1.1 These General Terms and Conditions apply to all orders placed with
Flux Mobility AG
Klosterstrasse 34
CH-8406 Winterthur
("Supplier")
regarding the supply of vehicles, vehicle components, spare parts or services ("Goods").
1.2 Additional or deviating terms and conditions of the Customer, in particular the Customer's General Terms and Conditions of Purchase, do not apply and are hereby expressly rejected, even if
(1) the Customer expressly refers to other terms and conditions within the scope of the business relationship with the Supplier, or
(2) they are not expressly rejected by the Supplier in an order confirmation, or
(3) the Supplier delivers the goods and the Customer accepts payment.
2.1 Cost estimates are non-binding. The Supplier is only bound by offers that specify a validity date.
2.2 The scope and execution of the contract are based exclusively on the written order confirmation of the Supplier or any other written agreement between the parties.
2.3 The Supplier may deviate from the agreed specifications and supply technically improved goods, provided that the improved goods do not have any negative impact on price, function and quality.
Unless the Customer has informed the Supplier in its order of any laws, regulations or standards that must be observed at the place of destination of the goods, in particular with regard to safety, health or official permits, the goods must comply with the relevant laws, regulations and standards in the Supplier's country.
4.1 Partial deliveries are permitted and the Supplier may invoice each partial delivery, provided that the respective goods can be used by the Customer for the agreed purpose.
4.2 The delivery period begins as soon as the contract is concluded, all official permits, such as export, import and payment permits, have been obtained, all advance payments have been received or notification of the issuance or confirmation of a letter of credit has been received by the Supplier, all due payments for goods delivered under previous contracts have been made and as soon as all technical documents agreed between the parties have been delivered or approved by the Customer.
4.3 Delivery is subject to the following conditions, i.e. the delivery period shall be extended appropriately:
a) if the Supplier is prevented from fulfilling the contract by force majeure.
Force majeure shall mean any unforeseeable event beyond the Supplier's control that makes the Supplier's performance economically impractical, excessively onerous or impossible, such as late or defective deliveries from sub-suppliers or subcontractors, labor disputes, official orders or regulations, material or energy shortages, serious operational disruptions at the Supplier's premises, such as the complete or partial destruction of facilities or the failure of essential production equipment, serious traffic disruptions (e.g. impassable roads). If the effect of force majeure and the resulting reasonable period for resuming business exceeds a total of two months, either party may terminate the contract with immediate effect. In this case, the Customer may not claim damages.
b) if the Customer is in default with the fulfillment of its contractual obligations, in particular if it does not comply with the agreed terms of payment or if it
has not provided an agreed security in good time.
4.4 Agreed delivery dates are non-binding.
4.5 The supplier shall inform the customer immediately upon the occurrence, or possible occurrence, of circumstances that could affect the agreed delivery date, as well as the expected duration of the delay, and shall endeavor to minimize the delay. If the new date specified by the supplier is also not met, the customer may set a grace period of at least 60 days and, if this period is not met, withdraw from the contract.
4.6 If the customer does not accept the goods reported as ready for dispatch or revokes an order without justification and does not remedy this breach of contract within seven days of being requested to do so by the supplier, the supplier shall be entitled to withdraw from the contract and claim damages in accordance with clause 6.9. In addition, the customer shall bear the costs of storing the goods. If the goods are stored on the supplier's premises, the weekly storage fee shall be 0.25% of the price of the stored goods.
5.1 Unless otherwise agreed between the parties, delivery shall be EXW supplier's registered office (Incoterms 2020 or latest version).
5.2 If the supplier organizes the transport on behalf of the customer, the customer must notify the supplier of any special requests regarding transport and insurance in good time, at least one week before the agreed delivery date. Otherwise, the supplier will arrange for the fastest and cheapest transport at its own discretion, but without liability.
5.3 The risk for the goods passes to the customer in accordance with the Incoterm agreed in the order. If acceptance tests have been agreed in the customer's factory, the risk shall pass upon acceptance of the goods.
5.4 A detailed delivery note must be enclosed with each delivery, which must contain at least the following data: customer's order number, order date, article number, quantity, gross/net weight and, if required, country of origin and customs tariff number.
5.5 The customer is obliged to note any transport damage as well as missing or incorrect items on the acknowledgement of receipt and to document the damage by means of photographic records.
6.1 Unless otherwise agreed, prices are in the currency applicable at the supplier's registered office and EXW supplier's registered office (Incoterms 2020 or latest version).
6.2 For deliveries that take place later than 2 months after conclusion of the contract, the supplier reserves the right to increase the price for the goods or services in accordance with an increase of more than 5% of the following cost components: labor costs, prices charged by its suppliers or service providers or an increase in public charges.
6.3 The statutory value added tax is shown on the invoice as a separate item. The supplier's invoices must comply with the applicable VAT laws and must also contain at least the order number, the article number, the delivery date and the scope of the delivery, e.g. partial deliveries or remaining deliveries. In addition, the supplier is obliged to correctly state the country of origin of the goods.
6.4 Unless otherwise agreed in writing, the price for goods is due and payable as follows: 50% down payment within 30 days of the invoice date; 50% final payment after delivery ex works.
6.5 Unless otherwise agreed in writing, the prices for components and spare parts for the goods are due and payable within 30 days of delivery and receipt of invoice.
6.6 The invoice amount is to be paid without deduction of discount, costs, taxes, levies, charges or other fees.
6.7 Payments are deemed to have been made as soon as the due amount in the agreed currency is freely available in the bank account specified by the supplier.
6.8 The customer may only offset payments with counterclaims that have either been expressly acknowledged by the supplier or awarded to the customer by a legally binding court decision. Unless they have a material impact on the use of the goods, the delay of an insignificant part of the deliveries does not entitle the customer to a deferral of payment.
6.9 If the customer is in default with the payment of an installment or the provision of an agreed security by more than 14 calendar days, the remaining amount of the total price becomes due and payable. In addition, the supplier is entitled - without setting a grace period - to withdraw from the contract and demand compensation of at least 10% of the contract price.
6.10 In the case of payments by letter of credit (L/C), the customer shall bear the costs for the opening, notification and confirmation of the letter of credit.
7.1 The goods remain the property of the supplier until they have been paid for in full. The supplier is entitled to take all measures necessary to protect its property rights. Prior to the transfer of ownership, the customer is not entitled to pledge the goods or grant security rights.
7.2 If the customer resells the goods subject to retention of title in the ordinary course of business, all purchase price claims arising from the resale, including all ancillary rights, securities and reservations of title, shall be deemed to have been tacitly assigned to the supplier until all claims of the supplier against
the customer have been settled. Until revocation by the supplier, the customer remains entitled to collect the assigned claims. If the value of the goods subject to retention of title together with other securities exceeds the supplier's claims against the customer by more than 20%, the supplier will reassign the above claims to the customer upon request.
7.3 If the customer is in default with his payments by more than 14 calendar days, the supplier may withdraw from the contract and demand the return of the goods at the customer's expense.
7.4.For the right to use the goods from receipt until their return to the supplier, the customer shall pay the supplier the following compensation
a) 2% of the purchase price per calendar week in the first 6 months
and
b) 0.5% per calendar week thereafter.
In the event of withdrawal from the contract, the supplier may enter the customer's premises to repossess the goods that have not been paid for in full. In the event of a partial payment of the purchase price, a positive or negative balance – resulting from
a) the aforementioned compensation for the use of the goods plus any claims for damages by the supplier, including any claims for damages due to improper use of the goods,
and
b) the customer's claim for reimbursement of his partial payments of the purchase price – is due for payment 10 days after the goods have been returned to the supplier.
7.5 As long as the ownership is reserved by the supplier, the customer shall insure the goods at his own expense, naming the supplier as beneficiary, against theft, breakage, fire, water and similar disasters and risks. In addition, he will take all other measures that are reasonable to protect the supplier's property.
8.1 Unless a joint acceptance test has been agreed between the parties, the customer shall inspect the goods upon receipt for transport damage and other obvious defects as well as
for identity and quantity.
8.2 As part of normal business operations, the customer shall inspect the goods, at least on a sample basis, for defects and to determine whether they comply with the agreed specifications, at the latest within 1 week of receipt.
9.1 The goods shall be deemed to have been tacitly accepted if the customer has stored them in his premises or used them for his purposes for more than one month without giving notice of defects. The customer may not refuse acceptance due to insignificant defects, in particular those that do not significantly impair the function of the goods. If the customer is entitled to refuse acceptance of the goods, the supplier shall remedy the deviations or defects within a reasonable period. The customer shall allow the supplier access to the goods for this purpose. A further acceptance test will then take place. Should the goods fail again, the customer may, subject to the limitation of liability provided for in Section 11, exercise his statutory rights.
10.1 The supplier warrants that the goods:
(i) comply with the agreed specifications and provide the agreed performance,
(ii) have been manufactured in compliance with all applicable laws and regulations,
(iii) are free from design, material and manufacturing defects,
(iv) do not infringe any third-party property rights at the place of destination (which, unless otherwise agreed in the contract, is the customer's place of business) and in the country of their manufacture, and
(v) are suitable for the agreed purposes and are of good and merchantable quality.
Deliveries of the wrong goods shall be deemed to be defective deliveries.
10.2 For goods manufactured according to the customer's specifications, drawings or samples, the supplier's warranty is limited to defects in materials and workmanship.
10.3 The supplier undertakes, at its option, to repair or replace all defective goods free of charge, provided that the customer notifies defects in writing within 15 days of receipt of the goods or commissioning of the vehicle, or, in the case of hidden defects, no later than 15 days after the customer becomes aware of the defect or should have become aware of it, but no later
than before the expiry of the warranty period.
10.4 The customer may withdraw from the contract or demand a reduction in the purchase price
– if it is impossible to repair or replace the defective goods; or
– if the supplier refuses to remedy the defect or make a replacement delivery, or if the remedy or replacement delivery is unreasonably delayed for reasons for which the supplier is responsible.
10.5 The warranty period for electric vehicles (including installed batteries and chargers) is 12 months and begins with the initial operation of the vehicle, no later than 3 months after delivery.
10.6 The warranty period for batteries and chargers within the scope of individual sales is 24 months and begins with the receipt of the goods by the customer; it ends no later than 30 months after notification of readiness for dispatch.
10.7 The warranty period for repairs or replacements is 12 months from the date of replacement or successful repair. However, it ends at the latest with the expiry of the original warranty period.
10.8 The warranty does not cover defects or damages resulting from normal wear and tear, improper storage and maintenance, failure to observe the commissioning or operating instructions, excessive strain or overloading, unsuitable operating materials, improper repairs or modifications by the customer or third parties, non-reproducible software errors, or other reasons for which the supplier is not responsible. Furthermore, it does not apply to defects resulting from the use of non-original spare parts.
10.9 No warranty is given for used goods.
10.10 If a notice of defect is unjustified, the customer shall reimburse the supplier for the expenses incurred.
11.1 The rights and remedies of the customer are exclusively governed by these General Terms and Conditions and replace all statutory claims. Further claims for damages, reduction of the contract price, rescission, termination or withdrawal from the contract are excluded.
11.2 The customer is not entitled, regardless of the legal basis, to claim damages for loss of production, loss of use, loss of orders, loss of profit,
loss of expected savings, loss of data, costs for the removal or installation of the goods, handling costs as well as claims of third parties for compensation of such damages or costs.
11.3 The liability of the supplier for property damage or recourse claims in the event of injury or death of persons is limited to the equivalent of EUR 500,000 per event and to a total of
the equivalent of EUR 2,000,000 per calendar year.
11.4 This limitation of liability applies equally if the supplier is liable for actions or omissions of its employees or third parties involved in the performance of its obligations.
11.5 The limitation does not apply to the extent that the liability of the supplier is mandatory, in particular in the event of unlawful intent or gross negligence on the part of the supplier and its employees or third parties involved in the performance of the contract, in the event of fraudulent concealment of a defect, in the event of direct claims arising from personal injury or death, or within the scope of the mandatory liability of the supplier under the applicable Product Liability Act. The statutory limitation periods apply to the claims mentioned in this section.
12.1 In the event of a claim for infringement of third-party intellectual property rights at the agreed place of destination of the goods, the supplier shall, at its own discretion, take the necessary measures to ensure that the customer has a non-infringing source of supply, e.g. by acquiring any license rights, redesigning the delivered goods or other measures that the supplier deems necessary to ensure that no goods infringing third-party property rights are delivered to the customer.
12.2 The supplier shall further indemnify the customer against all liabilities, costs, damages, claims and expenses (including court, attorney or settlement costs) incurred by the customer in connection with a claim or action by a third party against the customer or its customer alleging that the goods or their use by the customer or its customer infringe the proprietary rights of that third party.
12.3 The supplier shall not be liable to the extent that the infringement is due to the fact that the goods were manufactured according to the customer's specifications and the supplier (taking all reasonable precautions into account) could not have recognized that compliance with these instructions would lead to an infringement of third-party property rights.
12.4 The parties will inform each other immediately of any actual or alleged infringements of third-party rights of which they become aware. The supplier will assist the customer in the investigation, defense or handling of such claims, including the provision of all documents that the customer requires to defend the claim.
12.5 If the customer chooses its own legal counsel, the supplier's indemnity extends to the reasonable costs and fees associated with such representation. If the customer does not choose its own legal counsel, the customer will assign to the supplier the sole management of the defense of such claims or actions.
13.1 The supplier reserves all rights to the drawings, plans, technical specifications, illustrations, calculations, brochures, catalogs, models, tools and other documents or the software provided to the customer, unless the customer has expressly ordered and paid for their creation. The customer acknowledges these rights and will not make these documents or the software available to third parties or use them for purposes other than the agreed purpose without the prior written consent of the supplier.
13.2 If software is included in the scope of delivery, the customer is granted a non-exclusive, non-transferable right to use the software for the agreed purpose. Copies may only be made for archiving or debugging purposes or in connection with the replacement of a defective data carrier. Without the prior consent of the supplier, the customer is not entitled to update, expand, disassemble, decompile, decode or reverse engineer the software. In the event of a breach of these obligations, the supplier may revoke the right to use the software with immediate effect.
14.1 The parties shall not disclose any confidential information that they have become aware of in the course of business with the other party, in particular technical information,
trade secrets and order details, such as quantities, technical specifications, the terms of an order, etc., as well as any findings arising therefrom, to third parties and shall use them exclusively for the execution of an order.
14.2 The supplier shall ensure that all subcontractors or sub-suppliers to whom confidential information is disclosed for the purpose of performing the subcontract or supply agree to be bound by these terms.
14.3 The customer may not, without the prior consent of the supplier, publish the fact that it has concluded a contract with the supplier or use the business relationship with the supplier for advertising purposes.
14.4 If the supplier and the customer have not agreed on their own non-disclosure agreement (NDA) and a party or one of its representatives, sub-suppliers or subcontrac-
tors violates the aforementioned confidentiality obligations, it shall pay the other party a contractual penalty of the equivalent of CHF 20,000, unless it can prove that neither it nor the sub-suppliers or subcontractors are at fault.
14.5 The injured party is entitled to claim compensation for any higher damages and injunctive relief. The payment of the contractual penalty does not release the
infringing party from the further fulfillment of its obligations under this contract.
15.1 Within the scope of their contractual relationship, the parties may exchange personal data such as names, telephone numbers, email addresses and other personal data. In this case, both parties will use this personal data in accordance with the applicable laws on the protection of personal data, in particular, where applicable, the requirements of the General Data Protection Regulation
of the European Union of May 4, 2016 (EU 2016/679; «GDPR») and ensure that no unauthorized third parties have access to this personal data without the consent of the data subjects or on any other legal basis.
15.2 The parties will treat personal data of the other party as strictly confidential and process such data exclusively for contractual purposes. The party processing personal data is responsible for the lawfulness of its processing and for safeguarding the rights of the data subjects.
16.1 Should any provision of these General Terms and Conditions be held invalid or unenforceable by a court or authority of competent jurisdiction, such provision shall be deemed invalid, and the remaining provisions shall remain in full force and effect. The parties shall replace the invalid or unenforceable provision, as the case may be, with a valid and enforceable provision having a similar economic purpose, provided that the content of these terms is not materially altered. The same applies in the event of loopholes.
16.2 No delay or omission by the supplier in exercising any right, remedy or recourse available to it shall be construed as a waiver of such rights.
16.3 Amendments or supplements to the contract must be made in writing to be valid. Electronically transmitted communications and declarations of intent (e.g. by e-mail) are also considered «in writing».
Unless otherwise agreed, the place of performance for the obligations of the parties under the contract is the supplier's registered office – i.e. Winterthur.
18.1 All legal relations between the supplier and the customer shall be governed exclusively by the substantive law in force at the supplier's registered office, i.e. Swiss law, to the exclusion of conflict of laws (IPR) and the United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 (UN Sales Law/CISG).
18.2 The exclusive place of jurisdiction for all disputes is the supplier's registered office – Winterthur.
The supplier is also entitled to bring an action before any other court having jurisdiction over the subject matter of the dispute. In this case, the law applicable at the relevant place of jurisdiction shall apply, but excluding the UN Convention on Contracts for the International Sale of Goods (CISG).