General Terms and Conditions
The following general terms and conditions of trade are exclusive content of a contract concluded with Elaborate Bytes AG, hereafter called Elby, without necessarily being forced to protest against contrary terms and conditions. Other terms and conditions, changes of the terms and conditions or additional agreements will only become part of the contract subject to Elby's written agreement.
The following conditions as to place of performance, place of jurisdiction, offer, orders and conclusion of contract, delivery, execution, default and damages as well as maturity, terms of payment, offset and balancing are valid for all contracts mentioned under paragraph “Terms of Sale” as long as there are no explicit provisions to the contrary.
Place of Performance and JurisdictionAny disputes arising hereunder shall be settled before a competent court in CH-6330 Cham, Switzerland. Place of performance for contractual liabilities owed to Elby is CH-6330 Cham, Switzerland.
Offer, Order, Conclusion of Contract
The offers of Elby are without obligation and subject to alteration without notice. The contract is being concluded by means of the confirmation or execution of the order. In case of a withdrawal from the order Elby is entitled to charge 10% of the order value as well as the costs which have arisen up to the date of the withdrawal from the order.
Delivery, Execution, Default, Damages
Dates of delivery and execution are generally without obligation. Elby can only be held responsible when delivery and execution deadlines have priority and exclusively been fixed in writing. In case of default or when it is impossible to render the service the claim for compensation of consequential damages is being excluded - always subject to the corresponding legal provisions. Elby is entitled to withdraw from the contract in case of delivery problems caused by third parties without giving rise to liability for damages.
Maturity, Terms of Payment, Balancing
Invoices issued by Elby become due immediately upon receipt. The invoiced amounts are to be paid immediately upon receipt of invoice in one installment. Special terms of payment arranged for by Elby in the invoice have to be treated with priority. If the customer does not manage to fulfill his due liabilities the total outstanding amount becomes due for payment. After having let passed an adequate period of time for settlement, Elby is entitled to withdraw from the contract or to claim damages for default. Elby's claim will in case of default have to be paid with an additional 4% interest on top of the respective discount rate of the Swiss National Bank. The right to furnish evidence of a higher interest rate is being preserved. It is only possible to counterbalance claims of Elby with liabilities owed by Elby when these liabilities have been legally evidenced or are subject to Elby's prior consent in writing. The right of detention because of a counter - claim is hereby ruled out - always subject to the respective legal provisions.
Terms of Sale
Reservation of Titles (Proprietary Rights)
All sold articles remain property of Elby until all claims arising from the contract have been settled. Claims arising from the further sale of articles delivered by Elby are hereunder assigned to Elby for the total of the outstanding amount owed to Elby inclusive of all subsidiary rights. The customer is to give immediate information to Elby when third parties take advantage of the articles delivered by Elby.
Delivery, Collection, Dispatch
As far as the delivery of parts has been agreed in advance it will be effected subject to the individually stated conditions. The risks of delivery, collection and dispatch are to be borne by the customer. The risks of the goods will be taken over by the customer upon collection or taking over through the carrier. The same regulation also applies when employees of Elby effect the delivery of the goods.
Acceptance and Non-Acceptance
Should the ordered goods not be taken over in time Elby is entitled to withdraw from the contract or to claim for damages for default after having let passed an adequate period of time. Elby is entitled to claim for a 10% share of the agreed price without accountability. Elby retains the right to claim for a higher damage.
The performance guarantee covers 6 months from the date of delivery. Elby takes over the warranty for software only as far as it is basically operating according to the program description. A further guarantee for software is generally ruled out. Apparent defects have to be advised within 5 days upon delivery of the goods. After this period of time Elby will not take over any further liabilities. Elby is entitled to solve the apparent defects either by repair or by compensation delivery. Alteration (withdrawal from the contract) or voidance (decrease of the agreed price) can only be enforced when repair or compensation delivery have failed. The customer is obliged to enable Elby to do repair work or effect compensation deliveries by placing the claimed goods to Elby's disposal for investigation. Costs which might arise for the customer through repair and mending can only be taken over by Elby upon Elby's prior consent. The customer is obliged to give advice of the possible occurrence of especially high amounts. Defaults which are apparently due to wrong treatment of the goods through the customer, operation not in correspondence with the hitherto operation regulations, or force majeure (e.g. lightning strikes) are not covered by warranty. Elby is entitled to rise an invoice for their expense in case it is found out during the repair work that the default is not to be covered by warranty. Warranty rights lapse if third parties do repair work on the warranted object without prior approval of Elby. All other claims of the customer inclusive of consequential damage (i.e. loss of data) and defaults arising from the execution of the repair work or from compensation deliveries are ruled out as far as the law does not show any provisions to the contrary. Elby cannot be held liable, except given proof for premeditation or negligence.
If one ore more articles of the above general terms of conditions become invalid this does not affect the validity of the other articles.