§ 2 Offer – Offer documents

1. Our offers are valid until the date specified in the offer.

2. We shall retain ownership and copyright of diagrams, drawings, calculations and other documents; they may not be made available to third parties. This applies especially to those written documents which are labelled “confidential”. The customer shall require our written agreement before passing them to third parties.

§ 4 Prices

1. Unless stated otherwise in the order confirmation, our prices shall apply “ex works” exclusive of packaging for transport; the latter shall be invoiced separately.

2. Statutory value added tax is not included in our prices; it will be shown separately in the invoice at the statutory rate applicable on the date of invoicing.

3. HOPPE reserves the right to adjust prices even after conclusion of contract, if cost increases caused by raw material prices or union agreements cannot be absorbed.

§ 6 Payment

1. In line with market customs. Other methods of payment shall require the written form. No discount on new invoices shall be allowed if older invoices have not yet been paid in full.

2. If counterclaims are not established by way of a final judgment of a court of competent jurisdiction or are not accepted by us, the customer may neither set off nor assert the right to withhold payment with regard to these claims. Moreover, he may exercise his right to withhold payment only if his counterclaim rests on the same contractual relationship.

3. If payment is delayed, interest payable on arrears shall be invoiced at the appropriate bank rates of interest. All payments shall be made exclusively to us. Bills of exchange shall be accepted only on account of performance without guarantee for protest and only subject to our prior consent and further provided that they are eligible for discount. Discounting charges shall be calculated from the due date of the amount invoiced. All our claims – including those for which we have accepted bills of exchange in payment – shall fall due immediately, if the terms of payment are not adhered to or if, upon conclusion of the contract, we become aware of clear indications of the purchaser's diminished credit-worthiness. Moreover, in such a case, we shall be entitled to refuse further performance due on our part until payment has been effected or security has been provided for it. We may also prohibit the resale of the goods delivered under reservation of ownership and may demand their return.

§ 8 Notification of defects, liability, especially liability in the case of defects and returns

1. Our liability for defects assumes that the entity placing the order has met his/her duty of examination and notification of defects pertaining under the Rules of commercial transactions. The entity placing the order must notify us in writing of any defects within five days, and of any defects not immediately apparent, within five days of their becoming apparent. In the case of goods that are due to be installed or attached to another product, the orderer shall shall further examine the goods for recognisable defects prior to such installation or attachment, unless such an examination is not reasonably possible for the orderer. The goods shall be deemed to be accepted insofar as no notification of defect is received.

2. In cases of justified complaint, we maintain the initial right to decide to rectify the defect or provide alternative goods. Claims by the orderer in respect of necessary expenses pertaining to the making good of the complaint, especially transport, travel, work and material costs, are excluded, insofar as the expenses are increased as a result of the subsequent delivery of an item to a location other than that of the place of business of the orderer, unless such delivery complies with the intended use of the item.

3. If the orderer himself/herself or an appointed third party has installed the defective goods according to their nature and their purpose into another product or attached them to another product, the orderer may demand compensation for the necessary expenses incurred for the removal of the defective goods and the installation or attachment of reworked goods or supplied, flawless goods ("removal and installation costs") only in accordance with the following provisions:

a)   Expenses are deemed to be necessary only insofar as they are directly caused by the removal and/or disassembly of the defective goods and the installation and/or attachment of identical goods, they are incurred on the basis of standard market practices and they are documented to us by the orderer through the submission of written evidence.

b)   Any claims by the orderer above and beyond the necessary removal and installation costs, in particular costs for defect-related consequential damages, such as lost profits, operational downtime costs or additional costs for replacement procurements, are not deemed to be removal and installation costs and are therefore not refundable within the rectification process.

c)   No compensation for expenses can be demanded for any installation and removal costs that are incurred when the orderer detected the defectiveness of the goods or serious indications of a defect in the goods during installation and nevertheless did not postpone the further installation of the goods. In such a case, our expense compensation is limited to the expenses for the removal and re-installation of the products at the stage at which the orderer discovered the defect.

d)   Any offset of the orderer with any possible expense compensation claims for removal and installation costs without our permission is hereby excluded. § 6.2 shall remain unaffected.

e)   The orderer does not have any right to an advance payment for removal and installation costs.

4. Insofar as any expenses claimed by the orderer for making good in any individual case are disproportionate in accordance with § 8.3, particularly in relation to the purchase price of the goods in flawless condition and in consideration of the significance of the contract infringement, we reserve the right to refuse compensation for expenses. Any claimed expenses shall in any case be regularly deemed to be disproportionate insofar as such expenses, in particular for removal and installation costs, exceed a value in the amount of 150% of the (net) purchase price of the goods in flawless condition or 200% of the defect-related lower value of the goods.

5. The orderer shall be required to set out an appropriate timetable in writing with right of rejection before further rights are called into force. This shall be invalid if we have previously expressly rejected making good. Should the product to be delivered be only in kind, then any claims for compensation whatsoever, independent of guilt, shall be ruled out. Furthermore, we shall only be responsible for such claims for damages where cases of gross negligence or intention are proven; § 199 OR (Swiss Code of Obligations) shall remain unaffected.
This limitation is not valid in cases of damage in relation to injury to life, body or health, caused through a gross negligent breach of duty on our part or a deliberate or negligent breach of duty on the part of a legal representative or or a vicarious agent.
Neither shall it be valid in cases where any other damage is caused through a gross negligent breach of duty on our part, or a deliberate or gross negligent breach of duty on the part of a legal representative or or a vicarious agent.

6. The validation of claims resulting from quality or durability guarantees shall have force only if such a guarantee has been issued expressly by us in writing.
In the case of claims under the guarantee, it is the duty of the orderer to provide us with appropriate items from the consignment immediately so that examination can be made.

7. Any claim in respect of defects shall expire two years after delivery; the longer limitation deadline pursuant to § 210 (2) OR (Swiss Code of Obligations) shall remain unaffected. Suspension of limitation shall be in accordance with § 135 OR (Swiss Code of Obligations). It can also be suspended by a written waiver of objection from HOPPE.

8. In the case of obligation to pay damages as a result of a breach of contractual duty on our part, the claim shall be restricted to the cover of the costs of the product liability insurance. This limitation is not valid in cases of damage in relation to injury to life, body or health, caused through a gross negligent breach of duty on our part or a deliberate or negligent breach of duty on the part of a legal representative or s.o. Neither shall it be valid in cases where any other damage is caused through a gross negligent breach of duty on our part, or a deliberate or gross negligent breach of duty on the part of a legal representative or s.o.

9. Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees and other s.o.

10. Our prior written consent is needed before goods can be returned from the orderer. Should the goods be returned justifiably on account of defect in the goods supplied, then the orderer may insist on agreement, if the said orderer has a special interest in returning the goods.

§ 10 Reservation of Title

1. The goods remain the property of HOPPE until payment in full of all claims in the business relationship, including ancillary claims, claims for damages and the honouring of cheques and bills of exchange. The reservation of title remains in force even if we add individual claims to a current account and the balance is determined and acknowledged.

2. The processing or altering of the purchased item by the orderer is always undertaken for our benefit, without any obligation thereby arising for us. If the item is processed using other items which do not belong to us, then we shall acquire joint ownership of the new item in proportion to the value of the purchased item at the time of processing. Furthermore, the same applies to the processed item as the conditionally delivered item.

3. The orderer is only entitled to resell, further process or install the conditional goods when the following provisions and measures are taken into consideration, and the claims in accordance with No. 5 are also effectively handed over to us.

4. The competence of the orderer, in the course of orderly business practices, to sell, process or install the item, comes to an end with cancellation on our side due to a sustained deterioration of the financial circumstances of the orderer, and at the very latest, with his/her cessation of payments or with the application or opening of bankruptcy proceedings against him/her.

5. The orderer hereby assigns to us his/her claims and any ancillary rights due to the resale of the conditional goods – including possible balance claims. If the item is processed, mixed or combined and the seller has obtained joint ownership at the amount of the invoice value, the purchase price claim is proportional to the value of his claims to the item. If the conditional goods were installed by the orderer on a premises/building, the orderer immediately assigns his/her existing claim to remuneration due to the resale of the premises/building at the invoice value of the conditional goods, with all ancillary rights including the right to the granting of a security mortgage with precedence over other claims. If the orderer sells the claim within the framework of genuine factoring, our claim shall be due immediately and the orderer shall assign payment entitlements against the factor to us and shall immediately transfer the sales proceeds to us. We will take over pre-existing assignments.

6. The orderer is entitled to collect the assigned claims as long as he/she meets his/her financial obligations. The authorisation to collect such claims expires when cancelled, at the latest in the event of default of payment on the part of the orderer, or if there is a significant deterioration in the financial circumstances of the orderer. In this case, we are hereby empowered by the orderer to notify the purchaser of the assignment and to collect the claims ourselves. The orderer is obligated upon request to supply us with a precise schedule of existing claims with the names and addresses of the purchasers, the amounts of individual claims, invoice dates etc. and to supply us with all the necessary information for the enforcement of the assigned claims and to allow this information to be verified.

7. If the value of the existing securities in our favour exceeds our total claims by more than 20%, then we are obligated to release securities according to the orderer's wishes if requested to do so by the orderer or by a third party affected by the excess security of the orderer.

8. Mortgaging or pledging of the conditional goods or the assigned claims is inadmissible. We must be informed immediately of any mortgages or other involvement of third parties, including the identity of the mortgagee or other third party, so that we can if appropriate commence objection proceedings and a third party claim in accordance with § 106 of the ZPO. In so far as the mortgagee or third party is not in a position to refund us the court and out-of-court costs of objection proceedings, the orderer is liable for any losses incurred by us.

9. In the case of goods being returned due to reservation of title, the contract is only nullified on our side if we explicitly state this in writing. We may make use of a private sale of the conditional goods returned to satisfy our claims.

10. The orderer shall store the conditional goods for us free of charge. He/she must insure the items against the usual risks such as fire, theft and water to the usual extent. The orderer hereby relinquishes his/her claims for compensation, which may have arisen due to damages or the above-mentioned claims against insurance companies or other obligated parties for the invoice value of the item. We accept this assignment.

11. All claims as well as rights to reservation of title for all special forms determined in these terms and conditions continue to be valid until full release from any contingent liabilities that we may have assumed in the interest of the person or entity placing the order.

§ 12 Period of acceptance

1. Where the purchaser is obliged to request delivery or collect the goods ordered within a certain period, we shall have the option, after expiry of that period, to terminate the contract or to issue an invoice.