General Terms and Conditions of Business

Security and locking technology

Terms and Conditions of Business of Kaba AG, Wetzikon (hereinafter referred to as "Kaba") 

1. Orders and conclusion of contract: Orders must generally be made in writing. Verbal orders are only permitted in exceptional cases. Kaba shall decide whether it wishes to accept a verbal order in the individual case, based on its own judgement. Kaba shall confirm the incoming order in writing (with the exception of copies of keys and articles in stock); the contract between Kaba and the Purchaser shall be deemed to be concluded/enter into force as a result of this order confirmation. In exceptional cases where Kaba does not issue an order confirmation, the contract between Kaba and the Purchaser shall enter into force when the order is received by Kaba, as soon as Kaba has accepted the order for performance. Offers issued by Kaba are subject to change and non-binding. The same applies to information in brochures and catalogues from Kaba. Verbal declarations shall require written confirmation in order to be legally valid. Drawings, images, dimensions, weights or other performance data shall only be binding in the event that these have been expressly confirmed in writing by Kaba in the individual case. Without a written declaration that explicitly states otherwise for the individual case, the validity of such binding information shall be limited to the period until it is revoked by Kaba, but not longer than 2 months. Terms and conditions of the Purchaser that differ from these (such as in the Purchaser's General Terms and Conditions of Business) shall only ever be valid if they have been expressly accepted by Kaba in writing. Kaba expressly reserves the right to make changes to these General Terms and Conditions of Business without issuing prior notification. 
2. Prices: The prices in the relevant price list from Kaba that is valid when the order is placed shall be decisive. All prices shall be understood net in Swiss francs (CHF) ex works, plus value added tax, postage and packaging. Kaba may change the price list and/or the prices stated in it at any time, without issuing prior notification. In the case of small orders where the goods have a net value of less than CHF 25, a minimum invoice amount of CHF 25 will be charged (excluding copies of keys). 
3. Terms and conditions of payment: Subject to the special terms and conditions of payment in the Partnership Agreement, the following terms and conditions of payment shall apply for the Purchaser: direct debit with immediate payment 3% discount, 10 days 2% discount or 30 days net, from the date of invoice in each case. In the event of failure to comply with the payment deadline, interest on late payments amounting to 9% shall be owed from the 31st day following the date of invoice, without prior warning. 
4. Changes to orders: Any changes to an order received and/or confirmed by Kaba shall only be valid and binding if the change to the order has been agreed in writing. In all cases, Kaba shall remain entitled to invoice the Purchaser separately for the associated administrative outlay and for the work that has already been carried out. 
5. Delivery: Delivery shall take place at the expense and risk of the Purchaser. At the express request of the Purchaser, Kaba shall take out transport insurance for its shipments; the costs for this shall be invoiced to the Purchaser. In the absence of particular instructions from the Purchaser, Kaba shall determine the method of shipment and shipment route in accordance with its own judgement, without offering any guarantee of the quickest or cheapest delivery. Any transport damage must be reported to the transport company without delay. 
6. Delivery deadlines and delivery periods: Kaba shall endeavour to comply with agreed delivery deadlines as far as possible, although it cannot guarantee that said deadlines will be met. In the event that an agreed delivery deadline cannot be met, the Purchaser shall not accrue any rights and/or claims against Kaba as a result. In particular, delays shall not entitle the Purchaser to refuse to accept the goods and/or to claim remuneration for resulting costs and/or to make any other claims for compensation whatsoever. The delivery deadline shall be extended as appropriate if Kaba does not receive the information that is necessary to execute the order in good time or if the order has subsequently been modified. 
7. Transfer of use and risk: Use and risk shall be transferred to the Purchaser when the delivery leaves the factory. If dispatch is delayed at the request of the Purchaser or for other reasons for which Kaba is not responsible, the risk shall be transferred to the Purchaser on the date the delivery was originally scheduled to leave the factory. From this point onwards, the delivery shall be stored at the expense and risk of the Purchaser. 
8. Inspection obligation / Notification of defects: The Purchaser must inspect the delivered products (including the software) immediately upon receipt and notify Kaba in writing of any defects within 8 days from receipt of the delivery, enclosing the delivery note. If the Purchaser neglects to do so, the products shall be deemed to have been approved. Notification of concealed defects must be sent in writing immediately following their discovery and within the warranty period, otherwise all guarantees/liability on the part of Kaba shall lapse. 
9. Retention of title: Kaba shall retain ownership of the delivered goods until such point as full payment has been made for these. Kaba shall be entitled, but not obliged, to enter the retention of title in the retention of title register. If Kaba wishes to make use of its right in this regard, the Purchaser hereby expressly authorises Kaba to apply for registration in the retention of title register for each delivery and to carry out the formalities in this regard, at the expense of the Purchaser. In all cases, the Purchaser undertakes to implement all necessary measures to protect the delivered goods, at its expense. This particularly includes carrying out maintenance and insuring the goods against theft, breakage, fire, water damage, etc. The Purchaser must refrain from doing anything that could adversely affect Kaba's title claim to the delivered goods. In particular, the Purchaser may not pledge the delivery item or transfer it by way of security. In the event that the goods are seized by the authorities, Kaba must be notified without delay. 

10. Warranty/Liability: Kaba shall accept the following warranty/liability for the completeness and guaranteed characteristics of the products named in the order confirmation: On the one hand, the warranty/liability relates to the fact that the delivered product does not display any defects that can be shown to be the result of poor quality materials, incorrect construction and/or a lack of processing, and which would mean that the product would become faulty or unusable by expiry of the warranty period, and on the other hand to the presence of the guaranteed characteristics. In the case of software, the aforementioned warranty/liability shall be restricted to the medium on which the software is supplied. No warranty/liability shall be accepted for the software as such. In particular, Kaba cannot accept any warranty/liability for the fact that (a) the software can be used without interruptions or faults and under the desired usage conditions, and that (b) the software is compatible with other programs selected by the Purchaser without faults.

    • Guaranteed characteristics are only characteristics that have expressly been designated as such in the order confirmation and/or in the corresponding specifications. The guarantee regarding the characteristics shall remain in effect until the expiry of the warranty period, at the latest.
    • No warranty/liability shall be accepted for the batteries and any consequential damage.
    • The warranty period shall be 24 months for mechanical locking cylinders, 12 months for mechatronic/electrical or automatic products and 6 months for the software medium. The warranty period shall commence with the transfer of use and risk in accordance with Point 7. The periods specified are fixed deadlines.
    • In all cases, the prerequisite for Kaba's warranty/liability is that (a) a defect within the meaning of the aforementioned provision is present, (b) this defect was detected during an inspection carried out in good time within the meaning of Point 8 above, or is a concealed defect, (c) the notification of defect was issued in good time and in accordance with the conditions of Point 8 above, (d) the notification of defect is received by Kaba within the warranty period and (e) the Purchaser returns the defective product to Kaba.
    • The consequences of the warranty/liability are that Kaba shall be obliged to either repair or replace defective products (within the meaning of the aforementioned provision), as it chooses, at its expense. This shall also apply in the event that guaranteed characteristics are not present and for defective software, insofar as Kaba has accepted any warranty/liability for this. Products and/or parts of products that have been replaced shall become the property of Kaba. The Purchaser shall not hold any other warranty claims, such as for a reduction in the purchase price, withdrawal from the contract and/or compensation for damages, etc. Such claims are expressly excluded.
    • The warranty shall lapse prematurely if the Purchaser or a third party implements modifications or makes repairs to the delivered products (including the software supplied and its medium) without the express consent of Kaba, or handles said products incorrectly.
    • Damages that cannot be shown to result from poor quality materials, incorrect construction or deficient performance, such as those due to natural wear and tear, inadequate maintenance, failure to comply with usage conditions and/or operating regulations, excess load, unsuitable operating materials, chemical and/or electronic influences, as well as those due to other grounds for which Kaba is not responsible, shall be excluded from the warranty and liability. Force majeure also excludes warranty and liability.
    • Kaba shall not accept any further warranty/liability except for that stated above, i.e. any further warranty/liability is expressly excluded. Under no circumstances shall the Purchaser hold compensation claims for damage not incurred on the delivered product itself. In particular, Kaba may not, under any legal title and in any way whatsoever, be held responsible and/or liable for direct and/or indirect loss or damage, irrespective of its type and the legal ground on which it is based, for example damage or loss due to production downtime, loss of effectiveness, loss of orders, lost profit, rectification of defects on the Purchaser's premises, consequences of defects for third parties, etc., and may also not be held responsible and/or liable for any other direct or indirect loss or damage connected to the defectiveness of the delivered product. The aforementioned exclusion of liability shall not apply to illegal intent or gross negligence on the part of Kaba, or in cases where and insofar as such an exclusion of liability is prohibited by mandatory law.
    • The statutory provisions of the Swiss Product Liability Act [Produkthaftpflichtgesetz] shall apply for the so-called product liability obligation. However, Kaba's liability in accordance with the Product Liability Act shall be limited or, where appropriate, shall not exist at all, in the event that the product information issued by Kaba is not taken into consideration by the Purchaser and/or by the end users. The Purchaser undertakes to procure the relevant valid informative documents and expressly to point out this product information to its customers.
11. Returns: Goods that have been delivered to the Purchaser in accordance with the order confirmation may only be returned with the consent of Kaba. If they are in perfect condition, a maximum of 60% of the invoiced amount will be credited for stock articles. No credit can be awarded for customer-specific systems such as duplicate and locking system products, or for custom-made products. The party returning the goods shall be liable for all shipping costs and customs charges. 
12. Software: Kaba is the creator/owner of the software transferred to the Purchaser, including the corresponding documentation material. The Purchaser shall receive the non-exclusive, non-transferable right of use to the software supplied to it. The Purchaser may only make changes to the Kaba software with the written consent of Kaba. The Purchaser undertakes to refrain from carrying out any "reverse engineering", even after the Partnership Agreement has come to an end. The Purchaser shall not have any claim to handover of a source code in any form. Kaba expressly draws attention to the fact that it will do its utmost to offer software that is as free from defects as possible, however no absolute claim to freedom from defects can be derived from this. The Purchaser shall hold sole responsibility both for selecting the software and for its commissioning and use, etc. Kaba shall not accept any warranty/liability whatsoever for this. 
13. Intellectual property / proprietary rights: The delivered products (including the software) are developed, drawn, designed and manufactured on Kaba's premises. Kaba therefore holds sole rights to the intellectual property for these products, in particular including the key and cylinder codes (permutations) and to all corresponding images, drawings, plans, etc. Kaba is the sole holder of the existing proprietary rights (patent rights, trademark rights, design rights and copyrights) and also of all rights that are otherwise connected. The emulation and copying and the non-contractual use of Kaba products may constitute infringement of these proprietary rights and is therefore only permitted with the express consent of Kaba.
14. Applicable law / Place of jurisdiction The legal relationship between Kaba and the Purchaser shall be subject to Swiss substantive law. The parties agree the registered offices of Kaba AG, Wetzikon as the exclusive place of jurisdiction. However, Kaba shall also be entitled to the Purchaser at its registered offices.