1.1 These general terms and conditions of purchase (hereinafter "GTCP") apply to all purchases (hereinafter “scope of supply”) made by Komax Holding AG or a company controlled by it (hereinafter “Komax”) from the supplier (hereinafter “The Supplier”), save where specifically agreed otherwise in writing. The terms and conditions of delivery of the supplier shall not apply.
1.2 In the event of any conflict between the different contract documents, the following priority ranking shall apply:
1. the contracts signed by both parties;
2. the Komax order;
3. the GTCP;
4. the request by Komax for an offer;
5. the supplier’s offer;
6. the supplier’s terms and conditions of sale
1.3 The supplier acknowledges that once the GTCP have been applied, their application to every subsequent scope of supply in the latest version is automatically accepted. The supplier shall keep himself informed of the current GTCP which can be consulted on the Internet at the address www.komaxgroup.com/de-DE/Wire/About-Komax-Wire/Terms-and-Conditions/.
2. Enquiry by Komax – Offer by the supplier
2.1 Offers drawn up on request and all further information about the scope of supply are provided free of charge. The offer must correspond to the enquiry and the GTCP, attention being clearly drawn to any possible variations.
2.2 The offer is binding for at least two months from the date on which it is received by Komax.
2.3 If a specific product is already being delivered by the supplier in a similar form to a competitor of Komax, the supplier shall inform Komax of that fact without delay.
3.1 The sketches, drawings, commentaries, specifications etc. attached to the order and initialled by Komax form an integral part of the order.
3.2 The order must be confirmed in writing by the supplier without delay and no later than after 5 working days; specific attention must be called to any variations from the order. The confirmation must be sent in writing to the Head of Purchasing whose name is stated on the order.
3.3 The supplier must contact the Head of Purchasing immediately and before sending out the confirmation if he notices an error or open point in respect of significant parts of the contract, in particular concerning quantity, price or delivery dates. The supplier shall take steps to ascertain the key dates and circumstances and the intended purpose of the scope of delivery.
4.1 If the supplier intends to arrange for the scope of supply or parts thereof to be produced by third parties, he must obtain the timely consent of Komax naming the subcontractor.
4.2 The supplier undertakes to require his subcontractors to respect the obligations of secrecy imposed by Komax to that same extent (see Section “Confidentiality”).
5. Prices and payment terms
5.1 The prices are fixed prices. They include packaging and carriage costs, full insurance cover together with taxes and other charges, but excluding value added tax.
5.2 The payment terms are stated on the order. Where no such terms are stated, Komax shall pay within 60 days of receipt of the scope of supply, the documents to be provided with the delivery and the invoice.
5.3 In the event of payment of the invoiced amount within 14 days of receipt of the invoice, Komax shall be entitled to a discount amounting to 2% of the invoiced sum excluding taxes which are to be stated separately, failing which the invoiced amount shall be the determining factor.
5.4 Komax reserves the right to offset counterclaims. The supplier waives the possibility of offsetting. The supplier may only assign claims on Komax to third parties with the written consent of Komax.
5.5 In the event of advance payment with a value of more than CHF 50,000.-, the supplier shall on request submit an irrevocable bank guarantee payable on first request for the amount of the advance payment made out by a first class bank which is acceptable to Komax. All the relevant costs shall be borne by the supplier.
6. Provision of materials by Komax
Materials which are made available by Komax to perform the scope of supply remain the property of Komax even after working or processing. They are to be identified and stored separately. Unused material is to be returned on request or deducted at market prices, so reducing the price of the scope of supply.
7. Delivery lead-time and consequences of delay, withdrawal from the contract
7.1 Komax expects delivery to be made at the agreed time. Early delivery is possible only with the prior consent of Komax. In that case, the costs (storage costs, transport costs, etc.) arising from the early delivery may be deducted from the purchase price.
7.2 Timely delivery is deemed to have been made if it has been received at the agreed time during the normal acceptance hours in a regular manner by a person holding due authority at the place of destination.
7.3 If the supplier is obliged to assume that the delivery cannot be made in whole or in part on time, he must notify Komax of that fact, stating the reasons and the presumed duration of the delay. The supplier undertakes to make all reasonable endeavors to avoid delivery delays, remedy them or procure replacements from third parties. The supplier may only refer to the absence of necessary documents which Komax must supply etc. if he has requested their provision in good time or notified their absence without delay if agreed dates were set for them to be provided.
7.4 Timely delivery is of central importance to Komax. Regardless of the question of liability or evidence of prejudice, the supplier undertakes to pay 0.3% of the purchase price for each working day of late delivery, subject to a maximum of 10% as a contractual penalty. Shortages of raw materials and delays on the part of suppliers and subcontractors are not regarded as acts of god (force majeure). In addition, Komax reserves the right to enter full claims for further prejudice in compliance with the statutory provisions.
Alternative: Timely delivery is of central importance to Komax. The agreed dates are binding. If the supplier is late in performance, Komax is authorized to withdraw from the contract without delay and without cost consequences and to require the return of services already provided. Interest on late performance shall be charged at the rate of 10%.
7.5 When a delay begins, Komax reserves the right to withdraw from the purchase contract at any time and to award the contract to a third party. In that case, the supplier must refund all the payments already made plus interest on late performance at the rate of 5%. The right to claim compensation for further prejudice is reserved in compliance with the statutory provisions.
7.6 Komax further reserves the right to reduce the order at any time without stating reasons or to withdraw from the contract against payment of proven costs which have been incurred. Further claims for compensation by the supplier will be declined to the extent permitted by law.
8. Place of destination, transport, packaging
8.1 Delivery shall be made, if not otherwise specified, FCA. The terms and conditions of supply shall be interpreted on the basis of the latest INCOTERMS. In case of FCA delivery terms, the supplier has to ensure that the loading-process (of the merchandise) onto the carrier is insured by the supplier.
8.2 Packaging must be provided in such a way that the goods are effectively protected against damage and corrosion during transport and subsequent storage. Any provisions of public law applicable at the place of destination must be respected. The supplier is liable for damage caused by incorrect packaging.
8.3 If special care is required during unpacking or onward transport, the supplier must call the attention of Komax to that fact in good time.
8.4 The supplier is liable for all costs and drawbacks resulting from failure to comply with our instructions for transport, customs clearance etc.
9.1 The supplier is sufficiently covered through different insurances such as: - business liability, product liability, - fire, - water damage, - business failure (loss of production).
9.2 The insurer must be a well introduced and recognized company. On request the supplier shall produce the confirmation of insurance cover issued directly by the insurer.
10.1 Every consignment must be accompanied by a detailed delivery note containing the necessary infor-mation, in particular the references and date of the order, the number of packages and their weight together with a precise designation of the products delivered. In addition, the documents required for installation, commissioning, use and maintenance of the delivered scope of supply together with certificates of conformity and verification protocols and the specified documentation (in paper form or on compact disc) must be enclosed.
10.2 All correspondence must quote the Komax references. The waybill must indicate the place of receipt at Komax. The invoice is to be sent in duplicate by separate mail to the billing address noted on the order and must comply, where applicable, with the statutory tax and customs provisions. At the request of Komax, the supplier must amend and reissue an invoice which proved to be non-compliant at no charge.
11. Transfer of ownership and risks
11.1 Save where otherwise agreed, ownership passes to Komax at the time of completion. In every case, Komax will automatically become the owner of goods or raw materials for which instalment or partpayments have been made. Between the time of transfer of ownership and delivery, the supplier must store the scope of supply free of charge to Komax and identify it as the property of Komax. The supplier will store and insure the scope of supply as though ownership had not been transferred at no charge.
11.2 Save where otherwise agreed, the risks shall be transferred to Komax at the agreed place of destination at the time when the consignment, i.e. the scope of supply, is handed over.
11.3 If the required documents for a consignment, i.e. the scope of supply, have not been presented in the specified manner or were presented early, the scope of supply shall be stored until they arrive for the account and at the risk of the supplier.
12. Acceptance, warranty, guarantees
12.1 Before consignment, the supplier shall carefully verify that the scope of supply coincides with the Komax order. By making delivery, the supplier guarantees that the scope of supply has no defects which might lessen its value or impair its suitability for the intended use, that it has the assured properties and corresponds to the specified services and specifications together with the provisions of public law. Any checks made in advance by Komax do not release the supplier from his responsibility and are not regarded as constituting acceptance. After giving one day’s advance notice, Komax may at any time effect verifications to ascertain the progress of the work.
12.2 The obligation to verify the scope of supply is waived. The fact that the consignment is received or that full or partial payment has been made for the scope of supply does not constitute acceptance.
12.3 Should it transpire during the warranty or guarantee period, that the scope of supply or parts thereof do not satisfy the requirements set out in the documents made available without Komax being at fault, the supplier shall be required, at the choice of Komax, to remedy the defects at his own expense in situ within one week or to arrange for them to be remedied or shall supply substitutes to Komax free of charge and without defects. Functional impairments of the scope of supply are regarded as material damage. All additional costs arising from repair, cancellation or substitute delivery, in particular costs of removal and return transport of the defective scope of supply or parts thereof, shall be borne by the supplier.
12.4 If the supplier is late in remedying the defects or if an urgent case arises, Komax is entitled to himself remedy the defects at the cost and risks of the supplier, or to arrange for them to be remedied.
12.5 Defects will be notified when they come to light. There is no time limit for notifying defects and the supplier waives the objection of late complaint in respect of defects.
12.6 The warranty and guarantee period is not less than 2 years. The period begins at the time of acceptance by Komax or from the economic commissioning of the delivered scope of supply, depending on which event occurs later.
12.7 The warranty period shall be extended by the time needed to remedy possible defects.
12.8 In the event of substitute delivery, the scope of supply which is to be replaced will be left available for use free of charge until the substitute delivery becomes available ready for operation. Replacement deliveries and repairs shall be covered by the warranty period which begins to run again from the date of new commissioning.
12.9 Statutory warranty claims are reserved.
12.10 The supplier shall make available for 10 years after commissioning of the scope of supply the spare parts and components, together with appropriate customer service on normal market conditions. If the supplier cannot comply with this obligation, he must notify Komax without delay in order to reach agreement on an appropriate solution.
12.11 The supplier must compensate Komax for material damage, personal injury and all damage to assets, including pure asset damage arising out of the defective delivery and, in particular, loss of production and loss of profit.
Possible "milder" supplement: The claim sum is limited to a maximum of CHF ……………………… per claim event.
12.12 The supplier must indemnify Komax against claims for compensation by third parties on grounds of material damage, personal injury and damage to assets, including the accompanying court and legal costs which were caused or caused in part by deliveries of defective materials or defective goods.
13. Intellectual property rights, patents, software
13.1 All documents made available by Komax to the supplier remain the unencumbered property of Komax. On first request, the supplier shall either release such documents to Komax or destroy them.
13.2 New results of any kind arising from the manufacture of the scope of supply shall be vested, with refer-ence to the intangible property rights, in full and without limitation in time or in substance, in Komax. Komax shall alone decide whether and to what extent their legal protection is to be assured. Any use of the results other than for the performance of the scope of supply is prohibited for the supplier.
13.3 On request, the supplier shall make available with the consignment or at a later date to Komax free of charge a set of plans of the product and of its components.
13.4 The intellectual property rights of the parties existing before performance of the scope of supply begins shall continue to be vested in the particular owner. Insofar as Komax is informed of confidential information, the supplier must call attention in writing to its confidential character.
13.5 The supplier is liable for assuring, and shall indemnify Komax in full in this regard, that the scope of supply does not infringe any rights of third parties and that said scope of supply can be used by Komax without any problem.
13.6 The supplier guarantees that all software supplied for operation of the scope of supply carries a license associated with the product without charge for the benefit of Komax and its customers. If software is specific to the product, this automatically becomes the sole and unlimited property of Komax upon delivery and on first request the supplier shall release the source code, the software and the relevant documentation.
14.1 All information which comes into the possession of the supplier in connection with the performance of the contract shall be treated in confidence and may not be disclosed to third parties or used otherwise; this does not apply to subcontractors. The supplier undertakes to require the subcontractors to respect confidentiality to the same extent. Disclosure of the information by subcontractors is permitted solely with the written consent of Komax.
14.2 The supplier may not mention Komax in his advertising without prior written consent.
15. Obligation of loyalty
Where the scope of supply involves a specific product which is commercially and technically important to Komax, Komax may require the supplier not to accept any orders for similar products from competitors until all the obligations arising out of the contract have been duly performed.
16. Important reasons for terminating the contract
16.1 If, after conclusion of the contract, the supplier acquires a participation in a competitor of Komax or a competitor acquires a participation of any form in the supplier, the supplier shall inform Komax of that fact. If appropriate, Komax may terminate the current contracts without cost respecting an appropriate period of notice.
16.2 In addition to the reasons mentioned earlier (see sections entitled “Delivery lead time and consequences of late performance, Withdrawal from the contract”), the following in particular are regarded as important reasons for terminating the contract:
- repeated breach of contract clauses, despite a warning to comply;
- financial difficulties which may jeopardize timely delivery.
16.3 Where a provision proves to be null and void, that shall not affect the validity of the other provisions.
17. Applicable law and place of jurisdiction
17.1 Swiss law shall apply to the exclusion of the United Nation’s Convention on the International Sale of Goods (CISG).
17.2 The place of jurisdiction is ……………… (place of business), but Komax reserves the right to take pro-ceedings at the place where the supplier has his office.
General terms and conditions of purchase (PDF)