- APPLICABILITY, CONTRACTUAL COMPONENTS AND PRECEDENCE
1.1.1 These General Terms and Conditions of Sale, Delivery and Payment (“GTC”) of Skinrock AG (“Skinrock”) govern with direct effect all business relations which come into existence between Skinrock and their contractual partners.
1.1.2 The GTC are particularly valid as supplement to general framework contracts to be drawn up in each case or other contracts, and apply to all services to be fulfilled by Skinrock within the legal relationships in each case or contracts (offers, orders, sales, distribution and deliveries) for all contractual partners (distribution partners and end-users hereinafter referred to as “Contractual Partners”), insofar as no contractually deviating individual agreements are made.
1.1.3 Deviating general conditions of business of contractual partners only apply insofar as their validity is explicitly recognised by Skinrock in writing.
1.2 Contractual Components and Order of Precedence
1.2.1 The GTC, appendices of any kind to general framework contracts and other contracts as well as all orders from contractual partners and confirmation from Skinrock, are integral components of the contractual relationship between Skinrock and the contractual partners. These integral components apply to all individual orders from the contractual partners and for the corresponding order confirmation from Skinrock.
1.2.2 In the case of contradictions between the order confirmation from Skinrock, orders from contractual partners, contracts and the GTC, the following order of precedence applies to the contractual components:
- Order confirmation from Skinrock
- Exclusive distribution agreement (general framework contract)
- Skinrock general terms and conditions
- Orders from contractual partners
1.2.3 Accordingly, the order confirmation from Skinrock always takes precedence as a basis for every individual order, over the other components of the contractual relationship.
- CONCEPTS / DEFINITIONS
2.1.1 “Utilisation for the intended purpose” means the purpose for which the contractual partner will sell and/or make use of the products; as a rule, use of all Skinrock products in interior and exterior applications in the construction industry.
2.1.2 “Products” means the products released by Skinrock for sale and distribution within the Contractual Territory. These are stone veneers with a coating (made of different components) on the back, including accessories of any kind, including without reservations cleaning, impregnation and joint sealing agents (these goods in their entirety are referred to as accessories):
SKINROCK BASIS PLUS
2.1.3,, “Minimum Sales Quantities” means purchases of at least one 20 foot container (2500 – 3200 m2). “Container” means a quantity of 2500 – 3000 square meters (m2) of products (not including accessories). “Large Quantities” means quantities of products (not including accessories) in container sizes (approx. 2500 – 3000 m2 per order). “Small Quantities” means quantities of products (not including accessories) amounting to less than one container size (less than approx. 2500 – 3000 m2 per order).
2.1.4 “Territory” or “Contractual Territory” means the countries / regions specifically defined in the agreement in each case. “Reserved Territory” means the territory which has been awarded by Skinrock exclusively to other contractual partners. “Inadmissible Sales” means directly or indirectly (i) actively contacting individual customers (e.g. by writing directly to or visiting them, (ii) actively contacting a majority of customers using any kind of informational means or other trade initiatives (e.g. advertising) or, (iii) by creating a warehouse or sales point (or a similar agency) in a reserved territory.
2.1.5 “Force majeure” means events or circumstances which occur within the area of risk of a contractual partner and which prevent them from fulfilling their contractual tasks and duties, are outside the control of the party affected and in general, cannot be insured against (e.g. strikes, civil conflict [including piracy], natural catastrophes [flooding, earthquakes, etc.], shortages or unavailability of raw materials due to federal restriction of resources or prohibition of production or export of raw materials [the list is not final]).
2.1.6 “Intellectual property” means intellectual property of any kind and all appertaining attendant rights such as patents, design, trademarks, samples, definitions and personal rights as well as rights pertaining to know-how.
3.1.1 Skinrock reserves the right to make changes to products or product specifications as well as product lines and the product assortment at any time without informing the contractual partners beforehand.
3.2 Natural Differences
3.2.1 Skinrock products are made of natural raw materials / stone blocks, the appearance, quality and quantity of which may vary according to nature. For this reason it is possible that differences may arise between sample products and the products delivered to contractual partners as well as between different product consignments, specimens and manufacturing series. Differences may occur, in particular with regards to colour, structure and pattern, including repeating a pattern and dimensions.
3.2.2. Should a contractual partner wish to request identification of individual consignments or individual specimens of the products (consignment / product uniformity), he must explicitly declare and request identification of this kind in the corresponding order. In such a case, Skinrock has the right to reject such an order if identification is not possible due to the natural differences.
3.3 Personalised Design
3.3.1 If the contractual partner orders a special personalised design, he commits to accept a price increase of up to 100% involved with its production. When this kind of personalised design is ordered in small quantities, the contractual partner commits to accept an even higher price increase.
- OFFERS, ORDER CONTENT AND COMPLETION (CONTRACTS)
4.1 Significance of Marketing Documents / Similar Documents
4.1.1 Marketing documents such as catalogues or similar documentation, where prices and technical descriptions are given, will be drawn up and published exclusively for informational and marketing purposes. They form no basis for any commitment by Skinrock and, do not represent any tenders or quotes in a legal sense. Documents of this kind can be changed at any time by Skinrock without any previous notification of contractual partners.
4.2.1 Offers from Skinrock are only valid if these are made in writing. As a rule, their validity is limited to a period of time which is defined in the offer itself or in a corresponding general framework contract. If no time period is given in the offer or framework agreement, an offer from Skinrock will be valid for a period of 10 working days from the date of sending the offer by Skinrock (the postmark or actual time sent by email is decisive).
4.2.2 Contractual partners must accept offers from Skinrock in writing. Confirmation given to Skinrock verbally (e.g. by telephone) are only binding to Skinrock after being repeated in writing.
4.3.1 Orders from contractual partners, with whom Skinrock has entered into a general framework agreement or another contractual relationship, must be placed on principle in writing (post, email etc.). Orders which are made verbally, (e.g. by telephone) are only binding to Skinrock after being repeated in writing. Orders placed are in general binding for the contractual partners for a time period given in the order or in the framework agreement, but minimum for at least a period of 10 days after receipt of the order by Skinrock.
4.3.2 Contractual parties commit to provide all orders to Skinrock in writing. Each order will stipulate the kind of stone or product, the number, size and colour as well as the intended date when the products are to be delivered to the place of delivery (“Delivery Date”) as well as the previously agreed invoicing currency.
4.4.1 Skinrock will confirm orders from contractual parties within 10 (in words: ten) calendar days after receipt. Skinrock also commits to inform contractual parties within ten days after receipt of the order if the products ordered are not available as a whole or in part. In this case, the parties will agree on further action and make provision for partial orders where possible.
4.4.2 The confirmation from Skinrock for the order placed is binding for the contractual partners. Changes or cancellations of orders which have already been confirmed by Skinrock are only permissible after a written agreement is given.
4.5 Conclusion of the Agreement and its Content
4.5.1 The agreement between Skinrock and its contractual partners, within the context of single
orders, only enters into force after a confirmation from Skinrock has been received.
5.1 Basic rules and responsibilities
5.1.1 The products from Skinrock generally will be supplied and transferred to contractual parties at the production site (“Place of Delivery”) on the delivery date under “EXW – Ex Works” (INCOTERMS 2010) conditions. Other terms of delivery have to be agreed upon by both parties in writing.
5.1.2 Contractual parties have to accept receipt of the products at the Place of Delivery, ensure professional and correct loading and then transport the products to its premises. This means that the responsibility for loading the products at the Place of Delivery, transporting to the premises of the contractual party or another delivery location (“Point of Destination”) and all costs, expenses and risks incurred during this, lie with the contractual party.
5.2 Transfer of ownership, benefits and risks
5.2.1 Ownership as well as benefits and risks (loss and damage to the products) are transferred from Skinrock to the contractual party after the contractual party has accepted receipt of the products at the Place of Delivery (EXW INCOTERMS 2010).
5.2.2 When the products have been made available at the Place of Delivery by Skinrock, the contractual party must immediately accept receipt of the products. If no formal acceptance of receipt of the products is made, transfer of ownership as well as benefits and risks will become effective as per start of the next day.
5.3 Duty of examination and notification of non-conformity
5.3.1 Within five calendar days of receiving the shipment at the Point of Destination, the contractual party carries out an inspection of the products. On the basis of representative spot checks, this inspection involves checking the alignment between the ordered and delivered products (qualitative and quantitative examination).
5.3.2 Provided that the inspection shows non-conformity with regard to the type, quantity, quality or other aspects of the products delivered, Skinrock is to be informed of this non-conformity in writing immediately, at the latest within ten calendar days of delivery giving the reasons as well as invoice, order and batch number.
5.3.3 The contractual party will inform Skinrock in writing within 15 calendar days of gaining conclusive knowledge of any defects which become apparent during other circumstances at a later stage (latent defects). Any rights which the contractual party has in connection with latent defects will expire three months after the date of delivery.
5.3.4 It is sufficient to send notification of non-conformity by fax or email. When requested to do so by Skinrock, the contractual party will send samples of the rejected products or will return the whole shipment to Skinrock so that the rejected products can be examined.
5.3.5 If the contractual party violates this duty of examination and notification of non-conformity, the rights as given in the following paragraph 7 are forfeited.
- INVOICING, PAYMENT AND DEFAULT INTEREST
6.1.1 There will be an invoice issued by Skinrock for every single delivery, based on the agreed price list. This together with any other additional costs and charges (e.g. VAT, bank charges, payment charges etc.) which are to be borne by the contractual party results in the total amount invoiced. (“Invoice Amount“).
6.1.2 Skinrock commits to issue an invoice to the contractual party immediately after receiving an order and after having confirmed it. Invoices will be in Swiss francs (CHF) and contain all necessary information about the corresponding delivery.
6.2 Due date and payment
6.2.1 The contractual parties commit to pay in advance 70% of the Invoice Amount without any deductions and excluding offsetting within 10 days of receiving the invoice, into the bank account of Skinrock. They acknowledge furthermore that Skinrock will only carry out the order once 70% of the invoice amount have been received in the account. The remaining invoice amount must be paid by the contractual party without deductions and excluding offsetting within 30 days from the moment of receipt and approval of the products at the Point of Destination.
6.2.2 All amounts which are overdue and undisputed or wrongfully disputed according to the payment terms given above will be charged at an interest rate of 5% (in words five percent) per month. This interest is charged until the contractual party pays the full outstanding amount.
- WARRANTY RIGHTS AND LIABILITY
7.1 Warranty and Exclusion of Liability
7.1.1 In the case of qualitative or quantitative defects on the products delivered, Skinrock grants the contractual party the right of amendment (rectification). All other claims are waived. In addition, any liability, warranty or responsibility of Skinrock is waived as far as this is legally permissible. This exemption of liability is invalid if defects have been concealed intentionally or fraudulently. In this case the legal claims exist.
7.1.2 Skinrock assumes no liability and responsibility for any damage caused as a result of the defectiveness of the products (consequential damages). In this way, Skinrock bears no liability for direct or indirect, immediate or incidental damages or expenses for the contractual party. This disclaimer of liability for consequential damages is unrestricted for negative and positive damage, loss of profit, secondary, consequential, indirect or accompanying damage and loss, losses, which are determined in the form of a penalty and losses of any kind.
7.1.3 The contractual party needs to have extensive knowledge about the specification of the products and the necessary know-how for the professional use of the products (e.g. storage, transportation, adjustment, treatment, usage, maintenance, processing and installation). In case of insufficient knowledge, the contractual party is obliged to immediately request the necessary information and documents from Skinrock before the products are used. Skinrock explicitly excludes any warranty and liability for a lack of knowledge by the contractual party and resulting defects, damages, loss and costs. Therefore, Skinrock assumes no liability and responsibility in case of non-proper or non-professional use of the products (e.g. if the instructions of Skinrock regarding use are not fully implemented).
7.1.4 The contractual parties determine that in case of late or missing deliveries (delay or non-fulfilment) from Skinrock, the contractual party can only assert the above-mentioned rights of rectification. Compensation claims and other claims are explicitly excluded. Therefore, the contractual party cannot assert any other rights to Skinrock.
7.2.1 Following a duly presented complaint about the defectiveness of the delivered products and its acceptance by Skinrock, Skinrock will prepare conforming replacement products at the Place of Delivery within 180 calendar days. The contractual party will destroy the defective products at its own cost unless Skinrock requests the return of the defective products at its own cost.
7.2.2 If such a provision of conforming replacement products at the Place of Delivery is not possible within this time limit, Skinrock will repay the contractual party the value of the defective products within a reasonable period of time.
- PRINCIPLES OF LOYALTY AND NON-COMPETITION CLAUSE
8.1 Principles of Loyalty
8.1.1 The contractual partners have to uphold Skinrock’s legitimate interests loyally and in good faith and in particular, to refrain from all statements and actions damaging its reputation or enticement of customers and employees. The general principles of loyalty and in particular, the non-solicitation agreement, continue to be valid even after termination of the contractual relationship.
8.2 Non-competition Clause
8.2.1 In the course of their activities, contractual partners will gain a detailed insight into the clientele and business secrets of Skinrock, especially distribution partner, which is why the following contractual and post-contractual non-competition clause with contractual penalty is agreed on. During the term of validity of this agreement, the concerned contractual partners will not advertise, offer or sell or directly or indirectly support any third parties in this kind of activity for products which are in direct or indirect competition with the products covered by this present agreement, without having received written permission from Skinrock mentioning exactly the product in question. In addition, they commit not to enter into direct or indirect relations with manufacturers, producers and suppliers of Skinrock and its subsidiaries and not to create any companies which are equivalent or similar with respect to the products or to those of Skinrock or its subsidiaries without first receiving written permission from Skinrock.
8.2.2 In addition they assume the responsibility to ensure that neither their employees or people appointed by, nor any subcontractors (e.g. sub-distribution partners) will violate the non-competition clause. The non-competition clause will continue to be valid for a period of one year after termination of this agreement and applies to the contractual territories of the contractual partners.
- INFORMATION AND NOTIFICATION
9.1.1 Information and notification must always be made in writing to the address given by the parties as relevant (post or email address). The communicating party is responsible for the correct sending and transfer of information and notification. The responsibility for proper organisation of receipt lies with the other contractual partner.
9.1.2 Information and notification are considered transferred or made within a time period given in one of these general terms and conditions or in any other agreement, order, confirmation or other document drawn up taking these general terms and conditions into consideration, when such information / notification has arrived with the receiving party, or if it has been sent within the corresponding period of time the postmark (letter) or date of sending (fax or digital message) are decisive.
- FINAL PROVISIONS
10.1 Supplementation / Modification of the GTC (right to modification)
10.1.1 Skinrock reserves the right to supplement, change and where appropriate, to modify the present general terms and conditions (GTC) to correspond to current legal requirements without giving any reasons. In such a case, the updated valid general terms and conditions (GTC) will be available at skinrock.ch where the changes will be mentioned. The current terms and conditions are valid at the time of the conclusion of the contract or the order as published on the website skinrock.ch.
10.2 Severability Clause
10.2.1 Should individual clauses of the general terms and conditions (GTC) become partially or completely invalid, this has no effect on the effectiveness of the remaining clauses of the GTC. As replacement for the invalid clause, the corresponding legal provision becomes valid. If individual clauses of the agreement between Skinrock and its contractual partners in each case are or become partially or completely invalid, this has no effect on the other clauses of the corresponding agreement. As replacement for the invalid clause, the corresponding legal provision becomes valid. If an agreement contains loopholes which cannot be covered by the present general terms and conditions (GTC), these must be resolved through a supplementary interpretation of the agreement in such a way that the intended economic purpose is achieved.
10.3 Non-assignment Clause and Exclusion of Settlement
10.3.1 The contractual partners of Skinrock are not permitted to assign their rights and obligations to third parties under the general terms and conditions and under the specific contractual relationship. The settlement of claims of the contractual partners against claims from Skinrock is also excluded.
10.4 Place of jurisdiction and applicable law
10.4.1 Exclusive place of jurisdiction for all disputes involving this agreement is Saas im Prättigau, Switzerland (Region Prättigau/Davos). Applicable law for this present contract is Swiss Law; under exclusion of its conflict of laws (IPRG) and under exclusion of the Contracts for International Sales of Goods (Vienna Sales Convention).
Saas i. P., March 08, 2018