of Cross Promotion AG, Langfuristr. 6 , 9562 Märwil/Switzerland (hereinafter "Cross")
§ 1 Applicability
1. These general terms and conditions of business (hereinafter the "Terms and Conditions"), as amended at the time of the purchaser order by the Customer, apply to the business relationships between Cross and persons ordering goods from Cross ("Customer").
2. The Customer assures that he is of full age and has unlimited legal capacity and that the Customer, where he acts as an agent, has the relevant authority.
3. These Terms and Conditions apply exclusively. Any terms and conditions of the Customer that conflict with, or deviate from, these Terms and Conditions do not apply, even if Cross has not expressly objected to them.
§ 2 Conclusion of Contracts
1. The details contained in prospectuses and advertisements and on Internet sites are without obligation and do not constitute an offer or guarantee of quality by Cross. Any purchase orders by the Customer shall only be binding on Cross if they are accepted by Cross or complied with by sending the goods.
2. The purchase order by the Customer constitutes an offer to Cross for the conclusion of a sale and purchase agreement. If the Customer places his order through the Internet or by email, the Customer will be sent an email by Cross confirming receipt of the purchase order and stating particulars regarding the purchase order (order confirmation). Such order confirmation as such shall not constitute an acceptance of the Customer’s offer; rather, it merely constitutes a notification to the Customer that his order has been received by Cross.
3. The Customer shall be bound by his purchase order for a period of 14 days from receipt of his purchase order by Cross.
4. A sale and purchase agreement between Cross and the Customer shall not come into existence until Cross sends the ordered goods to the Customer or accepts the offer by sending another email or fax or a letter to the Customer (declaration of acceptance). Cross reserves the right to accept the offer for part of the ordered goods only. No sale and purchase agreement shall come into existence in respect of goods that are not delivered to the Customer or are not specified in the declaration of acceptance.
§ 3 Delivery; Reserved Delivery
1. Unless otherwise agreed, deliveries shall be made ex warehouse of Cross to the address advised by the Customer in his purchase order. Any statements regarding delivery dates shall be without obligation, unless Cross shall have warranted the delivery date in a binding manner in an exceptional case. Any agreed delivery dates will be deemed complied with if the goods were surrendered to the carrier as at the agreed delivery date.
2. Cross may render partial deliveries and partial performances.
3. Cross shall charge flat-rate shipping charges depending on the weight, size, and destination; the amount of those shipping charges is set out in the price lists regarding shipping and delivery costs of Cross from time to time, which can be retrieved at www.cross.ch/shop.
4. Cross may rescind the contract if Cross does not obtain the goods despite a relevant sale and purchase agreement having been concluded before. Cross shall inform the Customer without undue delay of the non-availability of the goods in good time and shall exercise the right of rescission without undue delay, should Cross wish to rescind the contract. In the event of a rescission, Cross shall refund to the Customer the corresponding consideration without undue delay.
5. Deliveries will be made by Cross subject to availability.
§ 4 Remuneration; Payment Terms
1. The current prices in CHF from time to time as stated in catalogues, advertisements and/or on the website of Cross apply, plus shipping charges. Unless otherwise stated, the prices - subject to errors and typos or misprints - relate to the products as shown in the catalogues, advertisements and on the website of Cross as per the respective specifications.
2. All claims shall fall due upon receipt of the invoice and shall be payable without any deductions. Invoices will normally be issued together with the delivery. Payments shall be made either against cash in advance or against an invoice; in the event of payment against an invoice, Cross reserves the right to carry out a credit investigation. Cheques will only be accepted on account of performance; a payment will not be deemed made until Cross can dispose of the relevant amount. The cost of the money transfer shall be borne by the Customer. In the case of deliveries to another country, the Customer shall be responsible for the settlement of the import into his country and shall bear all costs, taxes, charges, and customs duties.
3. Cross reserves the right to make deliveries only against cash on delivery or cash in advance and to exclude specific payment methods in an individual case.
4. The Customer shall be in default without any additional declaration by Cross being required, if the Customer fails to make a payment within 30 days from receipt of the invoice and maturity.
5. The Customer may only make a set-off if his counterclaim is explicitly acknowledged by Cross in writing or has become final and conclusive. The Customer may only assert a right of retention if his counterclaim is based on the same contractual relationship.
§ 5 Warranty
1. Cross warrants that the goods are in all material respects as stated in the relevant documentation and are free of defects in material and defects in production. Cross does not assume any warranty for technical details or the suitability of the goods for a specific purpose. Cross does not assume any warranty for ordinary wear and tear caused by weather conditions, improper use, or incorrect care. Any immaterial deviations in colour, structure or size customary in the trade are possible because of technical matters or the materials used and do not constitute a defect.
2. The Customer is obliged to immediately inspect the goods and to promptly give written notice of any recognizable defects. In terms of defects which are not recognizable, written notice must be promptly given after its discovery. In order to speed up the rectification of defects, defects shall be specified as detailed as possible for the Customer.
3. The warranty period is 12 months from delivery.
4. Cross may in a warranty case at its own option remedy defects of the goods by way of a rectification of the defect or a replacement (hereinafter “subsequent performance”). Cross shall have two attempts at carrying out a subsequent performance. If Cross shall not succeed with the subsequent performance within a reasonable period of time, the Customer may reduce the purchase price or - if the defects are material - rescind the contract.
5. Any potential claim of the Customer for damages shall be subject to the conditions under section 6.
§ 6 Liability
1. Cross shall not be liable for any damage, delays, or impediments to performance, outside its sphere of responsibility.
2. Cross shall not be liable for any damage attributable to an inappropriate or improper use of the goods or a use contrary to the specifications.
3. Regardless of the legal grounds, Cross shall only be liable for any damage caused by its executives with intent or gross negligence, or any damage relating to a violation of life, body or health caused as a result of negligence of Cross.
4. Any additional liability of Cross is excluded. The liability under the Product Liability Act remains unaffected by this contract.
§ 7 Retention of Title
1. Cross will retain title to the goods until the settlement in full of the purchase price and of all other claims under the current business relationship with the Customer which are due at the time of entering into the contract. By entering into the contract, Customer gives his consent that Cross may register the retention of title at the seat of the Customer and at its costs in the respective register.
2. If the Customer is in default in payment, after setting a one week grace period without success and irrespective of any registration of the retention of title, Cross is entitled to take back the goods. Such actions does not constitute a rescission of the contract so that the claims remain in force in its previous scope. Cross right to rescind the contract shall remain unaffected.
3. The Customer shall handle the goods with care and shall notify Cross without undue delay of any access to the goods by third parties (such as in the case of an attachment), as well as any damage to, or destruction of, the goods. This applies also in respect of a change of possession of the goods or a change of residence by the Customer.
4. In the event of a default in payment by the Customer, Cross may rescind the contract and demand the return of the goods in accordance with the relevant statutory provisions.
§ 8 Prohibition of Assignment
The Customer may not assign or transfer its claims against Cross to a third party without the prior written consent of Cross.
§ 9 Applicable Law
The contractual relationship between the parties, as well as all disputes arising thereunder or in connection therewith, are governed by the substantive law of Switzerland. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
§ 10 Place of Jurisdiction
The exclusive place of jurisdiction for all disputes arising out or in connection with the contractual relationship between the parties is the principal place of business of Cross.
§ 11 Severability
Should any of the provisions of these Terms and Conditions be or become ineffective in whole or in part, or should there be a gap in these Terms and Conditions, the validity of the remaining provisions hereof shall not be affected.