General Terms and Conditions of Business
Status: March 11, 2020
Art. 1: Scope of Application
1 The General Terms and Conditions of Business (hereinafter referred to as: GTC) of the company “Fasswerk Hämmerle”, Blumenfeldstrasse 22, 9430 Goldach, Germany, are to be considered an integral part of the individual contract (hereinafter also referred to as contract or agreement).
2 These GTCs apply to the business area of Fasswerk Hämmerle.
3 Fasswerk Hämmerle manufactures pieces of furniture from used wine & whiskey casks and other (wood) materials in individual production (hereafter: the factory). All barrels which will be processed once contained wine, whisky or other liquids.
4 Fasswerk Hämmerle manufactures works in accordance with the agreement and also offers services in the respective agreed area.
5 These General Terms and Conditions apply to the above-mentioned areas as well as the other services which are provided by Fasswerk Hämmerle directly and/or indirectly to the Customer. They form an integral part of the respective contract between Fasswerk Hämmerle and the Customer.
Art. 2: Conclusion of Contract
1 The conclusion of a contract between the parties requires the explicit mutual expression of the parties’ mutual consent.
2 The works published on the website of Fasswerk Hämmerle (https://www.fasswerk.ch) including the purchase price, are to be understood as an invitation to the customer to submit an offer.
3 If a customer fills in the appropriate form for the respective product and sends an enquiry by clicking on the corresponding mouse button, this is to be qualified as an application to conclude a contract.
4 For the contract to be effective, this request must be expressly accepted by Fasswerk Hämmerle.
5 Fasswerk Hämmerle will notify the acceptance of the application by e-mail.
6 The customer has a right of withdrawal of 10 days. The period begins on the day following the declaration of acceptance by Fasswerk Hämmerle. If the last day falls on a Sunday or public holiday, the right of withdrawal expires on the next following working day.
7 If the acceptance is not received by the applicant (customer) within the above-mentioned period, the application is to be considered as not having been made.
Art. 3: Amendment Clause
1 Additions, amendments or the cancellation of the present contract are only legally valid if made in writing and signed by both contracting parties, except in the case of Art. 16 or Art. 4 para. 7 of the present GTC.
2 This amendment clause also applies to this written form clause.
Art. 4: Pricing
1 The prices of the works are published on the website and in the printed advertising brochures.
2 The prices on the website (https://www.fasswerk.ch) are definitive.
3 The agreed final price is based on the parties’ mutual declaration of intent, which may differ from the published price.
4 Unless otherwise agreed, all prices are in Swiss francs (CHF). For customers from abroad, Fasswerk Hämmerle reserves the right to adjust the prices to the exchange rate at any time.
5The price agreed upon at the time of the conclusion of the contract applies.
6 All prices include the respective value added tax to be paid in Switzerland.
7 The price which was fixed at the time of the order in terms of paragraph 5 applies, irrespective of the later development of production costs such as exchange rate fluctuations or changed material costs, whereby an adjustment is reserved in the event of a massive change in circumstances which leads to unreasonableness for Fasswerk Hämmerle (clausula rebus sic stantibus).
8 The company reserves the right to change the published product prices at any time.
Art. 5: Payment
1 The principle of advance payment of the entire invoice amount by the customer applies.
2 The customer is obliged to pay the agreed price within 30 days gross from the invoice date.
3 Payment by instalments is possible, whereby the exact conditions are to be negotiated between the parties in each individual case. In principle, half of the amount is to be paid in advance as the first instalment and the second instalment is to be paid shortly before the delivery of the work.
4 The invoice can be paid in cash, or during the ordering process via prepayment Fasswerk Hämmerle.
5 If the invoice is not paid within the aforementioned payment period, the customer will be sent a reminder.
6 If the customer does not settle the invoice within the set reminder period, he is automatically in default. From the time of the delay the customer owes default interest in the amount of 5%.
7 The prices are – except for VAT (see article 4 paragraph 6 GTC) – exclusive of any other applicable taxes.
8 Fasswerk Hämmerle refuses to offset the invoiced price for a work against any claim of the Customer.
9 In the event of late payment, Fasswerk Hämmerle is entitled to refuse to produce the work and to claim damages for delay, as well as to be compensated for expenses already incurred.
Art. 6: Pick-up and Delivery of the Work
1 The customer is always in the hollow debt. He must pick-up the work independently within two weeks at the workshop, Blumenfeldstrasse 22, 9403 Goldach, Switzerland, unless otherwise agreed.
2 If the work is available for pick-up for longer than two weeks – or beyond the agreed pick-up period – Fasswerk Hämmerle may charge 50 Swiss francs per day from the fifteenth day for storage of the work.
3 Fasswerk Hämmerle may undertake the delivery of the work in Switzerland and abroad, in which case a surcharge will be charged.
4 All orders in excess of 30 kg are delivered by forwarding agent. As soon as the factory leaves the workshop, an e-mail with the exact details will be sent to the customer.
5 Within Switzerland, we ship all orders under 30 kg by Swiss Post.
6 All deliveries are understood as curb deliveries without disposal of the packaging material.
7 In the case of self-collection from abroad, a delivery note will be issued for the relevant taxes, deductions and accounting.
8 The delivery period for domestic and international deliveries is to be agreed individually.
9 The delivery costs depend on your order and are calculated during the quotation process.
10 The delivery costs to the EU and USA will be calculated during the quotation process. After confirmation of purchase and delivery, further costs may be incurred by the shipping company (customs & taxes of the respective country) for delivery abroad.
Art. 7: Production Period of the Work
1 The period of production of a work takes 4 to 12 weeks net.
2 Longer production periods may be agreed for one-off productions and special requests.
3 If the production of the work is delayed, the customer must send a reminder to Fasswerk Hämmerle.
4 If the completion of the work is delayed even after expiry of the extension, the Customer may only withdraw from the contract if the delay was caused by Fasswerk Hämmerle.
Art. 8: Quality of the Works
1 After delivery of the work, the customer must immediately check its condition and inform Fasswerk Hämmerle of any defects.
2 There is no defect if the work deviates optically from that on the website or that on the printed flyer or advertising brochure.
3 No defect shall be deemed to exist if the Customer is not satisfied with the design on delivery of the work.
4 A defect is only present in the event of technical faults, such as if the door of the work does not close properly.
5 Fasswerk Hämmerle supplies the material (barrels, wood etc.) independently and is responsible for the quality.
6 Customers may also supply their own material, in which case they are responsible for the quality and condition of the material. Fasswerk Hämmerle may refuse to accept the material.
Art. 9: Delivery and Assembly
1 The customer may request assembly on site, whereby final assembly may be carried out by the customer.
2 If the customer does not carry out the final assembly himself, this can be carried out by Fasswerk Hämmerle by arrangement and at a corresponding surcharge.
Art. 10: Liability and Guarantee
1 The liability for indirect damages and for consequential damages caused by a work is completely excluded.
2 The liability for direct damages is limited to the sum of the work purchased by the Customer, if the damage is caused by the fault of Fasswerk Hämmerle.
3 The liability for negligence is excluded for direct and indirect damages.
4 Fasswerk Hämmerle assumes no liability for damages which occur during transport of the work to the customer. This also applies to damages caused by a forwarding agency.
5 Fasswerk Hämmerle excludes liability for the actions of its auxiliary persons and other third parties called in.
6 If the delivery is delegated to a forwarding company, Fasswerk Hämmerle is released from any liability for any damage or loss of the work from the time the work is handed over to the forwarding company.
7 The handover of the work is completed when the forwarding company accesses the work in order to load it for transport, lock it and make it ready for transport. This applies regardless of whether Fasswerk Hämmerle assists in the loading of the work by the forwarding company. This does not affect the exclusion of liability according to paragraph 6.
8 The works are covered by a two-year guarantee against material defects caused by natural circumstances.
Art. 11: Data Protection
1 Fasswerk Hämmerle may process and use the data recorded within the scope of the conclusion of the contract for the fulfilment of the obligations arising from the contract.
2 Fasswerk Hämmerle shall take the measures required to secure the data in accordance with the statutory provisions. The Customer agrees to the storage and contractual use of his data by Fasswerk Hämmerle.
3 The customer data collected necessary for the performance of Fasswerk Hämmerle will not be disclosed to commissioned service partners or other third parties who work with Fasswerk Hämmerle. Excluded from this are the shipping companies according to Art. 6 para. 4 GTC and the Swiss Post in the cases of Art. 6 para. 5 GTC.
4 Fasswerk Hämmerle cannot be held liable for third parties gaining knowledge of the above-mentioned data, unless there is culpable conduct.
5 Furthermore, the provisions of the Federal Act on Data Protection (SR 235.1) apply.
Art. 12: Changes
1 These GTC’s can be changed by Fasswerk Hämmerle at any time.
2 The new version comes into force by publication on the company’s website and becomes an integral part of the agreement upon conclusion of the contract and by appropriate reference.
3 The version of the GTCs which was in force at the time of the conclusion of the contract applies to the Customers, unless the Customer and Fasswerk Hämmerle have explicitly agreed to a newer or different version of the GTCs.
Art. 13: Priority
1 These GTCs take precedence over all older GTCs.
2 A more specific individual contractual agreement takes precedence over the corresponding GTC clause. This agreement only takes precedence over its specification of the respective GTC clause to the extent of its scope.
3 Provisions from individual contracts that contradict the GTC provisions take precedence. These provisions only take precedence to the extent of the contradiction of the respective AGB provision.
Art. 14: Severability Clause
1 Should a provision – or individual provisions – of the contract be invalid or incomplete or should fulfilment become impossible, the validity of the contract as a whole shall not be affected.
2 In this case, the contracting parties undertake to immediately replace the invalid provision by a permissible provision which comes closest to the original intention in terms of its content.
3 The same in paragraph 2 also applies to any loopholes in the contract.
4 If it is objectively impossible for the contracting parties to replace the invalid provision by a permissible provision jointly, a contracting party may choose the rule which corresponds to the hypothetical intention of the parties at the time of conclusion of the contract, had the parties known of the invalidity of the corresponding rule. This rule need not necessarily come closest to the original intention in terms of its content, but is judged solely on the basis of the hypothetical will of the parties and can affect even parts of the contract not affected by the invalidity.
Art. 15: Confidentiality
Both parties, their shareholders, business partners and auxiliary persons, undertake to treat all information, in particular personal data, which is submitted or acquired in connection with the services as confidential. This obligation remains in force even after the termination of the contract.
Art. 16: Force Majeure
1 If punctual performance by Fasswerk Hämmerle, its suppliers or by third parties called in by Fasswerk Hämmerle is made impossible as a result of force majeure such as natural disasters, earthquakes, avalanches, storms, storms, wars, unrest, civil wars, revolutions and uprisings, terrorism, sabotage, strikes, nuclear accidents or reactor damage, Fasswerk Hämmerle is released from the performance of the affected obligations for the duration of the force majeure and for a reasonable start-up period after its end.
2 If the force majeure lasts longer than 30 days, Fasswerk Hämmerle may withdraw from the contract.
3 In the event of a longer period of force majeure, Fasswerk Hämmerle shall reimburse the Customer for the payment already made, less any expenses already incurred by Fasswerk Hämmerle.
4 Any further claims, especially claims for damages due to force majeure, are excluded.
Art. 17: Applicable Law and Place of Jurisdiction
1 This contract is subject to Swiss law.
2 Insofar as no mandatory legal provisions apply, the court at the headquarters of Fasswerk Hämmerle is responsible for all disputes arising from this contract.
3 The United Nations Convention on Contracts for the International Sale of Goods (SR 0.221.221.1) is explicitly excluded.
Art. 18: Intellectual Property Rights
1 All rights, in particular text and image rights of the company, to these General Terms and Conditions and to the website and the contents contained therein are the property of Fasswerk Hämmerle.
2 Any reproduction, distribution or other use is prohibited and only permitted with the express written consent of Fasswerk Hämmerle. In the event of a breach of this provision, Fasswerk Hämmerle reserves the right to take all legal steps.
Zürich/St.Gallen/Goldach, March 11, 2020