General Terms and Conditions of Business of thuinformatik GmbH
Valid from 01. January 2017
1. Scope and application
1.1 In its capacity as a distributor, thuinformatik GmbH, hereinafter called
«thuinformatik», offers its specialist retailers, resellers and customer hereinafter
called «the customers», a broad range of products and services in the fields
of IT, communications and technology.
1.2 The present General Terms and Conditions of Business, hereinafter called
“GTC”, govern the rights and obligations in the relationship between thuinformatik
and its customers, and replace the previous agreement. They apply to all
products and services offered by thuinformatik. General terms and conditions
of business of the customer shall not be applicable, even if the customer
cites these in conjunction with the order.
1.3 Should any of the individual provisions of these GTC be or become
ineffective or invalid, then this shall not affect the validity and
effectiveness of the remaining provisions. In such an event the respective
provision shall be replaced by a provision which approximates as closely as
possible to the economic objective of the Parties.
1.4 thuinformatik reserves the right to amend or to supplement the GTC at any
time. thuinformatik shall inform customers by suitable means in advance about
changes to the GTC. In the event of significant contractual changes, the
customer shall be entitled to terminate the business relationship in writing,
whereby this shall not affect existing orders. If he fails to do so, then he
shall be deemed to have accepted the amendments. The respective current GTC
of thuinformatik may be accessed via the internet under www.thuinformatik.ch.
2. Special duties and obligations of the customer
2.1 In the event of goods being purchased, the customer shall perform the
supply and delivery of the products to the end customers in his own name, on
his own account and at his own risk. The customer is not entitled to act
vis-à-vis end customers or other third parties in the name or as a
representative of thuinformatik, and may furthermore not conclude any
possible transactions or legal agreements on behalf of thuinformatik.
2.2 In the event of goods being purchased, the customer undertakes the
responsibility to secure the authorisations from the respective manufacturers
and suppliers which are required to resell the products, and to adhere to the
provisions and conditions of the manufacturers/suppliers for the resale
thereof. Should thuinformatik be the subject of legal proceedings brought by
a manufacturer/supplier on the grounds that the customer has failed to adhere
to such provisions and conditions, then the customer shall comprehensively
2.3 The customer acknowledges the Code of Conduct of thuinformatik and
undertakes to act correspondingly in conjunction with the cooperation with
thuinformatik and its employees. The Code of Conduct may be accessed under
3. Minimum annual sales and terms and conditions for purchasing goods
3.1 The annual sales generated by the customer with thuinformatik must be at
least CHF 10,000.00. The annual sales shall be calculated per calendar year.
In the first year the calculation shall be performed at the end of the year
pro rata temporis.
3.2 Depending upon the level of the annual sales planned by the customer and
the terms and conditions of payment chosen by him, thuinformatik may agree
for more favourable terms and conditions with the customer. However,
thuinformatik reserves the right to amend the terms and conditions at any
time, in particular if manufacturers or suppliers amend their own contractual
terms and conditions.
4. Credit limits / Duty to provide information
4.1 thuinformatik shall stipulate the credit limit on the basis of the
anticipated annual sales planned by the customer as well as his
creditworthiness. thuinformatik may at any time demand securities from the
customer equivalent to the credit limit.
4.2 In the event of signs of insolvency or other doubts about the
creditworthiness of the customer, thuinformatik reserves the right to reduce
the credit limit at any time and/or at its own discretion to make
performances conditional upon advance payments or other securities. At the
request of thuinformatik, the customer shall assign his claims against end
customers arising out of the resale of the products delivered by
thuinformatik to thuinformatik by way of payment (Art. 164ff. of the Swiss
Code of Obligations – “OR”).
4.3 The customer undertakes to report to thuinformatik without delay any
significant changes to his enterprise, e.g. concerning shareholders, legal
form, business address as well as any possible financial problems which could
jeopardise the existence of the business.
5. Orders and contractual conclusion
5.1 Offers made by thuinformatik are non-binding. By the same token, images,
descriptions, dimensions, weights etc. shall be deemed to represent
approximate values and do not constitute warranted characteristics.
5.2 The customer shall be bound by his orders placed by telephone, in writing
or by electronic means. Insofar as the customer places the order
electronically using the thuinformatik internet sales / information system
(SIS), or causes this to be placed by thuinformatik using this system,
then the “e-Business Terms and Conditions of Use” shall thuinformatik be
applicable. The customer must report to thuinformatik without delay any
possible inconsistencies between the content of the order placed by the
customer and the delivery data recorded in the thuSIS.
5.3 A legal agreement shall be established with the consent of thuinformatik,
which shall be reported to the customer under thuSIS “Order Tracking”
together with an order confirmation, or at the latest at the time of the
delivery to the customer. The legal agreement shall in under all
circumstances be established subject to a positive creditworthiness check of
5.4 Order amendments or cancellations requested by the customer
shall be subject to the written confirmation of thuinformatik. thuinformatik
may pass costs which have already been incurred on to the customer.
6. Delivery and goods checks
6.1 When ordering goods, the customer must specify how he wishes the goods to
be delivered. thuinformatik shall essentially deliver the ordered products ex
warehouse. In this event, loading, insurance, export or customs formalities
etc. shall be the responsibility of the customer. The customer may collect
the goods or arrange for the goods to be collected from thuinformatik during
business hours. Of relevance in each case is the respective current price list
“Service Prices and Postage Options.”
6.2 At the request of the customer the goods shall be forwarded by
thuinformatik or by a third party commissioned by thuinformatik.
thuinformatik shall take out a transport insurance policy at the expense of
the customer, which is already included in the forwarding charges. The
maximum liability of thuinformatik for damages associated with the transport
- Fraglie recorded-delivery letter CHF 1'500.00
- Domestic recorded-delivery letter CHF 500.00
- Non-domestic recorded-delivery letter CHF 150.00
6.3. If the customer specifies in the order that he is planning to collect
the goods from thuinformatik, then he must within 5 days from the invoice
date either collect the goods or arrange for these to be collected. During
this period thuinformatik shall hold the goods for safekeeping at the expense
and at the risk of the customer. Once the deadline has passed, the customer
shall be deemed to have defaulted on the collection. In this event
thuinformatik shall be entitled either to store the goods or to arrange for
these to be stored, to forward the goods to the customer or to withdraw from
the Agreement. Storage and forwarding shall be performed at the risk and
expense of the customer. thuinformatik shall charge the customer the
effective storage and forwarding costs. The same arrangement shall apply to
unforeseen interim storage, insofar as the goods are not collected by the
recipient at the place of destination or insofar as these are held up for a
reason for which the transporter is not responsible.
6.4. Delivery deadlines and delivery periods are not binding, insofar as it
has not been expressly agreed otherwise in writing. The information shall be
provided in good faith, although without warranty, and shall be subject to
the punctual delivery of thuinformatik by the manufacturer/supplier. Should a
delivery be delayed beyond a delivery deadline which thuinformatik expressly
affirmed in writing, then the customer may declare thuinformatik to be in
default after an additional period of at least 3 weeks imposed by the
customer in writing, and following the fruitless expiry of a reasonable
period of grace may then withdraw from the respective order. In this event
thuinformatik shall be liable vis-à-vis the customer only for direct damages,
if and to the extent that the default or the inability to perform the
delivery is demonstrably attributable to a grossly negligent contractual
breach on the part of thuinformatik.
6.5 As a rule, thuinformatik shall be entitled to make partial deliveries.
The current pricelist “Service Prices and Postage Options” shall be
applicable to pooled and scheduled deliveries.
6.6 In the event of delivery disruptions caused by force majeure and other
unforeseen events beyond the control of thuinformatik, such as e.g. strike,
lockout, material shortage, forwarding or business disruptions at the
manufacturer or transport disruptions, thuinformatik shall be entitled to
annul the order.
6.7 The customer must check the products immediately after delivery or
collection in respect of completeness, correspondence with the delivery
documents and defects, and must report any identifiable deviations and
defects in writing without delay. Insofar as a complaint is not issued within
6 days following receipt of the products, the delivery shall be deemed to
have been contractually compliant, unless the deviation was not identifiable
notwithstanding thorough examination. Transport damage or missing quantities
which are apparent at the time of delivery must furthermore be recorded on
the receipt certificate of the haulage contractor.
6.8. In the event of delivery shortfalls, the customer shall be obliged to
report this to thuinformatik within 10 days of this having been identified,
and must keep the goods ready for collection by thuinformatik or by a third
party commissioned by thuinformatik for at least 10 days. If the customer
does not report a faulty delivery, or does not report this within the
specified period, then he shall be deemed to have accepted the delivery and
shall owe thuinformatik the corresponding purchase price.
7. Involvement of third parties
For the purpose of fulfilling its obligations, thuinformatik may engage
auxiliaries and third parties (in particular subcontractors) or employees
of these third parties.
8.1 Unless otherwise agreed, the prices of the products and services of
thuinformatik are denominated in Swiss francs (CHF), excluding value added
tax, customs paid and ex the distribution centre of thuinformatik. The prices
may be amended at any time. The supplementary and forwarding terms and
conditions are set out in the respective current price list “Service Prices
and Postage Options”, which constitutes an integral part of these GTC. Unless
otherwise agreed, accessories are not included in the price.
8.2 The customer shall be
charged the prices valid at the time of the recording of the order. In the
event of manufacturer/supplier price increases, higher public duties or
higher prices attributable to currency fluctuations, thuinformatik shall
reserve the right to pass these on to the customer in respect of goods which
have not yet been delivered or for services which have not yet been rendered.
On the other hand, thuinformatik shall correspondingly pass price cuts
pledged by the manufacturer/supplier on to the customer. Of relevance in
every instance are the prices specified by thuinformatik in the order
8.3 When performing project-related transactions (e.g. SBO, OPG),
thuinformatik shall grant the customer project prices which deviate from the
price list, subject to the approval of the respective manufacturer. The
customer shall be obliged to adhere to the respective terms and conditions
imposed by the manufacturer on the project-related transaction. This shall
apply in particular to proof of end-customer verification by the customer. If
the manufacturer refuses to issue its approval, or if the customer
contravenes the project terms and conditions of business, thuinformatik shall
be entitled, irrespective of the assertion of further claims, to charge the
customer the difference between the special price and the regular sales price
applicable at the time of the order. thuinformatik reserves the right to
collect this difference itself, or to assign the claim to the manufacturer.
9. Terms and conditions of payment
9.1 Unless otherwise agreed in writing, all thuinformatik invoices are due
with immediate effect and must be paid net within 14 days of the invoice
date. Once this payment period has expired, the customer shall automatically
be deemed to be in default. thuinformatik may claim default interest amounting
9.2 If the customer falls into arrears with his payments, thuinformatik shall
be entitled without a specific reminder to make the rendering of further
performances dependent upon the full payment of outstanding invoices and, at
its own discretion, on payments in advance or other securities. thuinformatik
shall be entitled to interrupt the e-Services of the customer following one
reminder. All consequences of a cessation of performances of this nature
shall be borne exclusively by the customer. In particular, thuinformatik
shall be entitled to claim the reimbursement of all reminders, collections,
legal and court costs as well as further damages. thuinformatik may demand an
administrative charge of CHF 50.00 for a reminder.
9.3 All claims of thuinformatik, including those for which payment by
instalments has been agreed, shall fall immediately due for payment if (a)
the customer repeatedly fails to adhere to terms and conditions of payment,
or (b) following the request of thuinformatik does not without delay provide
the securities required to remove justified doubts on the part of
thuinformatik about his liquidity/solvency, such as e.g. in the case of
compulsory enforcements or other signs of payment difficulties on the part of
10. Assignment/setting-off/right of retention
10.1 In the absence of the written consent of thuinformatik, the customer
shall not be entitled to assign any possible claims against thuinformatik or
to set-off these against claims which thuinformatik has against the customer.
10.2 Any possible right of retention of the customer in respect to the
property of thuinformatik is comprehensively excluded.
11. Reservation of title
11.1 The products delivered by thuinformatik shall – so long as these are
under the control of the customer – remain the property of thuinformatik
until thuinformatik has received the purchase price in full and in accordance
with the contractual provisions. Up to this date thuinformatik shall
thuinformatik be entitled, pursuant to Art. 715 of the Swiss Civil Code
(“ZGB”), to record the reservation of title in the reservation of title
register at the respective place of residence of the customer. The customer
undertakes at the demand of thuinformatik to issue his written consent without
delay to the recording of the reservation of title in all respects which are
of relevance to the recording thereof (cf. Art. 4 Para. 4 of the Ordinance of
the Federal Court).
11.2 So long as the purchase price has not been paid in full,
the customer shall be obliged to maintain the products delivered by thuinformatik,
to treat these with care and to insure these against all standard risks.
12. Return of products
12.1 The exchange as well as the return of products is essentially not
possible. An exchange or a return shall be possible only on an exceptional
basis and following consultation with thuinformatik. The customer must demand
a “returns number” from thuinformatik within 20 days of the invoice date and
before the respective product is sent back. This “returns number” shall be
valid for 10 days. The products must be returned to thuinformatik or to the
specified place of return within these 10 days in undamaged and unopened
packaging, and must thuinformatik include a copy of the purchase receipt, on
the account and at the risk of the customer. If prices have changed in the
interim, thuinformatik shall credit the goods value on the basis of the lower
price in form of a voucher. The customer shall be charged a flat-rate administrative
fee for the handling of the return consignment in accordance with the price list.
12.2 thuinformatik reserves the right to return products to the customer
which lack original packaging or whose original packaging is defective or
damaged, or if products are returned without a returns number or are returned
after the specified deadline. These returns shall be made at the expense and on
the account of the customer. If thuinformatik accepts the return of the
product at its own discretion, notwithstanding the lack of original packaging
or notwithstanding defective or damaged original packaging, then
thuinformatik shall in every instance reduce the purchase price when
calculating the refund.
12.3 When returning defective products, the customer
must in every case adhere to the set procedures for handling returns defined
by thuinformatik or by the respective manufacturer/supplier. The products
must be returned to the specified place of return within the specified
deadline together with a copy of the purchase receipt as well as enclosing a
detailed description of the fault/defect, on the account and at the risk of
the customer. In the case of returns which do not include a description of
the fault, thuinformatik may conduct a fault analysis at the expense of the
customer (minimum workload: one hour).
13. Warranty and guarantee
13.1 Responsibility for the selection, the configuration, the deployment as
well as the use of products and the results thereby achieved lies with the
customer or with the purchaser of the products, i.e. with the endcustomer.
The customer acknowledges that thuinformatik does not conduct incoming goods
checks of the products delivered by manufacturers or suppliers.
13.2 In respect of products from third parties thuinformatik shall provide a
warranty and be answerable only to the extent that the third party (e.g.
manufacturer, licensor) is answerable vis-à-vis thuinformatik. The customer
waives further warranty claims against thuinformatik and the third party. The
only obligation of thuinformatik is to assign any possible own warranty
and/or guarantee claims against the third party to the customer.
13.3 The customer acknowledges that on account of the respective applicable
provisions of the manufacturer/supplier, as a rule the warranty shall be
limited at their own choice to defect rectification, the delivery of
fault-free replacement goods or a credit note. The replacement of parts,
defect rectification or the delivery of fault-free replacement goods shall
not establish any new warranty obligations. Defects which are covered by the
warranty shall not entitle the customer to withdraw from the purchase or to
declare that this has been rescinded.
13.4 The customer furthermore acknowledges that a defect shall in every case
be deemed to exist only if this is reported to thuinformatik in detail in
writing immediately following the discovery thereof and constitutes a
relevant and reproducible defect.
13.5 The warranty shall be excluded in the event of defects attributable to
one of the following causes: a) inadequate maintenance (unless thuinformatik
contractually undertook to perform maintenance); b) failure to observe the
operating or installation instructions; c) improper use of the products; d)
use of unapproved parts and accessories; e) natural wear; f) improper
handling or treatment; g) unauthorised interventions by the customer or third
parties; h) external influences, in particular force majeure (e.g. failure of
the electricity supply or air conditioning, natural hazards) as well as other
reasons for which neither thuinformatik nor the manufacturer/supplier are
13.6 A guarantee constitutes a voluntary contractual performance by the
manufacturer/supplier. The customer shall be invoiced in respect of guarantee
performances which are not covered by the manufacturer/supplier, as well as
for additional costs attributable to the customer when settling any possible warranty
claims or guarantee performances. In the event of an absent or deficient
fault description, the fault analysis shall be performed by thuinformatik at
the expense of the customer.
14. Warranty of the customer
The customer undertakes to indemnify thuinformatik
in respect of any possible liability and in respect of any possible damages,
insofar as third parties assert claims against thuinformatik which are
attributable to delivered products and data, the non-contractually-compliant
utilisation of the products or services by the customer or third party.
15. Liability of thuinformatik
15.1 thuinformatik shall be liable only for direct damages up to the
respective purchase price, and only if the customer demonstrates that these
were caused wilfully or by a grossly negligent action or omission by
thuinformatik. The transport liability of thuinformatik is limited in every
case in accordance with Fig. 6.2.
15.2 In the case of services, thuinformatik shall be liable in each case for
the diligent and professional rendering of its services. Defective
contractual performances shall be subsequently rectified by thuinformatik.15.3
All further liability of thuinformatik, its auxiliary personnel and the third
parties commissioned by thuinformatik for damages of all kinds and brought on
any possible legal grounds shall be excluded to the greatest possible
statutory extent. In particular, the customer shall under no circumstances be
entitled to claim compensation for damages which were incurred not by the
product itself, such as specifically production downtime, utilisation or data
loss, loss of orders, loss of earnings as well as other indirect or
15.4 The products are intended for normal commercial or private utilisation
in accordance with the operating instructions. The use thereof for security
systems, nuclear power stations, military installations, medical equipment
(in particular those with a life-support function) as well as for the
manufacture of weapons is not intended. All possible liability for use in
these fields is herewith rejected.
15.5 Further mandatory statutory liability provisions remain unaffected. 16.
Proprietary rights and utilisation entitlement
16. Proprietary rights and utilisation entitlement
16.1 All proprietary rights to products or services are and shall remain the
property of the manufacturer, supplier, thuinformatik or of the licensor.
16.2 thuinformatik and/or the licensor shall grant the customer and/or his
endcustomers the right to use the performances agreed in the special legal
agreements of the licensor.
16.3 If a third-party brings or asserts claims against the customer or
against his end-customers on the grounds of a breach of a patent, copyright
or other industrial property right by delivered products, then the customer
shall inform thuinformatik in writing and without delay about any such
breaches or asserted claims. thuinformatik shall forward this information to
the supplier and/or manufacturer without delay, and shall demand that these
take measures to settle the situation. Vis-à-vis thuinformatik the customer
waives any possible warranty or liability claims.
17. Supplementary provisions for software
17.1 The utilisation and guarantee
conditions concerning the software products, digital content, manuals and
other documents delivered by thuinformatik shall be in accordance with the
special provisions of the respective licensor which are contained in
particular in the software licence agreement concluded between the software
manufacturer and the user/end-customer. The same circumstances shall be applicable
if thuinformatik makes digital content available electronically for
17.2 thuinformatik excludes any liability for open source software.
reselling or otherwise forwarding the software products or digital content,
the customer undertakes to impose the obligations arising out of the
utilisation and guarantee conditions of the software manufacturer upon the
respective acquirer together with the obligation to pass these on to any
17.4 The customer shall establish suitable organisational measures to ensure
that software products and digital content cannot be unlawfully copied. The
customer undertakes to adhere to the corresponding instructions of the
The re-export of products or software is subject to international export
control provisions. In particular the Swiss (SECO, State
Secretariat for Economic Affairs, Export Controls/Industrial Products
Department), European and US export provisions must be observed. The customer
undertakes to ensure that he is informed about the relevant foreign trade
regulations and export control provisions, and if necessary to obtain the
permits which may be required to export the products. Each further delivery
of products by the customer to third parties (i.e. to endcustomers), with or
without the knowledge of thuinformatik, shall thuinformatik be subject to the
transfer of the export approval conditions. If claims are brought against
thuinformatik on the grounds that the customer failed to obtain the export
permits required for the products delivered by thuinformatik, then the
customer must comprehensively indemnify thuinformatik in this respect.
19. Test products and approval
19.1 Under certain circumstances thuinformatik may place test goods
(goods/software) at the disposal of the customer. The customer shall assess
the test products during the agreed test period. This shall commence on the
day after the complete delivery. Once the agreed test period has expired, the
test product shall be deemed to have been approved if the customer does not
declare that these have been rejected. In the event of a rejection, the
customer shall be obliged to send the equipment back to thuinformatik
undamaged and within the deadline specified by thuinformatik.
19.2 The deadline for the rejection shall be deemed to have been adhered to
if the customer hands the declaration over to the post office on the final
day of the test period.
The customer undertakes to keep confidential the
thuinformatik price list as well as other confidential data and information
of a commercial nature, e.g. discounts, retailers’ margins, bonuses, configurations
or other advance performances, and to use these only for the purpose of the
contractual relationship with thuinformatik.
21. Data protection / manufacturer reporting
21.1. thuinformatik undertakes to adhere to the statutory data protection
provisions. thuinformatik shall collect, save and process data only if this
is necessary for the rendering of the performances, for the settlement and
maintenance of the customer relationship, for insurance solutions as well as
for invoicing purposes.
21.2 The customer agrees that in order to safeguard his own rights as well as
to adhere to his own obligations, in particular including those pertaining to
project-related business transactions (manufacturersupported end-customer
business), thuinformatik shall have the right to provide detailed information
about the quantities, articles, generated sales as well as the name and
address of the customer and of the end-customer to manufacturers in
Switzerland and abroad (manufacturer reporting).
21.3 The customer furthermore agrees that in conjunction with the contractual
fulfilment, to monitor payment behaviour and collection as well as for the
needs-based structuring and development of its services and products,
thuinformatik may forward the data to third parties and may use this data
within the thuinformatik Group. In this conjunction the customer
thuinformatik agrees to the forwarding of data abroad, insofar as
thuinformatik considers this to be necessary.
21.4 The customer is responsible for ensuring that corresponding data
protection rules are established in the contractual relationship with the
respective third parties and with his end-customers, and must inform the
respective third parties about the processing, storage and forwarding of data
as well as if necessary about the commissioned data processing by
thuinformatik. The customer shall be responsible for obtaining the associated
necessary approvals from the respective third parties, and for presenting
these to thuinformatik if required.
22. Supplementary provisions for thuinformatik services
22.1 thuinformatik offers the customer a variety of different services,
eservices, data and publications. In respect of the use of these services,
e-services, data and publications, the customer accepts in addition to the
present GTC the special “e-Business Terms and Conditions of Use” as well as
the respective specific Service Conditions of thuinformatik. In the event of
a contradiction, the special Terms and Conditions of Use and the specific
Service Conditions shall have precedence over the present GTC.
22.2 The prices in accordance with the respective current price list of
thuinformatik shall be applicable to the utilisation of services which incur
charges. Services requested by the customer whose prices have not been
specially agreed shall be charged in accordance with the effective costs
pursuant to the respective valid standard rates of thuinformatik.
23. Copyright notice
23.1 These GTC are protected by copyright. In particular, the use of these
GTC in unmodified as well as in amended form by other commercial enterprises
23.2 The use or exploitation of the name or logo of thuinformatik in any
possible form by the customer shall be subject to the prior written consent
of thuinformatik. Unless otherwise expressly stipulated, the application of
these GTC cannot under any circumstances be interpreted to mean that the
customer shall secure any possible rights to the intellectual property
belonging to thuinformatik or for which thuinformatik owns a licence.
The customer may assign the rights and/or obligations of these
GTC only with the prior written consent of thuinformatik.
25. Applicable law / Place of jurisdiction
This Agreement is governed by Swiss law, whereby the UN Sales
Convention shall be excluded. The exclusive place of jurisdiction
for all disputes arising directly or indirectly out of
the contractual relationships is the court or courts with jurisdiction for
Buelach (ZH). thuinformatik furthermore reserves the right to take legal
action against the customer at ordinary places of jurisdiction.