General Terms and Conditions
General
The following terms of conditions apply to the relationship between NOUVAG AG and its customer and hold its validity during the existing business relation. Different or supplementary terms shall not be part of the contract unless explicitly approved in writing by NOUVAG AG. The respective current agreement is binding.
Formation of contract
The contract is concluded with the written order confirmation or delivery.
The order confirmation shall be crucial for the contractual content, in particular the scope of services.
Contract amendments and supplements must be confirmed in writing by NOUVAG AG and signed by its representative.
Prices and terms of payment
The price stated in the price list shall be binding. Prices (ExW Goldach) include packaging and exclude transportation. We reserve the right to make changes at any time unless the price has been explicitly confirmed as a fixed price with fixed validity.
Unless agreed otherwise, payment must be made within 30 days of the invoice. In case of delay in payment default interest at 8% above the base interest rate shall be payable. Payment will be made in advance in case of insufficient credit history.
Set-offs are excluded unless the counterclaim has been acknowledged in writing by NOUVAG AG or recognized by a legal body.
Delivery, shipping and returns
Shipment is ExW (Goldach). Delivery dates are based on the individual agreements and stock availability. The delivery period is met when the item is handed over for transportation or when readiness for dispatch is established and communicated.
The delivery must be inspected immediately for any defects. Recognizable defects are to be reported in writing within 14 days after receipt and non-recognizable defects immediately after discovery. The type and scope of the defect must be evident from the notice of defect. Failure of notification within the aforementioned time approves the delivery and excludes any warranty claim.
Risk and benefit shall pass to the customer upon shipment.
Returns are made only with prior consent. Otherwise, the consequential costs are to be reimbursed. Sterile goods cannot be returned.
Availability of spares and service parts
The availability of all mechanical and electronic components is guaranteed for 5 years after the last delivery. Availability is subject to discontinuation by NOUVAG AG suppliers.
The delivery dates for the aforementioned spares and service parts are included in the service parts list enclosed with the device; alternatively, they will be published by the local service organizations on request.
Force Majeure
Force majeure, official interventions or events that could only be prevented with disproportionate costs release NOUVAG AG from the obligation to fulfill the contract for the duration and scope of the obstacles.
Warranty
Warranty claims expire 12 months after delivery. It also expires in the event of modifications / repairs by parties other than NOUVAG AG or its authorized representatives. NOUVAG AG accepts no liability for improper handling.
Retention of title
NOUVAG AG retains ownership of the delivered goods until all claims including additional costs are paid. This also applies in the event of resale to third parties.
Intellectual property
Intellectual property and any goods protected by copyright may neither be reproduced nor made available to third parties without the consent of NOUVAG AG.
Final provisions
Swiss law shall apply with the exclusion of both the conflict of law rules and the UN Convention on Contracts for the International Sale of Goods (CISG).
Place of performance is Goldach.
The place of jurisdiction is Rorschach in the canton of St.Gallen. .
Version: May 17, 2021
1. Scope
1.1 These general terms and conditions (“Terms and Conditions”) apply to all present and future contracts between Nouvag GmbH, Schulthaissstrasse 15, 78462 Konstanz HRB 381159 (“Nouvag”) and the contracting party (“Customer”), as well as the products to be delivered and services to be provided in accordance with these contracts (“Products”).
1.2 Unless otherwise agreed in writing, these Terms and Conditions shall apply, excluding the general terms and conditions of the Customer. Any conflicting or differing contractual conditions of the Customer are hereby generally rejected without the need for an additional specific declaration of rejection. These Terms and Conditions shall also apply to reorders and subsequent deliveries.
2. Offer
2.1 All offers are non-binding and can be withdrawn by Nouvag at any time. The contract is concluded with the written order confirmation by Nouvag.
2.2 Objections to the provisions of the order confirmation must be raised by the Customer in writing within one week (from the date of receipt by Nouvag).
2.3 The scope of the delivery is determined by the written order confirmation from Nouvag. In the absence of such confirmation, Nouvag’s offer shall prevail.
3. Delivery and Shipping
3.1 The delivery of the products is Ex Works (Incoterms 2020) from the Nouvag factory or an affiliated company of Nouvag.
3.2 The delivery deadlines are indicative, and Nouvag may deliver even after the specified delivery deadlines. Nouvag is not liable for any damages resulting from delays. The Customer cannot refuse the acceptance of the delivery due to a delivery delay.
3.3 The delivery is considered completed at the time of provision from the Nouvag factory (Ex Works Incoterms 2020) or upon notification of readiness for shipment. Nouvag may make partial deliveries, in which case the pricing provisions for each individual delivery shall apply.
3.4 If products cannot be shipped due to reasons beyond Nouvag’s control, the products will be stored at the Customer›s expense and risk.
3.5 The place of performance is the registered office of Nouvag. The risk passes to the Customer upon provision of the products.
4. Prices and Payment Terms
4.1 All prices are subject to change until the order confirmation is issued.
4.2 In case the cost basis of the products or relevant exchange rates change between the order placement and delivery, Nouvag is entitled to unilaterally adjust the price by the amount of the additional costs, unless the delivery takes place within three months from the order confirmation.
4.3 Unless otherwise agreed, the price indications are exclusive of value-added tax, transportation costs, and similar charges, which may be invoiced separately by Nouvag.
4.4 Unless otherwise agreed, the currency of the invoice is based on Nouvag’s price list that served as the basis for the Customer’s order.
4.5 Unless otherwise agreed, invoices are to be settled in the specified currency within 30 days from the invoice date, net without deductions. Nouvag may require advance payment from new customers, customers with credit incapacity, or poor payment history.
4.6 In addition to the price, Nouvag is entitled to reimbursement of all additional costs incurred in connection with the fulfillment of the respective contract, such as expenses and charges.
4.7 Complaints do not entitle the Customer to withhold the entire purchase price or parts thereof.
4.8 A minimum quantity surcharge of EURO 50.00 will be applied for orders with a value less than EURO 50.00.
4.9 Nouvag only accepts returns with prior written approval. In the case of proper returns, Nouvag will issue a credit towards future deliveries after deducting a handling fee of 5% of the order value, but in any case, no less than EURO 100, to cover the examination, packaging, transportation, and expenses incurred. No credit will be issued if the products are damaged. Nouvag does not provide cash refunds. No credit or refund will be issued for returns without prior written approval from Nouvag..
4.10 Payment deadlines must be adhered to even if the transportation, delivery, or acceptance of the product delivery is delayed or prevented due to reasons beyond Nouvag’s control.
5. Customer Default
5.1 The Customer shall automatically be in default without further notice if:
a) they unjustifiably refuse to accept a delivery (default of acceptance);
b) a payment deadline expires;
c) the Customer becomes insolvent, files for bankruptcy, or applies for a moratorium;
d) the Customer›s assets are arrested or subject to forced execution;
e) the Customer dies (default of estate) or, in the case of a company, is liquidated.
5.2 In the event of default by the Customer, Nouvag is entitled to charge default interest at a rate of 5% per annum on the invoice amount. In addition, the Customer is obliged to bear or reimburse all enforcement costs.
5.3 Incoming payments will be first applied to settle outstanding costs as per Clause 5.2, then to settle accrued default interest as per Clause 5.2, and finally to repay the outstanding purchase price.
5.4 Upon expiry of the payment deadline, if payment is not received, Nouvag may suspend all further deliveries and services until the outstanding payments are settled. Nouvag shall notify the Customer of the outstanding payment and grant them a reasonable grace period for payment. The delivery date for the products or services by Nouvag, as agreed upon in the respective contract, will be postponed accordingly.
5.5 If the Customer defaults on a financial or other obligation arising from the contract, or if Nouvag has reason to believe that the Customer will not or cannot fulfill their obligations in the future, Nouvag may:
a) demand advance payment, provision of security for its own performance, or immediate payment after delivery;
b) additionally suspend its own deliveries and services;
c) in the event of default of a material obligation, particularly the payment of the purchase price, terminate this contract after the expiration of the grace period;
d) after the expiration of the grace period, terminate other unfulfilled partial agreements with the Customer, even if the Customer is not in default with respect to the corresponding performances under the other partial agreements;
c) in the case of the Customer›s default of acceptance, additionally sell the products to third parties after a grace period of at least 30 days, with the purchase price claim and claims for damages against the Customer remaining. Nouvag will credit the proceeds from the sale towards these claims.
6. Transfer of Ownership, Benefits, and Risk
6.1 All deliveries by Nouvag are subject to retention of title. Ownership of the delivered products will only transfer to the customer upon full payment of all obligations arising from the business relationship. The customer expressly authorizes Nouvag to register the retention of title in the retention of title register.
6.2 Benefits and risks of the products pass to the customer according to the delivery Ex Works (Incoterms 2020).
7. Warranty
7.1 The customer must carefully inspect the products for any defects immediately after delivery. Any visible defects in the delivered products must be reported promptly after their receipt, but no later than 7 days after acceptance. In the case of hidden defects, the notification must be made promptly after their discovery, but no later than 7 days thereafter. The complaints must be raised in writing and specified, indicating the delivery number.
7.2 Nouvag is liable exclusively for material and manufacturing defects, as well as deviations of the products from the system drawings, for a period of 12 months from the date of delivery.
7.3 For repaired or replaced products, a warranty period of 3 months from the date of delivery applies, but not longer than 12 months, calculated from the date of the initial delivery.
7.4 Nouvag undertakes, at its own expense and at its own discretion, to remedy defects that have been duly and correctly reported according to section 7.1 above, for a period of 12 months after delivery, within a reasonable period of at least 14 days, either by rectification or replacement delivery. If the rectification of the defect fails, Nouvag has the right to remedy the defect again within a renewed period of at least 14 days by means of rectification or replacement delivery.
7.5 Nouvag is not obliged to remedy defects that have been reported late or incorrectly. If the customer has modified the defective product, failed to properly maintain it, repaired it incorrectly, or altered it in any other way without prior consent from Nouvag, or if the defect is attributable to ordinary use, Nouvag cannot be compelled to rectify the defect. The defective products replaced by Nouvag revert to Nouvag’s ownership.
7.6 Nouvag’s obligations to remedy defects are not more extensive than those of Nouvag’s suppliers towards Nouvag. Any additional warranties or guarantees provided by Nouvag’s suppliers cannot be invoked against Nouvag.
7.7 The customer can only withdraw from the contract if Nouvag is unable to remedy defects that are attributable to Nouvag in accordance with section 7.4 above, and if the non-compliance of the product is not only minor. If the customer withdraws from the contract, they must return the product to Nouvag and, regardless of any other claims, pay an appropriate fee equivalent to the usual rental fee for the period of use of the product.
7.8 Any further warranty claims or rights related to defects of the customer are expressly waived to the extent permitted by law.
8. Availability of Spare Parts and Service Parts
8.1 Nouvag ensures the availability of all mechanical and electronic spare parts and service parts for the products for a period of 5 years after the last delivery of the respective product. Nouvag reserves the right to discontinue the delivery or production of third-party products, but Nouvag will inform the customer in advance of any such discontinuations.
9. Customer›s Responsibility / Indemnification / Liability
9.1 The customer is solely responsible for using the products exclusively for their intended purpose and, in the case of resale, is obligated to provide their customers with comprehensive, legally compliant instructions regarding the characteristics, intended use, and risks of the products.
9.2 The customer is obliged to indemnify and hold Nouvag harmless immediately and in full against claims by third parties for damages, costs, and expenses that arise due to a breach of the customer›s obligations as stated in section 9.1 towards Nouvag. Nouvag’s liability remains subject to the provisions of product liability laws.
9.3 The customer is required to insure Nouvag under the customer›s liability insurance policy for damages related to the products to the extent of the indemnification.
10. Limitation of Liability
10.1 Nouvag‘s liability is limited to damages resulting from intent or gross negligence. Nouvag is not liable for property damage or personal injury caused by incorrect application, installation, or maintenance of the product by the customer (or in the case of resale, by the end customer). Furthermore, Nouvag is not liable for indirect damages or loss of profits.
10.2 Liability for auxiliary persons, subcontractors, and agents of Nouvag according is excluded.
11. Force Majeure
11.1 Nouvag‘s liability is excluded in cases of force majeure, such as war, fire, flood, labor disputes, government decisions, transport difficulties, supply problems regarding raw materials, or other causes that cannot be prevented despite Nouvag‘s exercise of reasonable care, regardless of whether the force majeure occurred at Nouvag, the customer, or a third party.
11.2 In the event of force majeure, the delivery period will be extended by the duration of the delay caused by the force majeure. If the state of force majeure lasts longer than 3 months, Nouvag and the customer may declare withdrawal from the contract in writing with a notice period of seven days regarding the undelivered portion of the products. In this case, the customer is obligated to pay for the unpaid portion of the delivery. Otherwise, the mutual obligations to perform cease.
12. Intellectual Property and Know-How
12.1 Each party retains exclusive rights to industrial property rights, copyrights, designs, images, drawings, plans, prototypes, software, and other know-how that each party possessed at the time of contract conclusion. No intellectual property rights are transferred with the sale of the products. This also applies if the intellectual property rights were developed on behalf of the customer.
12.2 The customer undertakes to keep confidential all information concerning Nouvag‘s intellectual property rights.
13. Jurisdiction and Applicable Law
13.1 All legal relationships between Nouvag and the customer are exclusively subject to Swiss substantive law. The applicability of the provisions of private international law (IPRG), the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG), and treaties between states are expressly excluded insofar as there are no mandatory statutory provisions to the contrary.
13.2 The place of jurisdiction for all disputes arising out of or in connection with contracts within the scope of these terms and conditions is the registered office of Nouvag. Nouvag is unilaterally entitled to sue the customer at its registered office.
Version: November 08, 2021