General Terms and Conditions of Purchase

General Terms and Conditions of Purchase

BERNINA International AG, 8266 Steckborn, Switzerland


  1. General
    1. These General Terms and Conditions of Purchase govern the relationship between BERNINA International AG (hereinafter referred to as „BERNINA“) and its suppliers (hereinafter referred to as „SUPPLIER“).
    2. Any divergent terms and conditions of the SUPPLIER are only applicable if they have been expressly accepted in writing by BERNINA. It is herewith expressly objected to any diverging terms and conditions. BERNINA’s silence with regard to other terms and conditions communicated to BERNINA shall not constitute an acceptance thereof.
    3. These General Terms and Conditions of Purchase are also applicable to all future business with the SUPPLIER.
    4. All correspondence with regard to the contract shall be directed to the purchase department of BERNINA.
  2. Conclusion of contract
    1. Orders are only valid if made in writing. A personal signature is not required. An order shall be deemed to be in writing, if it is transmitted by telefax, e-mail or any other form of transmission which allows proof of the order by means of text.
    2. Orders of BERNINA not expressly contradicted in writing by the SUPPLIER within five working days shall be deemed accepted.
  3. Technical Documents
    1. All technical drawings and specifications („Technical Documents“) handed out to the SUPPLIER by BERNINA shall form integral part of the contract. BERNINA explicitly reserves all rights to and deriving from these Technical Documents.
    2. All indications warranted in brochures, catalogues, plans and Technical Documents of the SUPPLIER shall be binding.
    3. All Technical Documents shall be kept strictly confidential.
  4. Prices, invoicing
Unless agreed otherwise in writing, the following provisions shall apply:
  1. All prices set out in the frame agreement and/or in the order are fixed and shall be binding for the entire quantity ordered.
  2. All prices are net, including packaging for transportation.
  3. Any applicable value added tax, if to be paid by BERNINA, shall be shown separately.
  4. Any further special or additional costs shall be approved in advance in writing by BERNINA and must be shown separately on the SUPPLIER’s invoice.
  5. The SUPPLIER’s invoice shall indicate BERNINA’s order and supplier number as well as the quantity of pieces delivered and the prices per piece.
  1. Payment and delivery terms
Unless agreed otherwise in writing, the following provisions shall apply:
  1. Payment of the invoice shall be made within 30 days upon delivery and receipt of the invoice, without deduction of cash discount, provided that there are no deficiencies with the delivery and invoicing.
  2. Standard terms of delivery shall be „Ex Works“ (EXW) as per INCOTERMS 2000.
  3. Transportation shall be performed solely by a freight carrier chosen by BERNINA.
  1. Delivery time and delivery
    1. All agreed times and deadlines are binding.
    2. The deadline for delivery shall be set out in the order and shall be calculated by adding the standard delivery time of the SUPPLIER as agreed in the frame agreement and the standard delivery time of the freight carrier.
    3. The date of receipt of a delivery at BERNINA’s premises determines whether delivery times and dates have been met. In the event of delayed delivery the SUPPLIER is liable for the costs of special delivery (express/air/marine-air). In addition, the statutory provisions regarding the liability for delayed delivery shall apply.
    4. The freight carrier and the SUPPLIER shall directly agree on the pick-up date for the freight, however, taking into account the frame agreement with BERNINA.
    5. BERNINA shall bear the costs for special delivery (express/air/marine-air) only if the requested time of delivery differs from the frame agreement or if such costs have been approved in writing by BERNINA.
    6. Benefit and risk shall pass to BERNINA upon proper arrival of the delivery at the place of destination.
    7. The SUPPLIER shall attach to its delivery all related delivery documents, which shall indicate the order number, the supplier number as well as the quantity of delivered pieces.
    8. The SUPPLIER shall, for deliveries from abroad, provide and attach to its delivery the respective certificates of origin (e.g. EUR-1 / Form A) as well as a commercial invoice.
    9. Goods that are classified as dangerous shall be furnished with the respective documents and certificates by the SUPPLIER.
    10. All deliveries containing technical sample parts shall be labeled as “first samples” on the packaging.
  2. Warranty and liability for defects
    1. The SUPPLIER shall thoroughly inspect supplies pursuant to the agreed methods before dispatch. BERNINA is not obliged to inspect the incoming deliveries.
    2. The warranty period for all deliveries and services shall be twenty-four (24) months starting from receipt of a delivery or from successful acceptance of the service to be rendered.
    3. With regard to parts to be replaced or repaired, a new warranty period with the same term shall begin upon receipt of the replacement delivery.
    4. The SUPPLIER warrants that the delivery meets all warranted specifications as per the order in connection with the Technical Documents, and that it is free from defects in material, workmanship and legal defects.
    5. First samples, which are successfully approved through a report on the testing of such first samples, shall constitute a warranted specification. In the event of doubt such approved first samples shall be used as a reference.
    6. In the event of delivery of defective parts the SUPPLIER shall be granted the possibility to repair or replace such parts, unless such repair or replacement is unreasonable for BERNINA because it may not be performed in a timely manner and/or the resulting consequential losses (e.g. loss of production) for BERNINA are unreasonably high. In those cases BERNINA shall be entitled, at the SUPPLIER’s expense, to either itself repair the defects or have them repaired by a third person.
    7. BERNINA moreover reserves the rights to request a reasonable reduction in price or to withdraw from the contract and to reject delivery.
    8. In addition, the statutory provisions regarding warranty and liability shall apply.
    9. The SUPPLIER shall hold BERNINA harmless and indemnified from product liability claims, which arise in connection with parts delivered by the SUPPLIER.
  3. Confidentiality
    1. The SUPPLIER undertakes to treat as business secrets all commercial and technical information arising from this business relationship.
    2. The above shall equally apply to all devices handed over to the SUPPLIER such as drawings, samples, models, sketches, templates etc.
    3. The duty of confidentiality shall not apply to information which at the time of disclosure was already known to the SUPPLIER or was generally accessible.
    4. Such duty of confidentiality shall also apply after the end of the contractual relationship.
  4. Intellectual Property Rights
    1. The SUPPLIER warrants that all deliveries are free of intellectual property rights of third parties and that delivery to and use by BERNINA and its customers do not infringe any intellectual property rights of any third party. This shall equally apply to any existing foreign intellectual property rights.
    2. The above shall not apply if the infringement of intellectual property rights of third parties is a consequence of the manufacturing of the respective piece according to drawings and specifications provided by BERNINA.
    3. The SUPPLIER acknowledges the exclusive entitlement of BERNINA and the other companies of the BERNINA Group to their trademarks, names and logos. The SUPPLIER shall not apply to register any trademark, patent or other intellectual property which belongs either wholly or in part to BERNINA.
    4. Any and all intellectual property rights as well as any rights in the know-how, technology, process and development of products, created in the course of the contractual relationship between the parties shall entirely belong to BERNINA. As of the placing of the order such intellectual property rights shall be deemed transferred and paid up.
    5. The parties shall immediately inform each other upon becoming aware of any infringement risks or potential third party claims and they shall defend against such claims as far as reasonable and in mutual consent.
  5. Miscellaneous
    1. If a party ceases to make payments or becomes subject to insolvency proceedings, the other party shall be entitled to withdraw from the contract with regard to all unfulfilled parts of the contract.
    2. If a provision of these General Terms and Conditions of Purchase is or becomes invalid or null and void, the remaining provisions shall remain valid and in full effect.
    3. Any amendments or additions to the contract between the parties shall only be valid if made in writing pursuant to paragraph 2 a hereinabove.
    4. The contract is governed by Swiss law, including the UN Convention on Contracts for the International Sale of Goods (“CISG”).
    5. Exclusive place of jurisdiction with regard to all disputes arising out or in connection with this contract or in respect of individual orders shall be Steckborn, Switzerland.

 
Steckborn, January 2005