GENERAL TERMS AND CONDITIONS OF ZENO360° AG
General: The following General Terms and Conditions shall apply to all deliveries and services of the ZENO360° AG (hereinafter referred to as “Zeno360°”) which are applicable on the basis of a Purchase contract with Channel Partners, Distributors, Consultants or End-Users, provided that no written different provision has been agreed to. Differently worded or contrary terms and conditions of the customer shall only apply if they have been explicitly accepted by Zeno360° in writing. Existing terms and conditions are binding insofar as they are declared to be applicable in the offer or in the order confirmation.
Industrial property rights: Zeno360° retains the right of property and copyright to figures, drawings or other documents which the customer already receives before conclusion of the contract. These may not be made available to third parties. Before disclosure of these to third parties, the customer must obtain express written approval from Zeno360°.
Offers and order confirmations: Our offers are always non-binding. Contracts shall be deemed to be accepted only after written order confirmation and the listed, performed deposit payments have been made. The deposit payment must be made within the period of one week. The delivery times in the order confirmation shall be extended if the deposit(s) are not made in due time. Zeno360° has the right to withdraw from the contract for delay of deposit without obligation to indemnify or move the delivery to a later date than listed in the order confirmation. Our written order confirmation shall be decisive for determining the scope and conditions of the delivery. Deviations in the order confirmation from previously reached agreements shall be deemed to be approved if the customer does not object to these in writing within two business days.
Zeno360° reserves the right to deviations from agreed scope of supply, which are deemed necessary due to the consideration of changes of legal or technical standards. Desired changes of the customer with regard to the content of the services to be rendered after conclusion of the contract (e.g. retrofitting or enhancement work) shall be considered by us in the scope of our operational capacities and only for an additional remuneration according to our separate offer or our prices which are valid at the time of the acceptance of the change requests. All requests for changes and enhancements must be made in writing. Offer documents, drawings, descriptions, samples and cost estimates to our machines and materials may not be passed on, published, copied or otherwise made available to third parties. The documents, without retaining any copies, shall be returned on demand.
Prices and terms of payment: All prices are understood to be without VAT. The stated prices shall apply, provided nothing different has been agreed, are non-binding ex works, without packaging. For domestic deliveries of acquisition of the machines from the factory, the legal Swiss VAT shall be additionally owed, insofar as the customer does not bring the export papers. For deliveries to foreign countries, the legal VAT and/or possible import customs shall be additionally owed. For international invoices, these shall not be stated separately and are normally to be directly paid to customs or the transport company upon import. Transport costs and insurance, as well as travel costs for commissioning are not included in the offer. No VAT payments shall be made by Zeno360°, and also not as advance payment. The delivery always takes place ex works at the customer’s risk and expense, this also applies for deliveries by Zeno360°’s own vehicles.
The invoices from Zeno360° are payable within 30 days from the date of invoice, strictly net and without deduction. Advance payments within date noted on the advanced payment. Transfer fees assessed by the customer’s bank shall be paid by the customer. No check payments and/or exchange shall be accepted. Agreed deposits and advanced payments are due immediately after occurrence of the respective milestones. Place of fulfilment for the payment is Regensdorf (Switzerland). Claims by the customer for the right to offset against other contractual relationships or from guaranty claims is expressly excluded.
If the customer falls into arrears, Zeno360° shall be entitled to charge the customer a default interest in the amount of the Libor valid in the currency to 1 month basis plus 3% (annual interest/360 days) calculated as of the date due of the demand. The proof of a higher default damage remains reserved. If the customer falls behind with a due payment completely or partially, Zeno360° is entitled, after unsuccessful expiration of an appropriate deadline, to claim for the damages arising due to the delay or alternatively either to renounce the subsequent services and demand compensation for the arising damages or withdraw from the contract and refuse the promised services and/or reclaim the already provided services.
During the duration of the default of the customer, no guarantees shall be provided by Zeno360°, Channel Partners or Distributors. Zeno360° is not obligated to provide services or deliveries until settlement of the due accounts. Zeno360° is entitled to shut down the machine for default and enable it only after complete payment.
If the customer withdraws from the contract after the advance payment, in all cases the advanced payment shall be kept by the seller, be it Zeno360°, a Channel Partner or a Distributor, without proof of damage and no claim for repayment. Moreover, Zeno360° may make a claim against damages that go beyond those which the advanced payment might cover.
The payment is always to be paid in the currency listed in the order confirmation. Possible differences in currency shall be borne by the customer fully.
If an insolvency proceeding is applied for and/or initiated concerning the assets of the customer, Zeno360° is entitled to withdraw from the unfulfilled part of the contract.
Compensation, retention: The customer is only entitled to rights of compensation or retention when his guarantee claims are determined to be legally binding, undisputed or recognized by us. Furthermore, he shall only be authorized to exercise a right of retention insofar as a counterclaim is based on the same contractual relationship.
Retention of title: The products delivered by Zeno360° shall remain the property of Zeno360° until fulfilment of all requirements. The goods may neither be sold, mortgaged nor assigned away or placed at a different location without written approval by Zeno360° until complete payment.
Delivery term, transport and passing of the risk: The delivery term begins with the receipt of the order confirmation respectively as far as confirmed, with the receipt of the advanced payment, sample and with clarification of the technical details. It is fulfilled, when the delivered good has left the factory or the delivery readiness has been reported up to the point in time of expiry of this term. Changes of the service content agreed to with the customer lead to the suspension of agreed delivery dates and deadlines, provided nothing else has been agreed to.
Cases of force majeure, strikes, lockouts and/or other unforeseeable events, may these affect Zeno360° or a sub supplier, shall release Zeno360° from any accepted delivery obligations. In such cases, Zeno360° is entitled to extend the delivery by an appropriate term. If the delivery period specified by Zeno360° is exceeded by more than 4 months, the customer is only entitled, after granting a grace period of one month, to withdraw from the contract. Zeno360° shall in no case be held liable for lost profits and sales of the customer and possible consequential damages resulting therefrom.
The compliance with our delivery obligation requires the timely or proper fulfilment of the customer’s obligations (e.g. timely receipt of the agreed advanced payments, on-time provisioning by the customer of the documents, approvals, specifications in technical regards to the workpieces or workpiece samples). Our delivery time shall be extended appropriately if the customer is not able to properly fulfill his obligations in a timely manner. Partial deliveries are allowed, provided the items to be delivered are completed units or independent individual components.
Benefits and risks are transferred to the customer as soon as the product has left the factory or the distribution center. However, the property rights shall apply according to section 6 “Retention of Title”.
Examination and approval of the products: Upon receiving, the customer must immediately inspect the goods for transport damage and immediately notify the freight carrier of any possible claim and send a copy of this to Zeno360°, and the Channel Partner or Distributor in charge.
Immediately after completion of the installation, the customer must check whether the properties of the product meet the contractual agreements. The customer shall confirm this with its signature on the Zeno360° acceptance report.
The customer must obtain express written approval by Zeno360° or the Channel Partner or Distributor in charge for independent installation and commissioning the product resp. the device. Zeno360° must be immediately notified in writing of any possible defects; otherwise, the delivered products shall be deemed to be accepted. In all cases, the burden of proof for defects and damages shall be incumbent upon the customer. Zeno360° shall not be liable for damages caused by the independent installation and commissioning of the product resp. the device by the customer. The guarantee shall expire in such cases.
