Special Contract Conditions for 5-Year Models

§ 1Contracting parties, B2B purpose and constituent parts of the contract

1. The contract is concluded between Business Trade GmbH and the customer designated in the order form.

2. Who can conclude which model. FLEX, PLUS and FIX are offered exclusively to companies, enterprises, resellers and associations. They presuppose quantity and offtake planning over 5 years, designed for a commercial operation; PLUS and FIX in addition require an advance payment of 50 % or 100 % respectively of the total value of the goods. We do not accept an order for a 5-year model from a consumer within the meaning of the law. The season order under the GTC and the special conditions applicable to it remains open to private individuals.

3. If it subsequently emerges that a contract has been concluded with a consumer within the meaning of the law, the mandatory provisions of Swiss consumer protection prevail; in particular, the period for notice of defects under Art. 201 CO, the two-year limitation period under Art. 210 paras. 1 and 4 CO and the statutory places of jurisdiction under Art. 32 CPC remain applicable. The 5-year commitment and the quantity band correction under § 10 do not then apply; the contract may be terminated in text form on three months’ notice to the end of a contract year. The quantities delivered up to that point and quantities already objectively committed under § 3 cl. 5 remain owed.

4. The constituent parts of the contract are, in the following order of precedence: (1) the order confirmation or the order form confirmed by both parties, (2) expressly confirmed collateral agreements, (3) these Special Contract Conditions (SCF), (4) the version of the GTC designated in the contract, (5) the model information. Price, article, version, total quantity and the model chosen follow from the individual contract.

§ 2Contract term, total quantity and quantity price band

1. The regular contract term is 5 years from the confirmed start of the contract, subject to a validly agreed extension. The flex year under § 3 cl. 2 does not extend the contract term.

2. What is binding in principle is the total quantity over the contract term. The annual quantities are planned quantities. The agreed total quantity determines the quantity price band from the outset. The quantity bands in force when the contract is concluded are attached to the contract and remain decisive for the entire term, even if the price list changes later. They are the basis for a correction or improvement under § 10.

3. The provision on hardship cases, termination by mutual agreement and good cause under § 11 is reserved.

§ 3Annual call-offs, flexibility and rolling planning

1. The goods are called off in plannable partial quantities, in principle annually. By agreement, the annual quantity may deviate from the planned quantity by up to 30 % upwards or downwards, provided that production, storage and logistics are not thereby impaired to an unreasonable extent. At least 70 % of the planned quantity must therefore be called off per contract year.

2. Flex year. Once during the contract term, the customer may apply for a flex year and postpone the annual delivery in whole or in part to a later contract year. For the flex year, the lower limit under cl. 1 does not apply. The postponed quantity is distributed over the remaining contract years and may there exceed the upper limit of 30 % above the planned quantity. Total quantity, price band and contract term remain unchanged; the contract term is not extended. The flex year may be applied for at the latest for the penultimate contract year, so that at least one contract year remains for making up the quantity.

3. The customer communicates the call-off plan for the following season, if possible by 30 June of the preceding year. Deviations and ordinary postponements should if possible be notified at least 60 days before the planned delivery date. The stricter 3-month period under § 11 applies to hardship applications or to a requested early amendment of the contract.

4. A change between articles of the same product group is possible if availability, technical suitability and economic equivalent value are appropriate and Business Trade agrees.

5. Business Trade plans material, production and storage on a rolling basis with a horizon of up to approximately 24 months. Only those quantities or costs are deemed objectively committed which are demonstrably fully produced, ordered on a basis that can no longer be cancelled, already released into production or which, on account of specific obligations attributable to this contract, can no longer be avoided without economic disadvantage.

§ 4Price components and reference values

1. The agreed price is shown in a comprehensible manner in the quotation or in the contract. For the purposes of the price guarantee, a distinction is made between the product price, the transport share and taxes arising by law or levies directly related to the delivery.

2. The product price comprises the directly product-related costs calculated at the conclusion of the contract, in particular material, manufacture, product-related packaging and directly attributable procurement or exchange rate effects, as well as the calculated margin. The transport share is shown separately as a reference, in so far as it forms part of the total price.

§ 5Product price guarantee and price adjustment FLEX / PLUS

1. FLEX: the product price is guaranteed for the first two contract years. PLUS: the product price is guaranteed for the first three contract years. FIX: the product price is guaranteed for the full 5-year model term and is adjusted on cost grounds neither upwards nor downwards.

2. After the guarantee period has expired, a product price adjustment may be examined for FLEX and PLUS at most once per calendar year, in each case with the annual price list. The reference is the direct product cost basis per unit documented at the conclusion of the contract or, after an effective adjustment, the cost basis last applied.

3. The change is calculated according to the same cost structure: change V = (new direct product cost basis – reference cost basis) / reference cost basis × 100. The product price changes by the same franc amount per unit by which the reference cost basis has changed; no additional margin mark-up is applied. The adjusted product price is rounded commercially to the centime.

4. Upper limits. A single adjustment amounts to at most 6 % compared with the product price last in force. Over the entire contract term, the sum of all adjustments amounts to at most 12 % compared with the product price at the conclusion of the contract. Both limits apply in both directions. Cost changes going beyond this are borne by Business Trade; they cannot be made up in later contract years.

5. De minimis threshold. If the calculation results in a price change of less than 1 %, the adjustment does not take place for that contract year. The amount is not carried forward.

6. Symmetry. If the reference cost basis falls, the product price is reduced according to the same formula, on the same reference date and without a separate request from the customer. The downward adjustment is not at the discretion of Business Trade.

7. Scope. Only the directly product-related costs under § 4 cl. 2 are covered, in particular the purchase price and the exchange rate. The transport share and statutory taxes or levies are not the subject of this price adjustment; § 6 alone applies to them. Double counting of the same cost change under § 5 and § 6 is excluded.

8. For PLUS, an adjustment concerns exclusively the share of the product price not yet covered at that time by the 50 % advance payment. The advance payment is credited proportionally against the agreed deliveries or their goods value.

9. Every adjustment is announced in text form at least 60 days before the delivery concerned and substantiated in a comprehensible manner, e.g. by a supplier confirmation, comparable quotations/invoices or a confirmation from a fiduciary. Third parties’ business secrets may be redacted, provided that the calculation remains verifiable. Retroactive adjustments are excluded.

10. Extraordinary cost events. If the reference cost basis increases by more than 25 % as a result of an extraordinary event that was not foreseeable at the conclusion of the contract – in particular the loss of a source of supply, a state import or export restriction, a levy not already covered by § 6 or a jump in the relevant exchange rate –, the parties enter into negotiations within 30 days, at the request of either party, concerning the annual deliveries not yet produced and not yet paid for. If no agreement is reached within a further 30 days, either party may terminate these annual deliveries in text form subject to a period of three months, without any obligation to pay damages. Payments already made for goods not delivered are refunded within 30 days. Deliveries already confirmed, paid for or produced remain unaffected.

§ 6Transport share and statutory changes

1. This rule applies to all three models, including FIX. The product price guarantee under § 5 concerns exclusively the product price under § 4 cl. 2; the transport share is not covered by it.

2. The transport share designated in the quotation serves as a reference. If the comparable actual transport cost changes by more than 10 %, only the portion above or below this 10 % threshold is adjusted; the rule applies in both directions. The first 10 % are borne in both directions by Business Trade. An adjustment is substantiated and communicated in text form at most once per calendar year, at least 60 days before the delivery concerned. Retroactive adjustments are excluded.

3. Changes to statutory value added tax or to newly introduced statutory levies falling directly on the delivery are taken into account without any additional margin, in accordance with the statutory burden. This rule is not a product price adjustment.

§ 7Payment, first production release and credit balances

1. No payment is owed at the conclusion of the contract. Unless otherwise expressly confirmed in the order form, in the quotation or in the order confirmation, the following applies: the first payment is due within 10 days of the order confirmation, the remaining amount within 30 days of receipt of the goods. Initial production begins only once the first payment has been received and credited. Before that, there is no obligation to commence production or to reserve production capacity on a binding basis.

2. FLEX: the first payment amounts to 70 % of the invoiced amount of the first annual delivery, due within 10 days of the order confirmation and before the first production release; the remaining 30 % are due within 30 days of receipt of the goods. No advance payment is due for later annual deliveries: the full invoiced amount of the respective annual delivery is payable within 30 days of receipt of the goods.

3. PLUS: 50 % of the agreed total value of the goods must be paid in advance within 10 days of the order confirmation. This amount is held as a contract credit and covers the deliveries of the first contract year. The balance is spread according to the value of the goods over the deliveries from the second contract year onwards and is due within 30 days of receipt of the goods in each case. If the value of the goods delivered in the first contract year exceeds the advance payment, the excess is due within 30 days of receipt.

4. FIX: 100 % of the agreed total value of the goods must be paid in advance within 10 days of the order confirmation. The advance payment is the precondition for the first production release; once it has been received, nothing further is outstanding over the entire contract term.

5. Advance payment discount. For advance payment, Business Trade grants a discount on the total value of the goods: 2 % for PLUS on advance payment of 50 %, 4 % for FIX on payment in full in advance. The discount is shown as a separate item on the invoice and reduces the final price; the value added tax is extracted from the reduced final price. The discount lapses if the advance payment is not credited in full within 10 days of the order confirmation. A quantity band correction under § 10 is reserved; the discount itself remains in place in that case, because the advance payment has already been made.

6. First payment not received. If the first payment is not received within 20 days of the order confirmation, Business Trade may withdraw from the contract after setting a reasonable additional period. If Business Trade withdraws, the customer owes the compensation under GTC cl. 10.3; the agreed total value of the goods is decisive. Until the payment is received, no production begins and no delivery period runs. If payment for a later annual delivery fails to arrive, Business Trade may hold back that annual delivery after setting an additional period; the other contract years remain in place, unless termination for good cause takes place. If the customer declares that they will take no further deliveries, § 10 para. 5 applies.

7. Business Trade allocates advance payments to the contract in a traceable manner and, on request, provides an overview of credit balances and of delivered and outstanding quantities.

8. The payment periods in this paragraph are fixed due dates. On their expiry the customer is in default without a reminder (Art. 102 para. 2 CO). From the onset of default, default interest of 5 % per annum is owed (Art. 104 para. 1 CO), unless a valid deferral or mandatory law precludes it. A reminder fee of CHF 20 is charged for the second and each further reminder; any further loss caused by the default is reserved (Art. 106 CO).

9. Loyalty bonus. If the customer has taken the agreed total quantity by the end of the contract term and no invoice is outstanding, Business Trade credits the customer with a loyalty bonus of 2 % of the total value of the goods under this contract after the end of the contract. What is decisive is the value of the agreed total quantity of the 5-year model; season orders and other orders outside this contract are not included. The end of the contract is the final statement under § 10 or, where none is to be drawn up, payment in full of the last annual delivery. The bonus is granted as a credit balance. It is redeemable within 24 months from that date across the entire range and is applied per invoice up to a maximum of 10 % of the invoiced amount; any remaining balance stays until that period expires. The credit balance is not transferable, does not bear interest and cannot be paid out in cash. A quantity band correction under § 10 takes precedence over the bonus: if the total quantity is not reached, no entitlement arises.

§ 8Production, delivery date, transport time, risk and title

1. A desired or planned delivery date is non-binding until the required first payment has been credited and the date has been confirmed in text form after a check of production and transport capacity. Late receipt of payment may postpone the earliest possible date accordingly and, to the extent so caused, does not constitute default in delivery on the part of Business Trade.

2. Production, transport and delivery together normally take 4–6 weeks from receipt and crediting of payment. This is a typical lead time and not a guaranteed maximum period.

3. Delays caused by transport disruptions, border formalities, official inspections or other circumstances for which Business Trade is not responsible extend the period appropriately. Business Trade informs the customer of foreseeable material delays and, where possible, states an updated date.

4. If a bindingly confirmed delivery date is substantially exceeded for reasons for which Business Trade is responsible, the customer may set a reasonable additional period. After it has expired without result, the statutory rights in respect of the partial performance concerned are reserved.

5. Risk passes on handover to the customer or to the person designated by the customer to take receipt, unless expressly agreed otherwise.

6. The goods delivered remain the property of Business Trade until all claims under the contract concerned have been paid in full (retention of title, Art. 715 CC). The customer authorises Business Trade to have the retention of title entered in the register at the customer’s domicile or registered office, cooperates in the entry and gives notice without delay of any change of domicile or registered office for as long as an entry exists. The costs of the entry are borne by Business Trade. As a rule an entry is made only once the outstanding amount exceeds CHF 10’000.

   If the customer resells the goods before payment in full, the customer hereby assigns to Business Trade the resulting claim against the customer’s own purchaser, to the extent of the claim still outstanding. The customer remains entitled to collect it for as long as the customer meets the payment obligations.

§ 9Inspection, defects and subsequent performance

1. The customer inspects the goods on receipt. Apparent defects are to be notified in text form within 10 working days of receipt, hidden defects within 10 working days of discovery. If no notice is given within that period, the delivery is deemed accepted to that extent. This period is longer than the statutory period for notice under Art. 201 CO; Business Trade waives immediate notice to that extent. As against consumers the deemed acceptance does not apply; Art. 201 CO remains applicable. Rights that cannot validly be excluded by law are reserved.

2. In the case of a justified notice of defects, Business Trade is in principle given the opportunity to carry out rectification or to make a replacement delivery within a reasonable period. If subsequent performance is impossible, unreasonable or unsuccessful after a reasonable attempt, the customer’s rights that exist under Swiss law and have not been validly excluded are reserved; a credit note may be agreed by mutual consent.

3. Claims arising from defects in the goods become time-barred two years after delivery (Art. 210 para. 1 CO). No shortening of this period is agreed.

4. Customary natural variations in wood in colour, grain, texture and knots are not a defect, provided that function, the agreed dimensions and the warranted quality are not impaired.

§ 10Total quantity not reached or exceeded

1. If it becomes apparent that the total quantity will not be reached, the parties first seek an appropriate solution, in particular an extension, a flex year, a postponement of quantities or a change of article within the same product group.

2. If no solution is reached, the quantity price granted may, after the end of the agreed settlement period, be corrected to the quantity band that would have applied at the time the contract was concluded for the total quantity actually taken. The correction is not a contractual penalty.

3. If the customer reaches a better quantity band by taking a larger quantity, the same logic is applied in the customer’s favour.

4. For PLUS and FIX, undisputed positive contract credits for quantities neither delivered nor objectively committed are repaid or credited within 30 days after the final statement, unless another validly agreed use is made of them. A quantity band correction and demonstrable unavoidable costs attributable to the contract are reserved.

5. Leaving after deliveries have started. Business Trade procures and produces in advance for the annual deliveries. If, after the first delivery, the customer declares that they will take no further deliveries and no solution under para. 1 is reached, the following applies:

   a) FLEX: the next annual delivery falling due must still be taken and paid for under § 7; the contract then ends.

   b) PLUS: the next two annual deliveries falling due must still be taken; the contract then ends. In the final statement, all quantities delivered, corrected under para. 2, are set off against the advance payment and the invoices paid. Any shortfall is payable within 30 days. By way of derogation from para. 4, any remaining credit belongs to Business Trade, but only up to 25 % of the value of the goods no longer delivered because of the withdrawal; any amount above that is repaid within 30 days.

   c) FIX: the total quantity has been paid for; unilateral withdrawal is excluded. The annual deliveries take place as agreed; at the customer’s request they are postponed or spread within the scope of § 3.

   d) If the regular end of the contract falls within this period, it applies. Taking the deliveries under a) and b) does not extend the contract.

   e) The correction of the price band under para. 2 takes place with the last delivery, without waiting for the settlement period. If the customer does not take a delivery under a) or b), its price remains payable.

   f) Before the first delivery, GTC cl. 10.3 applies; § 11 and a solution agreed by mutual consent take precedence in every case.

§ 11Hardship case, restructuring and early termination by mutual agreement

1. If, on account of material economic or operational changes, the customer will foreseeably be unable to perform in accordance with the contract, the customer informs Business Trade, where the circumstances are foreseeable, in principle at least three months before the next scheduled delivery and, where they are unforeseeable, immediately upon becoming aware of them.

2. On request, the customer submits only such evidence as is reasonably required, e.g. interim figures, liquidity planning, a substantial drop in turnover, the loss of a major customer, a fiduciary’s confirmation, a reduction of operations or the cessation of business. Where the causes are illness-related, evidence of the effect on the business is in principle sufficient; detailed health data are not required in so far as they are not strictly necessary for the decision. Confidential information that is not required may be redacted.

3. Business Trade examines with the customer in particular postponement, partial quantities, a flex year, a change of product, payment by instalments, deferral, delivery for a limited period with later payment, an extension of the contract term or partial or full termination by mutual agreement. There is no entitlement to any particular goodwill measure.

4. Quantities objectively committed under § 3 remain in principle subject to the obligation to take delivery and to pay. In a termination statement of account, Business Trade takes reasonable loss-mitigating measures; reasonable net proceeds from other realisation and costs saved are set off, so that no double compensation arises.

5. In the event of late notification, the immediately imminent delivery that is already committed remains owed in principle. A new agreement may be concluded for later periods that are not yet committed.

6. A more favourable competing offer alone does not give rise to any automatic right of termination. Business Trade may nevertheless examine an economically sensible adjustment.

7. For PLUS/FIX, a termination agreement confirmed in writing determines the settlement of the contract credit. Undisputed remaining advance payments for quantities not delivered and not committed are repaid or credited within 30 days after the statement. Quantity band corrections and demonstrated unavoidable costs are reserved.

8. If the customer’s ability to pay deteriorates considerably and Business Trade’s counterclaim is placed at risk, Business Trade may withhold performance not yet rendered until reasonable security is provided. Statutory rights are reserved.

9. Every deferral, special delivery, reduction of quantity or termination is confirmed in text form. The right of both parties to extraordinary termination for good cause under mandatory or general statutory principles is reserved.

§ 12Force majeure

1. Force majeure exists where an extraordinary event outside the reasonable sphere of influence of a party substantially prevents or delays performance despite reasonable precautions, in particular a natural event, war, an official measure, a significant transport blockade or a comparable disruption.

2. The party affected informs the other without delay, sets out the cause and the expected duration as far as possible and takes reasonable measures to mitigate the loss. Monetary claims already due are not thereby automatically deferred.

3. If the material impediment lasts longer than six months, the parties first seek an adjustment. If continuation is unreasonable, the future part of the contract that is not yet objectively committed may be terminated in text form; remaining advance payments are settled under § 10/§ 11.

§ 13Field sales, conclusion of contract and advice

1. Field sales staff and representatives may give advice and take orders. Price reductions, deferrals, terminations of contract and deviations are binding only if they are within the authority granted and are confirmed by Business Trade in text form.

2. The customer’s signature or electronic order constitutes an offer to conclude a contract, provided that it is designated as a binding order. The contract comes into existence through countersignature or a separate order confirmation by a person authorised to that effect by Business Trade.

3. Advice on quantity planning, product range and storage is given to the best of Business Trade’s knowledge. The entrepreneurial decision and the assessment of requirements remain with the customer.

§ 14Text form, data protection and transfer

1. Text form means a declaration that is permanently reproducible and attributable to the sender, in particular an e-mail, a letter or a signed PDF. A stricter statutory form remains unaffected.

2. Operational call-offs, notifications of deadlines and hardship applications may be made in text form. Amendments to the contract, deferrals, reductions of quantity, waivers and terminations are effective only if they are confirmed in text form by persons authorised to that effect on both sides.

3. For evidence of hardship, Business Trade processes only such data as are reasonably required for the assessment, confidentially and for that purpose alone. A transfer of the contract to third parties requires consent in text form; in the case of genuine business succession it is not refused without objective reason.

§ 15Applicable law, place of jurisdiction and partial invalidity

1. Swiss substantive law applies. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

2. In so far as legally permissible, the exclusive place of jurisdiction is the registered office of Business Trade GmbH in Bad Ragaz, Canton of St. Gallen. Mandatory places of jurisdiction are reserved.

3. Should a provision be wholly or partly invalid, the remaining provisions remain in force in so far as this is legally possible. Mandatory law prevails; the parties seek a permissible arrangement that comes as close as possible to the economic purpose.

–Changes compared with the earlier versions

The contractual text above always prevails. The records below state what has changed from version to version and serve solely for traceability. Each describes the position of the version concerned, not the position today.

From version 6.3 to version 6.4

From version 6.2 to version 6.3

From version 6.1 to version 6.2

From version 6.0 to version 6.1

§ 1, § 7, § 8 and § 9 have been changed, as has the box of particular points. The wording, order and numbering of all other provisions are unchanged.

From version 5.0 to version 6.0

Changed are § 3, § 5, § 6 and § 7 as well as the statement of the delivery period. The wording, order and numbering of all other provisions are unchanged.