1. General
1.1 The business relationship between Franke Kaffeemaschinen AG, Franke-Strasse 9, 4663 Aarburg, Switzerland (hereinafter FRANKE) and the B2B-Customer located outside of Switzerland for the sale of products and additional services (if contractually agreed) is governed exclusively by these General Terms and Conditions of Sale (GTC) in the version valid at the time of the respective purchase order by Customer.
1.2 Supplementing services such as Consulting, Planning, Installation, Maintenance, Digital Services or any other services may be provided according to separate and specific business terms and conditions setting forth such specific commercial services.
1.3 Amendments and modifications to the GTC or a concluded contract will only be valid if they have been accepted by FRANKE in writing. Any general purchasing terms and conditions or contractual provision of the Customer are hereby expressly rejected and excluded.
1.4 The following order of precedence applies to the validity and interpretation in case of a conflict between the following documents: (1) order confirmation, (2) FRANKE's offer, (3) GTC.
2. Offers
2.1 The offers and quotes of FRANKE are non-binding and subject to change, unless otherwise indicated in the quote. A contract is concluded by order confirmation (submitted in writing or electronically) or by delivery. FRANKE may make changes to the order confirmation provided that these are insignificant and result in an improvement.
2.2 The illustrations, drawings as well as dimensional, weight and performance data from FRANKE's offers, brochures, price lists and catalogues are not binding, unless these have been expressly designated as binding.
2.3 Change, suspension or cancellation of unshipped orders requested by the Customer require the written consent of FRANKE. FRANKE may charge the Customer for costs incurred prior the receipt of such notice and any storage fees. Suspension of an order cannot be made later than 1 month before scheduled ship date and cannot exceed 3 months.
3. Credit check
3.1 The Customer acknowledges that FRANKE may carry out a credit check when the Customer is placing an order. The Customer consents to the processing of the relevant data with relevant third parties. FRANKE expressly reserves the right not to accept orders or demand advance payments if the credit assessment is unsatisfactory, at the full discretion of FRANKE at any time.
4. Prices
4.1 Prices, currency and rebates for the supplies are outlined in the supplementing sales quote or sales documentation by FRANKE. Unless otherwise stated, any and all additional charges, such as, but not limited to, freight charges, insurance premiums, custom duties and clearance shall be borne by the Customer. Any resale prices referred to in its price list, catalogues or discount sheets are recommended prices only and not binding to Customer.
4.2 FRANKE reserves the right to adjust sales prices, rebates, discounts and product range each of it with at least 30 days' prior notice before the changes become effective.
4.3 In the event FRANKE wants to increase price for an accepted order, but unshipped product before delivery, the Customer has the right to cancel its order within one week of receiving notification of the price increase from FRANKE and before dispatch, otherwise the price increase is deemed to have been accepted.
5. Payments
5.1 Unless otherwise agreed, invoices are payable in full within 30 days of the invoice date in the currency stated in the invoice and with the standard payment method provided by FRANKE.
5.2 In the case the Customer does not timely pay outstanding amounts, FRANKE may, at its sole discretion, suspend the delivery of products or services to the Customer, including withholding delivery in respect of orders previously placed by the Customer and accepted by FRANKE, or require advance payment until all amounts owed to FRANKE have been paid. The exercise of this remedy by FRANKE does not prevent FRANKE from exercising other remedies available to FRANKE under this contract or at law.
5.3 FRANKE shall be entitled to charge default interest of 1% per month on amounts outstanding, without an obligation to dispatch a previous notification of default. Claiming defects does not excuse the Customer from the obligation to pay the invoice when due.
6. Delivery
6.1 Unless otherwise agreed and stated in the order confirmation, delivery is FCA (FRANKE location, Incoterms 2020). In case of international delivery, the Customer assumes full responsibility for compliance with applicable laws and regulatory requirements. FRANKE shall be responsible for safe packaging in conformity with transportation regulations and good commercial practices.
6.2 Partial deliveries are permissible and can be invoiced. Delivery before a confirmed delivery date is permissible, unless otherwise agreed.
6.3 Delivery and service dates are estimates unless FRANKE expressly agrees in writing to a fixed date or schedule. FRANKE will use commercially reasonable efforts to meet delivery and service date estimates. All delivery and service dates are conditioned on FRANKE's timely receipt of all necessary information and the Customer preparatory work, and, if prepayment is agreed, on the receipt of such prepayment in full. If the Customer causes a delay in delivery or assumption of the products, FRANKE will store and handle all items at the Customer's risk and will invoice the Customers for the unpaid portion of the contract price, plus applicable storage, insurance, and handling charges.
7. Transport inspection
7.1 The Customer must inspect the delivery immediately, but at the latest within 7 calendar days from receipt notify FRANKE in writing of any visible transport damage (to the extent FRANKE is responsible for shipment according to the applicable delivery terms) or error in quantities. If the Customer fails to do so, the deliveries shall be deemed to be accepted and respective claims are forfeited
8. Returns
8.1 Customer has no right to refuse and return a conforming product. Exceptions are at the discretion of FRANKE.
9. Services
9.1 The Customer shall ensure and procure all necessary on-site installations for an undisturbed service and access to Products by FRANKE or its service providers if service is contractually agreed and needs to be provided on site.
9.2 FRANKE warrants that contractually agreed services will be performed in a workmanlike manner in conformity with standard industry practice. Should any nonconformity be detected within 30 days after the work is completed and the Customer gives FRANKE prompt written notification, FRANKE will supply the necessary service, direction, or consultation to correct the nonconformity.
9.3 Unless otherwise specified in the contract, any product-specific ancillary services like installation, commissioning, assembly, technical support or modification of a product are not offered or provided by FRANKE. If such ancillary services are agreed, they are provided on a time and material basis, without warranty and - to the extent permitted by applicable law - without liability.
9.4 Unless otherwise agreed, third party service providers (e.g. for installation) are acting as independent contractors, even if referred to and instructed by FRANKE. FRANKE does not assume any responsibility or liability in relation to independent contractors. FRANKE may call in third parties (subcontractors, carriers, etc.) or employees of such third parties to fulfil its obligations as FRANKE subcontractors.
9.5 If the Customer purchases services relating to FRANKE Digital Services, it undertakes to conclude the corresponding product-specific contracts, in particular but not exclusively, the Terms of Service and End User License Terms with FRANKE (as applicable).
10. Retention of title / purchase money security interest
10.1 FRANKE remains the owner of the Products delivered by it until FRANKE has received the full payments in accordance with the order confirmation. The Customer authorizes FRANKE to register the ownership in the official register for retention of title or grants FRANKE a purchase money security interest and agrees not to challenge the legitimacy of this grant. Customer will assist FRANKE in taking all necessary actions to perfect and protect FRANKE's retention of title or any other security interest. Customer shall separate the Products from its other stock and give access to FRANKE upon request.
11. One-Year limited statutory warranty
11.1 Franke provides a one-year limited statutory warranty for the Products to its customers from the date of purchase and warrants that all Products shall: (a) be free from all liens, encumbrances, and other claims against title; (b) be new and free of defects in design, material and workmanship, except for the Product that is clearly identified for sale to customer as refurbished, remanufactured, or used (c) meet the technical specifications and will be reasonably fit for any particular purpose that was made known to the customer.
11.2 The customer shall inspect the Products for defects within 10 days and shall immediately notify Franke in writing of any defect or non-conformity being present at the time of purchase. If the customer fails to do so, the goods shall be deemed to have been accepted. Upon request of Franke, the customer shall return defect Products to Franke for a technical analysis at his own expense.
11.3 Franke will at its discretion repair the defective Product, replace or reimburse the purchase price of the associated Product to the customer upon receipt of satisfactory evidence that the product was defective or non-conform with the contract of sale.
11.4 All deficiencies which cannot be proven to have their origin in bad material, faulty design or poor workmanship, e.g. those resulting from normal wear, improper maintenance, failure to observe the operating instructions, excessive or wrong loading, use of any unsuitable material, influence of chemical action, installation work not undertaken by the Franke or an authorized dealer, or resulting from other reasons beyond Franke’s control are excluded from the Franke’s liability for defects. NOWARRANTIES OTHER THAN THE WARRANTIES SET FORTH IN THIS SECTION ARE EXPRESSED OR IMPLIED BY FRANKE. FRANKE SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT AND ENDUSER WARRANTY.
12. Liability
12.1 The liability of FRANKE for all claims of the Customer arising from or in connection with the contract or its improper fulfilment, regardless of the legal basis on which they are made, is limited to the actual direct damages up to the amount paid by the Customer for the product causing the damage.
12.2 In no event shall the Customer be entitled to compensation for indirect, consequential or punitive damages, such as loss of production, loss of use, loss of orders, loss of profit and any other indirect, consequential, incidental, punitive or exemplary damages of such kind, whether such damages arise out of or are a result of breach of contract, warranty, tort (including negligence), strict liability or otherwise.
12.3 FRANKE is only liable without limitation for damages caused by FRANKE through unlawful intent or gross negligence, or any limitation in this Section that is contrary to applicable mandatory law.
12.4 For the event that actions or omissions of the Customer or persons employed or appointed by Customer to perform Customer’s obligations cause personal injury or damage to the property of third parties and a claim is made against Franke in this respect, Customer undertakes to fully indemnify Franke.
13. Insurance
13.1 FRANKE does not provide third parties direct access to its insurance or give additional rights to its insurance, such as naming additional insured parties. Customer shall maintain adequate coverage by a property and a general commercial liability insurance.
14. Intellectual Property
14.1 All intellectual property rights to the products or product documentation and information documents (catalogues, brochures, drawings, product data) are exclusively owned by FRANKE and remain with FRANKE. Any use, reproduction or modification requires the explicit written consent of FRANKE. In no event shall the Customer be deemed to have acquired any ownership rights or interest in or to any intellectual property rights of FRANKE. In the event of a claim or action or suspected infringement of third-party rights resulting from the products, FRANKE may at its expense and option either: (i) procure for the Customer the right to continue selling products or (ii) replace the products and/materials with non-infringing products and materials. FRANKE shall have no liability for continued infringement by the Customer after the exercise of option (i) and/or (ii) above by FRANKE.
14.2 The use of the trademark or logo of FRANKE for purposes of advertising shall be made in form of the official then current trademark or logo as further described in the FRANKE brand guidelines.
14.3 Nothing in this Agreement, nor any amendments thereto, shall limit or restrict FRANKE with respect to feedback provided to FRANKE related to the Products. The Customer agrees that FRANKE will be free to copy, modify, create derivative works, publicly display, disclose, distribute, license, incorporate and otherwise use the feedback, including derivative works thereto, for any and all commercial or noncommercial purposes.
14.4 If the deliveries and services of the supplier also include software, the Customer is granted the nonexclusive right to use the software together with the delivery item, unless otherwise agreed. All intellectual property rights to the software, which enables the operation, reference data, maintenance or repair of the machines, remain the property of FRANKE or its licensor. The Customer is not entitled to edit the software, in particular he has no right to make copies, decompile, reverse-engineer and disassemble or to use other methods to access the source code. The Customer and its Customers are hereby authorized to use the control software to operate the products for their own purposes, but have no further rights to the control software, in particular no right to reproduce, decompile, reverse engineer or otherwise attempt to derive information from the control software or to permit or cause this to be done.
15. Data protection
15.1 Personal data will be gathered, processed, and used by FRANKE in compliance with the applicable data protection law and all of our employees, other Franke group companies and third party service providers who receive access to personal data are obliged to respect the confidentiality of the personal data. In the event that FRANKE is provided and receives personal data via Customer or a point of sale for such purpose described below, FRANKE is an independent controller under applicable data protection law. FRANKE collects personal data when customer submits it to us, through registration, completion of forms or e-mails, as part of an order for products or services, after-sale support for products or services, inquiries or requests about products being ordered and similar situations in which data subject has chosen to provide the information to FRANKE or via a point of sale to FRANKE. Some personal data provided (name, address, phone number and email address) will be processed by FRANKE for marketing, advertising or promoting purposes. We assume that this is of mutual interest for our Customer and for the Data Subject to upkeep a good business relationship and the respective Data Subject can object to the processing of his/her data for this purpose at any time without giving reasons by contacting FRANKE. Some of the personal data provided may be stored or processed in other jurisdictions, such as the United States, whose data protection laws may differ from this jurisdiction. In such cases, FRANKE ensures that appropriate protections are in place to require the data processor in that country to maintain protections on the personal data that are equivalent to those that apply in the country of FRANKE. Customer is obliged to inform any point of sale and its end-users that it complies with applicable data protection law and personal data will be processed by FRANKE according to the terms and limitation set forth in this Clause. Customer shall, without limitation, defend, hold harmless and indemnify FRANKE in the event of damage that is attributable to Customer's transferring of personal data or in breach of applicable data protection law. Our full privacy statement can be found on our website: www.franke.com.
16. Disposal of products and packaging
16.1 Unless otherwise required by mandatory applicable law, the Customer assumes the obligation to properly dispose of the delivered goods after the end of use and any packaging (with exception of pallets) at his own expense in accordance with the applicable statutory provisions. If the Customer requests disposal by FRANKE, FRANKE shall provide the Customer with an offer to take back and dispose of the goods and packaging at the time of disposal. All related costs will be charged to the Customer.
17. Export
17.1 The export or re-export of products, spare parts or software may be subject to domestic and/or foreign export control regulations. The Customer undertakes to comply with the trade regulations and export control regulations and, if necessary, to obtain any necessary licenses for the export of the products from the competent authority.
18. Business Integrity
18.1 The Customer must conduct its affairs in ethical manner, acknowledges to be informed about the FRANKE Code of Conduct adopted by the Franke Group, as modified from time to time, and shall adhere to the Code of Conduct's principles in relation to FRANKE. The FRANKE Code of Conduct and any amendments are published on our website: https://www.franke.com/ca/en/group/company/compliance.html. The Customer shall adequately inform its officers, directors and key employees about the FRANKE Code of Conduct and impose the obligation to comply with its principles.
19. Miscellaneous
19.1 Should any provisions of these GTC be legally ineffective or invalid, the validity and effectiveness of the remaining provisions shall remain unaffected. In such cases, the invalid provision shall be modified or supplemented in such a way that the intended economic purpose of the provision is achieved as far as possible.
19.2 The Customer acknowledges that FRANKE is entitled to retrace or recall equipment or take other corrective actions to the products. The Customer will actively support FRANKE when this need arises.
19.3 Force majeure, labor disputes, civil disorder, governmental actions, epidemic, pandemic and other unforeseeable and unavoidable events of major significance release the contracting parties from their performance obligations for the duration of the disturbance to the extent of the impact thereof. The same applies if these events take place when performance by the contracting party affected is already overdue. The contracting parties are required to provide the information reasonably necessary without delay and to adjust their mutual obligations to the altered circumstances in accordance with the principle of good faith dealing.
20. Applicable law and jurisdiction
20.1 Swiss law shall apply. The United Nations Convention on Contracts for the International Sale of Goods is explicitly excluded. The Commercial Court of the Canton Aargau located in Aarau, Switzerland, shall have exclusive jurisdiction. However, FRANKE reserves the right to initiate court proceedings against the Customer at any other court of competent jurisdiction.