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General Terms and Conditions

Updated: October 2018

1. Scope

1.1. For business dealings with Triopan AG the following General Terms and Conditions apply exclusively. These are also binding without special reference for all current and future business dealings of all customers of Triopan AG. Any deviations must be in written form.

1.2 The terms “Products” or “Triopan Products” also encompass products with the trade names of Triopan, Perfecta Schmid and Optotex, as well as third-party suppliers.

2. Special duties and obligations of the customer

2.1. The customer undertakes the sale and delivery of products to the end customer in their own name, on their own account, and at their own risk. The customer is not entitled to appear to end customers or other third parties on behalf of, or as a representative of, Triopan AG, or to conclude any transactions or contracts for Triopan AG.

3. Ordering, delivery, supply of products and services

3.1. The scope and execution of the delivery will be recorded electronically by Triopan after ordering, so that the customer can check the contents of its order in the online shop. Any discrepancies between the contents of the customer’s order and the delivery data recorded in the online shop must be communicated immediately by the customer to Triopan. Delivery shall be made, subject to availability or deliverability of Triopan, Perfecta Schmid, and Optotex products, or those of third party suppliers.

3.2. In the absence of express written assurances to the contrary, delivery dates specified by Triopan are to be regarded as indicative only. The specification of a delivery date is made to the best of our knowledge, but without guarantee. This applies in particular in the case of delivery delays, for example as the result of logistical problems with suppliers, sub-contractors or third parties. Should a delivery be delayed beyond a delivery date expressly assured by Triopan in writing, the customer may, after the expiry of a supplementary period of at least three weeks, set by them in writing, hold Triopan in default, and after the expiry of a reasonable grace period without satisfaction, subsequently withdraw the order in question. In this case, Triopan shall only be liable to the customer for direct damage, if and insofar as the delay or the impossibility of delivery is verifiably due to a breach of contract by Triopan.

3.3. Partial deliveries are permitted. Unavoidable events such as force majeur, strikes, etc., entitle Triopan to delay delivery, or if need be, to withdraw from the contract.

3.4. Triopan chooses the means of transport and the shipping method. If the purchaser requires a different method, it shall bear the shipping costs.

4. Offers and prices

4.1. All offers are non-binding. Current prices are published in the online shop. Price changes and errors are subject to change.

4.2. Triopan’s products and services are priced net in Swiss Francs (CHF) US Dollars (US$) or euros (EUR), based on the daily CHF exchange rate, excluding VAT, and ex-works from Triopan. Additional costs, e.g. costs for packaging and shipping/delivery (freight/transport) are not included in the prices and are charged to the customer, as well as VAT. We reserve the right to make subsequent charges for uncollected VAT. The postage conditions are defined in the “Transport Conditions”, which form an integral part of these General Terms and Conditions.

4.3. Product prices and ancillary costs are always calculated by Triopan at the time the order is electronically registered. If Triopan’s purchase prices increase after the customer has ordered products from Triopan, Triopan is entitled to adjust its prices to the customer accordingly.

5. Acceptance and testing

5.1. The customer must inspect the goods immediately after delivery or collection. Open defects are to be reported immediately. In the case of deliveries with damage arising from transport, the customer must also immediately submit a damage report, which they must obtain from the freight forwarder.

5.2. Hidden defects are to be reported immediately they are discovered.

5.3. Defects according to para. 5.1. and 5.2 must be reported in writing. Delays and complaints not submitted in writing will result in the warranty conditions listed in 5.4 being forfeited.

5.4. In warranty cases Triopan is entitled to choose:

- to provide replacement against return of the rejected goods,

- to refund the purchase price

- whilst maintaining the purchase contract, to compensate for the lower value of the goods.

In the case of late notification, any warranty or other claim by the customer shall expire, unless the damage or defect was not recognisable at the time of the incoming goods inspection.

6. Transfer of benefits and risks

6.1. Risk shall be transferred to the customer upon dispatch or collection of the products.

7. Payment terms

7.1. Unless otherwise agreed in writing, all invoices from Triopan are due for net payment within 30 days of the invoice date. After expiry of this period, the customer is in default without a reminder. Triopan can claim default interest of 5%. All reminder and collection charges in case of acceptance or default of payment shall be borne by the purchaser.

7.2. In the event of late payment by the customer, Triopan shall be entitled, without any special warning, to discontinue all further deliveries to the customer, in whole or in part, until its claims have been settled or secured. All consequences resulting from such a delivery are exclusively at the expense of the customer.

7.3. If the customer subsequently does not settle outstanding invoices within a grace period set by Triopan, or does not ensure their fulfilment, Triopan shall be entitled to refuse all further deliveries to the customer and claim damages.

7.4. All claims by Triopan, including those for which payment by instalment has been agreed, shall become due immediately if:

(a) the customer repeatedly fails to comply with payment terms or

(b) fails to provide the necessary assurance promptly, when requested to do so by Triopan, in order to dispel Triopan’s legitimate doubts as to the customer’s liquidity/solvency, such as in the case of debt collection or other indications of financial difficulties. The customer has a duty to notify Triopan if cash flow problems become foreseeable.

7.5. Upon request by Triopan, the customer shall surrender to Triopan its claims against end customers resulting from the resale of the products delivered by Triopan, (Art. 164 et seq. Swiss Code of Obligations).

7.6. The offsetting of counterclaims of the purchaser is excluded. Claims asserted by the purchaser from warranties or alleged defects do not exempt them from the obligation to pay until the final court decision. Triopan reserves the right to deliver goods only against security, advance payment or cash on delivery, in variance to the above payment terms. Advance payments are non-interest-bearing.

8. Retention of title

8.1. The products supplied by Triopan remain the property of Triopan until Triopan has received the purchase price in full and in accordance with the contract. Triopan is entitled to enter the retention of title according to Art. 715 Civil Code (Swiss Confederation) in the retention of title register at the respective place of residence of the customer. At the request of Triopan, the customer undertakes to give its written consent to the entry of a retention of title in all essential points for registration (see Art. 4 (4) of the Ordinance of the Federal Supreme Court).

8.2. Until the purchase price has been paid in full, the customer is obligated to maintain the products delivered by Triopan, to treat them carefully and to insure them against all usual risks.

9. Return of products

9.1. The return of products by the customer requires the prior consent of Triopan, and shall be at the risk and expense of the customer. If possible, the return of the products must be packed in their original packaging, but always accompanied by a detailed description of the faults/defects.

9.2. Triopan reserves the right to return faulty products to the customer at the customer’s cost and risk.

9.3. In the case of returned goods that are not due to a fault attributable to Triopan, the customer will be credited the value of the goods based on the lower price, in the event of a price reduction occurring in the meantime. Triopan also reserves the right to charge a processing fee.

10. Credit limits/Duty to inform

10.1. Triopan sets credit limits based on annual sales.

10.2. In the event of late payment, evidence of insolvency or other doubt as to the customer’s creditworthiness, Triopan reserves the right to reduce the credit limits at any time, or demand immediate payment, or appropriate collateral from the customer.

10.3. The customer agrees to make immediately known to Triopan any changes in its company, e.g. with respect to shareholders, legal form, business address, but also in the board of directors or management, as well as any financial problems immediately threatening the business’s existence.

11. Warranty

11.1. The responsibility for the selection, configuration, application and use of Triopan products, as well as the results obtained, lies with the customer or the purchaser of the products, i.e. the end customer. The customer acknowledges that Triopan only performs spot checks as incoming inspections of products supplied by suppliers.

11.2. Triopan’s warranty for the products delivered by it is determined in every respect by the warranty conditions of the respective supplier. The customer shall waive further warranty claims against Triopan and the supplier. Triopan’s sole obligation is to assign any warranty claims against the supplier to the customer.

11.3. The customer acknowledges that due to the respective applicable warranty conditions, the warranty is usually limited to the repair or replacement of defective/faulty products at the option of the respective supplier and only applies if the products remain in Switzerland and the European Union.

11.4. Furthermore, the customer acknowledges that in any case a defect shall only exist if it is reported in detail immediately after the discovery to Triopan and if the product contains a relevant and reproducible error. The warranty is excluded in particular for defects that are based on one of the following causes:

a) inadequate maintenance; b) disregard for the operating or installation instructions; c) improper use of the products; d) use of unauthorised parts and accessories; e) natural wear and tear; f) transport, improper handling or treatment; g) modifications or repair attempts; h) external influences, in particular force majeure (for example, failure of the power supply or the air conditioning system, natural damage) as well as other reasons for which neither Triopan nor the supplier is responsible. Repair services not covered by the supplier, as well as additional costs caused by the customer, will be charged to the customer.

11.4. In any case, the customer shall adhere to the procedures defined by Triopan or the respective supplier/vendor in the handling of any warranty claims.

12. Liability

12.1. Triopan is only liable for direct damage and only if the customer proves that it was caused by gross negligence on the part of Triopan or the third party commissioned by Triopan. Liability is limited to the price of the respective delivery or service.

12.2. The liability of Triopan, its auxiliary persons and third parties commissioned by Triopan for damages of any kind, is excluded. In particular the customer shall in no case have claims for compensation for damages that did not arise in the product itself, such as loss of production, loss or use of data, loss of orders, lost profits and other indirect or consequential damages.

12.3. Triopan undertakes to assign to the customer any liability claims recognised by the manufacturer/supplier.

13. Patents and other intellectual property rights

13.1. If a third party claims or asserts claims against the customer or its end customers for infringement of a patent, copyright or other industrial property right with regard to delivered products, the customer will inform Triopan, without delay, about such infringement notices or claims. Triopan will immediately forward this information to the supplier or manufacturer and ask them to see to the situation. The customer releases Triopan from any warranty or liability claims.

14. Re-export

14.1. Triopan’s products are subject to US and Swiss export regulations. The customer undertakes to request a special export permit from the competent authority before any re-export of the products. This obligation must be transferred to the respective acquirer upon sale or other transfer of the products, with the obligation to transfer it further.

15 Confidentiality

15.1. The customer undertakes to treat as confidential the Triopan price list and other confidential information of a commercial nature, e.g. discounts, dealer margins, bonuses, etc., and to only use it for the purpose of a contractual relationship with Triopan.

16. Manufacturer reporting, data protection

16.1. The customer acknowledges that Triopan, as part of periodic so-called manufacturer reporting, processes customer-related data, such as sales prices and quantities, as well as names and addresses of the customers, and suppliers and subcontractors may in certain circumstances also be sent abroad.

16.2. By placing an order, the customer agrees that Triopan is authorised to disclose payment processing information to verify payment history and creditworthiness to credit, mercantile and commercial bureaus.

17. Use of the Triopan online shop

17.1. The customer may only divulge data, which it has acquired through the use of the online shop, to third parties, with the express written consent of Triopan and only if it complies with the usage regulations stipulated by Triopan.

18. Transmission

18.1. Rights and/or obligations arising from individual contracts (deliveries, services) can only be transferred by the customer with the prior written consent of Triopan.

19. Applicable law and place of jurisdiction

19.1. The individual contracts, as well as the General Terms and Conditions, are subject exclusively to Swiss law under the express exclusion of national contract standards, in particular the Vienna UN Convention the International Sale of Goods.

19.2. The place of jurisdiction for all disputes arising directly or indirectly from the contractual relationships is Rorschach, Canton of St. Gallen, Switzerland.