) or cannot be commissioned across all load levels or cannot be commissioned in full, the CUSTOMER shall reimburse SCHMID for any additional costs incurred as a result (hourly costs, travel costs including time spent, expenses and overheads, etc.) at the agreed rates or – if no agreement exists – at SCHMID’s standard rates.
14.9 All costs for official approvals (e.g. MOT inspections etc.) and the submission of data / documents to authorities shall be borne by the CUSTOMER and shall be paid by him.
15 Warranty, liability for defects
15.1 The warranty period for boiler bodies with automatic firing as well as for boiler bodies with manual firing is two years. The warranty period shall commence on the day immediately following notification of completion of the system by SCHMID, but no later than six months from the date of delivery.
15.2 The warranty period for conveying and transportation systems and electrical components as well as for regulations, fittings and accessories shall be 12 months from the date of delivery.
15.3 The warranty period for all other delivery components and services shall be six months from the day immediately following notification of completion of the system by SCHMID, but no longer than 12 months from the date of delivery.
15.4 The warranty period for replaced or repaired parts begins anew and lasts six months from replacement or repair.
15.5 In the case of deliveries to resellers, SCHMID’s warranty obligation shall consist solely and exclusively of repairing defective goods or parts on the system free of charge or providing spare parts free ex works, at SCHMID’s discretion. Further claims of the reseller are excluded, in particular those for reduction or rescission, for replacement costs of the reseller, compensation, costs for determining the cause of the damage, expert opinions and consequential damage (interruption of operations, water and environmental damage, etc.).
15.6 The warranty shall expire prematurely if the CUSTOMER or third parties carry out modifications or repairs or if the CUSTOMER does not immediately take all appropriate measures to minimize the damage and give SCHMID the opportunity to rectify the defect. Furthermore, the warranty shall lapse if the system supplied by SCHMID is operated with fuel which does not correspond to the fuel definition contained in the order confirmation and/or leads to corrosive, abrasive or otherwise aggressive exhaust gases.
15.7 SCHMID undertakes, at the written request of the PURCHASER, to repair or replace as quickly as possible, at its discretion, all parts of SCHMID’s deliveries which demonstrably become defective or unusable as a result of poor material, faulty design or poor workmanship before the expiry of the warranty period. The CUSTOMER shall perform and fulfill all upstream and downstream activities and tasks necessary in connection with the rectification of defects by SCHMID (such as emptying and filling silos, ensuring free access to the system, etc.) at its own expense. Any work carried out by the PURCHASER during the warranty period shall be for the account of the PURCHASER and shall not give rise to any claims against SCHMID.
15.8 For deliveries to territories outside Switzerland, the Principality of Liechtenstein, Germany, France, Austria and/or Italy, the warranty claim shall exclusively and finally cover the subsequent delivery of material. The transport and assembly costs shall be borne by the PURCHASER.
15.9 Warranted characteristics are only those that have been expressly designated as such in the order confirmation. The warranty shall apply at the latest until the expiry of the warranty period. If an acceptance test has been agreed, the warranty shall be deemed to have been fulfilled if proof of the relevant properties has been provided during this test. If and insofar as emission values (dust, NOX, CO etc.) are agreed as binding, compliance with the emissions can only be guaranteed if the measurements are carried out in accordance with the Federal Office for the Environment FOEN (2013): “Emissions measurement for stationary systems, emissions measurement recommendations”, Chapter 13: Wood-burning systems. These measurements are decisive for both parties when assessing the
emission values. Deviating emission limit values or existing emission limit values with deviating measurement regulations of the authority, such as continuous measurements in accordance with Article 13, Paragraph 4 of the Air Pollution Control Ordinance LRV of December 16, 1985 (as of July 15, 2010) cannot be guaranteed.
15.10 SCHMID shall not bear any plant downtimes and their consequential costs caused by the failure of continuous emission measurements or exhaust gas treatment systems.
15.11 Excluded from SCHMID’s warranty and liability are damages that are not demonstrably the result of poor materials, faulty design or poor workmanship, but are, for example, the result of natural wear and tear (total exclusion of liability for defects in wearing parts), inadequate maintenance, disregard of operating instructions (e.g. use of foreign materials or excessively coarse pieces of wood that enter the silo or use of fuels that contain foreign materials such as steel parts, nails, aluminum, heavy copper or similar).(e.g. use of foreign materials or excessively coarse pieces of wood entering the silo, or use of fuels containing foreign materials such as steel parts, nails, aluminum, heavy metals, copper or the like), excessive stress, unsuitable operating materials, water quality that does not meet SCHMID’s requirements, non-compliance with SCHMID’s technical
SCHMID’s technical guidelines, construction or assembly work not carried out by SCHMID, defective subsoil or chemical, electrochemical or electrolytic influences as well as other reasons for which SCHMID is not responsible. SCHMID’s liability for security gaps in internal and / or external IT networks and any resulting damage is also excluded. Claims for damages against SCHMID for damage attributable to insecure data connections, hacker attacks, unauthorized or authorized access (e.g. in the context of Telemaintenance or remote access) or other inadequacies in IT systems or IT networks of the PURCHASER or third parties are also excluded.
15.12 For deliveries and services of subcontractors specified by the PURCHASER, SCHMID shall only assume the warranty within the scope of the warranty obligations of the subcontractors concerned. SCHMID shall be entitled to discharge its warranty obligations by assigning its rights in respect of defects to the subcontractor.
15.13 The PURCHASER shall have no rights or claims for defects in material, design or workmanship or for the absence of warranted characteristics other than those expressly stated in this clause 15.
16. consequences of non-performance or improper performance by SCHMID
16.1 In all cases of poor performance or non-performance not expressly regulated in these terms and conditions, the CUSTOMER shall be entitled – insofar as the breach of contract is proven and demonstrably attributable to SCHMID – to set SCHMID a reasonable period of grace under threat of withdrawal in the event of default. If this grace period expires unused due to SCHMID’s fault, the PURCHASER may withdraw from the contract with regard to the deliveries or services that have been carried out in breach of contract and reclaim the proportion of payments already made.
16.2 In such a case, the following clause 17 shall apply with regard to any claim for damages by the PURCHASER and the exclusion of further liability. In addition, the claim for damages shall be limited to 3 % (three percent) of the contract price of the deliveries and services for which the withdrawal is made.
17. exclusion of any further liability of SCHMID
17.1 All cases of breach of contract and their legal consequences as well as all claims of the PURCHASER, irrespective of the legal grounds on which they are made, are conclusively regulated in these terms and conditions. In particular, all claims for damages, reduction in price, rescission of the contract or withdrawal from the contract not expressly mentioned are excluded and waived.
17.2 Under no circumstances shall the PURCHASER be entitled to claim compensation for damage that has not occurred to the delivery item itself, such as loss of production, loss of use, costs for substitute fuels and emergency heating, loss of orders, loss of profit or other direct or indirect damage. This exclusion of liability does not apply to unlawful intent or gross negligence on the part of SCHMID. Furthermore, this exclusion of liability shall not apply insofar as it conflicts with mandatory law.
18 SCHMID’s right of recourse, insurance obligation, product liability and product safety
18.1 If persons are injured or third-party property is damaged as a result of actions or omissions on the part of the PURCHASER or its auxiliary persons and a claim is made against SCHMID for this reason, SCHMID shall have a right of recourse against the PURCHASER.
18.2 The CUSTOMER undertakes to take out the necessary insurance for all risks arising in connection with this contract and the operation of the system (e.g. public liability, insurance against claims arising from product liability or product safety, property insurance, etc.). In particular, the PURCHASER undertakes to ensure that all third-party claims that may arise from the operation of the system are covered by its insurance. If a claim is made against SCHMID by a third party for damage arising from the operation of the system, the CUSTOMER shall indemnify SCHMID against this claim, shall – if desired by SCHMID – enter into the process of defending the claim itself and shall bear all costs arising from this.
19 Other provisions
19.1 Should any provision of these Terms and Conditions of Delivery prove to be invalid in whole or in part, this provision shall be replaced by a new provision that comes as close as possible to its legal and economic purpose.
19.2 These General Terms of Delivery shall enter into force on April 1, 2022 and replace all previous terms of delivery and conditions of SCHMID.
20 Place of jurisdiction and applicable law
20.1 The place of jurisdiction for the CUSTOMER and SCHMID shall be the respective registered office of SCHMID, currently CH-8360 Eschlikon. However, SCHMID shall also be entitled to take legal action against the CUSTOMER at the latter’s registered office or at the place where the goods are located (place of installation of the system).
20.2 The contractual relationship shall be governed by Swiss substantive law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980.