1.1 These General Terms and Conditions apply to all orders placed with
Flux Mobility AG
Klosterstrasse 34
CH-8406 Winterthur
("Supplier")
when it comes to the delivery 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, shall 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 accepts payment by the customer.
2.1 Cost estimates are non-binding. The supplier shall only be bound by offers with a validity date.
2.2 The scope and performance of the contract shall be governed exclusively by the Supplier's written order confirmation or any other written agreement between the parties.
2.3 The Supplier may deviate from the agreed specifications and deliver technically improved goods as long as the improved goods have no negative impact on price, function and quality.
If the Buyer has not informed the Supplier in its order of any laws, regulations or standards that must be complied with at the destination of the goods, in particular with regard to safety, health or official approvals, 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 shall commence as soon as the contract has been concluded, all official approvals, such as export, import and payment authorizations have been obtained, all advance payments or notification of the issue or confirmation of a letter of credit have been received by the Supplier, all payments due 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 Buyer.
4.3 Delivery shall be subject to the following conditions, i.e. the delivery period shall be extended accordingly:
a) if the supplier is prevented from fulfilling the contract due to force majeure.
Force majeure shall be deemed to be any unforeseeable event for which the Supplier is not responsible and which makes the Supplier's performance economically impractical, excessively burdensome or impossible, such as late or defective deliveries by sub-suppliers or subcontractors, labor disputes, official orders or regulations, material or energy shortages, serious operational disruptions at the Supplier, such as the complete or partial destruction of equipment or the failure of essential production facilities, 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 demand compensation.
b) if the customer is in default with the fulfillment of his contractual obligations, in particular if he does not comply with the agreed terms of payment or if he has not provided
an agreed security on time.
4.4 Agreed delivery periods are non-binding.
4.5 The Supplier shall inform the Purchaser immediately after the occurrence or possible occurrence of circumstances that may affect the agreed delivery date and of the expected duration of the delay and shall endeavour 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 withdraw from the contract if this is not complied with.
4.6 If the Purchaser does not accept the goods notified as ready for dispatch or cancels an order without cause 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 Purchaser shall bear the costs of storage of 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 edition).
5.2 If the Supplier organizes the transport on behalf of the Customer, the Customer shall notify the Supplier in good time, at least one week before the agreed delivery date, of any special requests regarding transport and insurance. Otherwise, the Supplier shall, at its own discretion but without liability, arrange for the fastest and cheapest possible transportation.
5.3 The risk for the goods shall pass to the customer in accordance with the Incoterm agreed in the order. If acceptance tests at the customer's works have been agreed, the
risk shall pass upon acceptance of the goods.
5.4 Each delivery must be accompanied by a detailed delivery bill containing at least the following data: Customer's order number, order date, article number, quantity, gross/net weight and, if necessary, country of origin and customs tariff number.
5.5 The customer is obliged to note transport damage and missing or incorrect items on the confirmation of receipt and to document the damage by taking photographs.
6.1 Unless otherwise agreed, prices are quoted in the currency applicable at the Supplier's registered office and EXW Supplier's registered office (Incoterms 2020 or latest edition).
6.2 For deliveries made more than 2 months after conclusion of the contract, the supplier reserves the right to increase the price of 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 VAT shall be shown as a separate item on the invoice. 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 properly indicate 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 shall be paid without deduction of discounts, costs, taxes, duties, fees or other charges.
6.7 Payments shall be deemed to have been made as soon as the amount due in the agreed currency is freely available in the bank account specified by the Supplier.
6.8 The Purchaser may only set off payments against counterclaims which have either been expressly recognized by the Supplier or have been awarded to the Purchaser by a final court decision. Unless it has a significant impact on the use of the goods, the delay of an insignificant part of the deliveries does not entitle the Buyer to defer payment.
6.9 If the Customer is more than 14 calendar days in arrears with the payment of an installment or the provision of an agreed security, the remaining amount of the total price shall become due and payable. In addition, the Supplier shall be entitled - without setting a grace period - to withdraw from the contract and to claim damages amounting to 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 of opening, notifying and confirming the letter of credit.
7.1 The goods shall remain the property of the Supplier until payment has been made in full. The Supplier shall be entitled to take all measures necessary to safeguard its ownership rights. Prior to the transfer of title, the Customer shall not be entitled to pledge the goods or to 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 resulting from the resale, including all ancillary rights, securities and retentions of title, shall be deemed tacitly assigned to the supplier until all claims of the supplier against
the customer have been settled. Until revocation by the Supplier, the Purchaser shall remain entitled to collect the assigned claims. If the value of the reserved goods together with other securities exceeds the Supplier's claims against the Purchaser by more than 20%, the Supplier shall assign the aforementioned claims back to the Purchaser upon request.
7.3 If the Customer is more than 14 calendar days in arrears with its payments, 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 they are returned to the Supplier, the Customer shall pay the Supplier the following remuneration
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 Purchaser's premises to repossess the goods that have not been paid for in full. In the event of partial payment of the purchase price, a positive or negative balance - resulting from
a) the aforementioned remuneration 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 Purchaser's claim for repayment of its partial payments of the purchase price - due for payment 10 days after return of the goods to the Supplier.
7.5 As long as title is reserved to the Supplier, the Buyer shall insure the goods at its own expense against theft, breakage, fire, water and similar disasters and risks, naming the Supplier as beneficiary. In addition, it shall take all other measures appropriate to protect the Supplier's property.
8.1 Unless a joint acceptance inspection has been agreed between the parties, the Buyer shall inspect the goods upon receipt for transportation and other obvious defects as well as
for identity and quantity.
8.2 In the ordinary course of business, at the latest within 1 week of receipt, the customer must inspect the goods at least randomly for defects and to check whether they comply with the agreed specifications.
9.1 The goods shall be deemed to have been tacitly accepted if the customer has stored them on its premises or used them for its purposes for more than one month without giving notice of defects. The customer may not refuse acceptance due to minor defects, in particular those which do not significantly impair the function of the goods. If the Purchaser is entitled to refuse acceptance of the goods, the Supplier shall remedy the deviations or defects within a reasonable period of time. The Purchaser must allow the Supplier access to the goods for this purpose. A further acceptance test shall then take place. If the goods fail again, the Purchaser may, subject to the limitation of liability provided for in Clause 11, exercise its statutory rights.
10.1 The supplier warrants that the goods:
(i) comply with the agreed specifications and provide the agreed service,
(ii) have been manufactured in compliance with all applicable laws and regulations,
(iii) are free from defects in design, material and workmanship,
(iv) do not infringe any industrial property rights of third parties at the place of destination (which, unless otherwise agreed in the contract, is the place of business of the Purchaser) and in the country of their manufacture, and
(v) are suitable for the agreed purposes and of good and customary quality.
Deliveries of the wrong goods are deemed to be defective deliveries.
10.2 For goods manufactured according to specifications, drawings or samples provided by the Customer, the Supplier's warranty shall be limited to defects in material and workmanship.
10.3 The Supplier undertakes to repair or replace all defective goods free of charge at its discretion, 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, notifies these in writing no later than 15 days after the Customer has become aware of the defect or should have become aware of the defect, 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 the repair or replacement of the defective goods is impossible; or
- if the supplier refuses the repair or replacement delivery or if the repair 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 when the vehicle is placed on the market, at the latest 3 months after delivery.
10.6 The warranty period for batteries and chargers in the context of individual sales is 24 months and begins with the receipt of the goods by the customer; it ends at the latest 30 months after notification of readiness for dispatch.
10.7 The warranty period for repairs or replacements is 12 months from the date of the replacement delivery or successful repair. However, it shall end at the earliest upon expiry of the original warranty period.
10.8 The warranty does not apply to defects or damage caused by normal wear and tear, improper storage and maintenance, non-compliance with the commissioning or operating instructions, overloading or overstressing, 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 shall not apply to defects which are attributable to the use of spare parts other than original spare parts.
10.9 No warranty is given for used goods.
10.10 If a notice of defects is unjustified, the Buyer shall reimburse the Supplier for the expenses incurred.
11.1 The rights and remedies of the customer shall be governed exclusively by these General Terms and Conditions and shall replace all statutory claims. Further claims for damages, reduction of the contract price, rescission, termination or withdrawal from the contract are excluded.
11.2 Irrespective of the legal grounds, the customer shall not be entitled 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 or claims by third parties for compensation for such damages or costs.
11.3 The Supplier's liability for property damage or recourse claims for personal injury or death is limited to the equivalent of EUR 500,000 per event and in total to
the equivalent of EUR 2,000,000 per calendar year.
11.4 This limitation of liability shall apply equally insofar as the Supplier is liable for acts or omissions of its employees or third parties involved in the fulfillment of its obligations.
11.5 The limitation shall not apply if the Supplier's liability 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 Supplier's mandatory liability under applicable product liability law. The statutory limitation periods shall apply to the claims mentioned in this section.
12.1 In the event of a claim for infringement of intellectual property rights of third parties at the agreed destination of the goods, the Supplier shall, at its own discretion, take the necessary measures to ensure the Purchaser a non-infringing source of supply, e.g. by acquiring any license rights, redesigning the delivered goods or other measures which the Supplier deems necessary to ensure that no goods infringing the intellectual property rights of third parties are delivered to the Purchaser.
12.2 The Supplier shall further indemnify the Purchaser against all liabilities, costs, damages, claims and expenses (including court, legal or settlement costs) incurred by the Purchaser in connection with any claim or action brought by a third party against the Purchaser or its customer alleging that the goods or their use by the Purchaser or its customer infringes the intellectual property rights of such third party.
12.3 The Supplier shall not be liable insofar as the infringement is due to the fact that the goods were manufactured in accordance with the Customer's instructions and the Supplier (taking all reasonable precautions into account) could not recognize that compliance with these instructions would lead to an infringement of third-party property rights.
12.4 The parties shall immediately inform each other of any actual or alleged infringement of third party rights of which they become aware. The Supplier shall assist the Purchaser in the investigation, defense or handling of such claims, including the provision of all documents required by the Purchaser to defend the action.
12.5 If the Purchaser chooses its own legal counsel, the Supplier's indemnification shall extend to the reasonable costs and fees associated with such representation. If the Purchaser does not select its own legal counsel, the Purchaser shall 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 to the software provided to the Customer, unless the Customer has expressly ordered and paid for their creation. The Purchaser acknowledges these rights and shall not make these documents or the software available to third parties or use them for any purpose 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 shall be 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, extend, 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 to
third parties any confidential information of which they have gained knowledge in the course of business with the other party, in particular technical information,
business secrets and order details, such as quantities, technical specifications, the conditions of an order, etc., as well as any knowledge resulting therefrom, and shall use such information 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 subcontracting agree to be bound by these terms and conditions.
14.3 The Customer may neither publish the fact that it has concluded a contract with the Supplier nor use the business relationship with the Supplier for advertising purposes without the Supplier's prior consent.
14.4 If the Supplier and the Customer have not agreed their own non-disclosure agreement (NDA) and a party or one of its representatives, sub-suppliers or subcontractors breaches the aforementioned non-disclosure obligations, it shall pay the other party a contractual penalty in the equivalent of CHF 20,000, unless it can prove that neither it nor the sub-supplier or subcontractor is at fault.
14.5 The infringing party shall also be entitled to claim compensation for any higher damages and injunctive relief. Payment of the contractual penalty shall not release the
infringing party from further fulfillment of its obligations under this contract.
15.1 The parties may exchange personal data such as names, telephone numbers, email addresses and other personal data as part of their contractual relationship. In this case, both parties shall use such personal data in accordance with the applicable laws on the protection of personal data, in particular, where applicable, the requirements of the European Union's General Data Protection Regulation
of 4 May 2016 (EU 2016/679; "GDPR") and ensure that no unauthorized third parties have access to such personal data without the consent of the data subjects or for any other legal reason.
15.2 The parties shall treat personal data of the other party as strictly confidential and process such data exclusively for contractual purposes. The party processing personal data shall be responsible for the lawfulness of its processing and for safeguarding the rights of the data subjects.
16.1 If any provision of these Terms and Conditions is found to be invalid or unenforceable by any 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 with a valid and enforceable provision with a similar economic purpose, if necessary, provided that the content of these Terms and Conditions is not materially changed. The same applies in the event of loopholes.
16.2 No delay or omission by the Supplier in exercising any right, remedy or appeal to which it is entitled shall be deemed a waiver of such rights.
16.3 Amendments or additions to the contract must be made in writing in order to be valid. Notifications and declarations of intent transmitted electronically (e.g. by e-mail) shall also be deemed to be "in writing".
Unless otherwise agreed, the place of performance for the parties' obligations under the contract shall be the Supplier's place of business, i.e. Winterthur.
18.1 All legal relationships between the Supplier and the Customer shall be governed exclusively by the substantive law at the Supplier's registered office, i.e. Swiss law, to the exclusion of the conflict of laws (IPR) and the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (UN Sales Convention/CISG).
18.2 The exclusive place of jurisdiction for all disputes shall be the Supplier's registered office - Winterthur.
The Supplier shall also be 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).