1. Scope of Application and Validity
1.1 These General Terms and Conditions (GTC) govern the legal relationship between the customers (hereinafter referred to as "Customer") and JKS ENGINEERING AG AG (hereinafter referred to as "JKS ENGINEERING AG"). They shall apply to all deliveries and services which JKS ENGINEERING AG provides for the Customer.
1.2 The GTC shall form an integral part of all agreements between the Customer and JKS ENGINEERING AG. In the event of contradictions between the provisions of these GTC and the special agreements with the Customer, the special agreements shall take precedence.
1.3 Deviations or additional terms and conditions of the Customer shall only be valid if they are expressly recognized by JKS ENGINEERING AG in writing. Conflicting terms and conditions of the Customer shall not apply.
1.4 The current version of the GTC shall be published on the website (www.jks.ch). The version of the GTC valid at the time the contract is concluded shall apply to the Customer.
1.5 The invalidity or unenforceability of one or more clauses of these GTC shall not affect the validity of the remaining provisions of the GTC. Invalid or unenforceable clauses shall be replaced by a new clause that comes as close as possible in economic and legal terms to the invalid or unenforceable clause.
2. Offer and Conclusion of Contract
2.1 Offers from JKS ENGINEERING AG and the associated documents shall only be decisive for the conclusion of a contract if they are expressly designated as a binding offer. Otherwise, offers are subject to change. All prices quoted in offers are net prices (excluding VAT) in Swiss francs.
2.2 A contract shall only be concluded with legal effect when an order is confirmed by JKS ENGINEERING AG in writing or in electronic form with an order confirmation. If JKS ENGINEERING AG does not receive written objections from the Customer within 5 working days of delivery of the order confirmation to the Customer, the contract shall apply in accordance with the content of the order confirmation.
3. Scope of Deliveries and Services
3.1 JKS ENGINEERING AG undertakes to carefully fulfil the deliveries and services in accordance with the contractually agreed specifications and requirements.
4. Plans and Technical Documents / Intellectual Property
4.1 Brochures and catalogues are not binding unless otherwise agreed. Details in technical documents are only binding if they are expressly warranted.
4.2 Each party reserves all rights to plans and technical documents that it has handed over to the other party. The receiving party acknowledges these rights and shall not make the documents available to third parties in whole or in part or use them for purposes other than those for which they were handed over without the prior written authorization of the other party.
4.3 All intellectual property rights to the services provided and products developed shall remain with JKS ENGINEERING AG.
5. Prices and Terms of Payment
5.1 All prices in all offers and contracts between the Customer and JKS ENGINEERING AG are net prices (excl. VAT) in Swiss francs ex works (EXW, Incoterms 2000).
5.2 Any ancillary costs incurred in connection with deliveries (such as freight, insurance, export, transit, import or other permits) shall be borne by the Customer. The Customer shall also bear all types of taxes, duties, fees, customs duties and the like as well as the associated administrative costs that are levied in connection with the contract or its fulfilment.
5.3 Unless otherwise agreed, all invoices shall be due for payment without deduction within 30 days of the invoice date. JKS ENGINEERING AG reserves the right to demand payment in advance.
5.4 Any warranty claims and insignificant shortfalls in a delivery shall not entitle the Customer to withhold due payments. The Customer shall not be entitled to offset its payment obligations against any counterclaims.
5.5 Upon expiry of the payment period, the Customer shall automatically be in default without a reminder and shall owe default interest of 5% p.a. The right to claim further damages caused by delay (including reminder and collection charges) remains reserved. All discounts and special conditions granted shall lapse upon the occurrence of default.
5.6 If the Customer is in arrears with a payment obligation, if there are doubts about the Customer's solvency or creditworthiness or if JKS ENGINEERING AG's claim to remuneration appears to be jeopardized in any other way, JKS ENGINEERING AG may, at its discretion, (a) demand security or advance payment of the claim to remuneration and withhold delivery until security or advance payment has been provided or (b) withdraw from the contract.
6. Dates and Deliveries / Use and Risk
6.1 The milestones and deadlines agreed in the contract with the Customer are merely guidelines and are not binding unless otherwise agreed in the contract. Delays in delivery shall not entitle the Customer to refuse acceptance, to withdraw from the contract or to claim damages.
6.2 For deliveries of goods, benefit and risk shall pass to the Customer at the latest on dispatch of the deliveries from JKS ENGINEERING AG. At the Customer’s request and expense, the shipment shall be insured by JKS ENGINEERING AG against theft, breakage, transportation, fire and water damage and other insurable risks.
6.3 Partial deliveries are permitted at any time.
6.4 The dispatch of goods by JKS ENGINEERING AG to the Customer shall be at the risk and for the account of the Customer. Any damage to the goods must be reported to the JKS ENGINEERING AG immediately upon receipt of the goods.
6.5 In case of returnable crates, the packaging materials in perfect condition must be returned carriage paid within 3 months. Otherwise, the packaging materials will be invoiced.
6.6 If dispatch is delayed at the request of the Customer or for other reasons for which JKS ENGINEERING AG is not responsible, the risk shall pass to the Customer at the time originally scheduled for delivery. From this time onwards, the deliveries shall be stored and insured at the expense and risk of the Customer.
6.7 The delivered goods (type and quantity) must be inspected upon receipt. Complaints regarding the type and quantity of the delivered goods must be made within 5 days of receipt of the goods; otherwise, the delivery shall be deemed to have been approved.
7. Retention of Title
7.1 Until the purchase price has been paid in full, delivered goods shall remain the property of JKS ENGINEERING AG and may not be pledged or transferred to third parties.
7.2 JKS ENGINEERING AG may register the corresponding retention of title at any time. The Customer shall be obliged to grant necessary consent for the registration of the retention of title.
8. Warranty
8.1 The warranty period is 12 months and begins with the delivery of the goods. Replacement or repair does not lead to an extension of the original warranty period.
8.2 The warranty shall expire prematurely if the Customer or third parties carry out modifications or repairs, or if the Customer, if a defect has occurred, does not immediately take all appropriate measures to minimize the damage and give the JKS ENGINEERING AG the opportunity to remedy the defect. The warranty shall also lapse in the event of improper storage or use of the delivered goods by the Customer.
8.3 JKS ENGINEERING AG undertakes, at the written request of the Customer, to repair or replace as quickly as possible, at its discretion, all parts of the deliveries which are proven to be defective or unusable as a result of poor material, faulty design or poor workmanship before the expiry of the warranty period. Parts removed during the corresponding repair shall belong to JKS ENGINEERING AG.
8.4 In the event of defects in installed hardware or software, the warranty conditions of the respective hardware or software manufacturer shall apply, which shall take the place of the JKS ENGINEERING AG's warranty. JKS ENGINEERING AG shall assume no further liability, in particular not the costs for troubleshooting and fault rectification, for the recovery of lost data, for the costs of necessary bridging measures, etc.
8.5 The scope of the warranty and guarantee services for the delivery of third-party goods shall be based exclusively on the guarantee granted by the manufacturer. JKS ENGINEERING AG shall assign any warranty claims to which it is entitled to the Customer so that the Customer can assert these claims directly against the manufacturer. Any further liability of JKS ENGINEERING AG towards the Customer under guarantee or warranty is expressly excluded.
8.6 Warranted characteristics are only those which have been expressly designated as such in the order confirmation or in the specifications. The warranty shall apply until the expiry of the warranty period at the latest. If an acceptance test has been agreed, the warranty shall be deemed to have been fulfilled if proof of the relevant properties has been provided during the test. If the warranted characteristics are not fulfilled, the Customer shall initially be entitled to rectification by JKS ENGINEERING AG. If this rectification is not successful, the Customer shall be entitled to a corresponding reduction in price.
9. Liability
9.1 JKS ENGINEERING AG shall be liable to the Customer for damages caused intentionally or through gross negligence in accordance with the statutory provisions.
9.2 Liability for slight negligence and for auxiliary persons shall be limited to a maximum of the amount of the services provided.
9.3 Liability for indirect damages and consequential damages (e.g. loss of profit, business interruption, loss of data, third-party claims) is excluded to the extent permitted by law.
10. Force Majeure
10.1 Operational disruptions beyond the control of JKS ENGINEERING AG, in particular non-delivery or delayed delivery by contractual partners of JKS ENGINEERING AG, as well as other events of force majeure (strike, accidents, fire, natural disasters, etc.) shall entitle JKS ENGINEERING AG to extend the agreed delivery periods (goods) or performance periods (services) and/or to cancel the concluded agreement, to the exclusion of claims for damages by the Customer.
11. Prohibition of Assignment
11.1 The Customer may not assign any claims arising from the contractual relationship to a third party without the prior written consent of JKS ENGINEERING AG.
12. Place of Performance
12.1 The place of performance for all services provided by JKS ENGINEERING AG shall be the registered office of JKS ENGINEERING AG or – if and insofar as the work has to be carried out on the Customer's premises – the Customer's business premises.
13. Applicable Law and Place of Jurisdiction
13.1 All legal relationships between JKS ENGINEERING AG and the Customer shall be governed by substantive Swiss law (excluding the conflict of laws rules under Swiss private international law and the provisions of the Vienna Sales Convention).
13.2 The exclusive place of jurisdiction for disputes between the Customer and JKS ENGINEERING AG shall be CH-Wetzikon. However, JKS ENGINEERING AG shall also be entitled to assert its claims at the Customer's domicile.
