GTC

1. Scope of application

These general terms and conditions (“General Terms and Conditions”) apply to all supplies, services and license agreements of Exentis Group AG and all group companies (“Exentis”), unless otherwise agreed in the purchase, license, work or other contract (“Contract”) signed between Exentis and customer. All subjects and services of a Contract are intended exclusively for corporate customers or public legal entities.

 

2. Commencement of validity

By placing an order with Exentis or by ordering a product from Exentis, the customer accepts the full validity of these General Terms and Conditions.

 

3. Objection clause

The customer’s general terms and conditions of business and purchase are hereby objected to unless their validity has been expressly consented to in writing. Such approvals shall only apply in written form for the individual case.

 

4. Order confirmation

An order must be placed in writing. Exentis reserves the right to a term of 14 calendar days for the order confirmation. Acceptance will be made expressly and in writing.

 

5. Prices

All prices are in Swiss francs and are to be paid in Swiss francs. Other currencies may be agreed upon. All prices quoted by Exentis are exclusive of the statutory value added tax applicable on the date of invoicing. Other statutory charges, fees, customs duties and taxes as well as packaging costs, shipping and transport insurance costs are not included in the prices and are additionally at the expense of the customer, unless otherwise agreed.

An appropriate price adjustment will be made if there are changes in the condition of the products because the information supplied by the customer did not correspond to the actual conditions or was incomplete, or the nature or scope of the services included in the order confirmation has changed.

If the necessity of such additional services (e.g. special pre-treatments or repeat orders) arises before the processing of an order begins, Exentis informs the customer of the increased price of the additional services before the processing of the order begins.

 

6. Offer validity

The validity of an offer is 30 calendar days, unless another validity period is explicitly included in the offer.

 

7. Payment terms

All invoices are due for payment net (without any deductions) within 30 calendar days of the invoice date. The customer is not entitled to withhold payments due to complaints, nor is the customer entitled to offset its liabilities to Exentis against other claims against Exentis. Exentis reserves the right to issue partial invoices for larger and/or long-term orders and/or to charge one or more advance payment lump sums.

 

8. Default

If the customer does not pay within 30 calendar days from the due date or invoice date, he will be in default even without a reminder. From that date, the amounts due shall bear interest at a rate of 5% above the policy rate of the Swiss National Bank per calendar year. Each additional payment request will be charged with a general administration fee of CHF 15.00.

 

9. Terms of delivery

All prices quoted by Exentis are ex works. Risk of loss (e.g., loss, theft, destruction), damage, and depreciation passes to customer upon delivery to the first carrier ex works. The customer is responsible for the entire import clearance. Partial deliveries are permitted.

The delivery time results from the agreements of the contracting parties. Exentis’ compliance with the delivery time is subject to the condition that all commercial and technical questions between the contracting parties have been clarified and that the customer has fulfilled all obligations incumbent upon him, such as the provision of the required official certificates or permits or the payment of a deposit. If this is not the case, the delivery period will be extended accordingly. Compliance with the delivery period is subject to correct and timely delivery to Exentis, and Exentis will promptly notify any delays that become apparent. Exentis will make every effort to meet the delivery deadlines without assuming any liability. The assertion of claims for damages in the event of a delay in delivery by the customer is excluded.

The customer will be in default of acceptance if he does not immediately confirm a delivery date announced by Exentis or if he postpones a confirmed delivery date. In the event of a delay in acceptance, Exentis reserves the right to store the delivery at the customer’s expense.

Specific requests regarding shipment, transport and transport insurance must be communicated in due time. Transport is carried out for the account and at the risk of the customer. Complaints in connection with shipment or transport must be addressed by the customer to the last carrier immediately upon receipt of the deliveries or the freight documents.

In cases of Force Majeure pursuant to clause 17, Exentis is fully released from compliance with the delivery deadlines, without the customer being entitled in this case to withdraw from the legal transaction and/or to assert claims for damages. The delivery time will be extended appropriately and Exentis will inform the customer of the beginning and end of such circumstances.

If Exentis is in default through its own fault and if the customer incurs damage as a result thereof, which must be proven, the customer is entitled to demand a lump-sum compensation for the delay. This amounts to 0.5% for each month of delay, but in total not more than 3% of the value of that part of the total delivery which cannot be used on time or in accordance with the contract as a result of the delay. Further claims as default of delivery are excluded.

 

10. Retention of title

All products remain the sole property of Exentis until full payment of the purchase price debt. Exentis shall be entitled, without the cooperation of the customer and thus unilaterally, to make a corresponding application for registration in the relevant retention of title register. Until receipt of all payments under the contract, the customer is not allowed to sell, pledge or assign by way of security the delivered item.

 

11. Customer’s obligation

Customer shall be responsible for complying with the technical instructions and installation conditions determined by Exentis, for ensuring competent commissioning and for creating an environment necessary for the performance of the contractual services. Within the scope of the customer relationship, the customer undertakes to provide Exentis with all necessary information and support services.

 

12. Warranty for Exentis 3D systems

The warranty period for Exentis 3D systems is 12 months, beginning after successful Site Acceptance Test (SAT) of the respective system, but no later than 30 days after notice of readiness for delivery or with the use of the system in production at the point of use – whichever of these events occurs earlier. Exentis warrants that the system will be free from defects and free from nonconformities during the above warranty period.

For spare parts, components and/or services that are replaced or performed within the scope of the overall warranty period, the customer also receives a warranty period of 6 months, beginning with the completion of the respective work. This respective warranty period may exceed the total warranty period pro rata temporis, if applicable.

Excluded from the warranty are consumables and wear materials as well as defects on the 3D system caused by improper use by the customer.

Exentis’ warranty obligation with respect to the 3D system is terminated if customer (i) fails to comply with the prescribed service intervals and/or (ii) uses wear and spare parts not approved by Exentis.

Likewise, Exentis’ warranty obligation terminates prematurely if customer or a third party makes changes, modifications or repairs to the 3D system without Exentis’ prior consent or if customer and/or a third party fails to take immediate and reasonable measures to minimize damage in the event of the occurrence of a defect and fails to give Exentis sufficient opportunity to remedy the defect.

If a warranty claim owed by Exentis exists, Exentis alone has the right to either (i) replace the affected part of the system or (ii) modify the part of the system affected by the defect. Exentis is entitled to a reasonable period of time to remedy the defect in this respect.

 

13. Defects and defect removal regarding Exentis 3D systems

Exentis has fulfilled its obligations with respect to a defect removal for Exentis 3D systems as soon as the system delivered to the customer is again operating without defects. In the event of a defect, customer is responsible for granting Exentis free access to the system so that Exentis is able to remedy the defect without hindrance. Any defective parts removed or replaced will be made available to Exentis and are its sole property.

A prerequisite for proper defect removal by Exentis in the event of a warranty claim is a corresponding written notification by the customer. Exentis will thereupon commence a fault analysis within 8 hours during regular business hours (either by e-mail, telephone or remote access). However, remote access can only take place under the condition that Exentis is provided with the machine-specific access requirements or data at the point of use.

If it is not possible to remedy a defect by means of the aforementioned procedure, Exentis warrants that its service personnel will begin to remedy the defect during regular business hours within a reasonable time after notification of a defect at the point of use.

 

14. Defects and defect removal regarding other delivered items

In the event of possible material defects of other delivery items, the customer may, within the stipulated period of limitation in accordance with the statutory provisions, primarily demand rectification of the defect or subsequent delivery to remove the defect. The customer can only withdraw from the contract or reduce the agreed remuneration if the repair or replacement fails or in the other exceptional cases stipulated by law. Exentis reserves the right to choose the type of supplementary performance and to make three attempts at supplementary performance.

 

15. Obligation of inspection and notification of defects

The customer has to inspect any delivery items without delay. In case of proper inspection, noticeable defects or deviations must be reported in writing immediately after delivery or, if commissioning is required, after commissioning. All other defects and deviations must be reported in writing immediately after discovery. In the event of a breach of the duty to inspect or the duty to notify defects on the part of the customer, the delivery item is deemed to have been approved as delivered and the customer can no longer assert any warranty rights. The notification of defects is no longer immediate if it is not received by Exentis within 7 calendar days.

 

16. Liability

Exentis is liable in accordance with the statutory provisions only for an intentional or grossly negligent breach of an essential contractual obligation, limited, however, to the amount of the pecuniary disadvantages that Exentis should have foreseen as a possible consequence of the breach of contract at the time the contract was concluded. The essential contractual obligations are obligations the fulfillment of which makes the proper execution of the contract and the achievement of the purpose of the contract possible in the first place and on the observance of which the customer may rely. Exentis is not liable for consequential or indirect damages of any kind; in particular, Exentis is not liable for lost profit.

The limitation of liability does not apply in the event of injury to life, body or health for which Exentis is responsible.

Customer indemnifies Exentis against all claims of third parties which are raised on the reason that a workpiece manufactured with the delivery items of Exentis infringes the rights of third parties or that customer has generally failed to comply with the statutory provisions applicable to its business operations.

The foregoing limitations of liability also apply to the personal liability, if any, of Exentis’ directors and officers, employees or agents.

 

17. Force Majeure

“Force Majeure” means the occurrence of an event or circumstance that prevents a party from performing one or more of its obligations under the contract if and to the extent that the party affected by the impediment proves that: (a) such impediment is beyond its reasonable control; and (b) it was not reasonably foreseeable at the time of entering into the contract; and (c) the effects of the impediment could not reasonably have been avoided or overcome by the affected party.

Unless proven otherwise, the following events are presumed to meet the requirements of Force Majeure: (i) war (declared or undeclared), attack, acts of foreign enemies, large-scale military mobilization; (ii) civil war, riot, rebellion and revolution, military or other seizure of power, insurrection, acts of terrorism, sabotage or piracy; (iii) monetary and trade restrictions, embargo, sanctions; (iv) lawful or unlawful official acts, compliance with laws or government orders, expropriation, nationalization; (v) pandemic, epidemic, natural disaster or extreme natural event; (vi) explosion, fire, destruction of equipment, prolonged failure of transportation, telecommunications, information systems or power; (vii) general labor unrest such as boycotts, strikes and lockouts, occupation of factories and buildings.

The party successfully invoking an event of Force Majeure is released from its obligation to perform its contractual obligations and from any liability for damages or any other contractual remedy for breach of contract from the time when the impediment makes it impossible to perform; provided that this is notified without undue delay. If the notice is not given without delay, the release will take effect from the time the notice reaches the other party. If the effect of the asserted impediment or event is temporary, the consequences just set forth apply only as long as the asserted impediment prevents performance of the contract by the affected party. If the duration of the asserted impediment has the effect of substantially depriving the parties of that which they had a right to expect by virtue of the contract, either party has the right to terminate the contract by giving notice to the other party within a reasonable period of time. Unless otherwise agreed, the parties expressly agree that the contract may be terminated by either party if the duration of the hindrance exceeds 120 days.

 

18. Assignment or legal succession

The parties are not permitted to assign rights and claims existing between the parties to third parties.

The parties are entitled to transfer the contract to their respective legal successors, unless justified objections are raised against their technical or economic capacity. However, the parties will only be released from their obligations under the contract if the legal successor declares the entry into the contract in writing and the respective other party to the contract agrees thereto.

 

19. Returns

In principle, there is no right of return against Exentis for properly delivered contractual items. In the event of an unjustified return or complaint of properly delivered goods, Exentis may charge a processing fee. In the event of deterioration in the condition of the goods, restriction of saleability, damage due to improper handling or defective packaging upon return, Exentis reserves the right to assert additional claims for compensation for value and/or damages.

 

20. General limitation

All claims of the customer, on whatever legal reason, are barred by the statute of limitations 12 months after the due date; the forfeiture of warranty rights is determined according to clauses 12 to 15 of these General Terms and Conditions.

The stated limitation period also applies to claims for damages due to a defect. Any supplementary performance of a contractual delivery item by Exentis does not lead to a new period of limitation.

 

21. Subcontractor

Exentis is entitled to provide all contractual services through subcontractors. However, the liability of Exentis towards the customer remains unaffected.

 

22. Exploitation rights

Exentis retains all intellectual property rights and exploitation rights to the contractual goods and services, to the documents and documentation provided or created in the course of the customer relationship, and to developments or discoveries made by Exentis in the course of the contractual services. Exentis is entitled to use the know-how acquired through the contractual services to improve its own products and services and to apply for a patent for this. Customer’s right to use deliverables is limited exclusively to customer’s business purposes and is determined solely by the underlying contract.

Exentis reserves title and copyright to samples, cost estimates, drawings and similar information of a tangible and intangible nature (including in electronic form); they may not be made available to third parties and may only be used by customer for the purpose agreed with Exentis.

 

23. Confidentiality

Both parties undertake, without exception, to treat as strictly confidential all confidential information of any kind, such as data, drawings, drafts, sketches, plans, descriptions, specifications, measurement results, calculations, calculations, experience, samples, knowledge, licenses, industrial property rights, know-how and studies, received orally or in writing from the respective other party and to use such information exclusively for purposes of the respective underlying contract. Confidential information may only be disclosed to third parties if they are employees and vicarious agents of the respective party or its affiliated companies (“Employees”) who are obliged to maintain confidentiality. Each party is responsible for ensuring that the provisions of this confidentiality clause are observed by its employees. This confidentiality clause shall remain effective even after termination of the contract.

 

24. Brochures and catalogs

Brochures and catalogs are not binding unless otherwise agreed. Information in technical documents is only binding insofar as it has been expressly assured. Exentis reserves all rights to the technical documents it has handed over to the customer. Without the prior written consent of Exentis, these documents may not be made available to third parties, either in whole or in part, or used for purposes other than those for which they were handed over to the customer.

 

25. Data protection

Within the contractual relationship, Exentis processes personal data, in particular contact details of the employees of customers. Further information on data processing by Exentis can be found in the Privacy Notice.

 

26. Written form requirement

All declarations to be made after the conclusion of the contract are only effective in written form.

 

27. Partial invalidity and amendments

Should parts of these General Terms and Conditions be invalid or unenforceable, this does not affect the validity of the remaining conditions. Amendments to these General Terms and Conditions require the written consent of Exentis to be legally valid.

 

28. Applicable law

The contractual relationship between Exentis and the contracting party is governed by Swiss substantive law to the exclusion of international conventions, including the United Nations Convention on Contracts for the International Sale of Goods of 11.4.1980 (CISG) and to the exclusion of conflict of laws rules.

 

29. Place of jurisdiction

Any disputes arising out of or in connection with the contracts (including these General Terms and Conditions) are subject to the exclusive jurisdiction of the courts at the registered office of Exentis, in 5608 Stetten (AG) Switzerland.

 

Status: November 2022

 

Exentis Group AG, Im Stetterfeld 2, CH-5608 Stetten AG; Exentis Innovations GmbH, Riegeler Strasse 14, D-79364 Malterdingen; Exentis Technology GmbH, Otto-Schott-Strasse 15, D-07745 Jena; Exentis Tooling GmbH, Preysing-Allee 7a, D-84149 Velden