Elco AG General Terms & Conditions of Business
With respect to the production, purchase and delivery of our products, all relations between Elco AG ("manufacturer") and an ordering party shall be exclusively governed by the individual contract between the manufacturer and the ordering party, and also by the present General Terms & Conditions of Business, which shall always take priority over any General Terms & Conditions of Business drafted by the ordering party.
2.1 Offers drafted by the manufacturer on the basis of imprecise documentation provided by the ordering party shall be non-binding. Any prices quoted in such offers shall be understood as non-binding guide prices only.
2.2 Binding offers drafted by the manufacturer which do not stipulate a deadline for acceptance shall bind the manufacturer for 30 days from the date of dispatch.
3.1 Prices offered or confirmed by the manufacturer are quoted as net prices, exclusive of VAT. All ancillary costs for insurance, export/transit/import/other permits or notarial certificates, etc., shall be borne by the ordering party. The ordering party shall also pay all taxes, fees and customs charges.
3.2 Prices offered or confirmed by the manufacturer are based on the material prices and exchange rates valid at the time of submitting the offer or of confirming the order. The manufacturer specifically reserves the right to increase offered or confirmed prices if material prices increase or if exchange rates fluctuate during the period in which the goods are manufactured.
3.3 All extra work beyond that specified in the offer caused by the ordering party or his appointed agent as a result of documents which are faulty, incomplete or unsuitable for reproduction, e.g. as a result of subsequent reprocessing, re-editing or revision of templates, additional processing of data carriers or text/image data, will be invoiced to the ordering party over and above the offered and/or confirmed prices.
3.4 Offered and/or confirmed prices do not include author's corrections, e.g. subsequent changes to text, colours, photos and cut shapes, etc.; such corrections shall be invoiced in addition on the basis of the work involved.
4. Terms of payment
4.1 The entire invoice amount is to be paid to the manufacturer's specified paying agent in the currency of the invoice, with no deductions, within 30 days of the date of invoicing. Payment shall be considered made when the manufacturer can freely dispose of the entire invoice amount.
Invoices shall be issued when the goods leave the production site, or are notified as ready for shipping.
4.2 The manufacturer expressly reserves the right at any time to request advance payment to cover his expenses, even after the contract has been concluded, especially if contracts involve reserving large sums of money, e.g. for materials or for third party work, or if the contract will take more than two months to process.
4.3 Materials bought in at the customer's request which are not used within three months of delivery to the manufacturer shall be billed by the manufacturer after the three months have passed, including all work and costs associated with the ordering and storage of such materials.
4.4 The payment deadlines shall be observed by the ordering party even if dispatch, transport, delivery or acceptance of the goods are delayed or prevented for reasons beyond the manufacturer's control, or if unimportant parts are missing, or in the event of defects which do not render the goods unfit for use but which require post-delivery work or follow-up deliveries.
4.5 The withholding of payments by the ordering party because of counterclaims of any kind, or offsetting against such claims, is not permitted without the manufacturer's express written agreement.
4.6 If the ordering party fails to observe a payment deadline, he shall owe interest charges on the invoiced amount, calculated from the due date und without a special reminder being required, payable at the same rate as demanded for unsecured current account credits by the banks at the manufacturer's place of domicile.
4.7 The manufacturer expressly reserves the right to request security for the purchase money after the contract has been concluded. If such security is not forthcoming within the deadline specified by the manufacturer, the latter is entitled to discontinue further performance of the contract with immediate effect, in which case the costs incurred by the manufacturer to that date shall be due in full with no deductions.
5. Call-off contracts
5.1 On expiry of the agreed storage period, all remaining goods in storage shall be invoiced.
5.2 Storage periods which extend beyond the agreed period shall be invoiced to the ordering party on the basis of the costs incurred due to storage.
6. Materials and documents belonging to the ordering party
6.1 Materials supplied for the production process by the ordering party must be suitable for processing as specified in the contract. The ordering party undertakes to compensate the manufacturer for all prejudice arising as a result of defects in the materials supplied or unsatisfactory suitability of said materials.
6.2 The ordering party shall arrange for materials to be delivered to the production or storage location specified by the manufacturer. All costs associated with such delivery shall be borne by the ordering party.
6.3 The ordering party shall be responsible for insuring the materials provided by the ordering party to the manufacturer for production purposes, as well as any manuscripts, data carriers, slides, photographs and printed materials, etc.
7. Delivery deadlines
7.1 The delivery periods or deadlines agreed by the parties shall not be understood as performance dates or definitive dates. It is not the intention of the parties that, without the will of the ordering party, the manufacturer may only deliver by the agreed date or by the expiry of the agreed period.
7.2 Delivery periods shall begin on receipt by the manufacturer of the order documents (images, texts, manuscripts or data carriers, 'good for printing', print run, page layout, etc.). Delivery periods or deadlines are considered to have been met if, on the expiration of such deadline, the goods have left the place of production or have been notified as ready for shipping.
7.3 Delivery periods shall be extended appropriately when obstacles occur which the manufacturer cannot eliminate with reasonable effort, e.g. epidemics, mobilisation, war, revolution, serious breakdowns, failure of essential production equipment, industrial disputes (e.g. strikes and lock-outs), delayed or deficient delivery of the necessary raw materials, semi-finished or finished products, official actions or omissions, natural disasters, insofar as such obstacles impact on the completion or delivery of the goods. This shall apply regardless of whether the obstacles arise with the manufacturer, the ordering party or third party agents. Neither shall such circumstances be deemed the responsibility of the manufacturer if they occur during a delay to delivery which has already occurred.
7.4 The manufacturer shall no longer be bound by the agreed delivery periods or dates if the documents required from the ordering party (images, texts, manuscripts or data carriers, 'good for printing', print run, page layout, etc.) are not received by the manufacturer at the latest by the agreed date, if the ordering party subsequently wishes to amend such documents leading to a delay in delivery, if the ordering party is in arrears with payments or with the performance of other contractual duties, or if the 'good for printing', 'good for execution', etc., are not given within the period stipulated by the manufacturer.
7.5 If the delivery of the goods is delayed on the instructions of the ordering party, or because of a delay imputable to the ordering party, the manufacturer is entitled to invoice, in addition to any interest for delay, and starting one month from notification of readiness for dispatch, the costs incurred for storage where the goods are stored on the manufacturer's premises, such charges being equivalent to at least 1⁄ 2% of the invoice amount per month.
The ordering party undertakes to accept the goods offered in accordance with the contract. If the goods are not accepted within a reasonable or agreed period after notification of completion, the manufacturer is entitled to deposit the goods for the account and at the risk of the ordering party. The manufacturer is also entitled, having specified an appropriate period of time and having issued an adequate warning, to dispose otherwise of the goods and supply the ordering party with other similar goods within a further appropriate period.
9. Retention of title
9.1 The manufacturer shall retain the title to the goods until receipt of all payments arising out of the contract. The ordering party undertakes to inform the manufacturer of the location of the goods and of any change of location. The manufacturer is entitled to have the retention of title recorded in the appropriate register at the ordering party's costs insofar as the law provides for this at the location of the property. The ordering party hereby authorises the manufacturer to attend on his behalf to any other formalities required to justify the retention of title at the location of the property.
9.2 The ordering party may neither distrain the goods subject to retention of title, nor make them available as security. The ordering party shall inform the manufacturer without delay in case of distraint, confiscation or other third party actions with respect to the goods subject to retention of title.
9.3 If the ordering party acts in breach of contract, in particular in the event of default in payment, the manufacturer is entitled, after issuing reminders and an appropriate warning, to repossess the goods and the ordering party shall undertake to release them. The assertion of title and distraint of the goods by the manufacturer shall not be considered a withdrawal from the contract.
To the exclusion of all further claims, the manufacturer shall warrant the goods as follows:
10.1 The warranty period is 6 months. It shall start with the dispatch of the goods from the place of production. If dispatch of the goods from the place of production is delayed through no fault of the manufacturer, the period of warranty shall expire overall at the latest 9 months after the goods are ready for dispatch, or after notification of readiness for dispatch.
10.2 The ordering party undertakes to check the documents made available to him for inspection (press proofs, proofs, copies, files and similar) before final completion of the contract and to return said documents to the manufacturer with the 'good for printing' and any corrections by the agreed deadline. Defects or deficiencies which are not pointed out by the ordering party at this time shall be considered approved by the latter.
Telephone instructions from the ordering party regarding corrections and amendments must be confirmed in writing within 24 hours by the ordering party. Otherwise all warranty obligations with respect to said corrections and amendments shall become null and void. If it has been agreed that inspection documents shall not be submitted for correction, the manufacturer shall not accept any liability for deficient goods unless it can be proven that such deficiencies are the result of grossly negligent performance of the contract on the part of the manufacturer.
10.3 The ordering party shall inspect the goods for defects immediately on their receipt and any defects noted must be notified in writing to the manufacturer within 8 days of receipt of the goods. If the ordering party fails to make such notification, the goods shall be considered accepted insofar as the defects are not hidden and impossible to identify despite careful inspection.
Any hidden defects are to be notified to the manufacturer in writing within 8 days of their discovery, failing which the goods shall be regarded as accepted with regard to these defects as well.
10.4 Where a complaint is made within the specified time, the manufacturer undertakes at his discretion to remedy the defective goods free of charge within a reasonable period of time or to deliver new goods against return of the allegedly defective goods.
10.5 Industry standard deviations in the execution and material, in particular with regard to cutting accuracy, similarity of the reproductions to the original, tonal value and quality of the print substrate (paper, cardboard, etc.) shall not be regarded as defects. They shall not give rise to any warranty claims by the ordering party.
11. Over or short delivery
Over or short deliveries up to 10% of the ordered quantity - for special production of the material up to 20% - shall not be grounds for complaint. Invoices shall be for actual quantities delivered.
12. Copyright/reproduction rights
12.1 With respect to work which comes into being with the production of the goods, the manufacturer is the sole owner of all copyrights and all related intellectual property rights in accordance with copyright law. In particular, he shall have the exclusive right to decide whether, when and how the work shall be used.
12.2 The reproduction and printing of all images, texts, samples and similar provided to the manufacturer by the ordering party shall take place on the assumption that the ordering party owns the corresponding reproduction and printing rights.
This shall also apply in respect of the re-use of images, texts, samples and similar provided to the manufacturer by the ordering party on an earlier occasion and then archived by the manufacturer as agreed.
12.3 On notification, the ordering party undertakes to release the manufacturer from all obligations to third parties, and to settle all legal disputes which might arise out of the reproduction and printing of images, texts, samples and similar provided to the manufacturer by the ordering party.
13. Reproduction documents/Tools
All reproduction documents made by the manufacturer (photographs, data carriers, type, assemblies, printing plates, etc.) and tools (cutting dies, embossing plates, etc.) shall remain the property of the manufacturer, even if the costs of production of the documents and tools are invoiced to the ordering party.
14. Storage of work documents
14.1 The manufacturer shall not be obliged to store work documents such as files, negatives, colour extracts, photo lithographs, sample films, type, copies and tools after manufacture and delivery of the goods unless there is a written agreement to the contrary.
Any copy of final data made as a technical backup for production purposes will be deleted 6 months after delivery of the goods.
14.2 If storage of work documents was agreed in writing, the costs incurred, e.g. for archiving, renewed preparation, formatting and release, will be invoiced in accordance with expenditure. Work documents shall be stored at the risk of the ordering party. The manufacturer shall assume no responsibility for subsequent faultless retrieval of stored work documents.
15. Limitation of liability
15.1 With respect to direct damage caused to the ordering party by the manufacturer or his agents through gross negligence or with unlawful intention during the execution of contractual obligations, the manufacturer shall only be liable up to a total maximum of the agreed or confirmed price of the goods.
15.2 The manufacturer assumes no responsibility for data delivered by the customer (via data carriers or modem) that is defective or incomplete with regard to content. Equally, no liability shall be assumed for delivered data that cannot be processed or used in the standard manner, resulting in qualitative deficiencies in the ordered products.
The manufacturer shall not accept liability for any loss of data which is supplied or provided for further processing.
15.3 There shall not be grounds for claims for damages by the ordering party beyond the above-mentioned scope of claims. In particular, the manufacturer shall assume no liability whatsoever for indirect or consequential damages, economic prejudice or prejudice arising out of loss of orders or profits, etc.
16. Amendments, additions and partial annulment
16.1 Amendments and additions to these General Terms & Conditions of Business or to any contract between the manufacturer and an ordering party, and all other legally relevant declarations between the contracting parties, must be in written form in order to be valid.
16.2 If any provision of these General Terms & Conditions of Business or of a contract between the manufacturer and an ordering party be void or ineffective, the provision in question shall be replaced by a new valid provision that comes as close as possible to the original provision's legal or economic purpose. The validity of the remaining provisions of the contract and these General Terms & Conditions of Business shall not be affected.
17. Data confidentiality
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18. Place of performance and place of jurisdiction
17.1 The place of performance for both parties is the manufacturer's registered domicile.
17.2 The courts of law in the jurisdiction of the manufacturer's registered domicile shall be exclusively competent for all disputes arising out of, or in connection with, the individual contract between the contracting parties and these General Terms & Conditions of Business, including disputes over valid contract conclusion, enforceability, modification or termination. The manufacturer is also entitled to initiate legal proceedings at courts in the jurisdiction of the ordering party's domicile or place of business. The ordering party expressly renounces jurisdiction at its domicile or place of business, or any other jurisdictions.
19. Applicable law
The contracting parties shall submit their legal relations to Swiss law. This shall supplement the contract and the present General Terms & Conditions of Business. The applicability of the UN Convention on Contracts for the International Sale of Goods (Vienna Sale of Goods Convention) is expressly excluded.