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General Terms and Conditions of Business and Delivery

Libattion AG, CH-8152 Glattburg

General Terms and Conditions

German

English

France

I. General information

  1. All sales, delivery and any installation services provided by Libattion AG (hereinafter referred to as “LIBATTION”) are subject exclusively to the following General Terms and Conditions (GTC), unless otherwise expressly agreed in writing or in electronic text form (such as e-mail etc., hereinafter referred to as “written mail”). 
  2. Any terms and conditions of the client have no effect vis-à-vis LIBATTION. 
  3. All agreements, amendments and other legally relevant declarations of the parties are only valid in writing or by e-mail. 
  4. Should a provision in these GTCSD or in an individual contract be legally ineffective, all other provisions shall remain effective and the ineffective provision shall be replaced by an effective provision that is as close as possible to the original. 
  5. The place of fulfilment for services of both parties is CH-8152 Glattbrugg / ZH, unless the domicile of a subsidiary of LIBATTION or another place of fulfilment has been agreed in writing for a specific obligation.

II. Conclusion of contract

  1. Offers from LIBATTION are non-binding. 
  2. For each transaction, the legally valid contract comes into being either with a mutually accepted (mail)written contract document or with a (mail)written LIBATTION order confirmation based on the customer’s order or the customer’s acceptance of a LIBATTION offer. The same applies to order amendments and order supplements. 
  3. In principle, orders placed for products or services cannot be cancelled by the customer. If, in exceptional cases, LIBATTION agrees to a (mail) written cancellation, the expenses for processing the order and any services already provided will be invoiced to the customer and any further arrangements agreed. 
  4. The documents belonging to the offer or contained in price lists, catalogues and manuals, such as illustrations, drawings, weights/dimensions etc., are for guidance only and are not binding unless they are expressly designated individually as binding. LIBATTION reserves the right to adapt or amend these documents at any time. 
  5. Offers, cost estimates, drawings and other offer documents remain the property of LIBATTION, and any existing copyrights and other neighbouring rights are the exclusive property of LIBATTION. These documents may not be reproduced or passed on without LIBATTION’s consent and must be returned to LIBATTION on first request. 
  6. LIBATTION is authorised to call in third parties (in particular LIBATTION subsidiaries) to fulfil the contract or to transfer fulfilment in whole or in part to third parties.

III. Delivery, transfer of risk and return of products

  1. The nature and scope of LIBATTION’s deliveries and services are defined in the contract and any appendices. 
  2. (a) In the absence of a special agreement, the contractual product delivery and time shall be deemed to be of the transfer of risk, the transport/shipping provision of the product at LIBATTION’s registered office in Glattbrugg. From this place and time, the customer bears the costs and makes the decisions for transport, fees/taxes/customs and insurance. (b) It can be agreed by express (email) written agreement that LIBATTION will deliver the product to the customer and, if necessary, also install it. In this case, LIBATTION shall be responsible for transport and insurance up to delivery to the c u st o m e r, the customer shall bear the charges/taxes/customs duties levied on import into his country, the arrival of the product at the customer’s premises shall b e deemed to be delivery of the product in accordance with the contract and the time of transfer of risk, and from this point onwards LIBATTION’s responsibility shall be limited to any agreed installation of the product. (c) If the customer is responsible for delays in delivery, the provision of the product at LIBATTION’s registered office in Glattbrugg shall in all cases and irrespective of the specific agreement be deemed to be delivery of the product in accordance with the contract and the time of transfer of risk. 
  3. (a) It is important to LIBATTION that the stated delivery times are adhered to. However, unless LIBATTION specifies an obligation in writing in individual cases, all delivery deadlines are non-binding. Failure to meet delivery deadlines does not entitle the client to cancel the order or to claim compensation for any direct, indirect or consequential damage. LIBATTION is authorised to make partial deliveries/services. (b) Unforeseeable obstacles of force majeure (such as epidemics/pandemics, strikes/lockouts, operational disruptions, material/raw material/energy procurement disruptions, transport disruptions, official measures, delays in import, export and other authorisations and the like) which affect LIBATTION or one of LIBATTION’s suppliers shall extend the delivery periods (including any bindingly agreed delivery periods) accordingly. In such cases of force majeure, the client is not entitled to cancel the order or to claim compensation for direct, indirect or consequential damages; any agreed contractual penalties are also cancelled. 
  4. (a) Framework orders are to be processed within the agreed term by means of call-offs by the client. LIBATTION reserves t h e ri g h t to dispose of the product or the uncalled partial products elsewhere, to set a new delivery date to the customer or to withdraw from the contract at the earliest 6 weeks after the end of the t e r m . (b) LIBATTION may instead set the client a reminder/extension period for placing the call-off orders; if such a period expires unfulfilled, the client shall owe interest of 5% on the invoice value of the unfulfilled call-off plus the costs of storing the products from that point in time. (c) If there is reason to believe that the customer will not fulfil his acceptance obligations, LIBATTION is entitled to withdraw from the contract. 
  5. The customer must accept and pay for deliveries and part-deliveries from LIBATTION, irrespective of specific individual arrangements. The type of packaging is left to LIBATTION’s discretion. The customer must dispose of the packaging material at his own expense. 
  6. Unless otherwise agreed, delivery and dispatch shall be at the expense and risk of the customer; the method of dispatch and damage insurance shall be the responsibility of the customer. If LIBATTION organises shipping and/or insurance in accordance with agreement or established practice, such actions shall be deemed to have been carried out on behalf of and at the expense of the customer, unless expressly agreed otherwise in writing. 
  7. In principle, the customer has no right to return products duly delivered by LIBATTION. A return is only possible in exceptional cases following prior (email) written agreement at LIBATTION’s discretion. In such a case, LIBATTION will not make a refund, but will issue a credit note in the agreed amount to be applied to further orders placed by the client within the agreed period. Conversion of the credit note into a cash payment is excluded.

IV. Prices

  1. Prices are ex works LIBATTION (ready for dispatch), in Swiss francs CHF (unless another currency is expressly agreed), excluding VAT, customs duties, shipping/insurance charges and other fees. 
  2. The customer shall bear the costs for packaging, insurance, transport, installation, commissioning and recycling, unless expressly agreed otherwise in writing. 
  3. If, for reasons that could not be foreseen by LIBATTION, there is a significant increase in production/delivery costs, LIBATTION reserves the right to adjust the price or cancel an order. 
  4. All prices quoted by LIBATTION in offers and price lists a r e subject to change and are not binding.

V. Currency parities

LIBATTION reserves the right to charge for any demonstrable additional costs resulting from a change in currency compared to the offer or order confirmation.

VI. Terms of payment, default, exclusion of set-off/assignment

  1. All invoices are payable net within 30 days of the invoice date. The customer is responsible for all duties and taxes incurred outside Switzerland in connection with delivery and invoicing. 
  2. In the case of an order volume of more than CHF 30,000, unless expressly agreed otherwise in writing (by e-mail), the order shall be placed within 10 days of the order date. A down payment of 1⁄2 of the total amount will b e invoiced upon order confirmation, which must be paid net within 20 days of the invoice date. 
  3. The customer shall be in default upon expiry of the aforementioned payment deadlines without a reminder and shall pay default interest of 5% p.a.. In addition, processing costs for related correspondence and collection measures will be invoiced at cost. LIBATTION reserves the right to claim further damages. LIBATTION is entitled to withdraw from the contract in the event of default by the client, without the client being able to claim direct, indirect or consequential damages. 
  4. If LIBATTION has doubts about the client’s willingness or ability to pay, LIBATTION may make all agreed deliveries against payment in advance or cash on delivery. If the client defaults on payment, LIBATTION may, without prejudice to its other rights, refuse further services/deliveries under any or all contracts with this client [previously part of VI. 5.] and offset payments made against other contracts with this client at its own discretion. 
  5. Retention of payments to LIBATTION by the customer and offsetting against Claims asserted by the client are inadmissible. The client’s rights vis-à-vis LIBATTION may not be assigned to third parties without LIBATTION’s prior (email) written consent.

VII. Firmware, software and intellectual property

  1. The customer acknowledges and agrees that the products contain firmware and other software, including embedded systems (hereinafter collectively referred to as “software”), some of which is the intellectual property of LIBATTION and some of which is licensed to LIBATTION. This applies to all versions, updates and upgrades of the Software. 
  2. (a) The customer is authorised to use these rights as a (sub)licensee within the scope of the intended use of the LIBATTION products, but may not grant use to third parties, may neither sell nor pledge the rights, may neither copy the associated documents, software, test instructions, operating instructions etc. nor make them known to third parties, nor use them to manufacture his own products. The customer is prohibited from decrypting or modifying programme codes or making them accessible to third parties. (b) This (sub)licence to the customer is limited to the contractually agreed number of processors in the customer company and may be subject to further agreed restrictions. No intellectual property rights are expressly transferred to the customer. (c) Any action by the client, its employees or agents which goes beyond the scope of this (sub)licence shall be deemed a material breach of contract. LIBATTION has the right to inspect the relevant documents (books, records, etc.) and business premises of the client as well as the delivered products with reasonable advance notice in order to check compliance with the (sub)licence entitlement. 
  3. The customer acknowledges that in the event of software defects of any extent up to the point at which the software is no longer fit for purpose and in the event of the lapse of third-party software licences, LIBATTION is granted sufficient time to find a solution without the customer being entitled to compensation for direct, indirect or consequential damages or to any agreed contractual penalties. 
  4. (a) The alteration or removal of LIBATTION’s or third parties’ brands, trademarks, other marks/designations on the products, components, included software and/or in accompanying documents without LIBATTION’s express (email) written consent is prohibited and would constitute a material breach of contract. (b) The customer waives the right to dispute/challenge the validity of all these signs and to use these or confusingly similar signs or words as a company name, trade mark or other indication of origin. 
  5. The client warrants that all instructions, templates, plans, samples etc. provided to LIBATTION for the manufacture/delivery of the ordered products do not infringe any thirdparty rights and shall indemnify LIBATTION against any such third-party claims at first request. If there are indications of an infringement of third-party rights, LIBATTION may suspend its performance until the matter has been clarified.

VIII. Obligation to inspect and give notice of defects, warranty

  1. (a) The customer is obliged, immediately after the contractual delivery of the products in accordance with section III.2, to carefully check the delivered products for quantity and quality defects. or quality defects and to notify LIBATTION of any deviations/defects within 10 days. The complaint must be sent either in the original by registered post or by e-mail, with the customer being obliged to check whether LIBATTION has confirmed receipt of the e-mail complaint by e-mail. (b) If the customer fails to make such a complaint, the delivery shall be deemed to have been approved. (c) If defects (including functional defects of the software) that were not recognisable during this inspection become apparent later, a complaint must be made immediately in the manner specified in paragraph (a) above, otherwise the delivery shall also be deemed approved with regard to such defects. 
  2. (a) LIBATTION shall provide t h e warranty described below (b) and (c) for the products it supplies and their components, provided that the customer asserts the claim within one year of delivery of the product in accordance with the contract pursuant to Clause III.2. This warranty replaces the statutory warranty claims (in particular cancellation/reduction), which are hereby excluded. The customer’s warranty claims shall become time-barred if the oneyear period expires unused, even for any defects that are not recognisable at that time. For replaced or repaired parts or software, the original one-year warranty period shall continue to apply without extension. (b) The warranty is provided in the event of demonstrable material, design or manufacturing defects and includes – at LIBATTION’s discretion – t h e free rectification of the defect in the product/component/software or the free delivery of a replacement product/component/software. The client must deliver the defective unit(s) to LIBATTION carriage paid and allow LIBATTION the necessary time to carry out the warranty work, without this giving rise to any claims for compensation for direct, indirect or consequential damage due to delay. (c) In the event of a claim for functional defects in the software, the customer must provide LIBATTION with an exact description of the defect and all additional information within the one-year period. The LIBATTION warranty only applies if the malfunction represents a deviation from the contractual specifications and occurs in a valid software version when used in accordance with the instructions. LIBATTION does not guarantee that the software will run uninterrupted and error-free with the data used by the customer and any software components provided by the customer. Any costs incurred as a result of the installation of new software versions/upgrades/updates shall be borne by the client. (d) Warranty claims for defects in products/components/software are excluded in their entirety: (c1) due to improper handling, storage or installation; (c2) in the event of non-compliance with installation, operating and maintenance instructions; (c3) due to excessive use or natural wear and tear; (c4) in the event of use other than that normally expected; (c5) in the event of external influences not provided for in the contract; (c6) if the customer has made changes or repairs to the delivered products/components/software himself or has had them made by third parties without the consent of LIBATTION. 
  3. If products/components/software manufactured by third parties (including components provided by the customer) are defective, LIBATTION may exempt itself from any liability. warranty by offering the customer the assignment of its own warranty claims against the supplier. 
  4. As long as valid terms of payment have not been met, LIBATTION may postpone the fulfilment of warranty obligations. 
  5. Any warranty or liability of any kind beyond the services described above for direct, indirect and consequential damages is expressly excluded. This exclusion of liability shall also apply to any claims asserted against the customer by its customers for non-performance or defective performance on the part of the customer.

IX. Installation, commissioning, maintenance

  1. If, according to the specific contract, the customer carries out the installation of the energy storage system himself, the customer supplies the installation material and is responsible for the correct procedure in accordance with the LIBATTION installation instructions. 
  2. If, according to the specific contract, installation is one of LIBATTION’s agreed services, the individual services, prices and other conditions must be specified in writing. 
  3. Commissioning after installation (initial energy supply and connection of the system to the grid), including functional testing, is always carried out by LIBATTION. In the event of any faults in the customer’s installation, commissioning will be suspended until the customer has rectified them. If the system is functioning correctly, it will be handed over to the customer with a delivery report. 
  4. If maintenance after commissioning is also to be provided by LIBATTION, a separate service contract must be concluded for this.

X. Recycling

In principle, the customer is responsible for the proper disposal of used batteries when they reach the end of their service life. For energy storage systems delivered within Switzerland, the Swiss system of advance disposal fees (VEG) charged with the delivery price applies; LIBATTION is a member of INOBAT-Recycling for the professional disposal of used batteries.

XI. Data protection

  1. LIBATTION processes personal data exclusively within the framework of the fulfilment of contracts with clients, which already provides justification under data protection law. LIBATTION does not pass on personal data to anyone outside the fulfilment of this contract. 
  2. If the client discloses personal data to LIBATTION, in particular that of its employees, it is the client’s responsibility to ensure that it is authorised to do so.

XII. IT security

  1. The client is obliged to take appropriate measures to prevent unauthorised access to the products supplied by LIBATTION and connected to the Internet as far as possible. In particular, the client must install firewalls, carry out security-relevant software updates and immediately replace the initial passwords supplied by LIBATTION with his own and manage these securely. 
  2. LIBATTION is exempt from any responsibility or liability for the customer’s IT security. and for any loss of data or further damage, but can recommend backup measures to the customer depending on the situation.

XIII. Choice of law and place of jurisdiction

  1. All legal relationships between LIBATTION and the customer are subject to Swiss substantive law, to the exclusion of the conflict of laws and international treaties , in particular the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).
  2. The exclusive place of jurisdiction is Zurich, Switzerland. However, LIBATTION is also authorised to assert its rights at the customer’s domicile or before any other competent authority, whereby the above choice of law remains valid.

Version from 01.01.2024