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1. General Regulations – Scope of Application
Deliveries and performances of Exclusive Networks Switzerland AG (hereinafter „Exclusive Networks“) are exclusively executed according to these General Terms and Conditions (hereinafter „Conditions“). They shall apply for all present and future business relationships with customers of Exclusive Networks (hereinafter „Customer“). Deviating, contradictory or supplemental general terms and conditions of the Customer shall not become subject of the contract even in case of awareness, unless Exclusive Networks explicitly agrees to their application in writing. The Conditions shall also apply if Exclusive Networks in knowledge of contradicting regulations or regulations of the Customer deviating from the Conditions executes the order without reservation. With the order placement the Customer approves the applicability of the Conditions. In addition it is referred to the provisions of the manufacturer concerning the contractual products which are enclosed.
2. Conclusion of Contract
Declarations of intentions of Exclusive Networks shall only be binding, if they have been signed by a person authorised by the management to do so. Exclusive Networks can accept an order of the Customer within two weeks by written confirmation or delivery. Information in prospectuses, advertising brochures or on the homepage of Exclusive Networks are deemed to be a request to the Customer to submit a contractual offer. For the quality and nature of the performances/goods the data defined in the order confirmation of Exclusive Networks are always relevant. The Customer shall not be permitted to use otherwise cost estimates, system analyses, project documentation and other documentation of Exclusive Networks nor make them available to third parties.
3. Deliveries, Performance Content and Delivery Contract
Delivery dates submitted to the Customer are under the reservation of the correct and timely self-delivery of Exclusive Networks. If the self-delivery source ceases to exist, Exclusive Networks shall not be obliged to stock up with goods at third delivery parties, but shall be entitled to supply the Customer with goods available. Delivery terms binding for Exclusive Networks require an explicit and written agreement, otherwise they are applicable only as standard values. They commence with the receipt of the order confirmation at the Customer, unless Customer information is missing, which is required necessary for the fulfilment of the contract by Exclusive Networks; in such case it commences with the receipt of this information by Exclusive Networks. The compliance with the delivery term is subject to the timely and due fulfilment of all duties and obligations of the Customer. In the event that the Customer fails to fulfil his obligations to cooperate or in the event that he is in acceptance delay, he shall be obliged to compensate Exclusive Networks with the additional expenses caused thereby. In addition, the delivery terms agreed among the parties shift by the duration of the delay of the Customer. The risk of a deterioration of the purchased object in such case will pass to the Customer. Exclusive Networks shall be entitled to deliver changed or adjusted products to the extent that these changes or adjustments are acceptable to the Customer. Exclusive Networks reserves the right to partial delivery and partial invoices. Delays in delivery, for which Exclusive Networks shall not be responsible, like force majeure, amended official authorization and legal situation, breakdowns, industrial disputes, shift the delivery terms by the duration of the impairment.
Only after written warning by the Customer Exclusive Networks gets in default. After receipt of the warning letter Exclusive Networks shall be entitled to a grace period of at least 14 days for delivery, whereby the Customer has to determine the grace period in writing. In case of a delay of the performance for which Exclusive Networks is responsible, the Customer has a right to withdraw within the scope of the statutory provisions. Compensation claims of the Customer due to delay of the performance shall be excluded to the extent that they are not subject to intent or gross negligence of Exclusive Networks.
4. Delivery and Transfer of Risk
Delivery normally takes place ex legal seat or warehouse of Exclusive Networks. All deliveries including any return deliveries shall be made on account and risk of the Customer to the extent that nothing different has been agreed in writing. The risk shall be transferred on to the Customer, as soon as the goods leave the warehouse of Exclusive Networks. The determination of the form of dispatch, the transport company and any insurance values of the delivery are reserved by Exclusive Networks. Any particular forms of dispatch desired by the Customer, nature and insurance values have to be reported to Exclusive Networks in advance, at the latest however with the order placement in writing. The costs of the delivery in any case have to be paid by the Customer, unless Exclusive Networks determines this differently in the order confirmation. In case the delivery is delayed due to circumstances for which the Customer is responsible, the risk already passes on to the Customer with the notification of the delivery readiness.
5. Prices, Payment Terms and Maturity, Setoff
If nothing different has been agreed in writing, the individual prices shall be subject to delivery ex legal seat or warehouse of Exclusive Networks. They immediately become due for payment with delivery of the goods and without any deduction, if no other conditions have been agreed on the invoice. Default shall occur upon warning letter after due date, in any case however within 30 days after invoice date. Discounts and other invoice deductions are inadmissible, unless they have been agreed in writing. In case of default payment Exclusive Networks charges default interests in the amount of 1% of the invoice amount per month. Orders, for which no fixed prices explicitly have been agreed, are charged according to the price lists effective on the date of the delivery. In the event that the Customer is in default of payment, all payment claims of Exclusive Networks vis-à-vis the Customer immediately become due for payment. The acceptance of cheques and bills of exchange at the discretion of Exclusive Networks shall only be made as a conditional payment. Any fees are to be paid by the Customer. Exclusive Networks shall be entitled to request payment in advance for deliveries. The offsetting or the retention of payments against any counterclaims of the Customer shall be inadmissible to the extent that this does not concern any legally-binding assessed counterclaims or counterclaims acknowledged by Exclusive Networks in writing.
6. Retention of Title
Exclusive Networks reserves the right of ownership in the purchased object until receipt of all payments from the delivery contract. This shall also become applicable for all future claims accruing from the business relationship. The Customer shall be entitled to a resale of the goods under the retention of title by way of a proper course of business. The Purchaser undertakes to carefully handle the goods, in particular he is obliged to insure them at his own costs against fire, water, vandalism and theft damages in a sufficient manner at original value of the goods. Until the date of receipt of payment at Exclusive Networks the delivered products shall neither be pledged, transferred by way of security or amended.
In case of behaviour of the Customer contrary to contract, in particular in case of payment default, Exclusive Networks shall be entitled to register the retention of title with the Retention of Title Register at the costs of the Purchaser.
7. Acceptance, Guarantee and Liability
Immediately after receipt the Customer has to examine the delivered products and to immediately reprimand any recognizable defects, otherwise the delivered products are deemed to have been approved. Defects shall have to be notified within one week as from receipt of the goods in writing, otherwise the assertion of the guarantee claims shall be excluded and the goods are deemed to have been approved, unless it concerns a defect, which was not recognizable during examination. In the event that such a defect is recognized during the guarantee period, the notification immediately has to be made in writing, otherwise the goods are deemed to have also been approved. In the event that a defect in the purchased object exists, for which Exclusive Networks is responsible, Exclusive Networks is entitled to remove the defect or to supply a replacement. In case the supplementary performance has failed twice the Customer shall be entitled to withdraw from the contract concerning the defective product. Exclusive Networks shall be entitled to refuse the supplementary performance claim so long until the Customer has not paid a proportionate part of the purchase price. No material defect claims exist, if the performances only insignificantly deviate from the contractual condition and usability. No material defect claims also exist in case of excessive or improper use and natural wear and tear, failure of components of the system environment, non-reproducible software errors or defects, which accrue due to particular external factors, which according to contract are not to be assumed. This shall also apply for subsequent changes or maintenance by the Customer or third parties instructed by him. The Customer shall bear the costs of an unjustified or incomplete return of the goods. Exclusive Networks shall be entitled to charge for such return of deliveries a flat fee of CHF 150.00 or to specifically charge it. Claims due to material defects become time-barred within one year as from the statutory commencement of the limitation period. In case of claims due to material guarantee Exclusive Networks shall only be liable to the extent that the Customer raises claims which are subject to intent of Exclusive Networks.
The Customer is aware that Exclusive Networks is not the original supplier/manufacturer of the products, but that Exclusive Networks acquires these products for the purpose of resale. Consequently, all products are subject to the explicit terms and any guarantees of the original suppliers/manufacturers of the products. The Customer assures that all guarantee terms relating to the products, including all advantages and credits in connection therewith, are transmitted by the original supplier/manufacturer to the clients of the Customer.
8. Total Liability
Unless provided otherwise in these Conditions, the liability of Exclusive Networks irrespective from which legal perspective, is limited to intent and gross negligence. Any further liability, in particular for indirect or subsequent damages, like lost profit, additional expenses or personnel costs of the client, non-realized cost savings, claims of third parties or damages from data loss, shall explicitly be excluded to the extent that this is legally admissible. Claims due to the Product Liability Act or such due to personal injury remain reserved.
Exclusive Networks shall be entitled to withdraw from the agreement with the Customer to the extent that (i) the self-delivery with the goods or (ii) the repair of defective goods according to Exclusive Networks’ own discretion is not possible within a reasonable period of time. In such case Exclusive Networks will reimburse to the Customer any already paid purchase price, in case of (ii) by offsetting the benefit acquired by the Customer. The Customer shall not be entitled to any other claims.
10. Copyrights and other Property Rights
All software, which shall be supplied to the Customer according to a contract, will be supplied according to the licence regulations of the supplier. The Customer is aware of the fact that Exclusive Networks is not the original manufacturer of the products, but that Exclusive Networks acquires these products for the purpose of resale. Consequently, all products are subject to the explicit terms of any guarantees of the original manufacturers of the products. The Customer assures that all guarantee terms relating to the products, including all advantages and credits in connection therewith, are transmitted by the original manufacturer to the clients of the Customer.
Exclusive Networks, respectively its suppliers/manufacturers reserve all rights in the property and copyrights in circuit diagrams, computer software, documentation, offers and similar documents. Without the written approval of Exclusive Networks, they shall not be provided to third parties. Exclusive Networks excludes any guarantee in case of breach of any copyrights, patents or other property rights. The Customer as well as the client of the Customer shall only use the products according to the use defined in the contract or in the documentation. Product names and/or copyright symbols shall not be removed from the products. Software shall not be amended, shall not be subject to reverse engineering or de-compilation unless due to mandatory legal provisions this is permissible.
All material and immaterial products supplied by Exclusive Networks may be subject to export or import regulations and are intended to be used only in Switzerland. The Customer undertakes to comply with these regulations.
Any export shall be subject to the written approval by Exclusive Networks. In particular, the export and embargo regulations of Switzerland, the European Union and the United States of America, as amended, have to be observed. The Customer undertakes to exempt Exclusive Networks from any claim, which is subject to the violations of export and import regulations.
12. Data Transfer/Manufacturer Reporting
The Customer acknowledges and agrees that Exclusive Networks, within the scope of periodically so-called manufacturer reporting, processes customer-related data such as sales prices and quantities as well as names and addresses of the clients and their employees and to transfer them to manufacturers/suppliers and that this information might be transferred outside of Switzerland during this process. At the same time Exclusive Networks shall be entitled to transmit to the manufacturers of the goods or the suppliers of Exclusive Networks the contact data of the Customers (address Customer and contact persons) for marketing purposes. In this respect Exclusive Networks shall oblige the manufacturers respectively the suppliers to use these personal data only for specified marketing activities and not to transmit them to third parties.
Furthermore, the Customer agrees that Exclusive Networks processes customer-related data for the purpose of examination of the creditworthiness of the Customer and provides it to the credit insurance enterprise instructed by the company.
13. Electronic Business Transactions
The websites of Exclusive Networks are not deemed to be a contractual offer, but are merely a request to enter an order. During download or/and during sending of data via the Internet the risk of the loss and the change of data shall pass on to the Customer when crossing the external network interface of Exclusive Networks.
14. Service Contracts
Exclusive Networks shall not assume any liability for cost estimates for service-contracted performances submitted by Exclusive Networks, as long as their commitments were not explicitly agreed in writing. Non-binding cost estimates can be exceeded by up to 10%. When calculating the prices Exclusive Networks implies that necessary preliminary works and the obligations to cooperate are completely fulfilled by the Customer and do not lead to any idle times at Exclusive Networks. In case of maintenance contracts the travel time is equal to the working time with a deduction of 20% for the calculation equal to the working time. Completion dates for repair works are binding, if they are explicitly defined as binding. In case of non-binding dates, a written grace period set by the Customer is required, in order to bring Exclusive Networks into default. In case of justified notices of defects Exclusive Networks shall be entitled to undertake a supplementary performance twice. The Customer shall be obliged to accept the repair object and after acceptance of the same to immediately examine it, otherwise acceptance is deemed completed within a period of one week. All regulations of these conditions for deadline, payment terms, default, transfer of risk, material defects and examination obligations as well as to place of jurisdiction and applicable law shall also become applicable for service contracts.
The contractual nature of the software is determined according to the documentation, from which also the intended use results. The right of use results from the legal provisions as well as from the terms of the individual manufacturers which were supplied together with the software, which shall prevail. A transfer of the software to third parties is only permitted in a complete form, by simultaneous deletion of all copies and transfer of the right of use. Otherwise the Conditions are fully applicable.
16. Ancillary Agreements, Miscellaneous
Verbal agreements are in principle non-binding. This shall also apply for the understanding to waive written confirmations or agreements.
Exclusive Networks shall be entitled to have single obligations performed by sub-contractors.
17. Partial Effectiveness
If the aforesaid provisions as a whole or part thereof is or shall become ineffective, or are in breach of applicable law, the effectiveness of all other provisions shall remain unaffected thereby. In such case the ineffective provision shall be replaced by a legal provision which reflects the commercial purpose pursued to the extent that no significant change is caused thereby.
18. Place of Fulfilment, Jurisdiction, Applicable Law
Place of fulfilment for all obligations resulting from the contractual relationship is the legal seat of Exclusive Networks. Jurisdiction for all legal disputes resulting from the contractual relationship and its effectiveness is the legal seat of Exclusive Networks to the extent that the Customer is not a consumer in the sense of Article 32 ZPO; Zivilprozessordnung, Swiss Civil Procedure Code. The substantive law of Switzerland shall become applicable, even if the Customer does not have his legal seat in Switzerland. The applicability of the UN Convention on the International Sale of Goods shall be excluded.
19. Authoritative Language
This document is a translation of Exclusive Networks’ original General Terms and Conditions in German which can be found here: https://www.exclusive-networks.com/ch-de/gesetzliche-vorschriften/allgemeine-geschaftsbedingungen/ . In case of any discrepancy between this translation and the original, the original German version shall prevail.
Version: 01 January 2017