Oralplant Suisse SA Store Terms and Conditions of Use
1. General provisions
1.1 These Terms and Conditions of Use only apply to parties who enter into a sales contract acting in exercise of their commercial or independent professional activity ("Entrepreneurs"), and to legal entities under public law or special funds under public law. These Terms and Conditions of Use do not apply to individuals ("Consumers") who enter into a sales contract for reasons not connected with their commercial or independent professional activity.
1.2 All offers, supplies and other services - including in the future - vis-à-vis the parties referred to in the previous section shall be governed exclusively by these Terms and Conditions of Use. The Buyer’s own terms and conditions shall only apply insomuch as they do not differ from or contradict these Terms and Conditions of Use, unless expressly approved by us in writing. The same shall also apply in those cases in which we supply goods to the Buyer without reservation, even though we are aware that the Buyer's terms and conditions differ from, or are contrary to ours.
1.3 As regards any third-party software not supplied by Oralplant, the respective manufacturer's licensing terms shall take precedence. Oralplant shall make the respective manufacturer's licensing terms available to the Buyer upon request prior to formation of the contract.
2. Formation of contract
2.1 The contract shall be concluded only when confirmed in writing by Oralplant or when the latter commences performance. Oral declarations by employees or representatives, changes to confirmed orders, including changes concerning items to be supplied, and any ancillary agreements must be confirmed in writing by Oralplant in order to be effective.
2.2 Oralplant reserves the right to make changes in design and materials relative to the product descriptions in the catalogue, provided that the contractually stipulated use of the goods is not substantially impaired or adversely affected and the changes are deemed acceptable by the Buyer.
2.3 Oralplant retains all rights of ownership, copyrights and industrial property rights (including the right to apply for such rights) to cost estimates, images, drawings, and other documentation; such documentation may only be made accessible to third parties when there is discernibly no need for confidentiality.
3. Delivery
3.1 Delivery deadlines shall be binding when agreed upon by the parties and set forth in writing at the time of formation of the contract. The binding delivery period starts as of the date of order confirmation by Oralplant. The delivery period shall be deemed as complied with when the conditions required for the transfer of risk have been met within the agreed deadline pursuant to section 4.1 below.Delivery terms, though binding, shall not give rise to a right to any form of compensation. Oralplant reserves the right to refuse delivery in the event of non-fulfilment of contractual obligations and duties on the part of the Buyer.
3.2 In the event of force majeure or other unforeseeable circumstances beyond the control of Oralplant after the formation of the contract, the delivery deadline shall be extended accordingly, provided the above circumstances affect fulfilment of the order, including when such circumstances regard sub-contractors. Oralplant shall promptly notify the Buyer when such circumstances start and cease. Should the said circumstances prevail for three months or are expected to prevail for more than three months, both the Buyer and Oralplant shall be entitled to withdraw from the contract.
3.3 Notwithstanding the provisions of section 3.2, inaccurate or late delivery by one of its suppliers shall not constitute default by Oralplant in relation to the Buyer. Oralplant shall not assume any supply risk and reserves the right to cancel the contract if it cannot be held accountable for non-delivery or late delivery.
3.4 Following the formation of the contract, should Oralplant's right to payment be found to have been undermined owing to the Buyer's inability to pay, Oralplant shall be entitled not to fulfil its obligation. Such right shall cease to apply when payment is made or security is provided to ensure performance of the contract. Oralplant may decide to grant the Buyer a reasonable period of grace within which to fulfil its payment and/or payment guarantee obligations, after which time Oralplant shall be entitled to withdraw from the contract.
3.5 Should the Buyer default in payment of the purchase price and when the reasonable period of grace envisaged by the law and established by Oralplant has elapsed, the latter shall be entitled to withdraw from the contract and/or demand compensation in lieu of performance. In the latter case and without the burden of proof, Oralplant may demand compensation in the amount of:
a) 30% of the purchase price, for consignments of standard products or products produced in series, and when the conditions set forth under point b) below are not fulfilled, or
b) 100% of the purchase price, for consignments of goods that are no longer any use owing to the delayed acceptance thereof on the part of the Buyer, or for consignments of products not made in series but tailored to meet the Buyer's specific requirements and when Oralplant has incurred the costs in order to prepare the product for delivery.
Oralplant reserves the right to request additional compensation.
3.6 In the case of late delivery by Oralplant, the Buyer shall be entitled to demand delivery and grant a reasonable extension of the deadline. Once said time has elapsed, without result, the Buyer shall have the right to withdraw from the contract. In that case, Oralplant shall only be liable for any loss or damage resulting from late delivery within the limits pursuant to section 8 hereinbelow.
4. Shipment and transfer of risk
4.1 Goods shall be shipped on account and at the risk of the Buyer. All risk shall be transferred to the Buyer the moment the goods leave Oralplant's factory or warehouse, including in the case of partial consignments. If shipping is delayed owing to circumstances for which Oralplant cannot be held responsible, the risk shall be transferred to the Buyer when notice is given that the "goods are ready for shipment".
4.2 Unless specific arrangements are made as regards the shipping method, Oralplant shall choose the shipping method at its own discretion, without any obligation to guarantee that the method it chooses is the safest, fastest or least expensive. Any damage caused during carriage must be reported in writing to us and to the carrier within not more than three (3) days of receiving the goods.
4.3 Should Oralplant act merely as the seller and arrangements have been made for the goods to be collected by the Buyer, Oralplant shall keep the goods for the Buyer in the manufacturer's packaging, and shall not provide any additional packaging for their transportation.
4.4 Partial consignment and performance are permitted if previously agreed upon and may be billed separately by Oralplant.
5. Prices and Payment
5.1 All prices are quoted in local currency and ex works (EXW; Incoterms 2010). Prices quoted do not include packaging and shipping costs or statutory value-added tax.
5.2 The sale price is that shown in Oralplant's order confirmation. For orders that are not confirmed in writing, reference should be made to the prices shown in the price list in force on the date when the order was placed. Oralplant reserves the right to amend its price lists at any time and it is up to the Buyer to ask Oralplant for the price in force on the date of signing the contract.
5.3 Unless otherwise agreed upon, payments shall be due in full within 30 days of the invoice date. Payment shall be deemed to have been made when Oralplant has received the payment and can dispose of the amount paid. By way of exception to the above, should the Buyer be in default on payment of a previous consignment, the invoiced amount shall be payable immediately and in full.
5.4 All costs incurred in connection with payment, in particular bank charges plus value-added tax on the invoiced amount, shall be borne by the Buyer and payable immediately.
5.5 Should the Buyer default on payment, Oralplant may demand default interest at the statutory rate.
5.6 The Buyer shall have the right of set-off only if and insofar as the counter claims thereof have been determined by a definitive court ruling or recognised by Oralplant.
6. Retention of title and other payment guarantees
6.1 Title to the goods delivered shall remain vested in Oralplant until all payments, present and future, ensuing from its contractual relations with the Buyer, including ancillary claims such as interest on late payment, have been received in full. Upon receipt of payment in the form of a credit instrument, payment shall be considered to be made when such instrument is cashed and Oralplant is able to unconditionally dispose of the respective amount.
6.2 Before paying the agreed purchase price, the Buyer shall be entitled to process the goods received in the course of normal business activities, re-sell the reserved goods or use them in order to fulfil other contractual obligations vis-à-vis third parties, but may not pledge or assign the goods as security.
6.3 Should the Buyer default on payment or fail to fulfil its contractual obligations, Oralplant shall be entitled to provisionally reclaim the reserved goods held by the Buyer, as well as any reserved goods re-sold to third parties. Such right does not regard any goods that have already been paid for. Oralplant shall also be authorised to record the retention of title in the specific retention of title register held at the Clerk of Court's Office, at the expense of the Buyer. Unless otherwise agreed upon, exercise of the aforesaid right and reclamation of the goods shall not imply withdrawal from the contract. Oralplant shall be entitled to sell, lease or otherwise use the reclaimed goods. The proceeds shall be credited towards the amounts payable by the Buyer, minus any management fees and amortisation/depreciation.
6.4 Oralplant hereby agrees that the receivables arising from one of the lawful actions pursuant to section 6.2 for the total value of the reserved goods as per the invoice, shall be transferred from the Buyer to Oralplant. The purpose of said transfer of receivables is to guarantee all claims in connection with the business relationship with the Buyer.Oralplant revocably authorises the Buyer to collect the receivables transferred to Oralplant, on behalf of Oralplant but in its own name. Such authorisation may only be revoked for objective and justified reasons, in the case of non-fulfilment of payment obligations by the Buyer or the initiation of insolvency proceedings against the latter. In that case, Oralplant shall ask the Buyer to declare the receivables transferred and the Buyer shall make the related documentation available and notify the obligor.
6.5 The Buyer shall be under obligation to notify any third parties in respect of Oralplant's retention of title. In the case of attachment or pledging of the goods as security, the Buyer shall notify Oralplant thereof in writing. The Buyer shall be held liable for any losses sustained by Oralplant when the third parties concerned are unable to refund Oralplant for the costs incurred to take legal action against the attachment or pledging of the goods
7. Intellectual Property
7.1 Oralplant retains exclusive intellectual property rights over Oralplant products.
None of the General Terms and Conditions or any related contractual agreements shall be construed as transferring any intellectual property rights to the Buyer. Oralplant also retains property rights over all illustrations, projects, calculations and any other documents prepared by Oralplant, in connection with the General Terms and Conditions, pursuant to these provisions and any other contractual agreements.
8. Complaints and warranty
8.1 The Buyer is under obligation to notify Oralplant in writing, within eight days of delivery, of any defects, otherwise the goods shall be deemed to have been accepted. Any hidden defects shall be reported within eight days of their discovery. If the Buyer fails to report such faults in time, the faulty goods shall be deemed to have been accepted. Such defects shall be reported using the "Failure Analysis Procedure” form, and stating the delivery date and product batch number.
8.2 In the case of any externally visible loss or damage to the goods delivered, the Buyer shall call upon the carrier to inspect and certify the loss or damage and immediately notify Oralplant in writing, attaching the carrier's certificate. The same shall apply for any loss or damage that may become apparent at a later date but was not originally externally visible.
8.3 The Buyer must give reasons for returning any goods and all returns must be authorised in writing by Oralplant using the "Oralplant Return Authorisation Request” form. Reference must be made to the delivery date and production batch. Returns shall not be accepted unless previously authorised in writing by Oralplant and sent carriage paid.In the case of minor defects, the customer shall only be entitled to withdraw from the contract with the consent of Oralplant.
8.4 The warranty against product defects shall only apply when the goods delivered are defective at the time of transfer of the risk. The warranty does not cover defects in the case of incorrect or inappropriate use or treatment of the goods delivered, normal wear or unsuitable conditions of use, etc.
8.5 The products are fit for the purpose for which they are normally used and are covered by warranty against non-conformity and defects in materials and workmanship. The warranty only covers the replacement of products and/or parts found to have defects, within the time actually necessary, with the same method and place of delivery as originally agreed upon. The warranty period is 12 months, as from the transfer of risk.
8.6 Oralplant shall only be liable for loss or damage caused as a result of faulty products within the limits specified in the previous section.In the case of faulty goods supplied by a sub-contractor, Oralplant shall be entitled to transfer its warranty rights vis-à-vis the sub-contractor to the Buyer and delegate the latter to exercise such rights. Oralplant may be held liable when the claims against its sub-contractors cannot be enforced notwithstanding timely recourse to the judicial authority.
9. Liability and limitations of warranty
9.1 The warranty shall not apply to products that are used for purposes other than those for which they are intended or whose functioning has been altered in any way, the assembly of parts and/or components not supplied by Oralplant, parts not processed and/or modified by Oralplant, applications and/or insertions not compliant with protocol requirements and/or theoretical and/or practical specifications.The warranty shall not cover normal wear and tear of the products and shall not apply when products are used by professionals who have not received the minimum level of training required, namely, for Surgical products, a three-day course, and for Prosthetic products, a one-day course, as well as any subsequent product update courses.
9.2 Oralplant shall not be liable in any way for loss of revenue or for any secondary, indirect, special, consequential loss or damage or for other analogous types of loss or damage.All the exclusions and limitations of liability included in these General Terms and Conditions also apply to the personal liability of employees, operators, co-workers, representatives, assignees and assistants of Oralplant, unless expressly authorised.
9.3 The procedures, protocols, information in the product catalogue and instructions for use issued by Oralplant are recommendations for the correct use of its products. Oralplant disclaims all responsibility for the method of use of products sold.
10. Specific rules for orders placed through the Oralplant Internet Store
10.1 Orders placed through the Oralplant Internet portal are subject to the following additional rules:
The Internet portal on the
www.oralplant.ch, website is for registered professional users (dentists, dental laboratories, etc.) in Switzerland.
Users must register to place orders through the Internet portal. The user name and password must not be passed on to third parties and order details may only be entered by registered users.
Offers made by Oralplant through the Internet portal are not binding. Buyers who use the Internet portal must place their orders by entering the requested data in the specific window and submitting the order. Orders placed by the Buyer are binding and the latter will receive an e-mail confirming receipt of the order. Upon receiving the order, Oralplant verifies the data submitted by the customer.
If the outcome of said check is positive, Oralplant shall accept and then process the order.
Delivery periods and deadlines are only binding when expressly agreed upon in writing at the time of formation of the contract. The general instructions provided on the Internet portal do not constitute any guarantee of delivery periods or deadlines.
11. Validity and jurisdiction
Unless otherwise agreed upon, the place of performance shall be at the seat of Oralplant Suisse SA.
These General Terms and Conditions of Use of the Website, the General Terms and Conditions of Sale in force, the contractual relationship on which they are based and any disputes arising in connection therewith, shall be governed by Swiss law.
Any disputes arising out of or connected with the General Terms and Conditions or the contract on which they are based shall fall within the exclusive jurisdiction of the ordinary courts of the seat of Oralplant Suisse SA.
Last revised in August 2016
Oralplant Suisse SA – Via Penate 16 – 6850 Mendrisio
