1 General information
1.1 These General Terms and Conditions of Purchase apply to all orders and contracts for deliveries and/or services of the supplier to ASM.
1.2 Any deviating or supplementary terms and conditions of the supplier shall only apply if they have been recognized in writing by ASM. This shall also apply to any terms and conditions stated in offers, order confirmations or other documents of the supplier.
2 Conclusion of contract, amendments and supplements
2.1 Quotations from the supplier are free of charge. The supplier shall expressly point out any deviations from ASM’s request for quotation and any ambiguities, omissions or technical specifications contained therein that may affect the suitability of the goods for the intended purpose or with regard to the state of the art or the applicable laws and regulations. If the supplier does not set a deadline in its offer, it shall be bound by it for 60 days.
2.2 ASM’s orders or any supplements shall only be binding if they have been placed or confirmed in writing by ASM. The sketches, drawings, specifications etc. mentioned in the order are an integral part of the order.
2.3 ASM’s order must be confirmed by the supplier within a period of 5 working days. If the order is not confirmed in writing within 5 days, it is automatically accepted.
2.4 The order confirmation must contain at least the following information: Order number ASM, quantity, price, article number of ASM, article description, Incoterms, terms of payment, delivery date, country of origin, customs tariff number.
2.5 After conclusion of the contract, ASM remains entitled to demand reasonable changes to the specifications, manufacture or delivery of the goods. If such changes lead to an increase or decrease in costs or to a change in the delivery date, the supplier must inform ASM within one calendar week at the latest. The change shall be implemented if ASM has agreed to it in writing; otherwise the supplier shall continue to manufacture and deliver the contractual products as previously agreed.
3 Delivery period and delay in delivery
3.1 The agreed delivery date is binding. If the contractual product is not delivered on time at the agreed location, the supplier shall automatically be in default.
3.2 Partial deliveries or advance deliveries of more than three working days require the prior consent of ASM.
3.3 As soon as a delay in delivery is imminent, the supplier must inform ASM immediately in writing, stating the reasons and the new binding delivery date. The supplier must ensure that the delay is kept to a minimum.
3.4 The supplier undertakes, except in cases of force majeure, but otherwise irrespective of fault or proof of damage, to pay a contractual penalty of 0.5% of the contract price for each commenced week of delay in delivery, up to a maximum of 5%. In addition, ASM is entitled to claim the proven damage caused by delay exceeding the contractual penalty in accordance with the statutory provisions.
4 Packaging and shipping
4.1 The packaging must be such that the goods are effectively protected against damage and corrosion during transportation and subsequent storage. The supplier shall be liable for damage caused by improper packaging.
4.2 The supplier shall be liable for all costs and expenses incurred as a result of ASM’s instructions regarding transportation or customs clearance not being followed.
4.3 Our customs account ZAZ 5555-8 (ASM Aerosol-Service AG, Industriestrasse 11, CH-4313, Switzerland) must always be quoted for import customs clearance.
4.4 The risk of accidental loss of the goods shall pass to ASM in accordance with the Incoterm agreed in the order; in the absence of an agreed Incoterm, the goods shall be shipped DAP named place of delivery, Incoterms 2020 or latest edition.
4.5 Each delivery must be accompanied by a detailed delivery bill with at least the following data: Delivery note number, delivery date, ASM order number, order date, supplier’s article number and/or ASM article number (if applicable), supplier’s article description and/or ASM article description (if applicable), supplier’s batch number (if available), quantity, gross/net weight, country of origin, Incoterms, customs tariff number, packaging type and delivery address.
4.6 Excess deliveries of up to five (5) % of the total quantity shall be accepted. In the event of overdeliveries of more than five (5) %, ASM must be notified in writing at least thirty (30) working days before the delivery date. ASM is not obliged to accept overdeliveries of more than five (5) %.
5 Prices, invoicing
5.1 Unless otherwise agreed, a separate invoice will be issued for each order. Invoices must be sent separately for each delivery.
5.2 Defects in the goods shall entitle ASM to retain a reasonable part of the agreed price until the defects have been rectified.
6 Incoming goods inspection
6.1 Damage to the packaging of the contractual products must be recorded by ASM upon delivery and communicated to the supplier without delay.
6.2 Hidden defects shall be communicated to the supplier within two (2) working days of their occurrence.
7 Warranty
7.1 The Supplier shall be fully liable to ASM for all losses, claims, damages, costs, liabilities and/or expenses (including attorneys’ fees on a full cost basis) and all third party claims based on or resulting from breaches of this Supply Agreement or tort (including but not limited to negligence) by the Supplier, its personnel and third parties engaged by the Supplier in connection with this Supply Agreement.
7.2 If the supplier is unable to rectify a defect or supply replacement products within ten (10) working days, ASM reserves the right to (i) withdraw from the relevant order and claim reimbursement of payments made and additional compensation or (ii) demand immediate rectification or replacement of the defective contractual products by third parties commissioned by ASM at the supplier’s expense (iii) or claim a price reduction.
8 Confidentiality
8.1 Information that ASM provides to the supplier for the purpose of fulfilling the contract may not be used for other purposes, reproduced or made accessible to third parties.
8.2 The supplier is obliged to treat all information and business secrets of ASM obtained in connection with the fulfillment of the contract as confidential. It must ensure that its auxiliary persons and subcontractors also protect ASM’s information and business secrets.
8.3 ASM is obliged to treat the information and business secrets of the supplier and its subcontractors confidentially.
9 Protection of personal data
9.1 The processing, use, storage and forwarding of personal data must be carried out in compliance with the relevant statutory provisions, including the EU GDPR. Accordingly, the parties shall use and process personal data of which they become aware in connection with their business relationship exclusively for the purposes necessary for the business transaction and shall only make such data accessible to third parties to the extent necessary. The parties shall store the relevant personal data securely and take appropriate technical and organizational measures to protect it from misuse or loss.
10 Force majeure
11.1 Neither party shall be liable for any delay or default in the performance of its obligations under this Supply Contract: (i) if and to the extent that the default or delay is caused directly or indirectly by force majeure such as fires, floods, natural phenomena, pandemics, epidemics, acts of war, terrorism, cyber-attacks or civil disturbances or other causes beyond the party’s reasonable control (strikes or labor shortages, to the extent such industrial action is taken against the Supplier, shall not be considered force majeure events); and (ii) to the extent that the non-performing party is not at fault and the default or delay could not have been avoided even if reasonable precautions had been taken.
11.2 Each party in default in this form shall immediately notify the other as soon as it becomes aware of the case of force majeure and describe the circumstances which led to the delay or default.
11.3 Non-performance by third parties engaged by the Supplier under the supply contract shall not be considered a case of force majeure.
11 Social responsibility
11.1 The Supplier shall comply with the laws of the legal system(s) applicable to the performance of the contract. In particular, the supplier shall not actively or passively, either directly or indirectly, engage in any form of bribery or the use of child labor or behave in any way against the basic human rights of employees.
11.2 In addition, the supplier assumes responsibility for the health and safety of its employees. It shall act in accordance with the applicable environmental laws and shall make every effort to transfer these obligations to its subcontractors and suppliers.
11.3 In addition to the other rights and remedies to which it is entitled, ASM may terminate the contract and/or an order placed under this contract if the supplier breaches these obligations. However, ASM’s right of termination is subject to the proviso that the supplier has not remedied the breach of contract within a reasonable grace period set by ASM.
12 Final provisions
12.1 If one or more provisions of this supply contract prove to be invalid or void, all other provisions of this supply contract shall remain unaffected. The invalid and/or void provisions shall be replaced by the parties by negotiation with provisions that come as close as possible to the originally intended purpose.
12.2. Additions, amendments or the cancellation of this supply contract or its annexes as well as orders, order confirmations and other messages must be made in writing and must be signed by a person authorized to sign. This written form clause is also covered by this.
13 Place of fulfillment
13.1 Unless otherwise agreed, the place of performance for delivery and payment shall be the registered office of ASM.
14 Applicable law and place of jurisdiction
14.1 This supply contract is subject to Swiss law. If the supplier’s registered office is abroad, the supply contract shall be governed by the United Nations Convention on Contracts for the International Sale of Goods (CISG) and, in addition, by Swiss law.
14.2 The courts at the registered office of ASM shall have jurisdiction for all legal disputes arising from this delivery contract.