1. General
The Supplier acknowledges that these General Terms and Conditions of Purchase of Forzal (“GTCPS”), as amended from time to time, shall apply to all present and future contracts for the purchase of goods and/or services between the Supplier and Forzal as purchaser. By accepting any purchase order of Forzal, the Supplier acknowledges the exclusive validity of the GTCPS for the contractual relationship. The Supplier agrees that other conditions, including any terms of the Supplier, do not become part of the contract even if Forzal does not explicitly reject them. The GTCPS also apply to follow-up orders even if no special reference is made to them. In the event of a conflict between provisions agreed individually in writing between the parties and the present GTCPS, the individually agreed contractual provisions shall prevail.
2. Purchase Orders
Forzal purchase orders (“Orders”) shall only be valid and binding if made in writing by Forzal. Orders placed orally, e.g. by the telephone, require subsequent written confirmation by Forzal. Orders made by Fax and E-Mail are deemed to be made in writing. Deviations from the order terms of Forzal, including price and currency reservations, are only valid after written confirmation by Forzal.
3. Execution
The Supplier agrees to ensure that the ordered goods or services meet the agreed specifications according to the Order of Forzal, which are deemed to be warranted characteristics. If samples are submitted, the characteristics of the sample in terms of materials and processing are deemed to be guaranteed for all deliveries and replenishments. As to manufactured goods, Supplier warrants that it shall manufacture and perform all of its obligations hereunder with the then current good manufacturing practices (“GMP”) as defined from time to time by applicable laws, standards, rules, regulations and requirements.
4. Delivery Dates
The delivery dates will be set out in the Order and, unless agreed otherwise in writing, such delivery dates are binding. Any delays must be notified to Forzal immediately and shall entitle Forzal, at its unrestricted discretion, to withdraw from the contract without advance warning or setting of a grace period. The Supplier shall be liable for all losses arising from any delays. The delivery dates may only be amended through mutual written agreement.
5. Transfer of Benefit and Risk
The place of fulfillment for the Supplier and thus the relevant place for the transfer of risk in the event of any destruction or deterioration of the goods shall be the place indicated by Forzal. Fulfillment by the Supplier shall not be deemed to have been completed until the goods have been received entirely by Forzal or have arrived at the delivery address indicated by Forzal in an impeccable condition and until Forzal is in possession of the demanded or requisite documentation and invoice.
6. Transportation
Provided nothing else has explicitly been agreed in writing, all transportation costs, taxes, fees and customs duties in the delivery and transit countries will be borne exclusively by the Supplier. Dangerous goods transports must be packaged, labeled and declared in accordance with the applicable statutory provisions for the respective transport carrier. In the event these obligations of the Supplier are not fulfilled, the Supplier is fully liable for the costs and damages resulting therefrom and agrees to release and indemnify Forzal upon first written demand.
7. Packaging
The Supplier agrees to be liable for damages during the transport due to insufficient packaging. The Supplier further agrees that Forzal has the right to return packing material and/or to dispose of it and is entitled to a credit for it from the Supplier.
8. Examination and Complaints
Forzal, or a representative or customer of Forzal, will examine the delivery within a feasible period and, if possible, before processing. However, the Supplier is aware and acknowledges that complaints may be made by Forzal during the entire warranty period irrespective of the possible lapse of examination period. Payments and any acceptances by Forzal are not deemed as a waiver by Forzal of any of its rights under the warranty.
9. Warranty and Product Liability
The Supplier warrants that the goods delivered have the characteristics ordered by Forzal, are in conformity with the state of the art and meet the pertinent requirements of the authorities and technical associations, including GMP, as the case may be, and that they do not contain defects which either diminish or impair the value or the suitability of the goods for customary use or for the use as stipulated in the order. Characteristics specified by Forzal in the order shall be deemed to be warranted characteristics in the absence of any written agreement to the contrary. The period of warranty is two years and begins with the
acceptance of the goods at the place of fulfillment, subject to an earlier lapsing of the expiration date of a product. Forzal is, at its sole discretion, entitled during the entire warranty period to request replacement or improvement, to decrease the purchase price or to withdraw from the contract. Moreover and irrespective of fault, the Supplier agrees to be fully liable for any damage Forzal incurs, including indirect and consequential damage. In urgent cases Forzal is entitled to take measures to remove or to repair the defect at the cost of the Supplier. The same warranty begins to run again for all repaired goods.
10. Auxiliary Persons
The Supplier agrees to be responsible for ensuring that its own employees, subcontractors and any other auxiliary persons fully comply with these contractual conditions and that the Supplier cannot exclude any liability for acts of such auxiliary persons.
11. Invoices and Payment
The Supplier shall submit invoices separately in two copies and may not enclose invoices with the consignments of goods. Payment shall be made within 60 days. The payment term only begins after the complete fulfillment of the contract by the Supplier. In the event of delayed delivery of requested material certificates or Q-documents, complete fulfillment is not achieved by the Supplier, and Forzal reserves the right to extend the payment period correspondingly.
12. Infringements and Product Liability
The Supplier ensures that no third party rights (copyrights, patents, trade mark rights etc.) and no statutory provisions are infringed by the goods supplied. The Supplier agrees to fully indemnify Forzal against any third party compensation claims brought as a result of such alleged infringements. In addition, The Supplier agrees to release and hold Forzal fully harmless from any third party claims for product liability on first demand by Forzal. The Supplier is obligated to take out adequate product liability insurance and to provide Forzal at any time with proof thereof, upon request. In this context, the Supplier shall also reimburse Forzal for any expenses which arise from or in association with any recall campaign which Forzal has to conduct.
13. Set-Off Rights
All claims for money due or to become due from Forzal shall be subject to the right of deduction or set-off by Forzal by reason of any counterclaim arising out of this or any other transaction with the Supplier.
14. Confidentiality
Information supplied by Forzal to the Supplier for purposes of contract performance may not be used for other purposes of the Supplier nor disclosed to third parties. Forzal shall likewise not disclose the Supplier’s confidential information and trade secrets to third parties.
15. Intellectual Property Rights
In consideration of the price paid to the Supplier and unless agreed otherwise in writing and to the extent legally permissible, all intellectual property rights, including but not limited to patents, trademarks, copy- rights, database rights, design rights, and source files obtained or developed as a result of the Supplier’s performance of the orders (the “Resulting Intellectual Property“) that were developed for Forzal shall become the sole property of Forzal, and the Supplier shall take such steps reasonably requested by Forzal from time to time to assign to Forzal any and all such rights, title and interest to the Resulting Intellectual Property. Supplier agrees that Forzal shall have the unrestricted, exclusive and free right to use and exploit all Resulting Intellectual Property. The Supplier warrants and represents that any and all Resulting Intellectual Property, whether created by a third-party Contractor or otherwise, shall be free of claims of ownership by any third party.
16. Place of Fulfillment
Place of fulfillment for goods and services shall be the place indicated by Forzal.
17. Applicable Law, Jurisdiction, Collection Proceedings
Swiss law shall be applicable to any purchase made by Forzal, to the exclusion of the Convention of the United Nations on Contracts regarding International Sales of Goods dated April 11th, 1980 (“Vienna Sales Law”). For Suppliers domiciled outside Switzerland, Lugano shall be the recognized and agreed place for debt collection proceedings. The state courts in Lugano shall always have jurisdiction over disputes arising out of and in connection with any agreements concluded between Supplier and Forzal, including applicability and validity of the GTCPS. Forzal reserves the right to initiate debt collection or other proceedings against the Supplier in any other place provided by law.
Version February 2018
Forzal SA, Collina d’ Oro Switzerland