MODULA-RE SA standard terms and conditions of international sales
Scope of applicability
These General Conditions of Sale and Supply (“TC”) regulate the offer, sale and supply of all goods and services (hereinafter referred to as “goods” or “products”) by Modula-re (hereinafter referred to as the “seller”) marked MADI to the customer (hereinafter referred to as the “buyer”). The TC form an ancillary part of the purchase contract and the purchase order. Contrary or divergent conditions or any other limitation on the part of the buyer are not recognised unless the seller has expressly approved them in writing in the individual case. Additional conditions on the part of the buyer must be confirmed in writing by the seller.
By placing a purchase order with Madihome.com you signify your agreement to be bound by these conditions.
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Definitions.
“Seller” shall mean Modula-re SA, CHE-414.755.360, with office in Via Loreto 1, 6805 Mezzovico.
“Buyer” shall mean any party who contracts to purchase goods from Seller, as indicated on a purchase order or an order acknowledgement.
“Goods” shall mean those goods and/or related services ordered by Buyer from Seller pursuant to a purchase order accepted by Seller.
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Terms of Purchase Order.
Acceptance and Complete Agreement .
a. Acceptance. Buyer’s order for Goods is binding only when accepted in writing by an authorized representative of Seller and is accepted subject to all of Seller’s Standard Terms and Conditions of Sale, which constitute an ancillary part of the purchase agreement between the parties. Buyer’s acceptance of delivery of the Goods evidence Buyer’s acceptance of all of Seller’s Standard Terms and Conditions of Sale.
b. No Acceptance. Seller’s performance under any Buyer purchase order or order acknowledgment does not constitute an acceptance of any provision of any Buyer purchase order that is different from or additional to the Seller’s Standard Terms and Conditions of Sale, and any such different or additional provisions are hereby expressly rejected and are void.
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Offers and descriptions
Offers, information, descriptions including internet representations and quotations of the seller are non-binding and non-binding unless they are expressly defined as binding in writing by the seller. This also applies to price, quantity, delivery time and delivery options.
Buyer’s orders become binding for the Seller through the Seller’s written or electronic confirmation (also invoice or delivery note).
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Characteristics of the goods
The characteristics of the goods are essentially understood to be only the characteristics indicated in the product description, specifications, offers and brochures of the seller. Public statements, praise or advertising do not represent information about the characteristics of the goods. Product information, weight, structure and dimensions cannot be considered a guarantee of a characteristic.
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Export and import limits and buyer’s obligations
If an official import or export authorisation by a government or state authority is a prerequisite for the supply or if the supply is otherwise restricted or prohibited due to import and export regulations, the Seller has the right to suspend the performance of its supply obligations and to suspend the Buyer’s right to supply until the authorisation is granted or the restriction or prohibition is removed. In this case, the Seller also has the right to terminate or withdraw from the contract without any liability to the Buyer. The Seller may also require at any time that the specific authorisation be presented to him.
By accepting the offer, entering the contract and accepting the goods, the Buyer guarantees that he will not carry out transactions with the goods and the relevant documentation in violation of the export or import restrictions.
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Shipment.
All Goods are sold DPU Plot of Destination. The method and route of shipment shall be as mutually agreed in each accepted purchase order. Seller shall tender delivery of all Goods to a carrier for transportation to the destination designated in an accepted purchase order. All costs of transportation, including, without limitation, taxes and standard insurance, shall be assessed by Seller and borne by Buyer unless otherwise agreed to in writing by Seller. Seller shall invoice Buyer for all shipping related costs. All risk of loss shall pass to Buyer when the goods are delivered to the plot of destination. Delivery and acceptance shall not be affected by a delay on the part of Buyer in accepting delivery. Shipment of Goods held by reason of Buyer’s request or inability to receive Goods will be at the risk and expense of Buyer. Claims for shortages in shipment shall be deemed waived by Buyer unless made in writing to Seller within thirty (30) days from date of invoice.
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Taxes and Fees.
Unless expressly stated and agreed to in writing by Seller, quoted prices do not include shipping and handling charges, sales, use, excise or similar taxes or duties. Buyer shall pay these taxes directly if the law permits or shall reimburse Seller if Seller is required to collect and pay them.
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Prices
Unless otherwise agreed, the Seller’s prices valid at the time of delivery, plus any statutory value added tax and other surcharges, will be charged.
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Changes in Cost.
Any change in insurance premiums, destination, or other shipping charges, including fluctuations in freight, which may be established after the date of the Seller’s order acceptance, shall be at the expense of Buyer.
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Warranty.
Seller warrants that the delivered Goods shall conform to the grade and quantity specified in the order acknowledgment. If the order includes Goods which have been fabricated in accordance with drawings approved or supplied by Buyer, those goods are only warranted to be in substantial compliance with the specifications of any such drawings. The sole and exclusive remedy of the Buyer for any liability of Seller of any kind, including (a) warranty, express or implied, whether contained in the terms and conditions hereof or in any terms additional or supplemental hereto, (b) contract, (c) negligence, (d) tort, or (e) otherwise, is limited to Seller’s repair or replacement, of those Goods the examination of which by Seller reveals material defects during the warranty period or, at Seller’s option, a refund to Buyer of the money paid to Seller for such Goods.
The warranty period shall begin on the date of purchase and shall continue for a period of five (5) years therefrom for all Goods. This limited warranty shall not extend to any Goods that have been modified, disassembled, altered, changed, damaged, misused, repaired, misapplied or negligently maintained in any manner.
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Nonconformity of Goods.
A complain for nonconformity of the Goods, or a claim of shortages and/or damaged material by Buyer, shall not be effective unless it is made, and written notice thereof is given to Seller, within thirty (30) days after the Goods arrive at the destination specified in the Seller’s order acknowledgment. Written notice of claim of Goods shall be delivered to Seller by written communication to c.sorrentino@modula-re.ch.
Seller reserves the right to inspect the rejected Goods and to determine lack of conformity in its sole discretion.
The Buyer agrees that the Seller must be given a chance to remedy the defect if it is reasonable and not inconvenient in the circumstances. Principle of precedence of right to cure will apply.
The Buyer is also aware that an exception will apply in case of Goods made to order – if an item has been made to order or personalised.
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Limitation of Liability.
Seller is liable without limitation if damage is caused by an intentional or gross negligent breach of duty by Seller or one of its legal representatives or vicarious agents.
In addition, Seller is liable for slight negligent breach of essential obligations. Essential are those obligations the breach of which puts at risk the achievement of the contractual purpose, or the performance of which enables the fulfillment of the contract and is regularly trusted on by the Buyer. In this case, Seller however is only liable for foreseeable damage typical of the contract. Seller is not liable for slight negligent breach of any other obligations than those mentioned in the previous sentences.
The limitation of liability does not apply for damages from injury to life, body or health, for a defect after a guarantee for the condition of the product or for fraudulently concealed defects. The liability under the EU Product Liability Act remains unaffected.
To the extent the liability of the Seller is excluded or limited, such exclusion or limitation also applies to the employees, legal representatives, or vicarious agents of the Seller.
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Failure to Take Delivery
If Buyer fails to take delivery of the Goods, or any part thereof, the Goods not delivered shall be held at Buyer’s sole risk in all respects. Seller, acting as Buyer’s agent and at Buyer’s expense, may thereafter store, insure and/or otherwise protect such Goods or may resell same for Buyer’s account. The delivery date(s) quoted are based on Seller’s best estimate of a realistic time when delivery to the carrier will be made and are subject to confirmation at time of acceptance of any resulting order. Seller reserves the right to make either early shipment or partial shipments and invoice Buyer accordingly.
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Title and Risk of Loss or Damage.
Title, risk of loss and/or damage shall pass to Buyer when the Goods are delivered to the plot of destination designated in the applicable accepted purchase order.
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Payment Terms.
Unless otherwise agreed, payments must be made by bank transfer. They are considered paid only when the amount is finally available on the Seller’s account.
Discounts may only be granted by specific written agreement.
All payments are due according to any Seller’s invoice, unless otherwise specified by Seller. Buyer’s failure to make payment when due will be a material breach of the order and these Terms and Conditions. Seller shall be entitled to reimbursement from Buyer for all costs and fees, including reasonable attorneys’ fees, incurred by Seller in the collection of any overdue amounts.
Seller, at its sole option and without incurring any liability, may suspend its performance until such time as any overdue payment is made or Seller receives assurances, adequate in Seller’s opinion, that the payment will be promptly made.
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Cancellation.
Buyer has the right to cancel his/her order without giving any reason within 14 days from the day of the conclusion of the contract.
The Buyer must inform the Seller (Modula-re SA, via Loreto 1, 6805 Mezzovico) of the decision to cancel the purchase order. In this case, the Buyer should submit the relative request, by contacting the Seller or using its standard form.To meet the cancellation deadline, it is sufficient for the Buyer to send a communication on the exercise of the right to cancellation before the cancellation period has expired.
EFFECTS OF CANCELLATION
If the Buyer cancels the order, the Seller will reimburse all payments received for the goods purchased. This reimbursement will be made without undue delay and, except in the situations described below, by no later than 14 days from the day on which the Seller received the Buyer’s communication on the cancellation of this order. For such reimbursement, the Seller will use the same means of payment as the Buyer used for the initial transaction, unless the Buyer has expressly agreed otherwise.
EXCEPTIONS TO THE RIGHT OF CANCELLATION
The right to cancellation will lapse if the Goods have been already clearly customized to personal Buyer’s needs.
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Buyer’s default.
If Buyer breaches or is otherwise in default under the order acknowledgment or under any other contract between the parties hereto, Seller at its sole option, may defer delivery of the Goods until the default is cured, or may treat the default as a repudiation by Buyer of the Order in its entirety, resell the Goods and hold Buyer liable for such damages as Seller may incur, including consequential and incidental damages. For purposes hereof, Buyer’s insolvency shall be a default.
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Seller’s Lien.
Until the unpaid contract price and any other amounts payable by Buyer to Seller under the order acknowledgment are paid in full, Seller shall have a lien on the Goods for the unpaid amounts. Buyer hereby grants to Seller a security interest in the Goods to secure payment of such amounts.
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Children
The Seller does not sell products for purchase by children. If the Buyer is under 18, he/she can only use the Sellers website with the involvement of a parent or guardian.
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Force Majeure.
Seller shall be free from any liability for delay or failure in shipment arising from strikes, lockouts, labour troubles of any kind, accidents, perils of the sea, fire, earthquake, epidemics and pandemics, civil commotion, terrorist acts, war or consequences of war, government acts, restrictions or requisitions, failure of manufacturers or suppliers to deliver, bankruptcy or insolvency of manufacturers or suppliers, suspension of shipping facilities, act or default of carrier or any other contingency of whatsoever nature beyond Seller’s control affecting production, transportation to boarding point, loading, forwarding or unloading at destination of the Goods, including disturbances existing on the date of the order acknowledgment. In such a situation, if shipment or delivery is not made during the period contracted for, Buyer shall accept delivery under the order acknowledgment when shipment is made; provided, however, Buyer shall not be obligated to accept delivery if shipment is not made within a reasonable time after the cessation of the aforementioned impediments or causes.
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Integration.
The Seller’s order acknowledgment, packing slip and these Standard Terms and Conditions of Sale supersede all prior negotiations, representations, agreements, quotes and catalogues, whether written or oral, and shall not be modified, supplemented or interpreted by evidence of course of dealing, course of performance or usage of trade. To the extent the provisions hereof conflict with any prior or subsequent agreement of the parties, these Standard Terms and Conditions of Sale will control.
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Assignment.
Buyer acknowledges that no purchase order or order acknowledgement, nor the obligations represented thereby, may be assigned or delegated, in whole or in part by Buyer, without the prior written consent of Seller. Buyer’s unauthorized attempt to assign or delegate any rights or obligations shall serve as grounds for termination of the order.
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Severability.
The Parties agree that each and every paragraph, sentence, clause, term and provision of these Terms and Conditions of Sale is severable and that, in the event any portion hereof is adjudged to be invalid or unenforceable, the remaining portions shall remain in full force and effect to the fullest extent permitted by law.
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Governing Law; Venue.
All matters involving the validity, interpretation and application of these Standard Terms and Conditions of Sale will be controlled by the laws of the United Nations Convention on International Sales of Goods (CISG). Notwithstanding the foregoing, all terms and conditions herein relating to transportation costs and risks shall be governed by Incoterms 2020.
If the Buyer is a Professional, any dispute relating to this Agreement will be referred to, and finally determined by, binding arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce in force at the time. The arbitration panel shall consist of three arbitrators. The place of arbitration shall be Lugano, Switzerland. The language to be used in the arbitration shall be English. The arbitration decision shall be final and binding upon the parties and any award granted pursuant to such decision may be entered forthwith in any court of competent jurisdiction.
If the Buyer is a Consumer, the Parties both agree to submit to the non-exclusive jurisdiction of the courts of Switzerland, which means that Buyer may bring a claim to enforce his consumer protection rights in connection with these Conditions of Sale in Switzerland or in the EU country in which the Buyer lives.