For the business relationship between M. Opitz & CO. AG, Haggenstrasse 40, CH-9014 St. Gallen (hereinafter "OPITZ") and the Client pursuant to paragraph 3, the following General Terms and Conditions (hereinafter referred to as "GTC") apply in the version valid at the time of ordering.
Where business days are indicated as deadlines, this shall include all days of the week with the exception of Saturday, Sunday and public holidays.
The offers of OPITZ are not binding, but are solely an invitation to prepare the offer. The contract comes into being upon receipt of written confirmation from OPITZ (order confirmation). A contract shall not come about in any other ways, in particular not tacitly following an order or by implied consent. If an order confirmation deviates from an order, this shall be deemed a new offer by OPITZ, which will become binding for both parties if it is not objected to within 14 days.
If OPITZ manufactures or bottles a product on behalf of a third party, the relevant GMP guidelines shall apply (Ph.Helv 20.1 Rules of Good Manufacturing Practice for Small-Volume Drugs or EudraLex - Volume 4 Good Manufacturing Practice (GMP) Guidelines Part II apply and GMP - cosmetics according to ISO 22716ff). Such contracts shall only be legally valid if a mutually signed contract manufacturing agreement is concluded in writing, in which the responsibilities are stipulated. For orders in accordance with this section, the Client must accept surplus or shortfall quantities of 10%. The amount actually delivered will be billed. The return of goods that have been produced correctly in accordance with the contract manufacturing agreement is excluded. A separate "service agreement" will be concluded for services provided by third parties.
Additional expenses incurred in addition to the contract manufacturing agreement will be charged additionally to the Client. Insofar as the contract manufacturing agreement and any general terms and conditions for the contract manufacturing agreement contain no deviating provisions, these conditions of sale shall apply mutatis mutandis to the contract manufacturing agreement.
As the Contractor, OPITZ assumes that the materials provided by the customers, in particular bulk materials, are in perfect condition and released for processing by OPITZ. The Contractor also assumes that the characteristics correspond to the information given in the specifications and analysis certificates. In particular, the Contractor assumes that the provided bulk materials are free of germs, mould and yeast.
The Client undertakes to provide the Contractor with all information about potentially hazardous substances which could contaminate the equipment and/or secondary products.
The Contractor expressly reserves the right to charge the Client for damage caused by the bulk material being contaminated with germs and/or mould/yeast. Such damage may include machine downtime, contamination of third party materials, special cleaning measures (this list is not exhaustive).
List prices are standard values in the corresponding units of quantity. Only the prices in the order confirmation are binding. The prices are always quoted exclusive of VAT.
OPITZ prices shall apply ex works at St. Gallen. The goods shall be transported at the expense and risk of the Client pursuant to paragraph 3.
The delivery times are to be agreed individually for each order in accordance with paragraphs 2 and 3. Blanket orders must be received within one year from the date of conclusion.
The materials provided to OPITZ are duty paid, for delivery to St. Gallen. The materials provided by OPITZ will be stored free of charge for a maximum of three months. Thereafter, a storage fee will be charged per month and pallet.
OPITZ does not grant any collection discounts. Express deliveries by mail shall be performed at the currently valid postal rate. Under no circumstances shall OPITZ assume any responsibility for timely delivery or late or delayed delivery.
The Client pursuant to paragraph 3 is responsible for compliance with all laws and regulations regarding import, transport, storage, sale and use of the goods.
It shall, in particular, be responsible for the necessary consumer notices (concerning flammability, toxicity, medical regulations, consumer protection, etc.). The technically responsible person must observe the relevant regulations.
Deliveries pursuant to paragraph 3 with a complete GMP / GDP supply chain are stated on the analysis certificate with the legally required GMP statement "I hereby confirm that the above information is complete and correct. This batch was produced in the above-mentioned plant in accordance with the GMP rules. The records on production have been reviewed and assessed as GMP compliant.
All statutory warranty rights are, to the extent permitted by law, expressly excluded and replaced by the provisions of paragraphs 2 and 3 of this section. Any further warranty, in particular the statutory warranty rights, or liability for defects or damages of any kind is expressly excluded within the limits permitted by law.
The Client must inspect the goods and services immediately after their delivery. The delivery shall be deemed accepted if it fails to do so. If a product displays a defect that arose before the passing of benefit and risk, the Client must return the goods to OPITZ within 14 days of receipt.
Returns must take place using the form provided by OPITZ.
The payments are to be made by the buyer in accordance with the agreement, net, without deducting a cash discount, expenses, taxes, levies, fees, duties and such like at the domicile of OPITZ or at another location designated by OPITZ.
The purchase price owed may not be offset against a claim against OPITZ.
Upon expiry of the term of payment specified in Section 11, the buyer shall be deemed to be in default of payment without further notice or notification. The buyer will be charged default interest of 5% from the date of default. From the second reminder, a reminder fee of CHF 10.00 will be charged per reminder. After the first reminder, OPITZ reserves the right to initiate debt enforcement measures without further reminders. In the event of late payment by the buyer, OPITZ reserves the right to withdraw from the contract and to demand the return of the goods. OPITZ also reserves the right to claim further damages.
Both OPITZ and the Client pursuant to paragraph 3 shall not be liable for failure to fulfil one of their contractual obligations if this is due to an impediment that is beyond their control or in particular due to one of the following: fire, natural disasters, war, seizure, general shortage of raw materials, restriction of energy consumption, strike. The same applies if a supplier is threatened by these circumstances and, as a result, the contractual obligations cannot be met.
Should any provision of these terms of delivery prove to be ineffective in whole or in part, the parties to the contract shall replace it with a new provision that most closely approximates the ineffective provision in terms of legal and economic effects. The same shall apply in the event of a gap in the text of the contract.
The place of jurisdiction for the Client pursuant to paragraph 3 and the supplier is exclusively the registered office of OPITZ. In so far as neither a primary contract nor these terms of sale stipulate anything to the contrary, the legal relationship between OPITZ and the Client pursuant to paragraph 3 shall be governed by substantive Swiss national law, to the exclusion of the United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods