General Terms and Conditions of Delivery of Schmid AG, energy solutions, and its group companies (valid from February 1, 2025)
1. Scope
1.1 These General Terms and Conditions of Delivery (hereinafter referred to as “Terms and Conditions of Delivery”) of Schmid AG, energy solutions, based in CH-8360 Eschlikon TG (“SCHMID”) apply to every delivery of goods and systems by SCHMID to a contractual partner (hereinafter “PURCHASER”). These Terms and Conditions of Sale shall become an integral part of any sales or service contract or order concluded by SCHMID (as seller / entrepreneur / contractor). These Terms and Conditions of Sale are binding if declared applicable in the offer or in the order confirmation.
1.2 These Terms and Conditions of Sale shall also apply to the delivery of goods and systems by SCHMID group companies (all hereinafter also referred to as “SCHMID”). A SCHMID group company is any company (including any branch offices) that is controlled by Schmid AG, energy solutions, by a majority of votes or in any other way. The companies currently belonging to the SCHMID Group are shown on the website www.schmid-energy.ch. The companies IS SaveEnergy AG and Schmid North America Inc. Energy Solutions each have their own terms and conditions of delivery.
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 be deemed concluded and legally binding (only) upon dispatch of SCHMID’s written confirmation stating its acceptance of 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 is based exclusively on 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 accepted by the CUSTOMER.
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 information, illustrations, dimensions, standard schematics, weights and other specifications contained in SCHMID’s advertising or documents are only binding if and to the extent that they have been expressly agreed and warranted as binding in the order confirmation. We reserve the right to make technical changes. Materials can be replaced by others of the same value at SCHMID’s discretion. In special cases, the CUSTOMER shall be required to provide binding dimension sketches.
4.2 The CUSTOMER shall fully inform SCHMID about the functional conditions of the system. This applies
in particular, but not only, if these differ from the general recommendations of SCHMID or from the usual or normally expected conditions.
5. Copyright and ownership of technical drawings and documents, confidentiality
Technical drawings and documents provided to the CUSTOMER remain the property of SCHMID and are protected by copyright. Their use and disclosure (unchanged or modified) is only permitted with the written consent of SCHMID. The PURCHASER is obliged to maintain confidentiality regarding all documents and information received from SCHMID.
6. Prices
6.1 All prices are – unless otherwise expressly agreed in writing – net, free carrier Eschlikon (FCA CH- 8360 Eschlikon Incoterms 2020), excluding 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 wage rates, material prices or the basis of calculation change between the time of the offer and the contractual fulfillment.
Prices shall also be adjusted if
– the delivery time is subsequently extended by the CUSTOMER (any storage costs shall be borne by the CUSTOMER) or
– the nature or scope of the agreed supplies or services have undergone a change, or
– the material or the execution undergo changes because the documents supplied by the CUSTOMER 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. Payment terms
7.1 Payments shall be made by the CUSTOMER at the domicile of SCHMID without any deduction, in accordance with the agreed payment terms. The CUSTOMER shall only be entitled to deduct a discount if SCHMID has explicitly granted it in writing. Unauthorized deductions will be claimed subsequently. In addition, the PURCHASER owes SCHMID a processing fee of CHF 70 per individual case if an unauthorized cash discount is deducted. The payment obligation is fulfilled when the amount owed in the agreed currency is made freely available to SCHMID at its domicile on the payment date.
7.2 Unless otherwise provided in these Terms and/or in an individual case, 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 shipment, payable after notification by SCHMID and immediately upon receipt of the invoice and before shipment,
– a further 10% after completion of the rough assembly of the main components, payable immediately after receipt of the invoice and before the plant is put into operation by SCHMID,
– the last 10% immediately after notification by SCHMID that the plant has been completed, but no later than six weeks after completion of the assembly work. This (remaining) amount is to be
PURCHASER by a bank or insurance guarantee in favor of SCHMID, unless waived by SCHMID 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 CUSTOMER fails to comply with one of the agreed payment deadlines, he shall be liable, without reminder, for interest from the agreed due date at a rate of 4% above the respective discount rate of the Swiss National Bank, but at least 5% p.a. The right to claim further damages remains reserved.
7.6 If SCHMID is forced to store the plant or parts thereof due to a default in acceptance on the part of the CUSTOMER, the CUSTOMER shall be obliged to reimburse the usual market storage costs. The CUSTOMER’s obligation to pay storage costs shall commence at the beginning of the second week following the agreed delivery date and shall continue until the end of storage.
8. Retention of title
8.1 SCHMID remains the owner of all its deliveries until all payments arising from the contract have been received.
8.2 The PURCHASER shall cooperate in any measures necessary for the protection of SCHMID’s title. In particular, upon entering into the contract, the PURCHASER authorizes SCHMID, at the PURCHASER’s expense, to enter or notify the retention of title in the required form in public registers, books or similar records, all in accordance with relevant national laws and to fulfill all formalities in this regard. The assertion of the retention of title as well as the attachment of the delivery by SCHMID shall not be deemed to be 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 shall commence upon dispatch of the order confirmation, provided that all official formalities such as import, export, transit and payment permits have been obtained and that the payments to be made by the CUSTOMER 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 period shall be deemed to have been met if the delivery item has left the SCHMID factory or
the CUSTOMER has been notified that the goods are ready 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. a possible delivery date shall be postponed by the duration of the delay:
– if the information required by SCHMID for the fulfillment of the contract – in particular technical information – is not received in full and/or on time, or if the CUSTOMER subsequently changes it, thereby causing a delay in the delivery of the goods or services,
– if hindrances occur which SCHMID cannot avert despite exercising the necessary care, regardless of whether they affect SCHMID, the CUSTOMER or a third party. These include – but are not limited to – accidents, significant operational disruptions, labor disputes, delayed or defective delivery of necessary raw materials, semi-finished or finished products, the destruction of important workpieces, official measures or omissions, natural disasters, etc.
– Various current developments, including the wars in Ukraine and the Middle East, as well as the current inflationary 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 responsible for delays due to such restrictions and cannot be held responsible. The delivery dates shall be adjusted automatically. 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 PURCHASER or a third party is behind schedule with the work to be carried out by them or 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 charged separately by SCHMID and shall not be taken back. However, if it is designated as the property of SCHMID, it shall be returned by the CUSTOMER carriage paid to the place of dispatch.
11. Transfer of benefit and risk
Use and risk shall pass to the CUSTOMER at the latest upon shipment of the delivery ex works SCHMID. If delivery is delayed due to circumstances for which the CUSTOMER is responsible, the risk shall pass to the CUSTOMER on the day of the originally scheduled date for shipment ex works. From this point on,
the deliveries will be stored and insured at the CUSTOMER’s expense and risk.
12. Shipping, transportation and insurance
12.1 Transportation shall be at the PURCHASER’s expense and risk. Complaints regarding shipping or transportation shall be made by the PURCHASER to the last carrier immediately upon receipt of the supplies or the shipping 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 shall inform SCHMID at the latest when the order is placed of all regulations and standards that apply to the delivery, the execution of the assembly and other services at the installation site and/or on the way there.
13.2 The CUSTOMER is responsible for the professional provision of all necessary on-site and other preparatory work and must carry this out at his own expense (if necessary, in accordance with the documents provided by SCHMID). In particular, the CUSTOMER shall carry out all necessary construction 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 certified structural engineer at the CUSTOMER’s expense. Furthermore, the CUSTOMER shall move all cylinder anchorages and inserts in the case of sliding floors and create all fire barriers where components (such as screws, pipes, fire dampers, cables, ducts, ventilation pipes, etc.) penetrate. The CUSTOMER is responsible for ensuring that a supply of fresh air is available in the boiler room at all times. The
PURCHASER is also responsible for the hydraulic connection of the boiler to the heating system (including all safety devices), the connecting line from the after-heater to the boiler, the pipework and the connection of the grate cooling system and the cooling system for the ESC slide-in unit (including all pumps and valves), the insulation of the exhaust pipes from the boiler to the chimney, the fire protection cladding of of all system components, the insulation on fittings, the insulation of the exhaust gas recirculation (recirculation line) of the connection of the fire protection device to the water supply (to be mounted before the extinguishing water valve) and an additional water valve for fire 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, at its own expense, take the necessary accident prevention and protective measures (including all occupational safety measures). The CLIENT shall be responsible for securing the electricity panel and providing all necessary scaffolding, platforms, etc. in accordance with the relevant statutory provisions and the provisions of SUVA (or the analogous provisions in countries other than Switzerland). The CUSTOMER shall provide all the necessary fixed platforms and barriers at the installation and cordon off the construction site sufficiently and in accordance with the applicable regulations. In particular, the CUSTOMER shall explicitly draw SCHMID’s attention to any circumstances that require special consideration for the CUSTOMER and/or other suppliers or contractors or that require compliance with relevant regulations. SCHMID is entitled to refuse or stop work if, in its opinion, the safety of 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 CUSTOMER shall ensure that SCHMID is granted the appropriate authorizations in good time for the import and possible export of tools, equipment and materials and shall bear any related taxes, duties, fees, etc. 13.10 The CUSTOMER shall reimburse the SCHMID for any additional costs incurred due to hindrances or delays on the part of the CUSTOMER (hourly labor costs, travel costs including time spent, expenses and out-of-pocket expenses, etc.) at the agreed rates or – if no agreement exists – at the SCHMID’s usual rates.
14. Inspection and acceptance of the deliveries and services
14.1 SCHMID shall inspect the deliveries and services as far as is usual before dispatch. If the PURCHASER requests further
inspections, these must be agreed separately and the PURCHASER shall reimburse the costs.
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 SCHMID’s verbal or written notification that the plant has been completed. The performance of the acceptance as well as the determination of the conditions applicable to it shall require a special agreement. If official acceptance procedures are involved, these shall be paid for by the CUSTOMER. 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 CUSTOMER.
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 apply:
– SCHMID shall inform the CUSTOMER in good time about the execution of the acceptance test so that the CUSTOMER can participate.
– A protocol shall be drawn up about the acceptance test, which shall be signed by the CUSTOMER and by SCHMID. This protocol shall state whether the acceptance test has taken place, whether it has taken place under reserve or whether the CUSTOMER has refused acceptance. In the latter two cases, the asserted defects are to be included individually and clearly designated in the protocol.
The CUSTOMER may not refuse acceptance and signing of the acceptance protocol due to minor defects, in particular those that do not significantly impair the functionality of the deliveries or services. SCHMID shall remedy such defects as quickly as possible.
In case of significant deviations from the contract or serious defects, the CUSTOMER shall give SCHMID the opportunity to rectify these within a reasonable period of grace. If significant deviations from the contract or serious defects should reappear after the rectification work has been completed, the CUSTOMER 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 shall be entitled to withdraw from the contract. SCHMID can only be obliged to refund those amounts that have been paid for the parts affected by the withdrawal. Claims against SCHMID shall in any case be limited to the net order value (net contract 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 and for boiler bodies with hand-fed firing is two years. The warranty period shall commence on the day immediately following SCHMID’s notification of completion of the plant, 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 Downtimes caused by the failure of continuous emission measurements or waste gas treatment systems and their consequential costs will not be borne by SCHMID.
15.11 Excluded from the warranty and liability of SCHMID are damages that cannot be proven to have arisen from poor material, faulty design or poor workmanship, but rather, for example, from natural wear and tear (total exclusion of liability for defects in wear parts), improper maintenance, failure to follow operating instructions (e.g. use of foreign materials or pieces of wood that are too coarse entering the silo, or use of fuels containing foreign matter such as steel parts, nails, aluminum, heavy metals, copper or the like), excessive use, unsuitable operating materials, water quality not meeting the requirements of SCHMID, failure to observe the technical
guidelines of SCHMID, construction or installation work not carried out by SCHMID, defective foundation soil or chemical, electrochemical or electrolytic influences as well as for other reasons for which SCHMID is not responsible. SCHMID shall also not be liable for security gaps in internal and/or external IT networks and for any resulting damage. Claims for damages against SCHMID for damages resulting from insecure data connections, hacker attacks, unauthorized or authorized access (e.g. in the context of remote maintenance or remote access) or other inadequacies in IT systems or IT networks of the PURCHASER or third parties are also excluded.
15.12 For supplies and services of subcontractors requested by the PURCHASER, SCHMID shall only assume 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 with respect to claims for defects against 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 inadequate performance by SCHMID
16.1 In all cases of inadequate performance or non-performance not expressly covered by these terms and conditions, the CUSTOMER shall be entitled – provided that the breach of contract has been proven and demonstrably caused by SCHMID – to set SCHMID an appropriate final deadline for performance, threatening to withdraw from the contract in the event of non-performance. If this extension elapses due to the fault of SCHMID, the PURCHASER may withdraw from the contract with regard to the deliveries or services that have been performed in breach of contract and reclaim the corresponding portion 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 the relevant consequences as well as all rights and claims on the part of the PURCHASER, irrespective on what ground they are based, are exhaustively covered by these general conditions of sale. In particular, any claims not expressly mentioned for damages, reduction of price, termination of or withdrawal from the contract are excluded and are hereby 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. Right of recourse of SCHMID, insurance obligation, product liability and product safety
18.1 If persons are injured or property of third parties is damaged due to acts or omissions of the CUSTOMER or his auxiliary personnel and if a claim is made against SCHMID for this reason, SCHMID shall be entitled to take recourse against the CUSTOMER. 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 plant (e.g. public liability insurance, insurance against claims arising from product liability or product safety, property insurance, etc.). In particular, the CUSTOMER undertakes to ensure that all claims by third parties that may arise from the operation of the plant are
are covered by his insurance. If a third party asserts a claim against SCHMID for damage resulting from the operation of the plant, the CUSTOMER shall indemnify SCHMID against this claim, enter – if requested by SCHMID – into the proceedings to defend against the claim and bear all costs arising therefrom.
19. Miscellaneous
19.1 Should any provision of these Terms and Conditions of Sale be or become invalid in whole or in part, the validity of the remaining provisions shall not be affected.
19.2 These Terms and Conditions of Sale shall come into force on February 1, 2025 and replace all previous terms and conditions of sale of SCHMID.
20. Place of Jurisdiction and Applicable Law
20.1 The place of jurisdiction for the CUSTOMER and SCHMID is the respective registered office of SCHMID, currently CH-8360 Eschlikon. However, SCHMID is also entitled to take legal action against the CUSTOMER at the CUSTOMER’s registered office or at the location of the goods (place of installation of the plant).
20.2 The contractual relationship shall be governed by Swiss substantive law, excluding the United Nations Convention on Contracts for the International Sale of Goods dated April 11, 1980.