- The below Terms and Conditions apply to any delivery transaction of the Seller, meaning Atelier 13 SA, Chiasso, Switzerland. The Buyer placing the order constitutes the Buyer's legally binding acceptance of the Terms and Conditions.
- Any agreement differing from this General Terms and Conditions will become binding for the Seller exclusively if the latter has or will accept them in writing (i.e. not by silence).
2. Agreement conclusion
- All Seller's offers are subject to change.
- The prices are net prices to which statutory value added tax is added. Furthermore, the Buyer will be charged the costs for packaging, freight, expenses such as customs duties and other shipment costs. Special surcharges shall be charged for individual and customized orders.
- Any verbal information and agreements require explicit written confirmation by the Seller in order to become binding for the Seller.
- Redispositioning within the framework of a placed order is permissible only by written mutual agreement.
3. Delivery and Delivery Time
- The Seller is entitled to make partial deliveries. The Buyer accepts partial deliveries provided that the subsequent deliveries are delivered within the agreed upon delivery period.
- The Seller is not in a position to agree on sales that needs to be performed at a fixed point in time. The specified delivery times are estimates only and need to be understood and accepted as approximate delivery times. Should an explicit delivery time be agreed upon in writing by the Seller, delivery shall be considered as fulfilled if the goods that are to be delivered have been dispatched at the deadline or if the Buyer has been informed of the readiness for pick up (for all those cases in which the Buyer is liable for the pick of the goods).
- Force majeure and other extraordinary events that are outside the Seller's influence and which make the delivery within the arranged delivery period significantly more difficult or impossible, e.g. strike, sickness, disturbances in the business operations of the suppliers and manufacturers, extend the delivery time by the duration of the interference. The Seller shall inform the Buyer immediately once such events occur, as soon as the Seller determines that they will impact the delivery time. At the same time, the Seller specifies the estimated duration of a required extension of the delivery period. In these cases of non-availability, the Seller is entitled to withdraw from the Agreement if it has not yet been fulfilled. The Seller shall immediately after becoming aware of the non-availability notify the Buyer if he intends to withdraw from the Agreement.
- If the Seller is late with a delivery, it shall be granted an additional term of 18 days to deliver. After unsuccessful expiry of these additional delivery term, the Buyer is entitled to withdraw from the Agreement only, and limited to the portion of the delivery obligation that has not yet been fulfilled, should the Buyer have informed the Seller in writing upon occurrence of the delivery delay that he will reject fulfilment of the Agreement after unsuccessful expiry of additional days to deliver of at least 18 days. In such event and leaving his statutory rights intact for intentional damage or gross negligence from the Seller, the Buyer may only request repayment of any sum that has been prepaid, without any right to successive damages such as lost profits.
4. Shipping and Transfer of Risks
- The goods shall be delivered at the Seller's warehouse. Place of fulfilment for all services under the Supply Agreement is the location of the Seller's warehouse.
- The Buyer bears the shipping costs including all incidental expenses, such as packaging and customs duties.
- With the transfer of the goods to the Buyer, forwarding agent or freight carrier or any other individual or establishment who has been commissioned to carry out the shipment, however no later than at the time of leaving the warehouse, risks are transferred to the Buyer. The Seller is liable for defects regarding the packaging of the goods, its shipment or the choice of the transportation means or route of transport only if the Seller or its appointed agents have acted intentionally or with gross negligence.
- The Seller is not liable for a transport insurance, other than in the cases in which such insurance has been agreed in written by the Seller. The costs for such insurance shall be borne by the Buyer.
- Should a shipment of goods be delayed for a reason that is not the Seller's responsibility, risk is transferred to the Buyer at the time of notification of shipment readiness at his warehouse. In this case, the Seller is entitled to store the items to be delivered at the Buyer's expense and risk, and request immediate payment of the invoiced amount.
- Should the Buyer for any reason not depending from the Seller, not accept delivery of goods or not accepting it on time, the Buyer will bear any resulting additional cost such as e.g. additional transportation, storage, customs or duty. The Seller will be entitled to charge those expenses separately.
- The Buyer is obligated to thoroughly check the goods immediately upon receipt. The Buyer must inform the Seller in writing of any deficiencies and complaints within no later than 10 days after receipt. Evidence in the form of photos of the deficiencies and complaints must be provided to the Seller through the contact forms and/or coordinates of the Seller stated in the website of the Seller.
- Any Warranty of the Seller will cease to exist should the Buyer alter, modify or damage in any other way or means the delivered goods.
- Minor deviations and/or minor and/or technically unavoidable deviations in the quality, colour, weight and dimensions of the design do not entitle to claims and do not result in warranty claims unless otherwise explicitly agreed upon in written.
- In the event of material damage, the Seller is entitled at its own discretion to improvement or delivery of replacement goods that are free of defects within two weeks after receiving the returned goods. Returning goods is only allowed if the Seller has agreed to it in written. Should the Seller fail to improve or replace the defective items, the Buyer may request at its choice to accept delivery of defective items and have the purchase price reduced accordingly or withdraw from the Agreement limitedly to the goods for which the improvement or replacement delivery has failed.
- The Buyer may exercise the right of retention of the purchase price that it owes to the Seller limitedly to the value of the deficient or missing parts. Any withholding of payments to the Seller that exceed the aforementioned amount entitles the Seller to refuse fulfilment of its warranty obligation until receipt of such payments.
- For new delivery items, the period of limitation for claims is one year from the date of the transfer of risks. The statutory periods in accordance to Swiss Law shall remain unaffected.
- If a Buyer's claim proves to be unjustified, the Buyer shall bear the shipping costs for returning the goods. In addition, the Buyer shall bear an administrative fee of CHF 50.00 for each returned item.
- Any claim from the Buyer, especially for compensation or lost profit are explicitly excluded, unless they are based on an intentional or grossly negligent breach of contract by the Seller or its statutory representatives or its appointed agents.
- For the event in which the Seller is liable to pay any compensation to the Buyer according to a written agreement by the Seller or any applicable statutory right of the Buyer, the amount of such compensation will not in any event exceed the 100% of the Purchase Price.
- In the event of a delay in delivery, should a specific delivery time be agreed in written by the Seller, the compensation is limited to a maximum of 0.5% of the delayed delivery value for each full month (30 days) of delay. A delay of less than one full month (30 days) do not entitle the Buyer for any compensation.
7. Terms of Payment/Set-Off Prohibition
- The invoice is issued on the day of delivery or provision of the goods. Any postponement of the invoice value date is excluded unless agreed to otherwise.
- 30% of the invoice amount is due upon receipt of the confirmation of the order prior to the start of production; the remaining amount is due upon delivery in the form of an irrevocable and unconditional bank wire transfer. Any payment terms that deviate from the aforementioned require written confirmation by the Seller.
- The Seller does not grant any cash discount deduction.
- Any costs that incur as a result of accepting bills of exchange or cheques, especially discount charges and interest shall be borne by the Buyer.
- In the event of delayed payments, the Seller is entitled, without special announcement or giving notice, to charge interest on arrears in the amount of 7 percentage points above the statutory base interest rate, however no less than 12% p.a. For each payment reminder, the Seller is entitled to an arrears fee of CHF 50.00.
- Furthermore, in the event of delayed payments, all other outstanding amounts receivable - including from bills of exchange - are immediately due, regardless of their due date. The Seller is furthermore entitled to withdraw from all ongoing agreements, cease deliveries, make them dependent on the provision of securities or to only deliver on the basis of cash on delivery.
- In the event of delayed payments, the Seller is entitled to delay delivery until such payments are received and retain ownership on all goods that should be delivered, even without withdrawing from the Agreement and even if partial payments have been made. All costs incurred due to delay in payment by the Buyer and the retention of items shall be borne by the Buyer.
- Offsetting of Buyer's amounts receivable against Seller's amounts receivable is excluded unless the Buyer's amounts receivable are undisputed or have been determined as legally binding.
8. Retention of Title
- Delivery of the goods is subject to retention of title in accordance with Swiss Law: a) The delivered goods remain the Seller's property until complete payment of all amounts receivable. b) The Buyer is not entitled to give away, pledge or transfer items subject to retention of title as a security. c) The Seller is entitled to request the return of the delivered and not (or just partially) paid items at the expenses of the Buyer. As soon as the Buyer has fulfilled its obligations, the Seller will return the items, at Buyer expenses.
- Should a security be issued to cover the Seller's amounts receivables, the latter is obligated to release them to the extent that they exceed the value of secured Seller's amounts receivable by 20%.
- The Buyer must immediately inform the Seller if any third party accesses the Seller's property, e.g. by an order issued by a Tribunal or official body and allow Seller to protect its property; otherwise the Buyer is liable for damages.
9. Contractual Penalty
- The Buyer is obligated to solely offer the goods for sale, display, sell them, etc. in the retail shop which it specifies as the delivery address in the order.
- The Buyer is obligated to refrain from giving away, selling or making goods that have been sold to him to commercial resellers or making them otherwise accessible to them.
- The Buyer is obligated to refrain from offering, selling or otherwise advertising for goods that have been purchased from the Seller on the Internet or other sales platforms outside of its retail shop that it has specified to the Seller during ordering.
- The Buyer assures that the information regarding its trader status which is made during ordering is accurate.
- The Buyer is obligated to pay a contractual penalty in the amount of CHF 5,000.00 to the Seller for any event of breach to the aforementioned duties and/or obligations. The Buyer shall not raise the defense of continuation of offence.
- Goods sold cannot be exchanged.
- If, in exceptional cases, the Seller agrees to an exchange, the Buyer shall pay an administrative fee in the amount of 10% of the net value of the exchanged goods, plus all incurring shipping and packaging costs. An agreement by the Seller will be granted only after the goods to be exchanged are return to the Seller and inspected in order to determine whether they are in a new and unused status. Should this be the case, the Seller will accept the exchange in written and shall issue a credit note in the amount of the net value of the returned goods to the Buyer which may be deducted from the invoice resulting from the additional order placed by the Buyer. In no event the credit note amount shall be paid out by the Seller.
- The Seller does not provide any territorial or other exclusivity right in the sale of Seller's goods.
- If, in exceptional cases, an exclusivity clause is agreed upon by the Seller it shall apply exclusively and only if this has been confirmed in writing by the Seller.
12. Other Provisions
The Buyer's rights under the contract of purchase may not be transferred without the Seller's written consent.
13. Place of Jurisdiction
The exclusive place of jurisdiction for all claims arising from the execution or interpretation of this Agreement is agreed in Mendrisio Sud, Switzerland.
14. Applicable Law
The laws of Switzerland shall exclusively apply excluding any conflicts of law. This law is also decisive for determining the question as to whether the Buyer has agreed to the validity of these General Terms and Conditions at the time of Agreement conclusion or at a later point in time.
15. Legal Validity
Should any clause of this Agreement be deemed to be invalid by a judge, the remainder of the Agreement shall remain valid and binding between the Parties and completed by the judge with such provision that results as close as possible to the one that the Parties would have chosen at the closing of the Agreement, should they have been aware of the invalidity.