Scope These General Terms and Conditions (hereinafter referred to as “GTC”) shall apply to the conclusion, content, and execution of all contracts for the purchase of products and the provision of services that Schaerer AG (hereinafter referred to as “Schaerer”) places with a professional customer (hereinafter referred to as “Customer”). Schaerer and the Customer are hereinafter referred to individually as the “Party” and collectively as the “Parties”. Any other written agreements between the Parties to the contrary shall remain reserved. Placing the order constitutes acceptance by the Customer of these GTC. Any amendments, supplements, and collateral agreements shall only be effective if they are confirmed in writing by Schaerer. Any and all purchase of products and or provision of services by the Customer shall be governed by these GTC which shall prevail over any terms and conditions of the Customer. The interpretation of international trade clauses is based on Incoterms 2010.
Offers Schaerer price lists and brochures contain non-binding information and recommended prices. Information provided by Schaerer over the telephone is not binding and does not constitute an offer. Schaerer shall only be bound by its written offers for a period of two (2) weeks after issuance, unless otherwise indicated in writing.
Conclusion of the contract The purchase agreement (hereafter the “Agreement”) shall be deemed concluded by written order confirmation by Schaerer. The written order confirmation can be sent by post, fax, or electronically. An order confirmation by email is considered equivalent to one in writing.
Credit check The Customer acknowledges that Schaerer may perform a credit check of the Customer after the order has been placed and may collect data about the Customer for this purpose, even without the Customer’s express consent. The applicable provisions of data protection law shall be taken into account. Schaerer expressly reserves the right to amend the terms and conditions of the order or not to accept the order if the credit check is poor. The assessment of this is at the sole discretion of Schaerer.
Changes to orders The Customer shall inform Schaerer in writing of any change requests. Schaerer shall inform the Customer whether and under which conditions the changes are possible by issuing an order change or a new order confirmation. The order change is considered accepted by the Customer if the Customer does not object within two (2) working days. In the event of price changes of more than twenty percent (20%) of the original order amount, a written confirmation of the Customer is always required. Schaerer reserves the right to make unilateral changes to the order confirmation. Changes by Schaerer (in particular changes to the price and delivery date) shall be communicated to the Customer without delay. Notes by Schaerer in the order confirmation to which the Customer does not object within two (2) working days shall be deemed equivalent to written agreements between the Parties. In the event of price increases of more than 20%, the Customer is entitled to withdraw from the Agreement within ten (10) working days of notification.
Prices and terms of payment
6.1 Prices The prices of the products sold are sent out to the Customer by means of a price list. Schaerer is entitled to review and amend the price list at its sole discretion. The agreed upon purchase price between the Parties applies from the factory and covers all services required for the relevant contract fulfilment unless otherwise agreed in writing. This applies especially to the conventional packaging costs such as per diem and all public expenses that are not listed separately (incoterm 2010 “FCA”). Prices of products and/or services are prices before tax. They do not include, unless otherwise stated in the order, value added tax (VAT) or other taxes, whether present or future, such as customs duties, or any other duty or tax applicable to the sale of the products. The VAT will be applied at the rate in force at the moment the invoice is issued. Any modification of the taxes directly or indirectly affecting the products sold will be borne by the Customer. To be admissible, any claim made by the Customer related to the prices of the products shall be limited to the prices of the ongoing year or the year before only.
6.2 Payment Terms Unless otherwise agreed, payment shall be due net within thirty (30) days of the invoice date, without any deductions, by bank transfer. The non-payment of any sum by the Customer on the due date shall lead to the application of late payment contractual penalties equal to three (3) times the legal interest rate of 5%, and without prejudice to Schaerer’s other rights and remedies. Late payment contractual penalties are automatically payable without the need for a reminder notice, on the day after the payment date indicated on the invoice. The penalties are applicable on the total amount of the invoice all taxes included. The late payment penalties are not subject to VAT. Payment of the late payment contractual penalty does not release the Customer from further compliance with the Agreement. In the event of non-payment of an invoice on due time hereof, Schaerer reserves the right (1) to retain all deliveries of any products for as long as the default continues and until all due invoices are paid in full, and/or (2) to require a cash in advance payment for any other delivery. Any late payment will also result in the payment by the Customer of a fixed sum to cover Schaerer internal recovery costs of CHF 40. Schaerer reserves the right to seek additional compensation if the recovery costs actually incurred by Schaerer exceed the fixed sum. The compensation is payable without the need for a reminder notice, on the day following the payment date indicated on the invoice. It is not subject to VAT. Partial payments require prior written approval from Schaerer. Payments to settle overdue invoices will be credited to the Customer in the following order: costs, interest, principal. In justified cases, in particular in the event of a default in payment, Schaerer reserves the right to demand advance payment for all products and/or services, and to revoke approvals that have already been granted for partial payments. If the Customer defaults on a payment that is part of an agreed partial payment plan, Schaerer shall be entitled to demand immediate payment of the total amount. In the event of default in payment on the part of the Customer, Schaerer shall be entitled, in addition to the statutory consequences of default and the above provisions, in particular to terminate the Agreement immediately and at any time without setting a grace period.
Place of performance and transfer of risk The place of performance shall be the place of delivery agreed by the Parties (see clause 8 hereafter). In the case of deliveries without an obligation for installation on the part of Schaerer, this shall be the place of handover of the products to the shipping agent, unless otherwise agreed. - In the case of deliveries with an obligation of installation on the part of Schaerer, this shall be the place of installation (work report, handover protocol). Benefit and risk shall pass to the Customer at the time the products are handed over at the place of performance. In the event of delays in dispatch or handover for which the Customer is responsible, the risk shall already pass to the Customer upon notification of readiness for dispatch or assembly.
Delivery The order confirmation and any supplements are decisive for the type and scope of delivery. Unless otherwise agreed or stated in the order confirmation, deliveries shall be made “FCA – Free Carrier” Schaerer plant (Niedermattstrasse 3b, 4528 Zuchwil) in accordance with Incoterms 2010. Delivery times are not binding. Schaerer shall inform the Customer in good time of any delays in delivery. Exceeding the delivery date does not entitle the Customer to withdraw from the Agreement or to claim damages. If a fixed delivery date has been agreed, the Customer shall set a reasonable grace period of at least (4) four weeks in the event of default on the part of Schaerer. In the event of late delivery or non-delivery despite the setting of a grace period, the Customer is entitled to withdraw from the Agreement. If the delivery deadline cannot be met due to force majeure (as defined in Clause 14; such as operational disruptions, delays in the delivery of essential materials, strike, official orders, epidemic or pandemic, etc.), it shall be extended accordingly. If the performance becomes impossible due to the influence of force majeure, Schaerer shall be released from the obligation to perform without any obligation to pay damages. If the ordered products cannot be delivered or installed/assembled on the agreed date, and the Customer is responsible for the reasons (e.g. lack of on-site installations), Schaerer shall be entitled, after setting a reasonable grace period, to withdraw from the Agreement and to demand compensation for damages or to invoice the purchase price and to demand from the Customer the costs for outlays as well as storage (in particular storage costs, costs for tied-up capital), but at least an amount of 1% of the sales price per year for the duration of the delay. If the delay amounts to more than 3 months, Schaerer reserves the right to inspect the product prior to its delivery or installation at the expense of the Customer without prior notification. The documents supplied by Schaerer, such as operating instructions etc., as well as instructions from Schaerer are binding and must be observed by the Customer before use. If the installation is carried out by Schaerer, assessment and installations on site (e.g. proper laying of the water lines up to the machine, the power lines up to the machine respectively up to the main switch, installation of the water drain) are the responsibility of the Customer. Any costs resulting from this shall be borne by the Customer. Schaerer shall not be liable for compliance with general and local regulations for on-site installation work (e.g. electrotechnical regulations). Schaerer may engage third parties for the fulfilment of its contractual obligations. Under no circumstances can Schaerer be held liable for any late penalties or loss, damage expenses (whether for loss of profit, loss of revenue or for any consequential loss or otherwise whatsoever) caused by non-compliance with said delivery or execution date, unless if caused by unlawful intent or gross negligence.
Reservation of ownership The delivered products shall remain the property of Schaerer until all claims have been fully satisfied. The Customer undertakes to cooperate in the required measures to protect Schaerer’s property. In particular, the Customer authorises Schaerer with conclusion of the Agreement, to carry out the registration of the reservation of ownership in public registers in accordance with legal requirements and at the Customer's own expense. If Schaerer withdraws from the Agreement as a result of the Customer’s default in payment, the Customer shall be obliged to surrender the purchased item immediately upon Schaerer’s first request. The sale of a product purchased under reservation of ownership shall require the express written consent of Schaerer in order to be valid.
Cancellation of the Agreement and reverse transaction The Customer cannot unilaterally decide to cancel the order or the Agreement. In the event, the Customer wished to cancel the order or the Agreement, the Customer shall notify its request to Schaerer and obtain Schaerer’s written consent.. In such event, the Customer shall owe Schaerer a contractual penalty of 15% of the net purchase amount of the entire ordered products according to the Agreement for the expenses incurred thereby. The right to claim further damages is reserved, whereby the contractual penalty shall be offset against this amount. Should the Agreement be rescinded – for whatever legal reason – Schaerer shall be entitled, without prejudice to any other possible existing claims against the Customer, to claim the following amounts for the use and enjoyment of the equipment and as compensation for loss of value:
• 25% of the purchase price plus VAT in case of cancellation within the first 3 months; • 30% of the purchase price plus VAT in case of cancellation within the first 6 months; • 40% of the purchase price plus VAT in case of cancellation within the first 12 months.
This period shall commence in each case at the time of handover of the goods at the agreed place of performance (see clause 7).
Warranty Schaerer warrants that the purchased products have the warranted characteristics, comply with the relevant safety regulations in Switzerland and do not have any physical or legal defects that impair their value or their suitability for the intended use. Any provisions to the contrary below shall remain reserved. The Customer shall inspect the condition of the products immediately and give written notice of any defects within 10 days of their discovery. The moment at which any defects were recognisable for the Customer shall be deemed equivalent to the moment of discovery. However, a notice of defects must be made in any case at the latest: A) for deliveries within Switzerland Within 10 days from the date of handover of the Products at the agreed place of performance (see clause 7). B) for export deliveries a) without an obligation of installation on the part of Schaerer: within 60 days b) with an obligation of installation on the part of Schaerer: within 10 days from the time of handover of the products at the agreed place of performance (see clause 7). If more than one time limit is applicable, the shorter time limit shall apply. In the absence of a written complaint to Schaerer within this period, the delivery shall be deemed to have been accepted and approved without defects. Hidden defects, i.e. defects which were not recognisable at the time of receipt and proper inspection, must be notified in writing within 10 days of their discovery. The moment at which any defects were recognisable for the Customer shall be deemed equivalent to the moment of discovery.
The prescription period is: A) for coffee machines: 12 months from the date of installation, but no later than 18 months from the date of handover of the products at the agreed place of performance (see clause 7). B) for spare parts: a) 6 months for replacement parts; b) 12 months for all other parts (especially new parts [built-in parts], spare parts as well as mechanical parts [e.g. brewing unit]) from the time of handover of the products at the agreed place of performance (see clause 7). The proof of compliance with the periods for inspection, notice of defects and prescription shall be incumbent on the Customer. The Customer is not entitled to withhold outstanding payments by asserting warranty claims.
Requirements for operation, maintenance, and cleaning: • The product must be operated, maintained and cleaned according to the specifications in the operating instructions, maintenance instructions and other instructions from Schaerer. • These instructions shall apply in the most current version and are available on Schaerer’s website (if applicable, in the password-protected member area). The operating instructions are supplied with the product. In addition, Schaerer shall provide all instructions to the Customer upon request. In the case of non-compliance with the specifications according to the operating instructions, maintenance instructions, and other instructions from Schaerer (in particular, in the case of non-compliance with the specifications regarding the water quality or use of the recommended cleaning agent), Schaerer shall not provide any warranty.
Likewise, no warranty is provided: • for wear parts (e.g. seals, grinding discs) • for accessories supplied or installed at the express request of the Customer (e.g. payment system); • for weather, chemical, physical, electrochemical or electrical influences, to the extent that this is not attributable to a fault on the part of Schaerer; • in the event of power fluctuations, such as voltage spikes and power failures; • in the event of Force Majeure (e.g. severe weather, water, lightning and so on); • defects as a result of use of non-original parts, faulty interventions or interventions not authorised by Schaerer by the Customer or third parties, or modification to the product. The requirements for the return as well as for the delivery of warranty parts shall be governed by the respective current specifications of Schaerer. Returns that do not comply with the requirements according to the respective current specifications of Schaerer shall be returned or disposed of at the expense of the Customer. Schaerer shall not provide any warranty for parts whose return does not take place in accordance with the respective current specifications of Schaerer. In any event, Customer bears the costs of returning defective products or parts. If there is a defect, the Customer shall first give Schaerer the opportunity to rectify the defect. If this is not possible or not successful, the Customer shall have the choice, after setting a reasonable grace period, to demand a further rectification free of charge, to make a deduction from the price corresponding to the reduced value or to demand a replacement delivery by Schaerer. The replacement delivery by Schaerer can be made in particular by replacing defective components. Replaced parts shall become the property of Schaerer. The Customer has no right to rescission (reversal of the Agreement) or substitute performance by third parties. Any liability for damages on the part of Schaerer due to defects in the purchased products, in particular for direct and indirect consequential damages, as well as for loss of profit, shall be excluded, insofar as no mandatory statutory provisions are opposed thereto. Any liability of Schaerer for negligence is expressly excluded to the extent permitted by law.
Liability
12.1 These terms set out the full extent of the Parties obligations and liabilities. There are no warranties, conditions or other terms that are binding on Schaerer as expressly stated in these GTC. 12.2 Except for unlawful intent or gross negligence, Schaerer shall not be held liable under these GTC. 12.3 Subject to Clause 12.2, Schaerer will not be liable for any loss of income, loss of profits, loss of contracts, loss of data or for any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise. 12.4 Subject to Clause 12.2 Schaerer’s maximum aggregate liability whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in no circumstances exceed the amount payable by the Customer to Schaerer in respect to the products in question.
Service This clause shall only apply to services that Schaerer performs directly at the Customer’s premises and that are not in connection with service subscriptions. For services that Schaerer performs within a service subscription, the General Service Conditions of Schaerer shall apply. Services mean maintenance or troubleshooting performed outside of warranty cases or service subscriptions. The service orders can be fulfilled by Schaerer itself or by commissioned third parties. It is the Customer’s responsibility to ensure that any third parties have been authorised by Schaerer. The service order comes into effect when the order form is signed or the order confirmation has been delivered, no later than the start of the provision of the service. The Customer guarantees unhindered access to the machines. Unless otherwise agreed in writing, services shall be provided in accordance with the rates applicable at the time of order confirmation. Service invoices are payable in accordance with the terms of clause 6 of these GTCs. Schaerer expressly reserves the right to act only against advance payment or cash payment if there are reasonable doubts that the Customer can or will meet the payment obligations. Reasonable doubts exist in particular if there was or still is a delay in payment for other invoices. Outstanding payments may be deducted from an advance or cash payment. There is no warranty for services. Any liability for damages on the part of Schaerer arising from services for indirect damages, such as loss of profit, shall be excluded. Any liability of Schaerer for negligence is expressly excluded to the extent permitted by law.
Force Majeure Event Neither the Customer nor Schaerer may be held responsible for not fulfilling their obligations due to cases of Force Majeure or acts of God. Events considered as cases of Force Majeure or acts of God are those beyond the control of the Customer and/or Schaerer, which they could not have reasonably foreseen and which they could not reasonably avoid or overcome at the time the order was placed. In addition to the events qualified by the courts as Force Majeure or acts of God, those events include– but are not limited to: natural disaster; flood, fire, earthquake or explosion; strikes not caused by the affected Party's own employees; production stoppages due to unforeseen breakdowns and/or the impossibility of obtaining raw material supplies; war, invasion, hostilities, acts of terrorism, riots or other civil commotion; decision or law of a government; actions, embargoes or blockades coming into effect after the commencement date; action of a governmental authority; national or regional emergency; bacteriological crisis such as the presence of a virus qualified as a pandemic by the authorities, an epidemic reaching stage III (epidemic stage), a containment ordered by the authorities and lasting more than ninety (90) days but not, including without limitation, an inability by the affected Party to make any payment due under this Agreement. It is understood that Force Majeure or acts of God shall not be invoked for the payment default of a due invoice. Upon the occurrence of such an event, the Party seeking to rely on this provision shall promptly give written notice to the other Party of the nature and consequences of the cause. Moreover, the Party invoking Force Majeure should do everything in its power to resume performing its obligations as soon as possible. Should such suspension continue beyond a period of 8 (eight) weeks, the other Party may cancel any pending order.
Claims assignment and pledge Claims to which the Customer is entitled under the Agreement may neither be assigned nor pledged without the express written consent of Schaerer.
Confidentiality The Parties shall treat as confidential all facts that are neither public knowledge nor generally accessible (the “Confidential Information”). Unless Schaerer has given its prior written consent, any Confidential Information shall not be disclosed by the Customer to third parties or be used for purposes other than those for which they were provided or sent.
Intellectual Property All programmes developed by Schaerer and the know-how associated with the machines shall remain the sole property of Schaerer. The Customer undertakes to use them only for the agreed purpose and to make them available to third parties only to the extent that this is indispensable for the proper use of the products. All intellectual property rights of Schaerer remain the sole property of Schaerer.
Resale In the event of product resale, the Customer is obliged to transfer all obligations arising from the Agreement to the third party, insofar as this is legally permissible (in particular the provisions on warranty and service).
Telemetry & Data Privacy In the context of their relationship, the Parties will be processing personal data for their own purposes, acting as controllers of such processing activities, which will be conducted in compliance with the applicable data protection law. Nothing in these GTC shall be construed as creating a controller-to-processor relationship between the Parties. Information regarding telemetry and privacy policy is available at the following link: https://coffeelinkng.schaerer.com/#/document/privacy-policy
Specifications from Schaerer regarding ordering and shipping of spare parts and warranty parts Schaerer may issue specifications regarding the ordering and shipping of spare parts and warranty parts. With the order, the specifications are considered accepted by the Customer. The specifications shall apply in the most current version, which is posted on Schaerer’s website or has been brought to the attention of the Customer in another form. Schaerer reserves the right to change the specifications from time to time. Changes will be communicated directly to the Customer or posted on the Internet and shall be deemed accepted by the Customer upon their delivery or posting on the Internet. In the event of discrepancies, these GTC shall take precedence over the specifications.
Assignment The Agreement shall not be assignable by Customer, and Customer shall not delegate its duties under the Agreement without Schaerer’s prior written consent.
Governing Law and Jurisdiction These GTC are based exclusively on Swiss law. The applicability of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (Vienna Sales Convention) is expressly excluded. The exclusive place of jurisdiction shall be at the registered office of Schaerer, whereby Schaerer shall have the right to take legal action against the Customer at the latter’s registered office. The language of the proceedings shall be German, insofar as the court allows this.
Miscellaneous
23.1 These GTC shall apply in the most current version, which is posted on Schaerer’s website. Schaerer reserves the right to change these GTC at any time. Changes will be communicated to the Customer in writing or posted on the Internet and shall be deemed accepted by the Customer upon their delivery or posting on the Internet.
23.2 Should any provision of the Agreement or these GTC be legally invalid or unenforceable, the validity of the Agreement and the GTC shall remain unaffected. The invalid or unenforceable provision shall be replaced by a provision that most closely reflects the economic intent of the contracting parties. These provisions have been drawn up in German; in the event of any ambiguity, the German version shall prevail. 23.3 The provisions of Clauses 12,14,16,17 & 22 of these GTC shall survive the termination of the Agreement between the Customer and Schaerer.
