Terms and Conditions
These Terms and Conditions establish the rights,obligations and remedies between Nutrai GmbH, with registered offices at Stüssistrasse99, 8057 Zürich, and its affiliated companies, hereinafter Nutrai, and theCustomer which apply to any offer by Nutrai and/or order issued by the Customerfor the purchase of the Nutrai’s products, software and/or services(“Products”). Unless otherwise stated in a written purchase agreement signed byduly authorized representatives of Nutrai and the Customer and covering thespecific Products that are the subject of any of Customer’s Purchase Order,Nutrai’s acceptance thereof is made on the express condition that the Customerassents with these Terms and Conditions. No additional or different terms orconditions, whether contained in the Customer’s Purchase Order or any otherdocument or communication pertaining to the Customer’s order will be bindingunless accepted in writing, and Nutrai hereby expressly objects to any suchterms and conditions which shall be deemed ineffective, and are herewithrejected.
2. Contractual Relationship
No contractual relationship between Nutrai and theCustomer shall arise until Nutrai has accepted the Customer’s Purchase Orderthrough a valid order acknowledgement. The simple remittance of a PurchaseOrder or acceptance of a Nutrai offer of sale by the Customer implies theCustomer accepts these Terms and Conditions and, by the same, waives its ownGeneral Terms and Conditions of Purchase, if any, even if such acceptance orPurchase order explicitly states otherwise. Offers will expire thirty (30) daysfrom the date issued.
3. Disclaimer of partnership
Nothing in these Terms and Conditions will beconstrued to place the Parties in an agency, employment, franchise,joint-venture, or partnership relationship. No party has the authority toobligate or bind the other in any manner. Nothing in these Terms and Conditionsgives rise or is intended to give rise to rights of any kind to any thirdparties. Neither party will make any representation to the contrary. Theparties agree that they will perform their obligations as independentcontractors.
4. Quality and Nature of the Products
Nutrai and the Customer will mutually determine thespecifications for the Products including but not limited to special Productand process characteristics as well all relevant technical standards or itsderivations, and the Control Plan to finally define the quality and nature ofthe Products.
Customer with his expertise has the soleresponsibility to provide in its sole discretion all relevant information andrequirements for Products. No other sources for information to be provide byCustomer but those provided in pursue of the foregoing shall be relevant forany performance of Nutrai. Nutrai and the Customer will update thespecifications and related processes upon mutual consent of the scope and thecost of changes of the Products or processes related to the development and/ormanufacturing of the Products which constitutes the relevant revision of thespecifications at the date of delivery.
Special characteristics or critical characteristics ofthe Products must expressly be identified as such by the Customer. They do notconstitute any extended liability or guarantee of Nutrai unless otherwiseexpressly stipulated and covered by amendments to the Control plan.
Nutrai reserves retention of title to the Productsdelivered or in use until payment of all account receivables due and futureaccount receivable already constituted by purchase order or agreement withinthe total business relationship to the Customer. The Customer may not giveNutrai’s Products in pledge to a third party for his collateralizationpurposes. Any kind of work to the products or the mixture with other Productswill be deemed to the benefit of Nutrai without any obligation for Nutrai andwithout loss of its ownership. In the event of implementation of the productsin components Nutrai receives the coownership of the Customer and is entitledto notify this.
The Customer shall give immediate written notice inany event of a pledge or any other encumbrance of third parties on ourProducts. The Customer must undertake any action to extinguish the pledge orthe encumbrance and must support us in the defence of our rights in any kind,upon our request also on our behalf.
6. Delivery Schedule
The Customer acknowledges that any delivery scheduleprovided by Nutrai is only an estimation. Nutrai will use commerciallyreasonable efforts to initiate shipment and schedule delivery as close aspossible to Customer’s requested delivery schedule but shall not be liable toCustomer for failure to meet any delivery schedule or for the costs to procure ordesign substitute Products.
Nutrai reserves the right to make deliveries ininstalments. Delivery of a quantity that varies from the quantity specified inCustomer’s order shall not relieve Customer of its obligation to acceptdelivery and pay for the Products delivered. Customer shall not refuse toaccept delivery or any consignment or instalment on account of any shortage ordefect in any other delivery.
7. Customer Caused Delay
Nutrai will not be liable for any delays or increasedcosts caused by a failure of the Customer, such as delays in providingnecessary information or other Customer deliverables or delays by the Customerdesignated suppliers in providing Products or Services. In the event of anon-force majeure Customer caused delay, the price and other affected termswill be adjusted accordingly to reflect Nutrai’s increased costs and otheradverse impacts associated with such delay.
8. Excusable Delay (“Force Majeure”)
Except for payment obligations, neither party will beliable to the other for any failure to meet its obligations due to any causebeyond the non-performing party’s reasonable control. If the inability toperform continues for longer than ninety (90) days, either party may terminatethe Purchase Orders which are affected by the Force Majeure by providingwritten notice to the other party and the Customer will pay Nutrai for Productsdelivered and services performed prior to termination.
Force majeure events may include but are not limitedto:
a) delays or refusals to grant an export license orthe suspension or revocation thereof;
b) any other acts of any government that would limit the ability for itsperformance;
c) fires, earthquakes, floods, severe weather conditions, or any other acts ofGod;
d) quarantines or regional medical crisis;
e) labour strikes or lockouts;
f) riots, strife, insurrection, civil disobedience, armed conflict, terrorismor war, declared or not (or
impending threat of any of the foregoing, if such threat mightreasonably be expected to cause
injury to people or property);
g) shortages or inability to obtain materials or components, and;
h) Inability or refusal by the Customer’s directed third party suppliers toprovide Nutrai with parts, services, manuals, or other information necessary tothe Products or services to be provided by Nutrai.
If a force majeure event causes a delay, the date ofperformance will be extended by the period of time that the non-performingparty is actually delayed or for any other period as the parties may agree inwriting.
Any and all changes to Buyer’s Purchase Orders must beprovided by written (paper-based or electronically transmitted) notice fromBuyer. Any amount expensed or engaged by Nutrai to fulfill customers purchaseorder will be due by the customer and paid before such cancelation is subjectto acceptance. Any change order increasing the purchase quantity is subject toacceptance by Nutrai.
10. Inspection and Suitability
The Customer will inspect and test the Products withina reasonable period after delivery not to exceed twenty (20) calendar days,promptly notifying Nutrai in writing upon receipt of the Products of alldiscoverable defects, including, but not limited to, quantity shortages,visible defects and performance discrempancies.
The Products are presumed accepted unless Nutraireceives written notice of rejection explaining the basis for proper rejectionwithin the same timeframe.
11. Trademarks and Other Labels
The Customer agrees not to remove or alter any indiciaof origin on or within the Products including but nolimiting to software sourcecode, UI and delivered hardware.
12. Product Change
Nutrai reserves the right to change the specificationsof Products, including all statements and data appearing in Nutrai’scatalogues, data sheets and advertisements, without notice. Nutrai will publishthe modified specifications on its website and will notify the Customer. Ifsuch changes to specifications are made, Nutrai shall have no obligation toprovide the change on Products previously purchased.
13. Prices, Taxes, Duties, Order Sizes andHardship
Nutrai’s pricing excludes all taxes (including but notlimited to, sales, use, excise, value-added, and other similar taxes), dutiesand charges. The Customer is responsible for all such taxes, duties and chargesas a result of Nutrai’s performance hereunder, whether now or hereafterimposed, levied, collected, withheld, or assessed. If Nutrai is required toimpose, levy, collect, withhold or assess any such taxes, duties or charges onany transaction, then in addition to the purchase price, Nutrai will invoicethe Customer for such taxes, duties, and charges unless at the time of orderplacement the Customer furnishes Nutrai with an exemption certificate or otherdocumentation sufficient to verify exemption from such taxes, duties orcharges.
Nutrai reserves the right to change its prices if from the time of quotationmaterial, hardware and/or software prices required for the Products havechanged, or if there is any significant change in economic circumstances.
If for any reason Nutrai’s production or purchase costs for the Products(including without limitation costs of energy, equipment, labour, regulation,transportation, licences or Product) increases over Nutrai’s production,purchase or operation costs for the Products on the date of entering into thecontractual relationship with the Customer, then Nutrai may, by written noticeto the Customer of such increased costs, request a renegotiation of the priceof the Product. In the event the Parties are not able to agree on a revisedProducts price within twenty (20) days after a request for renegotiation is given,then Nutrai may terminate the remaining Purchase Orders on a sixteen (16) weekswritten notice to the Customer.
14. Payment Terms
Payment is due thirty (30) calendar days from the dateof invoice. For new customers the payment terms are prepayment, 30 days netonly after approval by Finance Department.
Payments must be made in the applicable currency quoted.
The Customer may not claim any dispute or breach of warranty in order tosuspend payment for the Products.
If the Customer is delinquent in its payment obligation to Nutrai, Nutrai mayupon written notice to the Customer stop work and withhold any future shipmentsor ongoing Products until all delinquent amounts and late interest, if any, arepaid. Additionally, Nutrai may at its option:
a) repossess Products for which payment has not been made, or;
b) charge interest on delinquent amounts at a rate of 1.5% per months for eachfull or partial month, or;
c) recover all costs of collection, including but not limited to reasonableattorneys‘ fees, or;
d) Combine any of the above rights and remedies.
These remedies are in addition to all other remediesavailable at law or in equity.
15. Set Off
Neither Party will set off or recoup invoiced amountsor any portion thereof against sums that are due or may become due from theother Party, its parent, affiliates, subsidiaries or other divisions or unitsunless agreed in written between parties.
16. Acceptance of Services
Acceptance of services shall occur immediately uponcompletion unless buyer provides written notification of non-conformity within20 calendar days of completion.
Nutrai warrants for a period of twelve (12) monthsfrom the date of delivery that:
a) the Products delivered hereunder meet the specifications stipulated inwriting between parties, and;
b) the Products shall be free from defects in material and workmanship, and;
c) Nutrai at its options shall either repair or replace rejected Products orrefund the purchase price.
The removal of defects shall take place at the discretionof the company by rectification or delivery, rebuilding or delivery or by anyother suitable measure. The work is usually carried out by remote maintenance.If exceptionally direct access to the Customer facilities or hardware forexample but not limiting the data processing systems on which the program isinstalled, the Customer should perform such physical interventions at its owncost, Nutrai will contact the Customer to clarify all the necessary details.
If the repair or replacement fails or if it is refused or if it is unreasonablefor a party, the customer is entitled either to claim a price reduction or towithdraw from the contract. The rectification of defects that do not or onlyinsignificantly affect the value or serviceability of the product or servicecan be made dependent request of the Customer dependent on the payment of areasonable remuneration.
IN ADDITION TO THE FOREGOING NUTRAI DOES NOT, NEITHER EXPRESSLY NOR IMPLIED,ASSUME ANY WARRANTY, GUARANTEE, RESPONSIBILITY OR LIABILITY IN PARTICULARDERIVING FROM OR ATTRIBUTED TO EXPECTATIONS, ASSUMPTIONS OR INTENDED PURPOSESOR FUNCTION OF THE CUSTOMER NOT EXPRESSLY SPECIFIED IN WRITING IN THE DOCUMENTSOF THE SPECIFICATIONS ATTRIBUTED TO THE QUALITY AND NATURE OF THE PRODUCT ASSTIPULATED. THE CUSTOMER ASSUMES ALL RISK AND LIABILITY RESULTING FROM THE USEOF THE PRODUCTS AND ITS APPLICATIONS, WHETHER USED SINGLY OR IN COMBINATIONWITH OTHER PRODUCTS.
Warranty claims against Nutrai set forth in this article shall not apply in theevent of any violation of any contractual provision stipulated in these Termsand Conditions, if any, or in the event defects or damages caused by:
a) any defect caused by the Customer, misuse, wear and tear, or;
b) Alterations, modifications, additions, or repairs made during the applicablewarranty period by anyone other than Nutrai, its employees, agents orsubcontractors.
c) Third party modifications and discontinuation of hardware and/or softwareinheritant from Customer’s choices or direct requirements.
Any warranty claim against Nutrai is subject to thewritten information of the Customer without undue delay, latest within five (5)working days after knowledge or detection of the alleged defect, and the returnof such rejected Products to Nutrai.
The return of material and its reception is under no circumstances anacknowledgement of Nutrai with regards to the reasons of the alleged defects orNutrai’s responsibility. Customer shall provide to Nutrai any information anddocument Nutrai deems necessary or appropriate to enable Nutrai to investigatethe root cause of the alleged defect including but not limited to theinformation provided to the Customer by its customers or third parties orauthorities within the supply chain after delivery to the Customer and to grantingNutrai access to the entire environment in which the alleged defect hasoccurred. Nutrai’s assent to investigate the root cause or to collectinformation related to the alleged defect under no circumstances shallconstitute or be deemed any kind of acknowledgement of the defect or Nutrai’sresponsibility or liability or any waiver of Nutrai for any objections.
If the Customer requests any intermediary report relating to the findingsduring the investigations for the root cause Customer acknowledges that suchreports were only based on preliminary findings and do not constitute anyacknowledgement of Nutrai for any responsibility and has no legal relevance todetermine contractual or statutory liabilities.
If Nutrai is not responsible for the defect Customer shall reimburse to Nutraithe reasonable costs Nutrai has incurred in the course of the investigations ofthe root cause.
18. Limitation of Liability
IN NO EVENT WILL NUTRAI BE LIABLE NEITHER ON THEMERITS NOR IN TERMS OF THE AMOUNT FOR ANY INCIDENTAL DAMAGES, CONSEQUENTIALDAMAGES, SPECIAL DAMAGES, PUNITIVE DAMAGES, STATUTORY DAMAGES, INDIRECTDAMAGES, LOSS OF PROFITS, LOSS OF REVENUES, OR LOSS OF USE, EVEN IF INFORMED OFTHE POSSIBILITY OF SUCH DAMAGES.
IN ANY CASE, NUTRAI’S LIABILITY FOR DAMAGES SHALL NOT EXCEED A SUM EQUAL TOTWICE THE AMOUNT ACTUALLY PAID TO NUTRAI FOR THE PRODUCTS OR RELATED SERVICESFROM WHICH THE CLAIM AROSE, WITH AN ABSOLUTE AGGREGATED MAXIMUM OF FOURTY (40)THOUSAND CHF PER CUSTOMER PER YEAR, FOR ALL CLAIMS, EVEN IF THESE CLAIMS AROSEFROM DIFFERENT PRODUCTS AND/OR SERVICES.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THESE LIMITATIONS AND EXCLUSIONSWILL APPLY REGARDLESS OF WHETHER LIABILITY ARISES FROM BREACH OF CONTRACT,WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), BY OPERATION OF LAW,OR OTHERWISE. INCLUDED BUT NOT LIMITED NUTRAI’s LIABILITY FOR PERSONAL INJURYOR DEATH CAUSED BY DEFECTIVE PRODUCTS TO THE EXTENT SUCH LIABILITY IS NOTMANDATED BY APPLICABLE LAW.
NUTRAI SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE, OR INJURY RESULTING FROM DELAYIN DELIVERY OR INSTALLATION OF THE GOODS OR FOR ANY FAILURE TO PERFORM WHICH ISDUE TO CIRCUMSTANCES BEYOND ITS CONTROL. CUSTOMER EXPRESSLY ACKNOWLEDGES THISDISCLAIMER.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE CONTRACT, NUTRAI SHALL NOT BERESPONSIBLE FOR, AND SHALL INCUR NO LIABILITY WITH RESPECT TO, ANY INFORMATIONSUPPLIED BY CUSTOMER OR ANY OF ITS SUBCONTRACTORS AND ANY DESIGN OR ENGINEERINGDRAWINGS, REGARDLESS OF WHETHER SUCH DRAWINGS ARE REVIEWED BY CUSTOMER.
19. Intellectual Property Rights
“Intellectual Property Rights” are, amongst others butnot exclusively, registered patent rights, registered or unregistered model anddesign rights and registered or unregistered trademarks, as well asapplications for patents, model and design rights or trademarks, copyrightrights, database rights, rights on software, hardware, copyrights and know-howrights anywhere in the world.
Nothing in these Terms and Conditions is intended to assign the intellectualproperty rights in the Products to Customer or third parties. All intellectualproperty rights in the Products are and remain vested with Nutrai. This applieseven if these intellectual property rights come into existence or are createdpursuant to a specific purchase order or request of the Customer.
Upon full payment of all charges, Customer shall obtain a non-transferablelicense that is limited to the use of the Products sold hereunder solely forthe applications set forth in the purchase order. Such limited license to usethe Application-Specific Integrated Circuits shall include all mandatory rightsconferred to Customer by law. It shall however exclude all other rights oruses.
Customer agrees and acknowledges that any intellectual property rights in animprovement in or modification to specifications, technical information, tools,know-how, software, methods and/or algorithms used by Nutrai shall beirrevocably transferred to and become the sole property of Nutrai, regardlessof whether any such improvement or modification was developed by or made onspecific request of Customer.
20. License Agreements
Notwithstanding anything to the contrary herein, tothe extent the Services are delivered with a Customer or Third Party Productlicense agreement(s) (the „License Agreement(s)“), the terms and conditions ofsuch License Agreement(s) shall apply in addition to the terms and conditionsset forth herein. To the extent there is a conflict between the terms andconditions of such License Agreement(s) and those set forth herein, the term orcondition set forth in the License Agreement(s) shall govern in all cases.Nothing herein shall be construed to grant any rights or license to use anyProduct or other intellectual property in any manner or for any purpose notexpressly permitted by the License Agreement.
“Proprietary Information” means:
a) any information, technical data or know-how in whatever form, including, butnot limited to, documented information, machine readable or interpretedinformation, information contained in physical components, mask works andartwork, that is clearly identified as being confidential, proprietary or atrade secret;
b) business related information including but not limited to pricing,manufacturing, or marketing;
c) the terms and conditions of any proposed or actual agreement between theparties;
d) either party’s business policies, or practices, and;
e) The information of others that is received by either party under anobligation of confidentiality.
The receiving party will keep all ProprietaryInformation disclosed hereunder confidential for a period of five (5) yearsfollowing the expiration or termination of the contractual relationship betweenparties. Each party will retain ownership of its Proprietary Information including,without limitation, all rights in patents, copyrights, trademarks and tradesecrets.
22. Compliance with laws
The Customer shall comply with all local laws andregulations applicable to the installation, use, or import of all Products deliveredhereunder. As a condition of purchase, the Customer shall comply with allapplicable export control laws and regulations of the European Union, theUnited States and any other country having proper jurisdiction and shall obtainall necessary export licenses in connection with any subsequent export,re-export, transfer and use of all Products and technology delivered hereunder.
23. Export and Import Compliance
The Customer is responsible for compliance with allimport and export control laws and regulations. The Customer will obtainimport, export, and re-export approvals and licenses required for Products,transfers, services and technical data delivered and will retain documentationevidencing compliance with those laws and regulations.
Nutrai will not be liable to Customer for any failure to provide Products,services, transfers or technical data as a result of government actions thatimpact Nutrai’s ability to perform, including:
a) the failure to provide or the cancellation of export or re-exportlicenses;
b) any subsequent interpretation of applicable import, transfer, export orre-export law or regulation after the date of any order or commitment that hasa material adverse effect on Nutrai’s performance, or;
c) Delays due to the Customer’s failure to follow applicable import, export,transfer, or re-export laws and regulations.
24. Applicable Law and Jurisdiction
The laws of the country in which Nutrai GmbH has itsregistered offices shall exclusively apply to these Terms and Conditions andthe implementation thereof. All disputes arising in connection with these Termsand Conditions shall be settled by negotiations between the parties. If anacceptable result cannot be so obtained, the dispute shall be exclusively rulesor settled by the Courts competent for the jurisdiction in which Nutrai GmbHhas its registered offices.
In the event of any conflicting international private laws, Nutrai expresslyreserves the right to determine the venue.
25. Attorney’s fees
In the event of Nutrai’s enforcement of any term orcondition in the Contract, Customer shall be liable to Nutrai for all costs,including attorneys’ fees, incurred by Nutrai in enforcing the Contract and incollecting any sums owed by Customer to Nutrai.
Neither Party will assign any rights or obligationswithout prior written consent of the other Party, which consent will not beunreasonably withheld. Either Party may assign its obligations to any affiliateof such party or in connection with the sale or transfer of all orsubstantially all of the assets of the product line or business to which itpertains. Any attempt to assign or delegate in violation of this clause will bevoid.
The failure of either Party to enforce at any time anyof the provisions of these Terms and Conditions shall not be construed to be acontinuing waiver of any provisions hereunder nor shall any such failureprejudice the right of such party to take any action in the future to enforceany provisions hereunder.
28. Interpretation and translation
The headings contained in these Terms and Conditionsare included for information only, and shall not be referred to for the purposeof interpretation.
These Terms and Conditions are drawn up in English.
The English version is the only official version. If atranslation of these Terms and Conditions is made, such translation shall onlybe made for the convenience of the parties. The parties agree that the Englishversion shall prevail in case of doubt or uncertainty due to such atranslation.
29. Notices and other communications
All notices and other communications related to theseTerms and Conditions shall only be validly communicated when delivered by inperson or sent by letter, e-mail or fax with acknowledgement of receipt, orsent by registered mail or recorded delivery with advice of receipt, ordelivered by an approved courier service.
Notices and communications will be deemed to have beenmade on the date of their receipt at the addressee’s office.
If any provision of these Terms and Conditions isdetermined to be illegal, invalid, or unenforceable, the validity andenforceability of the remaining provisions of these Terms and Conditions willnot be affected and, in lieu of such illegal, invalid, or unenforceableprovision, there will be added, as part of this Terms and Conditions, one ormore provisions as similar in terms as may be legal, valid and enforceableunder applicable law. In such case, Nutrai will amend these Terms andConditions as soon as possible, in order to comply with the applicable laws.
The Terms and Conditions can only be modified bymutual agreement of both parties represented by duly authorized officers,expressed in written form.
A Party may terminate any or all unperformed orders bygiving written notice to the other party upon the occurrence of any of thefollowing events:
a) the other Party materially breaches these Terms andConditions and fails to remedy the breach within thirty (30) calendar daysafter receipt of written notice that specifies the grounds for the materialbreach, or;
b) the other Party fails to make any payment required to be made when due, andfails to remedy the breach within seven (7) calendar days after receipt of writtennotice of non-payment, or;
c) Any insolvency or suspension of the other Party’s operations or any petitionfiled or proceeding made by or against the other Party under any state, federalor other applicable law relating to bankruptcy, arrangement, reorganization,receivership or assignment for the benefit of creditors or other similarproceedings.
Termination does not affect any debt, claim or causeof action accruing to any party against the other before the termination. Therights of termination provided in this clause are not exclusive of otherremedies that either party may be entitled to in law or equity. In any event oftermination or cancellation of a contract the provisions protecting Nutrai’sindustrial property rights, the provisions for providing information in awarranty or product liability case, provisions for confidentiality and thegoverning shall survive.
33. Entire Agreement
These Terms and Conditions set forth the entire intentand understanding between the Parties, relating to the subject matter hereof,and supersedes all prior negotiations and discussions between them. No Partyshall be bound by any conditions, representations or warranty other than asexpressly set forth