GENERAL TERMS AND CONDITIONS of WATSON MARLOW Ltd. Falmouth

Date: July 2018 

A. General

  1. The following General Terms and Conditions (GTCs) apply to all contracts concluded by WATSON-MARLOW Ltd. (hereinafter referred to as “W-M”) with third parties (hereinafter referred to as the “Contracting Party”) in connection with the sale, leasing or any other transfer of electronic or other equipment, in particular of pumps of any kind and their fittings and replacement parts (hereinafter referred to overall as “Contract Goods”). In addition to these GTCs, certain business relationships, especially service and/or maintenance work, may be subject to other terms and conditions, which may, however, refer to these GTCs.
  2. General terms and conditions issued by the Contracting Party that differ from these GTCs are only valid if W-M expressly confirms in writing that these terms and conditions apply instead of these GTCs.
  3. Differences, additions and/or subsidiary agreements to these GTCs are only binding if W-M has approved them in writing.
  4. Verbal information and commitments, brochures and advertising statements of any type whatsoever, in particular descriptions, illustrations, drawings, samples, qualities, information on properties, composition and usability as well as dimensions and weights of the Contract Goods are always approximate and do not constitute any kind of assurance or guarantee. Information of this type can only become a binding part of the contract in the event of express written confirmation by W-M.

B. Conclusion of contract (offer and acceptance)

  1. A contract between W-M and the Contracting Party only comes into being subject to and in accordance with the content of the contract concluded in writing by W-M or on delivery of the Contract Goods or the rendering of any other agreed service by W-M.
  2. When accepting an order, W-M reserves the right to deviate from the Contracting Party’s specifications, if W-M considers this to be necessary and acceptable to the Contracting Party due to actual or business circumstances (e.g. with regard to the required delivery time, the specified quantities or prices).
  3. W-M is entitled, at any time without prior notice, to supply a model that followed on from the Contract Goods instead of the ordered Contract Goods if the ordered model is no longer produced and can no longer be supplied. The Contracting Party cannot ask for delivered Contract Goods to be subsequently modified accordingly. Furthermore, the Contracting Party is not entitled to reject a subsequent model as not being in accordance with contract, even if the modification is made in relation to a single order, unless this has been expressly agreed in writing beforehand.
  4. “This contract is only binding subject to the approval of the directors or management of W-M. Approval is deemed to have been given if the directors or management do not state in writing to the Contracting Party or the buyer within five days that they are refusing to accept it. In the event of a refusal – subject to mandatory statutory provisions – there shall be no liability for damages.”

C. Delivery time 

  1. The delivery time for the Contract Goods is determined in accordance with the written contract concluded by W-M.
  2. Specified delivery times start from the date when W-M provides the Contracting Party with the written contract. If the Contracting Party is obliged to do something first, then the delivery time starts from the date when this has been done and W-M can proceed without suffering any loss.
  3. If, after conclusion of the contract, the Contracting Party wants changes to be made to the contractually agreed services, W-M is entitled to change the delivery time.
  4. In the event of force majeure, for example government intervention, natural disasters, war, riots, strikes at its own company, at suppliers or at haulage companies, irrespective of whether they affect Switzerland or territories from which and/or through which supplies to W-M or deliveries to the Contracting Party take place, or in the event of other circumstances for which W-M is not responsible and that lead to agreed delivery dates being missed, W-M is entitled to make the delivery when the circumstances have ended. In this case, the Contracting Party does not have any rights or claims on the grounds of non-delivery or late delivery. In this respect, mutual claims for damages are excluded.
  5. W-M is entitled to make partial deliveries.

D. Dispatch and transfer of risk 

  1. W-M dispatches the Contract Good to the Contracting Party or to the delivery destination indicated in its order at the Contracting Party’s cost. W-M issues the shipping order without any special arrangements in accordance with the carrier’s/haulage contractor’s terms and conditions, which are customary practice. Unless expressly instructed to do so in writing, W-M does not take out any transport insurance. Transport insurance is taken out only in the name of the Contracting Party. Carriage and freight-forwarding contracts can be taken out, at W-M’s discretion, either by W-M in its own name or in the Contracting Party’s name. The Contracting Party hereby authorises W-M to conclude all relevant contracts. All associated costs and fees shall be paid by the Contracting Party. In the event of disproportionately high costs, W-M is entitled to require the reimbursement of additional costs for work done.
  2. W-M’s registered office is the place of performance in each case and for each legal relationship established on the basis of these terms and conditions and for each statutory or contractual obligation to make restitution.
  3. Benefit and risk (loss or depreciation of the purchased item) relating to the item are transferred to the buyer on conclusion of the contract.

    In the event of the sale of unascertained goods, the benefit and risk are not transferred to the buyer until the goods have been selected.

    If a specific place or time of performance is agreed, on delivery by W-M, the risk is not transferred to the buyer until W-M has supplied the item or offers the item at the place of performance (place of residence or subsidiary of the Contracting Party or the buyer) or the time of performance has arrived.

    In the event of a mail-order purchase, the risk is transferred from W-M to the buyer at the time when the item is handed over to the freight forwarder, carrier, post office, rail company or airline for shipment.

    If the sales contract is linked to terms and conditions agreed in writing, the risk is not transferred from W-M to the buyer until the condition has been fulfilled.

E. Prices

  1. The prices for the Contract Goods in SFr are indicated in the relevant written contract from W-M. These prices are, in each case, subject to the statutory rate of value added tax applicable at the time of delivery. The prices apply from the distribution centre chosen by W-M and include standard packaging of the Contract Goods, insofar as this is customary practice, but not costs and additional costs of shipment, such as postage, freight, insurance, delivery charges, etc.

F. Terms of payment

  1. Invoices issued by W-M are payable net within the period indicated in the written contract from W-M. Payments by the Contracting Party must be made only to W-M. Receipt of payment by W-M is the deciding factor for the timeliness of the payment. Discounts and other reductions are not permitted unless otherwise stipulated in W-M’s order confirmation. W-M does not accept bills of exchange. Cheques are only accepted as payment if all fees and charges are paid.
  2. Invoices issued by W-M indicate the due date accepted by both parties as binding.
  3. The Contracting Party is in arrears when the indicated due date has passed without the need to issue of any separate reminder. From this date, W-M is entitled to charge interest on arrears at a rate of 4% above the discount rate of the Swiss National Bank valid at the time, but at a minimum rate of 5%, unless W-M is charged higher interest on arrears or the Contracting Party can demonstrate that W-M was not charged this much. W-M reserves the right to claim further damages caused by late payment.
  4. If the agreed payment date is exceeded, W-M is entitled to charge a flat-rate reminder fee of 12.50 SFr for each reminder.
  5. If instalments are agreed and the Contracting Party is in arrears by an amount equal to two instalments, W-M can set the Contracting Party an additional deadline of 14 days, notwithstanding its rights pursuant to Section I. and F. 3, stating that, at the end of this period, it shall refuse to accept the Contracting Party’s fulfilment of the contract. When the additional deadline expires without payment, W-M is entitled to terminate the contract and to demand damages on the grounds of breach of contract.
  6. WM reserves the right to perform a credit check of the buyer at any time, and if this proves to be relevant WM can ask for a prepayment. This particularly apply when setting-up new customers account.

G. Warranty and liability

  1. For a period of 24 months, W-M guarantees (with the exception of OEM pumps for which W-M grants a one-year warranty period), in accordance with the following provisions, that the Contract Goods do not have any material or manufacturing defects.
  2. The Contracting Party must report obvious defects in writing immediately and no later than 14 days after handover or notification that the goods are ready for acceptance. Other defects, which cannot be detected within this period even on careful examination, must be reported to W-M as soon as they are discovered. If there is a delay in reporting defects, W-M is not liable for defects. Warranty claims must be made immediately and submitted with the original sales contract. W-M is not obliged to settle warranty claims if the original documents are not submitted.
  3. Defects are primarily eliminated by means of repairs. If the repair fails or in the event of the unacceptability of further repair attempts, the Contracting Party can ask for the contract to be terminated instead of accepting a repair or can ask for the price to be reduced. There is no right to receive a replacement.
  4. The warranty does not cover:
    1. defects caused by the Contracting Party failing to report a defect immediately and failing to provide the item for repair;
    2. damage to the Contract Goods caused by inappropriate handling or incorrect operation (in particular the failure to follow the instructions provided in the enclosed user manual), incorrect use or any operations carried out on the Contract Goods by the Contracting Party or other persons who have not been authorised by W-M;
    3. damage caused by force majeure.
  5. Natural wear and tear is not covered by the warranty.
  6. Otherwise, any further claims by the Contracting Party due to defective or incorrect delivery or the breach of additional contractual obligations associated with delivery are excluded, regardless of the legal basis for them (e.g. including unlawful acts, positive breaches of contract and the breach of duties in contract negotiations), unless W-M acted with wrongful intent or gross negligence. This does not affect claims for damages on the grounds of non-performance due to the absence of guaranteed features.
  7. If and insofar as another manufacturer of parts or replacement parts provides the Contracting Party with its own warranty, this does not extend or prolong the warranty obligations of W-M in relation to the Contracting Party.
  8. W-M is only liable to the Contracting Party in the event of wrongful intent and gross negligence. The Contracting Party shall immediately notify W-M of damage for which W-M is responsible; otherwise W-M is not liable.

H. Termination

  1. W-M can terminate the contract if:
    1. it cannot deliver the goods or if it cannot deliver the goods on the agreed binding or non-binding date due to force majeure, strike or any other circumstances for which it is not responsible;
    2. a price change outside the company leads to a change to the original cost price of more than 10%;
    3. the Contracting Party exceeds a payment date agreed in writing by more than 14 days and fails to observe a subsequent deadline;
    4. the Contracting Party has made untruthful statements about its obligations, which jeopardise its ability to meet its payment obligations.
  2. The Contracting Party can terminate the contract if:
    1. W-M makes delivery impossible by wrongful intent or gross negligence;
    2. W-M fails to comply with the expressly agreed binding appropriate extension to the  delivery date. The Contracting Party must grant W-M another extension if W-M proves that it was prevented from delivering on time by force majeure, strikes or other circumstances beyond its control. This also applies if these circumstances were experienced by subcontractors.

I. Retention of title

  1. The Contract Goods remain the property of W-M until the payment owed to W-M under the contract has been paid. Title to the goods is also retained for all claims W-M subsequently has against the Contracting Party in connection with the item purchased, e.g. due to repairs and other services. If the Contracting Party is a legal entity under public law, a special fund under public law or a trader, where the contract is included in operating the commercial enterprise, title to the goods is also retained for all claims W-M has as a result of its ongoing business relationships with the Contracting Party. If the value of the bonds set up for W-M exceeds the amounts owed by the Contracting Party by a total of more than 20%, based on the invoice amounts in each case, W-M is obliged to release the bonds if the Contracting Party requests this.

    Until the payable purchase price, including any interest on arrears and costs, has been paid in full, W-M is granted the right to register its retention of title concerning the item purchased and its equipment in the register of retention of title under Article 715 of the Swiss Civil Code.

    The regulations concerning transfer of risk are not affected by an agreed retention of title.

  2. If the goods subject to retention of title are subject to further work or change by the Contracting Party, this is always for W-M. If the goods subject to retention of title are combined with other items not owned by W-M, then W-M is co-owner of the new item and holds a share equal to the value of the item subject to retention of title in relation to the other items combined at the time when they were combined. If the Contracting Party sells the item subject to retention of title together with other items not belonging to W-M, or after combining or working on them, then they are assigned only to cover the outstanding invoice amount for the item subject to retention of title.
  3. The Contracting Party is entitled to collect the assigned amounts in its own name but W-M is entitled to revoke this right of collection at any time, particularly if the Contracting Party is in arrears. If this right of collection is revoked, the Contracting Party is obliged to give or hand over to W-M all information and documents required to claim the assigned amounts and to inform its customers of the assigned amounts. If the Contracting Party is in arrears, W-M is entitled to inform the Contracting Party’s customers of the assigned amounts.
  4. The Contracting Party shall inform W-M at any time of the whereabouts of the item subject to retention of title and of claims resulting from its resale. The Contracting Party shall immediately inform W-M in writing of access by third parties to the item subject to retention of title or the claims assigned to W-M and shall inform the third parties of W-M’s rights and shall support W-M in exercising and enforcing its rights in relation to these third parties, in particular it shall pay for the necessary immediate legal remedies/action to safeguard W-M’s rights.
  5. W-M is entitled to repossess the item subject to retention of title if the Contracting Party is in breach of contract, in particular in the event of late payment; the Contracting Party must surrender the item in this case.

    Repossessing the item subject to retention of title does not constitute termination of contract, unless W-M expressly states that this is the case in writing. In the event of exercising its rights to the item subject to retention of title, W-M is entitled to access the property, land and buildings of the Contracting Party to take possession of W-M’s property and to take it to another place or arrange for it to be taken to another place.
  6. The Contracting Party shall handle the item subject to retention of title with care and shall pay for insurance to provide adequate cover for loss or damage, in particular due to fire, water damage, burglary or theft and shall allow W-M to see the insurance policies if requested to do so. The Contracting Party hereby assigns its insurance claims to W-M in this respect. W-M hereby accepts the assigned claims and states that the claims will be reassigned to the Contracting Party on condition that this shall be effective when and insofar as the retention of title expires.

J. Export 

  1. In the event of the Contract Goods being exported, the Contracting Party shall comply with the provisions of Swiss export law.

K. Miscellaneous 

  1. The Contracting Party shall treat any information whatsoever provided and/or otherwise known to it in association with the contractual relationship with W-M and not intended for the general public in the strictest confidence and shall not make it accessible to third parties, either during the contractual relationship or after it had ended. This obligation does not apply insofar as the Contracting Party demonstrates that it was aware of this information before working with W-M, that it was provided by authorised third parties or has become public knowledge through no fault of the Contracting Party.
  2. The Contracting Party is not entitled to transfer rights or obligations from the contract concluded with W-M to third parties without prior written approval from W-M.
  3. The Contracting Party is only entitled to offset amounts in relation to W-M, if its claims are not disputed by W-M or they have been established in law. The Contracting Party is only entitled to assert rights of retention or other rights to refuse payment if these rights are based on the same contractual relationship, whereby in the case of ongoing business relationships, each order is a separate contractual relationship. Any complaints about defects whatsoever do not entitle the Contracting Party to withhold payment.
  4. The contractual relationships between the parties are subject to Swiss law. The provisions of the United Nations Convention on Contracts for the international Sale of Goods of 11.4.1980 (CISG) are excluded.
  5. For any disputes arising from this contract, the parties agree that the courts with jurisdiction for the Swiss registered office of W-M shall have jurisdiction. Alternatively, W-M is free to pursue the matter before the courts with jurisdiction for the registered office or place of residence of the Contracting Party. Swiss law applies and the application of the Vienna Sale of Goods Convention is expressly prohibited.
  6. W-M is entitled to use the personal data acquired through the business relationship with the Contracting Party for its own business purposes, including within the Group, under the terms of the Data Protection Act.
  7. If a provision of these GTCs or the contract concluded with the Contracting Party is or becomes invalid or unenforceable or if there is an omission in a specific contract, this does not affect the validity of the other provisions of these GTCs or of the contract. The invalid or unenforceable provision will be replaced or the omission rectified by a provision that is, insofar as is legally possible, as close to what the parties to the contract intended when they signed the contract or what they would have intended in accordance with the purpose of the contract.
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