1. General
1.1 Products and related services provided by VAT are governed exclusively by the terms and conditions set forth below. To the extent that any request for quotation, purchase order, or any other document provided by Buyer contains any pre-printed or written terms that either conflict with and/or supplement the terms and conditions set forth herein, such pre-printed and/or written terms shall be null and void unless expressly agreed in writing and signed by both parties.
1.2 These terms and conditions, as may be amended from time to time, will apply to all future transactions with Buyer.
2. Purchases of Products
2.1 Quotations provided by VAT are for informational purposes only and do not constitute an offer for sale. Buyer’s written or verbal order to VAT will be an offer of purchase, which may be accepted by VAT only by providing a written order acknowledgement or, if no order acknowledgement is issued, by VAT’s delivery. No other form of acceptance will give rise to a contract between the parties.
2.2 Information provided by Buyer before and/or during the processing of the order, including but not limited to information relating to performance, consumption, or any other particulars, will not be binding unless this information has been confirmed in VAT’s order acknowledgement or in writing signed by VAT.
2.3 Statements or representations in VAT’s brochures or advertisements are for informational purposes only, and the statements and/or representations therein do not give rise to any guarantee, warranty, or other representation regarding the Products that may be relied upon by Buyer.
2.4 VAT’s sales representatives, employees, and/or agents do not have any authority to make any warranty, guarantee, or representation regarding the Product that vary from or supplement these terms and condition, or to bind VAT to any agreement. Any such warranty, guarantee, representation, or agreement must be in a writing signed by VAT to be effective.
3. Software and other Intellectual Property
3.1 No right or title to Intellectual Property is transferred with the sale of VAT goods but for the right to use the products delivered as to their purpose and for until cessation of their use. All developments and created intellectual property rights based on VAT's intellectual property rights shall solely be attributed to and owned by VAT.
3.2 In the event that Buyer desires to use the proprietary software available for use in conjunction with the Products (“Software”), the Software can be obtained from VAT and/or its parent company, VAT Holding AG (“Parent Company”). The Software is proprietary to VAT and Parent Company and is protected by intellectual property laws and international intellectual property treaties.
3.3 Pursuant to acceptance of the Software and subject to the terms and conditions set forth herein, VAT and Parent Company grant Buyer a not-for-resale, nonexclusive, nontransferable license to use the Software on machines that are agreed to by VAT and for the purposes intended by VAT. VAT and Parent Company further grant Buyer the right to make two copies of the software for purposes of backup of the software. It is a violation of the terms of this agreement to transfer or sell the Software or related/derivative products or to use the Software for any purpose other than in conjunction with VAT’s Products. Violation of these terms will result in the termination of this license and all other penalties allowed by contract and applicable law.
3.4 Parent Company owns the title, copyright, and other intellectual property rights in the Software, and it reserves all rights not expressly granted to Buyer in this Agreement. Pursuant to this Agreement, the Software and its components are licensed, not sold.
3.5 Buyer agrees that, from time to time, the Software may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment (hardware) malfunctions; (ii) software malfunctions; or (iii) changes or modifications to the Software by Buyer or any other third-party. VAT and Parent Company are not responsible, directly or indirectly, for the performance and/or reliability of the Software, Buyer’s software, platform, system, equipment, or otherwise, and/or modifications implemented by Buyer.
3.6 Upon cessation of using VAT’s Products, Buyer shall immediately uninstall and cease access to the Software and or delete all copies of the Software.
4. Prices
4.1 Unless otherwise agreed, prices are FCA VAT’s facility in Haag, Switzerland, based on Incoterms 2020. Standard packaging is included in the price, and Buyer agrees to pay for any additional packaging. For payments made with credit card, a convenience fee of 3% will be charged as far as legally permissible.
4.2 Buyer is responsible for all sales, added value, and/or any other taxes on the Products. VAT shall clear the goods for export, if applicable, but shall under no circumstances be obligated to clear goods for import or transit through third countries, to pay import duties or to complete import customs formalities. Buyer is responsible for obtaining an export or import license.
4.3 In the event that Buyer’s order(s) and/or the transaction will take more than four months to complete, VAT reserves the right to adjust pricing to reflect unforeseen increases in wage rates, transport costs, fuel costs, or the cost of securing raw materials. In addition, in the event that the intended delivery date is postponed by more than three months, for reasons for which VAT is not responsible, VAT reserves the right to amend its price(s) in accordance with any changes in wages rates, transport costs, fuel costs, or the costs of securing raw materials to the extent permitted under the applicable laws and regulations. If Buyer makes changes to its order prior to delivery, VAT may adjust its prices in accordance with the additional costs caused by the changes.
4.4 Orders below CHF 350.- ("MOV", Minimum Order Value) are subject to a processing fee of CHF 150.- converted into the currency of the order rounded up with a difference of up to 20%.
5. Deliveries; Transfer of Risk
5.1 Unless expressly agreed otherwise as to any specific purchase order issued and accepted hereunder, the Products will be delivered FCA according to Incoterms 2020 at VAT’s facility in Haag, Switzerland. Buyer shall be solely responsible for arranging and paying for shipment to Buyer’s designated destination, and the risk of loss is transferred to Buyer upon VAT’s tender of the Products. Buyer shall be responsible to insure each shipment at full replacement value.
5.2. VAT will have the right to deliver partial orders, unless expressly agreed otherwise. VAT shall not be liable for any additional costs arising from partial deliveries or order delays due to partial deliveries.
5.3. Unless otherwise expressly agreed in writing, delivery dates will not be binding. If so agreed in writing, the delivery date shall be considered to have been met if the shipment is made ready for dispatch by the specified delivery date and by notification to Buyer. VAT shall not be obliged to execute and deliver an order and all delivery dates shall be extended accordingly, if pre- or down-payments are delayed or not fulfilled on time or Buyer withholds payments or offsets claims.
5.4. If the parties have agreed in writing as to delivery dates, VAT will not be liable for delays by reason of unforeseen events that make the delivery particularly difficult or impracticable. In the event of such delays, VAT will be entitled to postpone the delivery by the period of time during which the obstacle exists, plus a reasonable startup period. This entitlement will also apply in cases of unforeseen events which affect the operations of a supplier or a subcontractor, and the supplier, subcontractor, and/or VAT will not be liable for the same.
5.5. If the Product is not picked up on delivery date, delivery is deemed accepted and the Buyer shall pay the price and bear any costs relating to storage and transportation to other storage facilities of the Products.
5.6. LOSSES OR DAMAGES CAUSED BY OR RELATED TO LATE DELIVERIES BY VAT IS EXCLUSIVE AND THE PARTIES AGREE THAT VAT WILL NOT BE OTHERWISE LIABLE FOR ANY CLAIM, LOSS, OR DEMAND, OR FOR DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, DOWNTIME, OR DAMAGES CAUSED BY DELAYS TO THE EXTENT PERMITTED UNDER THE APPLICABLE LAWS AND REGULATIONS.
5.7. Orders may only be cancelled upon written notice to VAT. Any cancelled order and any wrongful non-acceptance of goods is subjected to a cancellation fee of up to 100% of the total order net price. Cancellations within 8 weeks of the confirmed order delivery date will not be accepted.
5.8. Order pushouts are not accepted within 8 weeks of the confirmed order delivery date. Any order can only be pushed out once for up to 4 months. Pushouts for more than 4 months can be deemed as cancellations and treated according to article 5.7 above. Pushouts are subjected to a fee of up to 100% of the total order net price.
5.9. Only returns authorized by the Seller will be accepted and will be subject to restocking fees of minimum 50% of the total order net price.
6. Notices of defects; Warranty
6.1. Buyer must inspect the Products immediately after the Products have delivered to Buyer’s designated destination. Buyer must timely provide notice to VAT in writing as to any defects, and, in any case, not later than seven (7) days after delivery. The Products will be deemed accepted by Buyer after that time.
6.2. As to any defects, Buyer must provide VAT an opportunity to investigate by making damaged goods and their packaging available to VAT for inspection, including pictures of the damaged parts, damaged parts packaging and any further documentation. If Buyer fails to do so, VAT will not be liable for any such defects.
6.3. VAT grants a limited warranty to Buyer of its Products, subject to the conditions and limitations set forth below:
(a) VAT warrants its Products to be free from manufacturing defects at the time of delivery. VAT further warrants that its Products will not become defective as a result of a manufacturing defect during the twelve (12) months term of this limited warranty, starting from the date of delivery.
(b) Should any Product fail because of a manufacturing defect within the twelve (12) months warranty term, VAT’s liability shall be limited to the repair and/or replacement of the defective Product. Any and all other costs, including labor and shipping costs, shall be the responsibility of the Buyer and not of VAT to the extent permitted under the applicable laws and regulations.
(c) Limitations:
i. This limited warranty does not apply to the installation of Products.
ii. This limited warranty does not apply to, and VAT shall not be liable for, any defect caused by the installation, use, or misuse of a Product.
iii. Provided that Buyer has timely followed the procedures and requirements set forth in subsection 6.3(c)(vi) below, VAT, at its sole discretion, may either replace the defective Product free of charge or repair the Product. If VAT is unable to repair or replace a defective Product, VAT will provide a similar substitute product. The term “unable to repair” is defined as a failure to make the Product operational after three attempts at repair. The remedies in this paragraph shall be Buyer’s sole and exclusive remedies for defects in the Product, regardless of the nature of the alleged defect.
iv. Any allegedly defective Product must be sent to VAT’s facility for repair or replacement, and Buyer is responsible for shipping costs and for any loss or damage incurred during shipment. If Buyer requests “on-site” repairs or replacements at Buyer’s facilities, Buyer must submit a purchase order, subject to VAT’s acceptance, and Buyer will be responsible for VAT’s service charge, plus transportation costs and traveling expenses to the extent permitted under the applicable laws and regulations.
v. Replaced or repaired defective Products will be covered by the warranty for the remaining period of the warranty for the original Product.
vi. This limited warranty shall not apply or be honored unless Buyer first completes a Return Material Authorization (“RMA”) form, including providing a specific description of the alleged defect, and obtains an RMA number from VAT before returning the Product for repair or replacement. In addition, Buyer must return the Product within thirty (30) days after Buyer discovers the alleged defect.
vii. This limited warranty will not be valid unless Buyer has fully paid for the Product.
6.4. THE REMEDIES STATED HEREIN ARE THE SOLE AND EXCLUSIVE REMEDIES OF THE BUYER FOR THE ALLEGED FAILURE OF AND/OR DEFECT IN THE PRODUCTS. THERE ARE NO WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE (EITHER EXPRESS OR IMPLIED) THAT EXTEND BEYOND THE FACE OF THIS LIMITED WARRANTY; VAT EXPRESSLY DISCLAIMS ANY SUCH FURTHER WARRANTIES, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS LIABILITY FOR ANY CONSEQUENTIAL, INCIDENTAL, OR OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, DOWNTIME, OR DAMAGES TO ANY MACHINE, MATERIALS, OR ANY OTHER PRODUCTS, ALL OF WHICH ARE EXPRESSLY DISCLAIMED HEREBY TO THE FULLEST EXTENT PERMITTED BY LAW.
7. Guarantee and security interest
7.1. Title shall not pass to Buyer until VAT has been paid in full, and Buyer grants upon request VAT a third party guarantee or security interest, including without limitation a bank guarantee, surety, a retention of title or a purchase money security interest, in all Products delivered hereunder, including all proceeds, (“Security Interest”) until payment in full has been made.
7.2. If Buyer is a re-seller of the Products, Buyer hereby grants a Security Interest to VAT in all Products in Buyer’s inventory, including all proceeds. Upon VAT’s request, Buyer shall provide the name and address of every person or entity that holds a security interest in Buyer’s inventory, and VAT is authorized to provide notice of its Security Interest to any or all of those security interest holders.
7.3. If the Products are incorporated in Buyer’s products, VAT’s Security Interest attaches to the fullest extent permitted by law to Buyer’s products, including all proceeds.
7.4. VAT shall have the right to file agreements, financing statements and any other documents that may be necessary to perfect its Security Interest and Buyer shall cooperate in all actions required and necessary for such purpose.
8. Invoices and terms of payment
8.1. Unless expressly agreed otherwise, VAT’s invoices are due and Buyer agrees to pay VAT’s invoices within thirty (30) days of the date of each invoice. Invoices not paid when due are subject to accrued interest at a rate equal to the the interest rate of the European Central Bank (ECB) for main refinancing operations, plus two additional points.
8.2. As far as legally permissible, the Buyer must not purport to set off, withhold or deduct any payments due.
8.3. Discounts will only be provided if VAT has agreed to do so in writing. In the event that discounts have been provided, such discounts will not be honored unless the Buyer has timely paid all invoices.
8.4. If the Supplier has reasonable concerns about the solvency or will to pay of the Buyer, it may at its sole discretion as far as legally permissible cancel any undelivered or uncompleted portion of the Agreement, stop any Products in transit, demand payment in advance or satisfactory securities and all outstanding payments shall become due.
8.5. If VAT has tendered Products for delivery and the delivery has been delayed due to Buyer’s acts or omissions, VAT will issue the invoice and payment will be due pursuant to subsection 8.1.
9. Design changes
9.1 VAT expressly reserves the right to make design changes at any time, but it is not obligated to carry out such changes on Products already manufactured and/or delivered.
10. Compliance with Laws and Ethics
10.1. VAT has committed to ethical, sustainable and environmentally friendly business conduct and especially commits to the protection of employees' rights and the reduction of the environmental footprint of its business operations such as its supply chains greenhouse gas emissions. VAT therefore reserves the right to interpret its obligations under any purchase order in the light of its responsibility commitment, especially regarding packaging, logistics and communication.
10.2. VAT fully applies all relevant legal and regulatory provisions regarding export control, especially if they are enacted by Switzerland, the European Community and the United States of America. It therefore reserves the right to withdraw from any agreement and obligation to supply material that may be under prohibition of delivery.
11. General terms
11.1. Buyer agrees to keep confidential and not to disclose, without written permission from VAT, all Confidential Information provided by VAT to Buyer. “Confidential Information” shall mean any technical or business information either marked or which would reasonably be deemed confidential or proprietary and furnished, disclosed or made available to Buyer, including, without limitation, specifications, marketing plans, financial data, technology and know-how, and pricing. Confidential Information does not include information which: (1) the recipient knew or had in its possession prior to disclosure without confidential limitation;
(2) is independently developed by the recipient without breach of this Agreement; (3) becomes publicly available without breach of this Agreement; and
(4) is received rightfully from a third party and without obligation of confidentiality.
11.2. Upon VAT’s request, Confidential Information contained in documents, whether written, printed, electronic, or any other form, as well as all copies, summaries, notes, and/or memoranda, shall be returned to VAT.
11.3. VAT reserves title and copyright to cost estimates, drawings, and other documents provided by VAT.
11.4. This Agreement contains the entire understanding between the parties regarding the subject matter herein and supersedes any prior agreements, oral or written. This Agreement may not be modified or amended except in a writing signed by the parties that refers to this Agreement.
11.5. VAT shall not be liable for any failure to deliver hereunder, where such failure has been occasioned by fire, embargo, strike, failure to secure materials from usual source of supply, or any circumstances beyond VAT’s control that shall prevent VAT from making deliveries in the normal course of its business.
11.6. This Agreement shall be governed by the laws of Switzerland, without regard to conflict of laws principles and excluding the CISG. For disputes arising from or relating to this Agreement, an order, or the Products, directly or indirectly, the parties consent to exclusive jurisdiction and venue in St. Gallen, Switzerland. For contractual relationships exclusively between Korean, Japanese, US-American or Singaporean parties, respectively the local laws of Korea, Japan, USA or Singapore shall apply with jurisdiction and venue in Seoul, Korea, Tokyo, Japan, Delaware or Singapore respectively.
11.7. As to any dispute arising from or relating to this Agreement or any order, any claim shall be forever waived unless filed with a court, as designated in this Agreement, within one (1) year following the date of the occurrence on which the claim is based.
11.8. Nothing expressed or implied in this Agreement is intended, or may be construed, to confer upon or give any person or entity other than VAT and Buyer any rights or remedies under, or by reason of, this Agreement.
11.9. Neither party’s failure to insist on strict performance of any term or terms hereunder shall not constitute a waiver of any term or default by the other party. Any waiver of any breach or default hereof (a) must be in a writing signed by the party to be bound, and (b) shall not constitute a waiver by the applicable party of any other or subsequent breach or default of the other party.
11.10. Any notices need to be made in a form provable in writing (postal mail, e-mail or other electronic means).
11.11. Should any part of this Agreement be invalid or unenforceable, such invalidity or unenforceability will not affect the validity or enforceability of the remaining portions.
11.12. Any other claims for compensatory damages against VAT that are not covered in this Agreement are excluded, irrespective of the legal basis. All consequential and incidental damages are excluded and expressly disclaimed to the extent permitted under the applicable laws and regulations.
11.13. These general terms and conditions can be found on the VAT homepage in its current applicable version as amended from time to time which will always prevail over previous versions amended to individual agreements. All other general terms and conditions especially the ones of the Buyer are explicitly waived.
11.14. With regard to local specific legal requirements and risks these general terms and conditions may be changed or amended by its annexes to be found on the VAT homepage in their current applicable version as amended from time to time.
11.15. This document and its annexes related to local specificities may be translated to other languages, especially by means of automated translation. In any case of disparities the English version shall prevail. This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their successors and permitted assigns. The Buyer’s rights, duties, and obligations under this Agreement may not be assigned in whole or in part without the written prior consent of VAT, and, in the event of a sale of all or substantially all of the assets of a party, such consent will not be unreasonably withheld.