General Terms and Conditions
1. Scope of the General Terms and Conditions
1.1 These general terms for delivery and payment (“General Terms and Conditions of Sale”) of Toasty GmbH (hereinafter “Toasty”) shall apply exclusively, unless otherwise agreed in writing, to all offers, purchase contracts, orders and deliveries of products and services (hereinafter the “Product(s)”) which Toasty provides to its customers.
1.2 In these General Terms and Conditions of Sale, Toasty and the Customer shall be hereinafter also referred to as, individually, the “Party” and, collectively, the “Parties”.
1.3 These General Terms of Sale are valid and effective as of 1. December 2019. They shall apply in equal measure to future business relationships between the Parties, even if they are not expressly agreed upon in each case.
1.4 Deviating, conflicting or supplementary general terms and conditions of business of the Customer shall not replace, amend or supplement these General Terms and Conditions of Sale, even if they are not expressly rejected or contradicted.
1.5 These General Terms and Conditions of Sale shall be an integral part of the respective contract and order, it being understood that for the purpose hereof reference to the General Terms and Conditions of Sale shall include any contracts and/or orders between Toasty and the Customer.
1.6 The legal relationships between Toasty and the Customer shall be governed in accordance with Swiss law.
1.7 For the purposes of these Terms and Conditions, business days shall be Monday to Friday excluding public holidays and the 24th and 31st of December. Declarations linked to deadlines shall be received by the consignee no later than 16:00 on the last day of the period in question. Differences in recognised public holidays shall benefit only the Party which has to make or receive a declaration, or take action, on such a day.
2. Contract Conclusion
2.1 Toasty's offers shall always be deemed non-binding, unless otherwise agreed in writing between the Parties. The contract shall be concluded by issuance of an order confirmation by Toasty to the Customer following a binding request provided by the Customer. Such request may be communicated through various channels including, but not limited to, mobile text message, WhatsApp message, email, or telephone.
2.2 Toasty provides a guarantee on the Products only where this has been expressly agreed in the order confirmation.
3. Delivery and Transfer of Risk
3.1 Delivery of goods shall be by post, FedEx, DHL, or any other agent selected by the seller. The risk of loss or damage to the goods shall transfer to the Customer upon the delivery of the goods to the selected postal or courier service.
3.2 The delivery cost shall be borne by the Customer unless otherwise agreed in writing.
4. Prices and Tax
4.1 All prices are quoted net of applicable taxes, duties, and charges. The Customer shall be responsible for any and all taxes, including sales tax, VAT, customs duties, or other governmental fees, unless otherwise agreed in writing.
4.2 Prices are subject to change without notice; however, prices agreed upon at the time of order confirmation shall remain binding.
5. Payment and Default
5.1 Payment terms are as specified in the invoice issued by Toasty. Payment shall be made in full, without any deduction whatsoever, by the due date as indicated on the invoice. The offsetting of counerclaims shall be excluded.
5.2 If the Customer ceases payments, or if circumstances exist which are, in essence, the same as a cessation of payments, then all existing claims against the Customer shall become due immediately. The Customer shall be deemed in default automatically upon expiry of the payment deadline. Interest on arrears of five (5) per cent per annum shall be charged from this date. A reminder fee of CHF 20.00 shall additionally be invoiced upon dispatch of the third reminder, and for each additional reminder thereafter.
5.3 Toasty also reserves the right to claim compensation for any damage resulting from the default as stipulated in the Federal Act on the Amendment of the Swiss Civil Code Part Five: The Code of Obligations (Art. 103 CO).
5.4 Toasty also reserves the right to suspend further deliveries until all outstanding payments are made in full.
6. Packaging and Transport
6.1 Toasty shall use recycled cartons where possible and will package the goods according to standard practices where applicable, unless otherwise agreed upon in writing between the parties.
6.2 Toasty shall determine the method of transport and the carrier to be used referencing Section 3, unless otherwise agreed in writing.
6.3 Any special packaging or transport arrangements requested by the Customer shall be at the Customer’s expense unless otherwise agreed in writing.
7. Claims for Defects
7.1 The Customer shall inspect the goods upon receipt and notify Toasty in writing of any defects within 3 business days.
7.2 If the Customer fails to notify Toasty within the specified period, the goods shall be deemed to conform to the contract, and the Customer shall be bound to accept and pay for the goods.
7.3 In case of valid claims for defects, Toasty shall, at its option, replace or replace the defective goods or refund the purchase price. Toasty's liability for defects shall be limited to the purchse price of the defective goods. This clause does not cover defects in used goods.
7.4 Toasty shall reserve the right to define the method of addressing claims for defects. This may include remedies in kind, such as repair or replacement, and is not necessarily limited to a monetary refund.
7.5 The period of limitation for claims for Defects or claims for compensation shall expire three (3) months following the delivery of the Products in accordance with Article 3.1.
7.6 From the date of any complaint up to the closure of the dispute, the Products contested by the Customer shall be kept in standard storage conditions, in their original wrapping, and be available to Toasty for due inspection by the same. The contested Products shall not be returned to Toasty without the authorisation of the same.
7.7 Toasty reserves the right to make a replacement delivery and/or grant a price reduction subject to the Customer paying the invoice in due time.
7.8 In the event of defective storage and/or transportation of the Products ordered attributable to the Customer, that cause alterations that make the Products even partially unsuited to its destined use, Toasty shall be exonerated from any responsibility.
8. Limitation of Liability
8.1 Toasty shall not be liable for any direct damages caused to the Customer or to any third party under these General Terms of Sale and/or under a contract signed by the Parties (if any), unless such damages have been caused by gross negligence or wilful misconduct by Toasty.
8.2 To the extent permitted by Swiss law, Toasty shall not be liable for any indirect or consequential damages, such as but not limited to lost revenues, lost profits, lost savings, indirect recall costs or other indirect, incidental, or consequential damages.
8.3 Notwithstanding anything to the contrary provided herein, in the respective contracts and/or orders, should Toasty be held liable for payment of any amount for any reason to the Customer in relation to or in connection with these General Terms of Sale, Toasty's liability shall not exceed a sum equal to 25% (twenty five percent) of the amount paid by the Customer to Toasty for any reason over the last twelve (12) months in connection with these General Terms of Sale.
9. Severability clause
Should individual provisions of these General Terms and Conditions of Sale and Delivery prove ineffective, the effectiveness of the remaining provisions shall not be affected thereby. The ineffective provision shall be replaced by a provision, the content of which most closely matches the intention of the original provision.
10. Place of jurisdiction
The exclusive place of jurisdiction for all disputes arising from a contractual relationship with Toasty GmbH shall be Zurich, Switzerland.
T&C version 1.0 as at 24.02.2021