Valid from 01.04.2022

1. Validity of the GTC

All contracts concluded by HPW AG ("HPW", "we" or "us") shall be governed exclusively by our GTC. In the event of contradictory provisions, the corresponding individual provisions mutually agreed in writing shall take precedence over these GTC. We shall only be bound by deviating GTC of our customers if we have expressly agreed to them in writing. The customer ("Customer") acknowledges these GTC by signing contracts or offers with us in which we have referred to our GTC, even if he has referred to his GTC when concluding the contract and we have not objected to them.

 

2. General

All our offers are non-binding. A contract shall only be concluded upon our written order confirmation. Side agreements as well as amendments and supplements to the contract are only effective if we have confirmed them in writing.

 

3. Prices

Our prices are exclusive of the statutory value added tax. We are entitled to demand from our Customer, in addition to the contract price, all price increases of the expenses necessary for the delivery, insofar as these are not explicitly included in the contract price. These include in particular expenses for export and import duties such as customs duties, taxes, storage costs, freight costs, shipping charges, insurance premiums and the like. If it is contractually agreed that the prices are based on a specific exchange rate, a range of exchange rate changes shall be specified - if no such range is specified, a range of +/- 10% shall apply in relation to the exchange rate since the last time the price was fixed. In the event of deviations from this range, the prices may be adjusted. The exchange rate shall be determined on the basis of the daily exchange rate published by the Swiss National Bank on its website.

 

4. Adjustment of quantities and prices

An adjustment of ordered quantities by the Customer (increase, reduction or product change) requires our explicit written consent, otherwise the adjustment request shall not be valid.

A reduction of ordered quantities by us shall be governed by the provisions of clause 17 of these GTC.

The prices stated in the contract may be adjusted by us at the beginning of each new harvest season, subject to a notice period of 10 business days (Buchs AG, Switzerland). The new prices shall apply to all deliveries upon the end of the notice period. In the event of a price increase of more than 10% (after taking into account the general inflation relevant to the goods), the customer shall, to the exclusion of any liability on HPW, have the right to cancel any (partial) orders still open.

 

5. Terms of payment

The terms of payment listed in our offer and/or our order confirmation shall apply. The handing over of bills of exchange or cheques, which require our prior consent, shall only be deemed to be payment upon their full encashment and crediting of the amount to our bank account. Offsetting or other retention of payments due to counterclaims is only permissible in the case of claims recognized by us or established by a court of law.

The Customer automatically falls into default of payment after the expiry of a payment deadline without the need for a reminder on our part (fixed date transaction, Art. 108 of the Swiss Code of Obligations). In the event of default on the part of the Customer, we shall be entitled to charge default interest of 5% without further proof, notwithstanding any further claims.

If the Customer is in default of payment, all our claims arising from the business relationship with the Customer shall become due for payment immediately.

Default of payment as well as changes in the Customer's circumstances which endanger the payment of the goods entitle us, at our own discretion, to demand for suitable securities or guarantees or to withdraw from the contract; the right to assert claims for damages is explicitly reserved.

 

6. Delivery times and delivery weights

Agreed delivery deadlines will always be met as far as possible and the Customer will be informed in advance of any deviations. A delivery date deviation of no more than fifteen business days (Buchs AG, Switzerland) is not considered a relevant deviation.

All our deliveries can only be made on time and to the agreed extent if the previous delivery of the products by our suppliers (including self-delivery) has been made correctly, completely and on time and if there are no unforeseen events, such as in particular transport delay, operational disruption, cases of force majeure in accordance with clause 16 below, etc. This shall also apply to the supply of raw and auxiliary materials required for the manufacture of the goods. If our delivery cannot be made on time due to a preceding delay in delivery to us, the Customer cannot assert any claims, in particular no claims for damages.

Small quantity deviations of up to max. +/- 10% (by weight) may occur in the case of order-related production and must be accepted by the Customer unless expressly stipulated otherwise in the contract.

 

7. Delivery

Unless otherwise agreed in the order confirmation, we deliver the goods CFR Customer address (INCOTERMS 2020). If the Customer does not accept the delivery in due time, he shall be in default of acceptance without a reminder. In this case, we shall store the goods at the Customer's expense at standard market conditions until acceptance. The risk of any damage or loss of the goods shall be borne by the Customer.

 

8. Partial deliveries

We are entitled to make partial deliveries. In the case of contracts whose execution extends over more than one harvest or production cycle, each delivery shall be deemed to be a separate transaction; a defective or untimely delivery shall not affect the part of the contract not yet fulfilled.

 

9. Transport insurance

Insofar as we are not obliged to insure the transportation of goods to the place of delivery in accordance with the agreed INCOTERM, it is the Customer's responsibility to arrange for appropriate transport insurance. If explicitly requested by the Customer, we can assist in arranging such transport insurance, but are not obliged to do so; in any case, such assistance is provided on behalf of the Customer and to the exclusion of any warranty or liability on our part (to the extent permitted by law). If arrange for a transport insurance policy requested by the Customer in our name but on behalf of the Customer, we shall be entitled to charge the Customer additionally for all costs in connection with the conclusion and handling of the transport insurance.

 

10. Delivery and acceptance

Transport damage and complaints must be reported to us in writing immediately upon receipt of the goods. They can only be accepted if a corresponding note is made on the carrier's delivery note. We or our transport insurer or its representative shall be entitled to carry out an assessment of the damage.

After unconditional acceptance of the goods by the shipper (forwarding agent, railway or other transport company) or by the Customer's personnel, any subsequent complaint due to the external condition (packaging, leakage, etc.) is excluded. The weight stated by us upon delivery shall be decisive. However, the Customer may request a weighing at his own expense. Contract-relevant weight deviations can only be complained about immediately after receipt of the goods and only if they have been ascertained immediately in a faultless manner.

 

11. Sale by sample

In the case of a sale by sample, the properties of the sample shall not be deemed to be warranted, unless expressly agreed otherwise, but the sample shall be deemed to be an illustrative piece in order to be able to assess the general character or type of the goods.

 

12. Conformity of the goods with food and feed law

Insofar as we supply foodstuffs and/or animal feed within the meaning of Swiss or European food law, only the requirements of Swiss food and animal feed law shall apply to the goods supplied by us within Switzerland and only the requirements of the directly applicable European food and/or animal feed regulations (ordinances) shall apply to the goods supplied by us to the EU. Compliance of the goods delivered by us with the food and/or feed law requirements of other jurisdictions (including the national jurisdiction of an EU member state) is only guaranteed in the event of a corresponding special agreement between the Customer and us.

 

13. Labelling requirements

We do not assume any labelling obligations beyond the mandatory statutory provisions applicable to our respective delivery. Unless otherwise agreed, we are in particular not obliged to label the components of our goods in accordance with any further legal provisions applicable to the Customer and/or his (end) product and/or to draw the Customer's attention to the relevant circumstances in accordance with these provisions.

 

14. Information and advice

All information and advice is given to the best of our knowledge and belief. We are not liable for any advice given to the Customer, irrespective of its nature, which is always non-binding. In particular, our verbal and written technical application advice does not release the Customer from his own responsibility to check our products for their suitability for the intended processes or purposes and the risk of infringement of any third-party rights.

 

15. Warranty

We guarantee that the goods delivered by us comply in principle with Swiss legislation, unless other legislation and or more extensive private law provisions have been agreed in writing. To the exclusion of all other claims for performance, warranty and damages, we shall be liable for defects in our delivery as follows:

15.1 The Customer must immediately check - if necessary by means of a trial processing - whether the delivered goods are in conformity with the contract. If he fails to do so, the goods shall be deemed to have been approved within the meaning of Art. 201 para. 2 of the Swiss Code of Obligations and any liability on our part shall lapse.

15.2 Obvious defects must be reported immediately after receipt of the goods, but at the latest within 2 business days (Buchs AG, Switzerland), hidden defects immediately after their discovery, but at the latest 3 months after delivery. Any liability on our part shall lapse for goods which have been further processed or resold either with an obvious defect or after discovery of a hidden defect without our consent.

15.3 In the event of defects that have been duly notified in good time, we shall, at our discretion, provide a warranty either by reducing the agreed price appropriately, by supplying faultless replacement goods or by rectifying the defect in another suitable manner. For the replacement goods or rectification of defects, we shall only provide a warranty to the same extent as for the original delivery. In particular, withdrawal in commercial transactions in accordance with Art. 190 of the Swiss Code of Obligations is not permitted.

15.4 If a replacement delivery or rectification granted by us due to a defect in the delivery is impossible or not fulfilled in due time, the Customer shall be entitled to withdraw from the contract after setting a deadline.

Replacement deliveries are possible from other plants than originally agreed.

15.5 If the defect or the lack of a quality represented is due to the delivery or performance of a sub-supplier, our liability shall be limited to the assignment of the claims to which we are entitled against the sub-supplier(s). We shall assign our claims to the Customer upon first request. If an assignment is not possible for legal or other reasons, we shall assert liability claims against the sub-supplier independently and directly. Our liability towards the Customer shall be limited to what we were able to obtain from the sub-supplier or could have obtained if we had exercised legal measures in expectable dilligence.

 

16. Other liability

Any other liability on our part going beyond the aforementioned clauses 11 to 14, on whatever legal grounds, in particular warranty, delay, impossibility, positive breach of contract, culpa in contrahendo and tort, shall be excluded unless we have caused the breach by gross negligence or wilful misconduct. Liability on the basis of the Product Liability Act remains unaffected.

If we deliver goods that we ourselves have procured from third parties on behalf of the Customer and we therefore only act (and are known to the customer) as an intermediary between a seller and the Customer as the end customer, this means that we cannot check every delivery before it is dispatched to the end customer. In such cases, if the product does not meet the requirements of the end customer (quality, quantity delivered, specifications, etc.), all related claims shall be borne by the seller. This means: In these cases, the end customer (buyer) must assert his claims directly against the seller (manufacturer).

 

17. Force Majeure

In the event of Force Majeure, we cannot guarantee timely and/or complete delivery of the ordered goods. Force Majeure includes in particular the following events: Unforeseen climatic extremes, unforeseen weather influences, political unrest, fire, breakdowns of production facilities due to epidemics or pandemics, officially ordered plant closures, strikes, shortages of labour, energy and raw materials.

Whole or partial crop failures shall be deemed to be force majeure if they were not foreseeable for us at the time of the order confirmation, i.e. we were entitled to assume, on the basis of our experience and the available information from public sources as well as from our partners and subcontractors, that the crop would be sufficient to fulfil the contract with the Customer.

We are not obliged to procure shortages of goods from alternative sources in the event of Force Majeure events unless the Customer agrees in writing (i) to bear in full all additional direct and indirect costs resulting from the substitute procurement, and (ii) except for gross negligence and wilful misconduct, to release us from all warranty obligations in respect of the goods from such alternative sources.

We shall notify the Customer of a Force Majeure Event and the resulting consequences in terms of quantity of delivery, quality of goods and delivery times as soon as reasonably possible. In the event of a Force Majeure event, we shall be entitled, to the exclusion of any liability to the Customer and at our sole discretion, to cancel deliveries, to reduce deliveries proportionately to the shortfall in relation to our total orders, or to adjust delivery periods. If a delivery period is extended by more than 3 months as a result of a Force Majeure event and/or if the reduction in the delivery quantity is more than 50% of the originally agreed delivery quantity, the Customer shall be, to the exclusion of any liability on our part, entitled to cancel the delivery.

 

18. Retention of title

Until payment of all claims arising from the business relationship, including any refinancing or reverse bills of exchange, we reserve title to the goods delivered. By processing these goods, the Customer does not acquire ownership of the wholly or partially manufactured items; the processing is carried out free of charge exclusively for us. Should the retention of title nevertheless lapse due to any circumstances, the Customer and we agree already now that the ownership of the goods shall pass to us upon processing. The Customer shall remain their custodian free of charge. The Customer hereby assigns to us the claim from a resale of the goods subject to retention of title until all claims have been settled, even to the extent that the goods have been processed.

 

19. Place of performance

The place of performance for all mutual obligations, unless otherwise agreed in the contract or in these GTC, is our head office in Buchs AG, Switzerland.

 

20. Adaptations and additions

These GTC may be amended and supplemented by us at any time. The Customer will be notified of amendments and supplements by e-mail. From the time of notification, the Customer has 10 business days to submit the relevant reservations to us in writing, otherwise the amendments and supplements shall be deemed to have been accepted. 

 

21. Place of jurisdiction

Baden, Switzerland is agreed as the exclusive place of jurisdiction for all disputes or claims arising from or in connection with the contracts concluded between the parties.

 

22. Applicable law

Swiss substantive law shall apply exclusively, to the exclusion of its conflict of laws rules and the Convention on Contracts for the International Sale of Goods (CISG).