General Terms and Conditions
smair GmbH
UID CHE-482.320.625 · Switzerland · hereinafter “smair”
1. General
The contract and its amendments are subject to the written form; it comes into force upon receipt of smair's written confirmation that it has accepted the order (order confirmation). These General Terms and Conditions are binding if they are declared applicable in the offer or in the order confirmation. Differing conditions of the customer are only valid if they have been expressly accepted by smair in writing. smair is entitled to revoke offers within three (3) weeks of dispatch if they have not been accepted.
2. Scope of deliveries and services
smair's deliveries and services — in particular the supply of repair and cleaning goods — are conclusively listed in the order confirmation, including any attachments to it. smair's delivery and service obligations are deemed to have been fulfilled if the delivery items and services correspond to the specifications, plans and other technical documents agreed in writing.
3. Documents and technical documentation
Brochures and catalogues are not binding unless otherwise agreed. Information in technical documents is only binding insofar as it is expressly guaranteed. smair reserves all rights to the documents and technical documents provided. The customer acknowledges these rights and will not make the documents available to third parties in whole or in part, nor use them for any purpose other than the one for which they were handed over, without smair's prior written authorisation. The customer checks the technical documents and informs smair immediately of any requests for changes or additions.
4. Requirements and specifications of the customer
At the latest when placing the order, the customer must inform smair of the requirements and specifications relating to the execution of the deliveries and services, including any requirements arising from the intended country of use or destination.
5. Order changes
The customer may at any time request a change to the order against appropriate compensation and adjustment of the execution deadlines, of which smair is to be notified in good time.
6. Delivery terms
All prices are net. Unless otherwise agreed, deliveries are made DAP (Delivered At Place, Incoterms® 2020) to the destination named in the order confirmation. Shipping and freight costs are not included in the product price and are invoiced separately to the customer. Risk passes to the customer upon arrival of the goods at the named destination, ready for unloading. Import clearance and all import duties, taxes and charges levied at destination are the responsibility of the customer as importer of record. The applicable Incoterms clause is that stated in the order confirmation. The delivery and service obligations are subject to the express reservation that all required permits — including export, transit and import permits — in accordance with the relevant legal and other requirements are available in good time. The refusal, non-renewal or revocation of required official permits is considered force majeure. Unless otherwise agreed, the delivery time for goods and services is two (2) weeks after receipt of the order. For short-term orders, smair reserves the right to charge surcharges of up to 50% of the total price. The dates for the completion of the work to be carried out are set with the customer when the order is received.
7. Payment terms
Payments are to be made by the customer in accordance with the agreed terms of payment at smair's domicile, without deduction of any discount, expenses, taxes, duties, fees, customs duties or the like that are not contractually agreed. Any value added tax assessed abroad must be paid by the customer. This also applies to all other taxes, fees, contributions and customs duties assessed outside Switzerland. Unless otherwise agreed, invoices are payable net within thirty (30) days of issue. If the customer does not meet the agreed payment dates, he must pay interest from the agreed due date without a reminder, based on the interest rates customary at smair's domicile, but at least 4% above the respective discount rate of the Swiss National Bank. In this case smair reserves the right to withhold outstanding deliveries and services until the outstanding invoices have been paid. If, in smair's opinion, the customer is in financial difficulty, smair is entitled to provide deliveries and services only against prepayment or adequate security. If the customer does not make such advance payment or provide sufficient security within a reasonable extension of the payment period, smair may terminate individual or all current contracts in whole or in part. smair reserves the right to claim compensation for further damage. Bank charges for payments in foreign currency are borne by the customer.
8. Date of delivery
Date information in order confirmations are non-binding target dates. In the event of late delivery, the customer is obliged to grant smair a reasonable grace period in writing. If this grace period is not met for reasons for which smair is responsible, the customer is entitled to refuse acceptance of the delayed part of the delivery. If partial acceptance is economically unreasonable for him, he is entitled to withdraw from the contract and to reclaim payments already made against the return of deliveries. On account of a delay in delivery, the customer has no rights or claims other than those expressly stated in this section. This restriction does not apply to unlawful intent or gross negligence on the part of smair; it does, however, apply to unlawful intent or gross negligence on the part of auxiliary persons.
9. Execution of the work
smair makes the necessary employees available at the rates valid at the time the work is carried out. Working, travel and waiting time are charged. The customer provides the support necessary to carry out the work free of charge.
10. Testing and acceptance of deliveries and services
The customer must inspect the deliveries and services within five (5) working days by a visual inspection for damage, completeness or faulty delivery, describe any complaints in detail and notify smair in writing. If he fails to do so, the deliveries and services are deemed approved. The customer authorises smair to examine the reported complaints on the customer's premises. At the request of the customer or smair, an acceptance test is carried out in which the customer checks the delivery items or services provided with the diligence of a conscientious businessman and immediately notifies smair of any defects. If the customer has recognised a defect but waives its notification or assertion, the delivery is deemed approved. Defects that were not recognisable during the acceptance test must be reported to smair within fourteen (14) days of their discovery, failing which the delivery item is deemed approved with regard to such hidden defects. A protocol is drawn up regarding the acceptance of hidden defects, to be signed by the customer and smair or their representatives. It records that acceptance has taken place, that it has taken place only with reservations, or that the customer has refused acceptance. In the latter two cases the alleged defects must be recorded individually in the acceptance report. On account of minor defects, in particular those that do not significantly impair the functionality of the deliveries or services, the customer may not refuse acceptance or refuse to sign the acceptance report; smair must rectify such defects promptly. In the event of significant deviations from the contract or serious defects, the customer must give smair the opportunity to remedy them within a reasonable grace period, after which a further acceptance test takes place. If this again reveals significant deviations or serious defects, the customer may request a corresponding price reduction. However, if the defects or deviations are so serious that the deliveries and services cannot be used for the stated purpose or can be used only to a significantly reduced extent, the customer has the right to refuse acceptance of the defective part or, if partial acceptance is economically unreasonable, to withdraw from the contract; smair can only be obliged to reimburse the amounts paid to it for the parts affected by the withdrawal. Acceptance is also deemed to have taken place if the acceptance test cannot be carried out on the scheduled date for reasons for which smair is not responsible, if the customer refuses acceptance without being entitled to do so, if the customer refuses to sign the acceptance protocol, or as soon as the customer uses the deliveries or services from smair. Complaints about defects do not entitle the customer to withhold payment for defective delivery items. On account of defects in deliveries or services of any kind, the customer has no rights or claims other than those expressly stated here.
11. Warranty
The warranty period is twenty-four (24) months. It begins with the agreed acceptance of the deliveries and services, but no later than fourteen (14) days after the delivery date or the execution of the work. The warranty expires prematurely if the customer or a third party undertakes improper changes or repairs, or if the customer, once a defect has occurred, does not immediately take all suitable measures to reduce damage and give smair the opportunity to remedy the defect. smair undertakes, at the customer's written request, to repair or replace — as quickly as possible and at its option — all parts of the deliveries and services provided by smair that are demonstrably damaged or unusable as a result of poor material or poor workmanship before the end of the warranty period; smair bears the costs of such rework. Guaranteed properties are only those expressly designated as such in the order confirmation, and the assurance is valid until the end of the warranty period at the latest. If an acceptance test has been agreed, the assurance is deemed fulfilled if proof of the relevant properties was provided at that test. If the warranted properties are not, or only partially, fulfilled, the customer is initially entitled to subsequent improvement by smair, for which the customer must grant smair the necessary time and opportunity. If the improvement is unsuccessful or only partially successful, the customer is entitled to an appropriate price reduction. If the defect is so serious that it cannot be remedied within a reasonable period and the deliveries or services cannot be used for the stated purpose or can be used only to a significantly reduced extent, the customer has the right to refuse acceptance of the defective part or, if partial acceptance is economically unreasonable, to withdraw from the contract; smair can only be obliged to reimburse the amounts paid to it for the parts or services affected by the withdrawal. Consequential damage, and damage that cannot be proven to have arisen as a result of poor material or poor workmanship, are excluded from smair's warranty and liability — e.g. as a result of natural wear and tear, improper handling, excessive use and other reasons for which smair is not responsible. In particular, smair provides no warranty for defects arising from improper further processing or improper use. On account of defects in material or workmanship, or the absence of guaranteed properties, the customer has no rights or claims other than those expressly mentioned above. smair is liable for claims of the customer due to inadequate advice and the like, or due to the breach of any ancillary obligations, only in the event of unlawful intent or gross negligence.
12. Failure to perform, poor performance, consequences
In all cases of poor performance or non-performance not expressly regulated in these terms and conditions, the customer is entitled to set a reasonable grace period for the affected deliveries or services under threat of rescission in the event of default. This applies in particular if smair begins the execution of the deliveries and services so late, without reason, that timely completion can no longer be foreseen; if an execution contrary to the contract attributable to smair's fault can be foreseen; or if smair is responsible for the execution of deliveries or services contrary to the contract. If this grace period expires unused as a result of smair's fault, the customer may withdraw from the contract with regard to the deliveries or services performed in breach of contract, or whose execution in breach of contract is established, and reclaim the portion of payments already made. In such a case the provisions of Clause 11 apply with regard to any claim for damages by the customer and the exclusion of further liability, and the claim for damages is limited to 10% of the contract price of the deliveries and services for which the withdrawal occurs.
13. Termination of contract by smair
If unforeseen events significantly change the economic importance or the content of the deliveries or services, or have a significant effect on smair's work, and in the event that execution subsequently becomes impossible, the contract will be appropriately adapted. If this is not economically justifiable, smair is entitled to terminate the contract or the affected parts of it. If smair wishes to make use of this termination, it must notify the customer immediately after recognising the scope of the event, even if an extension of the delivery period has been agreed. In the event of termination, smair is entitled to remuneration for deliveries and services already provided. Claims for damages by the customer on account of such a contract termination are excluded.
14. Force majeure
smair is released from its delivery and service obligations if its fulfilment of the contract is prevented by unforeseeable or unavoidable events, or other events beyond smair's control. If the prevention lasts more than three (3) months due to force majeure, each party is entitled to terminate the part of the contract that cannot be fulfilled.
15. Exclusion of further liability by smair
All cases of breach of contract and their legal consequences, as well as all claims of the customer regardless of the legal grounds on which they are based, are conclusively regulated in these terms and conditions. In particular, all claims for damages, price reduction, cancellation of the contract or withdrawal from the contract not expressly mentioned are excluded. In no event shall the customer have any claim for compensation for damage that has not occurred to the delivery item itself, such as production stoppages, loss of use, loss of orders, loss of profit or other direct or indirect damage. This exclusion of liability does not apply to unlawful intent or gross negligence on the part of smair; it does, however, apply to unlawful intent or gross negligence on the part of auxiliary persons. Furthermore, this exclusion does not apply where it would be contrary to mandatory law.
16. Independence
Both smair and the customer are independent undertakings, and neither party is entitled to act in the name of or for the account of the other party, or to enter into obligations, without prior written agreement.
17. smair's right of recourse
If persons are injured or the property of third parties is damaged through acts or omissions of the customer or his auxiliary persons, and claims are made against smair for this reason, smair has a right of recourse against the customer.
18. Assignment
smair is entitled to assign the rights and obligations arising from the contract concluded with the customer, in whole or in part, or to transfer them in any other way to third parties, without the written consent of the customer.
19. Intellectual property rights
All intellectual property rights of smair — including copyrights and moral rights, patents, models, designs, utility models, trade marks, names and companies, as well as know-how — belong to smair and may not be copied or otherwise used without prior written agreement with smair.
20. Approvals and compliance with legal regulations
smair undertakes to obtain any permits required to fulfil the contract in accordance with the relevant statutory provisions. The customer is responsible for compliance with all import, re-export and end-use requirements applicable in the country of destination, and warrants that the goods will not be used, transferred or re-exported in breach of applicable export-control or sanctions regulations.
21. Confidentiality
This contract, offers, order confirmations and all other significant documents and information that smair transmits to the customer, his consultants, employees or subcontractors are to be treated confidentially. Their disclosure and use is to be made available only to those persons who need them to perform their task; the customer does not pass on any such information or data to third parties without smair's prior written consent.
22. Place of performance, place of jurisdiction and applicable law
The place of performance and jurisdiction is Frauenfeld, Switzerland. However, smair is entitled to take legal action against the customer at his seat. The legal relationship is subject to Swiss law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG / Vienna Sales Convention).
smair GmbH
Version 1.0 – 18-September 2026, Frauenfeld, Switzerland