General Terms and Conditions Switzerland
Status May 2016
The following "General Terms and Conditions of Business" shall apply to companies of the Physiotherm Group of Companies (Physiotherm for short), whereby the individual contractual partner of the customer shall result from the order/the individual contract.
Our terms and conditions of business shall apply exclusively to all our offers, deliveries and services. These shall also apply as a framework agreement for all future business with Physiotherm, even if no further separate reference is made to them in the following. Amendments to these terms and conditions shall be valid only if confirmed in writing. Any conflicting terms and conditions of purchase shall be subordinate and shall only apply if they have been expressly agreed. Verbal agreements are only binding if they are confirmed in writing.
Note consumer law
These Terms and Conditions shall also apply to consumers, unless mandatory statutory provisions conflict therewith.
1. conclusion of the contract:
The written order confirmation of the supplier is decisive for the contract. The dispatch of the goods ordered by the customer also effects the conclusion of the contract.
2. delivery time:
The delivery period shall apply subject to unforeseen obstacles that lie outside the sphere of Physiotherm. In particular, Physiotherm shall not be liable for delays in delivery due to force majeure and strikes. If these events prevent the timely fulfilment of the contract, the delivery periods shall be extended accordingly. Claims for damages or cancellation of the contract for this reason shall be excluded in any case unless Physiotherm can be proven to have acted with gross negligence. If the Buyer has not taken delivery of the goods as agreed (default of acceptance), the Supplier shall be entitled, after setting a grace period to no avail, either to store the goods himself, for which a storage fee of 0.1% of the gross invoice amount per calendar day or part thereof may be charged, or to store the goods at the expense and risk of the Buyer with an authorised tradesman. At the same time Physiotherm shall be entitled either to insist on fulfilment of the contract or, after setting a reasonable period of grace of at least 2 weeks, to withdraw from the contract and to dispose of the goods elsewhere and to claim damages from the Buyer. In the case of contracts for delivery on call, the goods must be accepted at the latest 6 months after the order has been placed. The above-mentioned consequences shall also apply in this case of default in acceptance by the customer.
3. transfer of risk:
The risk shall pass to the Purchaser when the goods are handed over to the Purchaser by the carrier/forwarder or when the Purchaser collects the goods himself at the agreed place of handover in accordance with the order. Physiotherm usually ships the goods through a carrier/forwarding agent commissioned by it.
We reserve the right to make technical changes, price changes and design changes in the interest of improving quality.
5. retention of title:
The delivered goods shall remain our property, without prejudice to the earlier transfer of risk, until payment of all our claims arising from the delivery plus any interest, expenses and costs. Our customer hereby assigns to us by way of security his claim against third parties, insofar as this arises from resale, until all our claims against him have been satisfied. In the event of an impending attachment or other seizure by third parties, the latter shall be informed of the retention of title and shall notify the supplier thereof without delay. Prior to the transfer of ownership to the customer, pledging, transfer by way of security, processing or transformation is not permitted without the express consent of the supplier.
6. complaints, warranty:
The purchaser must inspect the delivery of goods in detail immediately upon receipt. Complaints shall only be considered if made in writing within 3 days of receipt of the goods. They do not entitle the customer to a reduction or retention of the purchase price. In the event of an acknowledged complaint, the supplier shall, at his discretion, only be obliged to deliver faultless replacements or to improve the goods. The rejected goods must be kept available on site for inspection by the supplier.
In all other respects, the general statutory warranty provisions shall apply. The warranty obligation includes the costs of labour and spare parts, but not wear parts and consumables or damage due to normal wear and tear.
The supplier does not assume any warranty for defects for which he is not responsible, in particular caused by improper assembly or operation by the supplier or by third parties; by force majeure, damage caused by natural forces, water damage, fire, falling, etc.; modification of the delivered product by the purchaser or by third parties, installation of parts of foreign origin; non-compliance with the regulations on care and maintenance of the delivered product or disruption of the in-house installations and equipment. The supplier also accepts no liability for consequential damage resulting from the failure of the delivered product.
The supplier provides a lifelong guarantee for the functionality of the Physiotherm infrared heating rods if they are used properly and as intended. This warranty claim must be submitted in writing, together with the original invoice, to Physiotherm GmbH, 9000 St. Gallen, Switzerland. Gallen, Rosenbergerstrasse 30 (Tel. +41 71 2209 391, www.physiotherm.com).
Any additional costs incurred in connection with the fulfilment of the warranty for delivery and installation of the replacement part shall be borne by the purchaser. Any spare parts thus replaced shall become the property of the supplier.
In the event of damage due to improper assembly, handling or commissioning (e.g. overvoltage, chemical influences, etc.), the warranty is excluded. The supplier shall not be liable for costs arising from anticipated repairs not approved by the purchaser in connection with this guarantee promise.
The general and special warranty provisions remain unaffected by this warranty promise.
All claims for damages are excluded in cases of slight negligence. This does not apply to personal injury. The existence of slight or gross negligence must be proven by the injured party, unless it is a consumer transaction. If the transaction is not a consumer transaction, the limitation period for claims for damages shall be 3 years from the transfer of risk. The provisions on damages contained in these terms and conditions or otherwise agreed shall also apply if the claim for damages is asserted in addition to or instead of a warranty claim.
Recourse claims within the meaning of § 12 of the Product Liability Act are excluded unless the party entitled to recourse proves that the defect was caused within the sphere of the Supplier and was at least due to gross negligence.
9. prices, terms of payment:
The prices are valid from the agreed place of delivery according to the order plus the statutory value added tax. Unless otherwise agreed in writing, the purchase price shall be due for payment without any deductions upon receipt of the invoice. If the provision applies that the delivery shall be free of freight charges, Physiotherm shall also bear the usual costs of transport insurance. Any additional special costs for packaging, freight and transport insurance shall be borne by the Buyer, and these costs shall be due together with the stated purchase price. Payments by the Purchaser shall be deemed to have been made only upon receipt in the Supplier's business account. In the event of default in payment, the Supplier shall be entitled, at its discretion, to claim compensation for the damage actually incurred or default interest at the statutory rate. Interest on arrears shall be charged at 5% p.a. above the base interest rate for consumer transactions and 8% p.a. above the base interest rate for business transactions from the due date.
10. consumer law Switzerland:
Right of withdrawal for "doorstep selling" and consumer contracts at a distance: The consumer has a right of withdrawal and is no longer bound by his declaration of intent to conclude the contract if he has revoked it in due time. The revocation need not contain a reason and must be declared to Physiotherm in text form within one week. This shall not apply if the Customer has concluded the contract at a trade fair or if the Customer trades commercially in the goods. Consequences of withdrawal: If the consumer withdraws from the contract, he shall return the goods received or, at Physiotherm's discretion, keep them ready for collection. The consumer shall compensate Physiotherm for the reduction in value caused by the intended use of the goods. The Customer may avoid the obligation to pay compensation by not damaging the original packaging of the product, by refraining from self-assembly and disassembly of the product and by not putting the cabin into use. Withdrawal is excluded if the goods have been manufactured according to customer specifications or are clearly tailored to personal needs.
11 Jurisdiction, severability clause, applicable law:
The place of performance for deliveries and payments shall be the registered office of Physiotherm in 9000 St. Gallen. The exclusive place of jurisdiction shall be the court with subject-matter and local jurisdiction at the registered office of Physiotherm GmbH, unless mandatory statutory provisions stipulate a different jurisdiction. Austrian law shall apply exclusively, to the exclusion of the conflict-of-law rules. The application of the UN Convention on Contracts for the International Sale of Goods is explicitly excluded. The legal invalidity of individual parts of the contract shall not release the contracting parties from the contract, but the invalid provisions shall be replaced mutatis mutandis.
We have the health effects of our products and developments carefully checked in close cooperation with independent doctors. In connection with health-related questions and enquiries, we make corresponding efforts to respond to the individual information needs of the interested party. Nevertheless, we must point out in this context that all information about our products and their effects is of a general nature and in no way replaces individual medical advice, diagnosis or treatment methods for your personal health condition or situation. For medical advice and treatment of your personal health condition, please consult your doctor.
b) Data protection:
The data required for contractual processing will be processed electronically and may also be forwarded to a Physiotherm company or a Physiotherm partner as required for the purpose of administration and customer care.
A reminder fee of at least CHF 20.00 plus VAT is agreed for each reminder made necessary by default in payment. Reminders sent by a lawyer shall be charged in accordance with the lawyer's tariff. The customer shall be obliged to notify any change of address during an ongoing, unfulfilled contractual relationship and shall bear all costs arising from a breach of this obligation.
14. right of transfer:
The seller is entitled to transfer the rights and obligations arising from this contract to another company or a third person. The seller shall be released from his obligations 4 weeks after notification of this legal successor, unless the buyer raises a justified written objection by then.