General Terms and Conditions
neoom switzerland ag
Status March 2022
1. Scope of application
1.1 The following General Terms and Conditions (hereinafter referred to as "GTC") of neoom switzerland ag (hereinafter referred to as "neoom") shall apply to all our business relations between neoom and the customer (hereinafter referred to as "Customer") for all energy and charging solutions sold by neoom.
1.2 All offers made by neoom in the field of energy and charging solutions shall be made exclusively on the basis of the following terms and conditions, and all contracts shall be concluded exclusively on the basis of these GTC.
1.3 Contradictory, deviating or supplementary terms and conditions of the Customer are not recognised by neoom, unless neoom has expressly agreed to their validity in writing.
1.4 The consent requirement in clause 1.3 shall also apply if neoom carries out the delivery to the Customer without reservation in the knowledge of terms and conditions of the Customer that are contrary to or deviate from or supplement these GTC.
1.5 The GTC only apply if the Customer is not a consumer within the meaning of the UWG.
1.6 Individual agreements made with the Customer in individual cases (including subsidiary agreements, supplements and amendments) shall in any case take precedence over these GTC. For the content of such agreements, subject to proof to the contrary, a written contract or neoom's written confirmation shall be authoritative.
1.7 Legally relevant declarations and notifications by the Customer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further proofs remain unaffected.
2. Conclusion of contract and subject matter of contract, assignment of claims
2.1 Offers by neoom are subject to change and non-binding. This applies in particular to offers in brochures, advertisements and other advertising material. Technical changes, as well as changes in form, colour, material, weight or similar are reserved within the scope of technical progress and what is reasonable. Not binding and possibly no longer up to date in this sense are also mere catalogue information or information on Internet pages.
2.2 Calculations of profitability that can be called up on neoom's internet pages, depicted in brochures and other documents of neoom, as well as possible calculations of profitability by means of software provided by neoom, if applicable, serve exclusively as orientation regarding the possible profitability of a system. These calculations expressly do not offer any certainty about the actual profitability of the system to be achieved and in particular do not represent any assurance on the part of neoom. neoom expressly points out that the legal framework conditions as well as also e.g. the running operating costs, the own consumption, subsidies and similar variables can change at any time. The Customer is aware of this and has to ask for the current data in each case, as well as to advise his end Customers accordingly and to point this out.
2.3 The order of the goods by the Customer is considered a binding offer of contract. Unless otherwise stated in the order, neoom is entitled to accept this contractual offer within 4 weeks after its receipt by neoom.
2.4 Acceptance may be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the Customer.
2.5 The subject matter of the contract shall be the goods and services designated in the order confirmation. The delivery of certain, used components for the production of a product is expressly not guaranteed. The selection of the individual components of goods is exclusively incumbent on neoom.
2.6 neoom is entitled to use subcontractors (third parties) for the fulfilment of the contract. The consent of the Customer is not required for this.
2.7 The Customer is not entitled to transfer and/or assign rights or obligations from the contractual relationships binding the parties to third parties without the prior written consent of neoom.
3. Documents provided, industrial property rights
neoom remains the owner of all protective rights, copyrights and exploitation rights to the plans, construction drawings, presentations as well as all illustrations, drawings, recordings, construction and circuit diagrams and other documents, whether in written or electronic form, which were produced by neoom or its contractual partners. They may not be made accessible to third parties or utilised by the Customer without the approval of neoom. Upon request by neoom, they are to be returned with an affidavit that no copies have been made. The Customer is liable for any use of the information and documents in his possession caused by him and contradicting these GTC, irrespective of his fault. neoom is not liable for any breach of these obligations. For each breach of these obligations, the Client shall owe a penalty of CHF 30,000.00. Payment of the penalty shall not release the Client from compliance with the obligation. The assertion of further claims for damages and injunctive relief is expressly reserved.
4. Prices, terms of payment, cancellation fees
4.1 Prices are subject to change and are net prices in Swiss francs plus VAT. The prices are EXW according to Incoterms 2020 from neoom's registered office or from another location to be named by neoom, excluding packaging and disposal charges. Neoom is entitled to invoice these separately.
4.2 neoom is entitled to adjust the prices according to the cost increases that have occurred between the order and the delivery.
4.3 Payments shall be made within 14 days of the issue of the invoice. Payment in discharge of debt shall be made exclusively to the account stated in the invoice.
4.4 neoom is entitled (also within the scope of an ongoing business relationship) at any time to carry out a delivery in whole or in part only against advance payment. A corresponding reservation is declared by neoom at the latest with the order confirmation, unless liquidity bottlenecks are recognisable with the Customer.
4.5 Upon expiry of the aforementioned payment deadline, the Customer shall be in default. During the period of default, the price shall be subject to interest at the applicable statutory default interest rate. neoom reserves the right to assert further damages caused by default, whereby the damages caused by default shall be owed irrespective of the fault of the Customer. In addition, neoom can waive the subsequent performance without setting a period of grace and either demand compensation for the damage arising from the non-performance or withdraw from the contract..
4.6 If the performance of the goods or the model type specified in the order confirmation changes subsequently at the request of the Customer, neoom offers these services separately.
4.7 The Customer shall only be entitled to rights of set-off or retention (rights to refuse performance) insofar as its counterclaims have been legally established or are undisputed. In the event of defects in the delivery, the Customer's counter rights, in particular pursuant to clause 9.6 of these GTC, shall remain unaffected.
4.8 In the case of foreign orders, payments are to be made in Swiss francs to the specified paying agent. Domestic or foreign charges that would burden neoom's paying agent shall be borne by the Customer.
4.9 neoom has the right to send invoices electronically by e-mail, download link or fax. The Customer expressly agrees to the electronic transmission. A Customer -side request for a paper invoice will be invoiced by neoom as additional expenditure and has no suspensive effect with regard to the due date of the electronic invoice.
5. Delivery time, delay in delivery and delay of acceptance by the Customer
5.1 Delivery dates stated in the order are non-binding as expected delivery dates. The delivery period shall be agreed individually or stated by neoom upon acceptance of the order.
5.2 If neoom is unable to meet binding delivery deadlines for reasons for which neoom is not responsible (in particular force majeure, especially due to the occurrence of unforeseeable, extraordinary circumstances such as war, civil unrest, seizure, energy supply difficulties, national and international raw material shortages, strike or lockout, If neoom is not able to meet the delivery date (non-availability of the service) due to unforeseeable extraordinary circumstances such as war, civil unrest, seizure of energy supply, national and international raw material shortages, strike or lockout, operational disruptions, a pandemic determined by the WHO, or other circumstances for which neoom is not responsible and which can only be eliminated with unreasonable effort, neoom will inform the Customer of this immediately and at the same time inform him of the expected new delivery date. If the service is also not available within the new delivery period, neoom is entitled to withdraw from the contract in whole or in part; neoom will immediately refund any counter-performance already made by the Customer. Any further compensation for damages is not owed.
5.3 With regard to the agreed delivery condition EXW (Incoterms 2020), neoom only owes the timely provision of the delivery item at the agreed location at the agreed delivery time, so that the Customer can take it over there. neoom is not responsible for delays in delivery by a transport person commissioned - at the request of the Customer.
5.4 The commencement of the delivery period stated by neoom shall in any case be subject to the timely and proper fulfilment of the Customer's obligations arising from the entire business relationship, in particular receipt of payment and timely fulfilment of all owed acts of cooperation. The objection of non-fulfilment of the contract is expressly reserved.
5.5 neoom is entitled to carry out partial deliveries as far as this is reasonable for the Customer.
5.6 The Customer is obliged to accept or collect the delivery.
5.7 If the Customer is in default of acceptance or violates other duties to cooperate, neoom is entitled to demand compensation for the damage incurred by it as a result, including any additional expenses, irrespective of any fault. Further claims or rights remain reserved.
5.8 The rights of the Customer pursuant to clause 11 of these GTC and neoom's statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
6. Delivery, transfer of risk
6.1 Unless otherwise stated in the order confirmation, delivery shall be EXW (Incoterms 2020) from neoom's registered office or from another location to be named by neoom, which shall also be the place of performance for the delivery and any subsequent performance. Any fees for customs clearance shall be borne by the Customer and shall be stated separately on the order confirmation.
6.2 At the request and expense of the purchaser, the goods will be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, neoom is entitled to determine the mode of dispatch and packaging (in particular transport company, dispatch route, packaging) itself. The costs of packaging can be charged separately by neoom to the Customer. The costs for the disposal of the packaging materials are to be borne by the Customer.
6.3 The delivery is to be checked by the Customer for visible damages by the forwarding agent upon acceptance. Visible damages are to be noted in writing in the forwarding agent's handover report and documented by photo. neoom is to be informed immediately of any damages found. In the case of damages which are not disclosed by the Customer to the forwarding agent at the time of takeover or which were not notified to neoom without delay, neoom shall not be entitled to.
6.4 The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer upon conclusion of the contract or, in the case of generic goods, when the item is discarded. This also applies to the sale by dispatch.
7. Further services from neoom
Insofar as neoom renders services or works for the Customer in accordance with the order confirmation, the Customer shall duly and punctually perform the respective acts of cooperation required for the performance of the services.
8.1 A prerequisite for a delivery obligation on the part of neoom is the creditworthiness of the Customer. If neoom receives information after conclusion of the contract, according to which the granting of a credit in the amount of the order volume is not secured, neoom is entitled, despite agreements to the contrary, to demand advance payments, securities or cash payment. If the Customer does not provide security within the period set for him, neoom can withdraw from the contract.
8.2 In the event of negative credit information, which makes the fulfilment of the contractual obligations of the Customer appear questionable, neoom is entitled to terminate existing contracts for good cause. The Customer shall bear the damage incurred by neoom as a result of this.
8.3 neoom is further entitled to terminate the contractual relationship without notice if the Customer is in default with one of his obligations arising from the contractual relationships binding the parties and this situation is not remedied within the set period despite a reminder.
9. Claims for deficiency, liability, recourse, warranty
9.1 Liability for defects is excluded to the extent permitted by law. This exclusion does not apply to expressly warranted characteristics or fraudulently concealed defects. The rights in respect of defects shall become statute-barred or forfeited if they are not asserted within one year of delivery (Art. 210 of the Swiss Code of Obligations).
9.2 Liability for indirect or consequential damages, in particular for loss of profit or loss of production, damage to the image, liability damages, legal costs, etc. is excluded to the extent permissible. Liability for auxiliary persons is also excluded.
9.3 The Customer's rights in respect of defects require a timely inspection of the goods and notification of defects (within 5 days). In addition, the Customer must ensure that it has properly fulfilled the obligations agreed in point 6.
9.4 Changes in the execution of the services as well as other changes that serve technical progress shall not constitute defects and shall only be notified to the Customer if the costs increase.
9.5 The parties agree on the existing and non-existing properties of the goods individually. Excluded from this are in any case - as stipulated in clause 2.2. of these GCS - profitability calculations in brochures and other documents as well as profitability calculations possible by means of software provided by neoom, if applicable. For public statements of another link in the contractual chain or other third parties (e.g. advertising statements), to which the Customer has not pointed out to neoom as decisive for the purchase, neoom does not assume liability. Neoom is principally not liable for defects, which the Customer knows at the time of conclusion of the contract or does not know due to gross negligence.
9.6 If operating or maintenance instructions, in particular the storage conditions in accordance with the data sheets provided (Technical data battery packages and Technical data sheet), are not followed, if modifications are made to the goods, if parts are processed or replaced by the Customer or unauthorised and certified third parties, or if the Customer or an unauthorised and certified third party performs other services on the goods, the claims for rectification of defects shall lapse insofar as the defect arose as a result thereof. The same applies to defects caused by excessive use or incorrect handling deviating from the product specifications.
9.7 If there is a defect, the defect shall be remedied, or a replacement delivery shall be made at the discretion of neoom. neoom's right to refuse subsequent performance under the statutory conditions shall remain unaffected.
9.8 The Customer has to give neoom the necessary time and opportunity for the owed supplementary performance, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the Customer shall return the defective item to neoom in accordance with the statutory provisions. The supplementary performance includes neither the dismantling of the defective item nor the renewed installation, if neoom was not originally obliged to the installation. Accordingly, defective goods and components are to be returned to neoom by the Customer at neoom's expense and upon neoom's request and in accordance with neoom's instructions in each case. For properly returned goods to neoom, it is essential that the Customer uses the procedure specified by neoom, in particular also transmitted return labels, and properly designates the goods / components.
9.9 If the supplementary performance has failed or a reasonable deadline to be set by the Customer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Customer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal.
9.10 The performance and product warranties of the manufacturers of the components used (e.g. for inverters) are granted exclusively by the respective manufacturers. After expiry of the warranty periods, any claims by the Customer under these warranties must be asserted directly against the manufacturer.
9.11 The expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs as well as, if applicable, removal and installation costs shall be borne or reimbursed by neoom in accordance with the statutory regulation if a defect is actually present. Otherwise neoom can demand reimbursement from the Customer of the costs incurred from the unjustified request for rectification of the defect (in particular inspection and transport costs).
9.12 Further liability claims, in particular those arising from positive breach of contract, are excluded to the extent permitted by law.
10. Reservation of title
10.1 neoom retains ownership of the delivery item until full payment of all claims arising from the business relationship with the Customer. If the Customer is in arrears with the payment of the purchase price, neoom is entitled to have the retention of title entered in the retention of title register at the expense of the purchaser.
10.2 In the event of conduct in breach of contract, in particular in the event of default of payment by the Customer, neoom is also entitled to demand the return of the delivery item in accordance with the statutory provisions. The taking back of the goods by neoom constitutes a withdrawal from the contract. After taking back the delivery item, neoom is authorised to realise it. The realisation proceeds are to be credited against the liabilities of the Customer (minus actual realisation costs).
10.3 The Customer is entitled to resell the delivered goods in the ordinary course of business. However, he already now assigns to neoom all claims in the amount of neoom's claims (including VAT), which accrue to him from the resale against his Customers or third parties, irrespective of whether the delivery item has been resold without or after processing. The Customer remains authorised to collect this claim even after the assignment. The authority of neoom to collect the claim itself remains unaffected by this. neoom commits itself, however, not to collect the claim as long as the Customer fulfils his payment obligation from the collected proceeds, does not get into default of payment and in particular no application for opening of bankruptcy proceedings is filed or cessation of payments is given. If this is the case, the Customer is obliged to inform neoom of the assigned claims and their debtors, to provide all information necessary for collection and to hand over all documents.
10.4 The Customer must treat the goods subject to this reservation with care. He must insure them adequately at his own expense against damage by fire, water and theft at replacement value. If maintenance and inspection work is required, the Customer must carry it out in good time at its own expense.
11. Software use
With regard to the NTUITY software included in the scope of delivery of individual goods, the separate General Terms and Conditions for NTUITY applicable at the time of the conclusion of the contract shall apply. These are available at www.ntuity.io/agb in the current and valid version.
12. Data protection
12.1 neoom treats the data entrusted to it confidentially and handles it responsibly. The corresponding data protection declaration can be viewed at any time at www.neoom.com/datenschutz. In it you will find information about the type, scope and purpose of data collection.
12.2 neoom expressly points out that there is a separate data protection declaration for the NTUITY software, which can be viewed at www.ntuity.io/datenschutz.
13. Final provisions, place of jurisdiction and applicable law
13.1 The exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is neoom's registered office. neoom is, however, also entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTC or a prior individual agreement or at any general place of jurisdiction of the Customer in Germany and abroad. Furthermore, neoom is entitled - nationally as well as internationally - to sue at the court of the place where a branch office of the Customer is located as well as at the factually competent court in whose district assets or an object claimed in the lawsuit are located. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.
13.2 These GCS and the contractual relationship between neoom and the Customer shall be governed by Swiss law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
13.3 Should individual provisions of these terms and conditions be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions.