01Applicability
All offers of products, services and delivery are made exclusively on the basis of the following provisions insofar as they have not been expressly excluded or changed. Acceptance of our offers, order confirmations and invoices shall constitute acknowledgment of our terms. Our written consent is required in any case for variances.
02Scope of Delivery
The order confirmation shall prevail with respect to the scope and execution of the delivery. Order confirmations are normally not sent for deliveries ex-warehouse.
03Pricing
All prices in each case apply in the currency shown, ex-factory, unpackaged, and insured. The customer shall bear all other costs (VAT, freight, customs duty, charges and fees, etc.). Special packaging is charged according to the effort expended.
The price lists valid at the time of the order shall apply, or the prices stated in an offer that are still valid. The prices offered apply only if the characteristics and quantities stated in an offer are ordered without change or reductions.
The prices are calculated on the basis of the costs that apply on the date of the offer. We therefore reserve the right to adjust the prices to new conditions if the circumstances that guided the pricing have changed significantly, even for deliveries that have not yet been made.
04Blanket Orders and/or Call-Off Orders
The customer submits a blanket order in which the quantity is based on a maximum of the requirements for one year. The term of the order runs for a maximum of 12 months as of the start of the first delivery date. If no first delivery date is established when the order is issued, the term of the order shall be 12 months as of the date of the order.
If the customer does not purchase the agreed blanket total quantity by the end of the agreed term, the customer is then obligated to accept the call-off amount defined in the blanket order as well as any possibly existing reserve stock that Volpi AG may have at the agreed unit price.
If fixed call-off dates and call-off quantities are agreed against the call-off order, and if the entire lot size was not called off by a call-off date, the customer is obligated to accept the remaining units until the lot size has been met at the agreed unit price. We reserve the right to adjust prices based on currency fluctuations, amended customs rates and allocations.
05Technical Documents
Technical documents such as sketches, drawings, descriptions and similar are to be considered only as approximations; we reserve the right to make any necessary changes. We shall retain intellectual property ownership with respect to all technical documents. They may not be used for manufacturing or provided to third parties. On the other hand, the customer shall also retain intellectual property ownership with respect to documents provided to us by the customer, and they shall not be made available to third parties.
06Terms of Payment
If no other written agreement is reached, the following terms shall apply: 30 days net from the invoice date.
For deliveries below an invoice amount of CHF 100, for first deliveries to new customers, or for deliveries to customers who from previous experience do not comply with our payment terms, we reserve the right to deliver the goods on a COD / advance payment basis. The customer shall bear the costs thereby incurred.
The payment dates must be complied with even if the transport or delivery is delayed or made impossible for reasons for which we are not responsible. The customer may not reduce or withhold payments based on complaints, claims or counterclaims that we have not acknowledged. The payments must also be made if non-essential parts are missing, and this does not make use of the delivery impossible.
If the customer does not comply with the payment dates, he shall pay interest on arrears starting from the due date without special notice. The interest is based on the interest rate on current accounts customary with major Swiss banks plus 1.5%. Interest payment on arrears does not rescind the obligation to make other payments under the agreement.
If payments have been agreed for special equipment or systems after acceptance, an invoice will be issued for the agreed remaining amount after the date of acceptance. This amount shall be due in any case within 30 days (see also Art. 17(c)).
07Packaging, Shipment and Insurance
In the absence of special agreements, packaging and shipping shall be performed in accordance with our best judgment. Delivery shall take place at the risk of the recipient. The customer shall immediately address complaints of damage or loss of the shipped goods directly to the shipping agency prior to acceptance.
08Delivery Period
If no special delivery date is requested, we will deliver ex-warehouse if possible. Furthermore, agreed and confirmed delivery dates apply subject to unforeseen obstacles. The period of delivery starts as of the date of our order confirmation. It ends when the respective shipment is ready for shipment.
Compliance with the delivery dates is dependent on the customer placing the order having met any obligations, such as notification of specifications, advance payments etc., in a timely manner. We shall always make an effort to meet the delivery dates we have indicated and have carefully calculated, even if unforeseen circumstances occur. We cannot, however, grant a legal guarantee of such dates.
09Force Majeure
For this contractual relationship, force majeure is also considered to be serious circumstances occurring for no fault of our own, such as total or partial closure of supply factories, mobilization, outbreak of war, rioting, fire, earthquake, import or export prohibitions or a substantial increase in import duties.
10Retention of Title
We retain ownership of the delivery until we have received complete payment. The customer is obligated to assist us in steps taken to protect our property.
11Copyright Protection, Patent and Trademark Rights
We retain trademarks, drawings and project ownership. Without our express permission, it is not permitted to reproduce them, use them or pass them on to third parties.
12Transfer of Use and Risk
Use and risk are transferred to the customer no later than upon dispatch of the delivery from our offices, including when the delivery is postage paid or when the shipping is organized and controlled by us. If the shipment is delayed or made impossible for reasons for which we are not responsible, the delivery will be placed in storage on the customer's account and risk.
13Warranty
All warranty claims will only exist to the extent defined below. All claims over and above this — and in particular compensation claims for damage caused directly or indirectly by the goods or by use of them — will be expressly excluded.
The Seller will give a warranty for all defects that occur during the guarantee period if these can be proved to have been caused by poor material or faulty manufacture. The guarantee period will be twelve months, starting on the day when the goods are delivered to the Purchaser.
The Purchaser must inspect the delivery item within 14 days (Switzerland) or 30 days (Export) following receipt and immediately provide written notification of any defects found, giving reasons for his claim. If he fails to do so, the delivery shall be considered to have been accepted.
The claims of the Purchaser will lapse in any event if they are not enforced within the guarantee period of three months following delivery of the goods. The opening of conciliation proceedings will satisfy requirements in terms of meeting this deadline.
The liability of the Seller will be limited to reparation or replacement of the defective delivery item, or reimbursement of the invoiced value of an item not replaced, at his own option. Under no circumstances will the Seller be liable for disassembly or re-assembly, for any associated travel or transport expenses, or for any kind of damage caused directly or indirectly by the delivery item itself or by use of it.
Modifications or repair work performed without the written permission of the Seller, or any failure to observe the operating instructions of the Seller, will rescind the warranty — unless these are measures that the Purchaser is obliged to undertake as part of his duty to avert, minimize or mitigate loss.
Recommendations in respect of application know-how given to the Purchaser in all conscience will be without obligation and will not constitute grounds for any contractual obligation. They will not discharge the Purchaser from inspecting the goods to ascertain their suitability for the purpose for which they are intended on his own responsibility.
14Liability
We must provide delivery in accordance with the agreement and meet our warranty obligation. Any further liability towards the customer or third parties for any damage is excluded.
15Place of Performance and Legal Venue
The place of performance for deliveries and payment, and the legal venue for both parties, is the registered office of Volpi AG, Dietikon.
16Applicable Law
The legal relationship is subject to Swiss law.
17Special Provisions for Fiber-Optic Components
The following alternate or additional provisions apply to special fiber-optic components and optoelectronic products and systems:
a) Tool costs
The customer acquires no rights to tools by sharing the cost of tools. We shall retain ownership of the tools.
b) Delivery date
The delivery date shall be extended at our discretion if we have not been provided with important details needed for executing the order in a timely manner, if the customer subsequently changes them, or if the contractual obligations or the terms of payment are not met. In the event of delivery delays, the customer is not entitled to claim restitution of any kind for consequences of default that could be based on the delay of delivery. Any failure to meet the delivery date also does not give the customer the right to withdraw from the transaction or to annul the order.
c) Acceptance
For large systems or under a special agreement, we are prepared to conduct acceptance at our or the customer's sites. The costs we incur thereby shall be charged according to the effort expended. The result of acceptance shall be recorded in writing. Any outstanding payments shall be due 30 days after acceptance or arranged acceptance (see also Art. 6).
d) Specially fabricated products
We reserve the right to deliver up to 10% more or less than the ordered number of fiber-optic components for technical fabrication reasons. For orders that are not based on list or special offer prices, the customer expressly acknowledges the prices based on results.
01General
The following terms and conditions apply to all sales of goods and services (collectively, "Products") by Volpi Manufacturing U.S.A., Co., Inc. ("Volpi," "we," "us" or "our") to you (the "Customer"), and constitute the final, complete and exclusive agreement ("Agreement") between you and Volpi relating to the subject matter hereof, and supersede all prior or contemporaneous proposals, understandings, representations, warranties, promises and other communications, whether oral or written, relating to such subject matter (including, without limitation, any "Terms and Conditions of Purchase" published by Customer), unless otherwise specifically agreed to in writing signed by Volpi's authorized representative.
Any term or condition in any order, confirmation, or other document furnished by Customer at any time that is in any way inconsistent with or in addition to the terms and conditions set forth herein is hereby expressly rejected. Volpi's acceptance of any order of Customer is expressly made in reliance of Customer's consent to all terms and conditions hereof. Customer's acceptance of delivery of any Products constitutes Customer's acceptance of these terms and conditions.
02Price
The prices applicable to the Products shall be as quoted by Volpi to the Customer and are subject to change. Unless otherwise specified, prices quoted for Products are in US Dollars. Stenographic and clerical errors are subject to correction. A quotation is not a contractual offer, and any order resulting from a quotation is subject to approval and acceptance by Volpi.
Prices listed or quoted do not include any present or future sales, use, excise or similar taxes, duties or other governmental charges, which will be added where applicable and paid for by Customer unless Customer provides Volpi with a tax exemption certificate acceptable to the appropriate taxing authorities and presented at or before the time of purchase. No sales tax refunds will be given at any time for any reason. Customer shall reimburse any taxes paid by Volpi on Customer's behalf upon demand.
03Purchase Order Process
Customer shall place orders for the Products to be purchased hereunder by submitting one or more purchase orders to Volpi. Each such purchase order is intended for convenience only and shall state the descriptions and quantities of Products being ordered and the requested shipment dates for such Products.
In no event shall any terms and conditions set forth on a purchase order submitted by Customer other than those set forth herein — including, without limitation, any preprinted terms and conditions of Customer — be binding on Volpi. In addition, no purchase order shall be binding on Volpi until Volpi has accepted such purchase order by written acknowledgment or by shipment of the Products applicable to such purchase order. Orders for the purchase of Products when made by the Customer shall be considered irrevocable for such Customer.
04Payment Terms
Unless otherwise agreed to by Volpi in writing, payment terms shall be net thirty (30) days from the invoice date. If the Customer delays shipments, invoices may be rendered on the date(s) Volpi is prepared to make shipment(s). Any Product held as a result of Customer's inability or refusal to accept delivery is at the risk and expense of Customer.
Interest at the rate of one and one-half percent (1½%) per month (not to exceed the maximum interest allowable by law) shall be paid on the unpaid balance of any invoice not paid by Customer within thirty (30) days of the due date thereof. Such interest shall be in addition to the purchase price hereunder. In the event Volpi engages a collection agency or commences a legal action or suit to collect the purchase price or any part thereof, Customer shall, in addition to the full purchase price including interest, be liable for all costs and expenses of such legal action or suit (including reasonable attorney's fees).
In addition, Volpi reserves the right to require COD payment terms from any customer whose account is overdue for more than 45 days or who has an unsatisfactory credit or payment record. Volpi may also refuse to sell to any person until overdue accounts are paid in full.
05Shipping Point and Transportation
Shipment / delivery dates are approximate and determined from Volpi's acceptance of an order. All Products will be shipped F.O.B. Volpi's point of shipment. Title and risk of loss shall pass to Customer upon delivery of Product(s) by Volpi to the carrier for shipment to the Customer, notwithstanding any prepayment of shipping charges, if required by the carrier. The customer shall pay all shipment costs, and if prepaid by Volpi, the amount thereof shall be reimbursed to Volpi.
06Delivery
Volpi will make every effort to deliver the Products hereunder in accordance with the requested delivery date, provided that Volpi shall not be liable for any delay in delivery due to causes beyond our reasonable control, such as acts of God, acts of the government, strikes, war, delays of carriers, or inability to obtain necessary material or manufacturing facilities.
Volpi shall not be liable for any damages or penalties whatsoever, whether direct or indirect, special, incidental or consequential, resulting from our failure or the failure of our suppliers to perform, or delay in performing, unless otherwise agreed in writing by an authorized officer. The customer agrees that any delay in delivery shall not affect the validity of any orders or these terms and conditions.
Volpi reserves the right to deliver the Products in installments unless expressly prohibited in the applicable purchase order. Installment deliveries will be invoiced by Volpi at the time of shipment unless otherwise agreed in writing by Volpi. Delay in any installment delivery shall not relieve Customer of its obligation to accept all remaining installment deliveries pursuant to a purchase order.
07Changes to Orders
Unless otherwise agreed to by Volpi in writing, changes in materials, supplies, labor and/or changes made at the Customer's request shall be at the Customer's expense. Changes or alterations made by Customer or Volpi (over its recommendation against the same) shall be at Customer's sole risk and responsibility. Volpi reserves the right to make changes to the design and composition of its Products, which, in its judgment, do not materially change the nature or quality of the Products.
08Cancellation of Orders
Due to the specialized nature of the Products, orders may be canceled only with our written consent and upon payment of reasonable cancellation charges, including Volpi's actual out-of-pocket costs, overhead and anticipated profit (as determined by Volpi). Partial cancellation of an order may result in an adjustment of prices for the balance of the order.
09Rejection
Customer's right to reject any Products supplied hereunder is conditioned upon Customer giving Volpi a written notice of rejection setting forth the basis thereof within ten (10) days after delivery of the Products to Customer. Failure to give such notice within such time constitutes acceptance of such Products. Products may be returned only when authorized by Volpi in writing and only on such terms as Volpi may specify. All returned Products shall be returned with shipping prepaid.
10Limited Warranties; Disclaimers
a) Warranty scope
Volpi represents and warrants that the Products delivered by Volpi to Customer shall: (i) conform to agreed-upon specifications for the Product(s), to the extent any specifications were made part of an order; and (ii) be free from faulty workmanship and defective materials.
The foregoing warranties shall be limited to a one (1) year period commencing on the date of shipment of the applicable Product(s) (the "Warranty Period") provided (i) the Products have been properly cared for (i.e., the Products have not been subject to misuse, neglect, misapplication, etc.) and used following Volpi's instructions, if any, (ii) the Products have not been tampered with or modified without Volpi's prior written approval, and (iii) Customer promptly notifies Volpi in writing of any warranty claim during the Warranty Period.
If any Product fails to meet either or both of the foregoing warranties, Volpi's sole obligation, in Volpi's sole discretion, shall be to replace or repair the non-conforming Product. The foregoing warranties provided by Volpi in this Section 10 are the only warranties provided by Volpi concerning the Product(s) sold hereunder and may be modified or amended only by a written instrument signed by Volpi. The Customer's remedies and Volpi's aggregate liability concerning the warranties provided by Volpi in Section 10 are set forth in and limited by Section 10 and Section 11 below.
b) Exclusions
Volpi's warranties above do not apply to Products not manufactured by Volpi and do not apply to components furnished by third parties. In addition, such warranties shall be for the sole benefit of the original Customer only and are not assignable unless otherwise agreed to in writing by Volpi.
Volpi shall not be liable for any claim if alterations have been made to the Products by the Customer or others without Volpi's written consent. Any components furnished by third parties are warranted only to the extent of the original manufacturer's warranty to Volpi and only if such original manufacturer's warranty is assignable to Customer.
c) Disclaimer of implied warranties
The express warranties of Volpi stated in Section 10(a) above are in lieu of all other warranties, express or implied, including, without limitation, the implied warranties of merchantability or fitness for a particular purpose. Volpi's warranty obligations and Customer's remedies are solely and exclusively as stated in Section 10.
Any sample or literature exhibited to the Customer was to illustrate the type of good and/or service, not an affirmation that the Product will conform. No employee or representative of Volpi has the authority to bind Volpi to any representation, affirmation or warranty not specifically included herein.
11Limitation of Liability
Notwithstanding anything to the contrary contained in this Agreement, Volpi's aggregate liability in connection with the sale or use of Product(s) hereunder, regardless of the form of action giving rise to such liability (whether in contract, tort or otherwise), shall not exceed the aggregate purchase price for Products paid by Customer to Volpi.