Terms of Use
1. Scope
1.1 Hempel Special Metals AG ("Hempel") manages an electronic trading platform (Econoxx.com) for business-to-business trade ("Trading Platform") for residual items, special and remaining stock as well as seconds (i.e. products without a site acceptance certificate or with quality or shape deviations) in remaining stocks of high-quality metal ("Products"). Its aim is to bring together the suppliers and purchasers of such goods (together "Opposite Parties") in an efficient manner and to process the individual transactions on an optimal basis. For the sake of simplicity ECONOXX acts as a party (vis-à-vis the supplier as buyer; vis-à-vis the buyer as seller) but ECONOXX does not take on any risk, since ECONOXX acts in the economic capacity of an agent between the supplier and the buyer. The trading platform is aimed exclusively at business people and not consumers.
1.2 The following General Terms and Conditions ("GTC") apply exclusively to the whole current and future legal relationship between ECONOXX and the suppliers and buyers with regard to the trade in products. Upon placing an offer on the trading platform of ECONOXX and/or with the order by the buyer, the Opposite Parties acknowledge the exclusive and binding nature of these GTC.
2. Supplier's offer
2.1 The supplier can upload offers (advertisements) for its products on the trading platform. The supplier must place its offer in the correct category on the platform and must describe it correctly and completely. The supplier undertakes to provide (non-ehhaustive liste) the exact descriptions , volumes, surface qualities, certificates, alloys, condition of the material and weights. Any faults in the materials must be clearly identified in the product description.
2.2 In particular the supplier is obliged to state the precise sale and delivery quantities in its offer. The quantity stated by the supplier is deemed to be the minimum quantity, i.e. the quantity quoted is the minimum quantity for delivery and the maximum for invoicing. This applies to all the offers posted on the trading platform. ECONOXX is authorised to technically modify and configure the supplier's offers in such a way that they can also be displayed on the mobile terminals and software applications of third parties. The supplier's offer is binding for the supplier vis-à-vis ECONOXX. Following an order from a buyer it cannot undertake any changes to the offer. Accounting errors and incorrect volumes will be charged to the supplier in full.
2.3 Relevance and actuality of the offers (advertisements) on Econoxx.com
The supplier is obliged to keep his offers up-to-date.
A purchase of materials on Econoxx.com will adapt automatically the quantity offered, and if the offer is sold out it will be erased from Econoxx.com.
For any other, independent of Econoxx.com, modification of the offer (direct sale, liquidation, self-consume of the material, etc.) the supplier is engaged to keep his offer up-to-date, adapt or erase the quantity in his offer.
If an effective sale on Econoxx.com can’t be pursued because the supplier didn’t fulfil his engagement to keep his offer up-to-date, Hempel Special Metals AG has the right to bill the supplier with the commission due from the missing material
2.4 The supplier undertakes not to post any information or data in the offer that would encourage direct contact to be made with the buyers (e.g. telephone and fax numbers, e-mail addresses, web addresses, etc.). ECONOXX provides a contact tool with which the Opposite Parties can ask questions about the offer.
2.6 ECONOXX is entitled to delete the offers from suppliers at any time and is not obliged to provide any reasons for this.
2.7 If a supplier or a buyer violates a provision of these GTCs, even if it is only a minor provision, or any other separately agreed contractual provisions, ECONOXX is entitled to delete the corresponding user account (see point 9).
3. Conditional conclusion of the contract
3.1 The supplier's offer is binding. If a buyer orders any products, the contract of sale is concluded with ECONOXX. The buyer is obliged to provide all the information required for the sale in full and truthfully. In particular, this includes the correct delivery address as well as the possible delivery times and the name of the local contact person.
3.2 ECONOXX will confirm the order within two working days by email.
3.3. The purchase contract between ECONOXX and the buyer is subject to the requirements for correct delivery by the supplier of the products ordered by the buyer. If the supplier does not deliver the products ordered, ECONOXX shall return the purchase price already paid to the buyer. However, ECONOXX is not obliged to procure the ordered products by another means.
3.4 Following the confirmation of the contract vis-à-vis the buyer, ECONOXX confirms the buyer's order vis-à-vis the supplier, whereby the purchase contract between ECONOXX and the supplier is concluded.
4. Payment
4.1 Payment in advance
4.1.1 Purchase transactions are processed via ECONOXX.
4.1.2 Following the full and complete registration or entry of the already registered user data, the buyer must pay for the products immediately (payment in advance). Suitable electronic payment methods are available to help the buyer with this. The buyer accepts the liability and guarantee for the correctness of his information. Any costs that arise for ECONOXX or the supplier due to incorrect details will be charged to the buyer.
5. Limitation of ownership; Compensation; Right of retention
5.1 For consumers, we reserve the right of ownership for purchased item until the bill is fully paid. If you are an entrepreneur in the midst of trade or self-employed, a legal individual under public law or public sector fund, we retain ownership of the purchased item until all outstanding claims from the business transactions with you have been settled. The relevant security rights can be transferred to third parties.
5.2 A right of compensation is only available to you, if your counterclaims are established legally or recognized or accepted by us. Additionally, you only have a right of retention, so long as your counterclaim is based on the same contract.
5.3 If the customer has any remaining default payments due to us, all existing receivable are due immediately.
6. Order Processing
6.1 Insofar as it is not set out and agreed otherwise in the order procedure, the buyer is fundamentally responsible for the transport from the supplier to the buyer (obligation to collect). Upon collection from the supplier the benefits and risks are transferred immediately to the buyer. By clicking the checkbox "Please provide quote for transport costs" the buyer can request ECONOXX for a quotation for the transport. ECONOXX will pass on the request for a quote to a freight company. ECONOXX charges a service fee for providing the quotation, which must be paid in advance. Transport is organised either directly by the buyer or by ECONOXX at the risk of the buyer, where the buyer has commissioned ECONOXX to do so for a fee.
6.2. If DDP was set out and accepted by the buyer in the ordering process, the supplier undertakes to act as the client vis-à-vis the buyer with regard to transport. The corresponding costs incurred by the supplier will be compensated in full by the buyer, whereby ECONOXX will be responsible for invoicing. These costs are guaranteed to the supplier by means of the advance payment.
6.3 If a cross-border transaction is involved between the EU and Switzerland or the EU and a third country, the buyer is responsible for any duty (including all fees, such as customs duty for products from specific countries) and VAT incurred. The buyer is responsible for finding out about this and must also obtain information on the statutory provisions in the country of the relevant Opposite Party itself. Import documents must be filed and presented to the relevant authorities and also to the Opposite Party upon request.
7. Guarantee vis-à-vis the buyer
7.1 ECONOXX guarantees only that the products have the agreed nature and quality upon the transfer of risk. This nature and quality is measured exclusively in accordance with the specific written agreements between the parties concerning the properties, features and performance characteristics of the object to be delivered. Any further guarantee, in particular regarding the value or suitability for the proposed purposes is expressly excluded.
7.2 Standard commercial deviations in the quantities and weight of up to 10% of the quantity ordered are acceptable. The standard commercial deviations in quality and/or differences in properties are also permitted.
7.3 A prerequisite for the rights of the buyer with regard to defects in the products is that the goods should be inspected immediately upon delivery and that ECONOXX should be informed immediately of any faults, but within 2 working days following delivery at the latest, in writing and with a detailed description, stating the invoice number. ECONOXX must be informed immediately of any hidden faults once they have been identified, in writing and with a detailed description.
7.4 In the case of every complaint ECONOXX is entitled to view and test the relevant products. The buyer shall provide ECONOXX with the necessary time and opportunity for this. ECONOXX can also request that the buyer should return the relevant products to ECONOXX or the supplier.
7.5 ECONOXX will rectify any faults as it sees fit, either by means of the elimination of the defect free of charge or through a replacement delivery in relation to the total products ordered (hereinafter "Supplementary Performance"). Partial repayment is not possible unless ECONOXX has agreed to this partial repayment in advance. Further warranty claims in addition to this Supplementary Performance, in particular any claim for damages, are excluded. However, ECONOXX can refuse this Supplementary Performance if this would incur disproportionate amounts of time and/or costs.
7.6 The transport, route, work and material costs incurred for this Supplementary Performance shall be borne by ECONOXX. If the complaint about defects should prove to be unjustified because it was caused intentionally or due to gross negligence and if this was clear to the buyer before it made the complaint, the buyer is obliged to reimburse ECONOXX all the expenses incurred in this regard (for example transport or freight costs).
7.7 If the Supplementary Performance should prove to be ineffective or if ECONOXX justifiably refused to carry it out, the buyer can withdraw from the contract. In this case the buyer will be reimbursed the purchase price. Further claims, in particular claims for damages, are excluded.
7.8 The period of limitation for the buyer with regard to defects is six months following the delivery of the goods to the buyer.
8. Liability and duty to indemnify
8.1 ECONOXX accepts liability only for criminal intent or gross negligence. Any other liability with regard to the products is expressly excluded, to the extent permitted by law. In particular, ECONOXX accepts no liability for the uninterrupted availability of the trading platform and/or of its services, in particular if the functions of the trading platform are dependent on third-party networks. In particular, ECONOXX can temporarily restrict its IT services if this is required due to security requirements, capacity limits, the integrity of the IT system or for the execution of technical measures or it will contribute to the standard or improved provision of services within the framework of maintenance work.
8.2 In the case of a supplier's warranty on the part of ECONOXX vis-à-vis the buyer with regard to defect rights in relation to the product, the supplier shall indemnify ECONOXX in full (incl. indirect costs, such as lawyers' fees in particular). For the sake of clarity: Although ECONOXX deals with the processing of the sales agreements, ECONOXX never owns the products itself. Therefore ECONOXX is unable to check the products, which is why the supplier indemnifies ECONOXX in full in the case of warranty claims made by the buyer vis-à-vis ECONOXX, irrespective of any duties of inspection and complaint on the part of ECONOXX.
8.3 In the case of other complaints made by the buyer vis-à-vis ECONOXX with regard to defect rights, the supplier shall also indemnify ECONOXX in full (incl. indirect costs, such as lawyers' fees in particular), in particular if the buyer insists on the performance of the sales agreement vis-à-vis ECONOXX, although the supplier does not deliver the ordered products.
8.4 If the buyer sells the products to a third party (i.e. if it uses the products), it shall indemnify ECONOXX from the internal relationship for product warranty claims of third parties, insofar as it is responsible for the faults that triggered the complaint. The supplier shall indemnify ECONOXX in full in the case of claims brought by third parties in relation to product liability and/or product safety (incl. indirect costs, such as lawyers' fees in particular).
8.5 In the event of claims by third parties vis-à-vis ECONOXX with regard to the offer or the contents of the offer (including infringements of intellectual property rights and links) the supplier shall also fully indemnify ECONOXX (incl. indirect costs, such as lawyers' fees in particular).
9. Commission
9.1 The supplier hereby undertakes to pay ECONOXX a commission up to 15% (in the moment 5%, from the 12.02.18: 10%) of the purchase price for the successful processing of each individual sales agreement. This commission is deducted from the payment of the purchase price to the supplier within 30 days of delivery and/or collection by the buyer.
9.2 In addition, ECONOXX charges the buyer a processing fee and if necessary any other fees incurred (e.g. with regard to transport and the payment with credit card and/or in a foreign currency). These fees are set out on the trading platform.
10. Conditions of use for the trading platform
10.1 ECONOXX can link the use and/or the scope of the use of its services or individual functions to specific requirements, such as further verification of the registration data (e.g. via a double opt-in), payment behaviour or the provision of specific verification (e.g. ID, proof of purchase, payment or ownership). ECONOXX is authorised to use third parties in the management of the trading platform and the processing of the purchase transactions.
10.2 Upon registration every Opposite Party chooses a user name and password. The user name must not infringe the rights of third parties, in particular brand names or trademarks or name rights or transgress any standards of public decency.
10.3 The Opposite Parties must ensure that the user name and password are not accessible to third parties. They are liable to ECONOXX for all damage that is caused by the misuse of their access data for which they are responsible.
10.4 The Opposite Parties hereby undertake that they will not use technical software activities that trigger automatic access and data transfer in particular, which impede processes on the market place, hinder operations on the trading platform, limit the performance of the trading platform or could violate the rights of ECONOXX, its licence provider or other Opposite Parties.
10.5 The Opposite Parties must treat the information on the trading platform with confidentiality.
11. Blocking of your user account
11.1. ECONOXX is authorised both to block the user account of an Opposite Party and also to prohibit said Opposite Party from further use of the platform, if the Opposite Party violates the GTC, the valid laws or public decency or ECONOXX has another justified reason for the block. A justified interest in the blocking of a user is given in particular, if an Opposite Party:
• gives false information at registration;
• is acting on behalf of an unnamed third party, in particular if the user account of said third party has already been deleted;
• provides false information regarding the type of material, the prices, volumes, weights, surfaces, certificates, availability, drawings and condition of the material when posting its offer to the detriment of ECONOXX or the buyer;
• makes its user licence available to third parties or copies, reproduces, distributes or makes available to third parties in any other way the offer, personal or dealer data that it has acquired due to its licence;
• repeatedly violated its duties when posting offers and/or submitting orders on the platform;
• violates the rights of third parties in connection with the use of the trading platform, or if said third parties can clearly assert that their rights have been violated;
• is over-indebted or unable to pay or if insolvency proceedings have been initiated over its assets.
11.2 ECONOXX can inform the Opposite Party of the full or partial blocking of its account. Any claim for damages or other claims vis-à-vis ECONOXX resulting from such blocking is excluded.
12. User licence, contractual penalty for contraventions
12.1 All the rights to the websites for the trading platform including their contents are the property of ECONOXX or have been licensed by third parties to ECONOXX. Intellectual property rights such as copyrights, trademark rights and other intellectual property rights are the exclusive property of ECONOXX and/or the licence providers. Moreover, these contents may be used by the Opposite Parties only in connection with the use of the website and/or the trading platform, and may not be downloaded, copied, reproduced, distributed, transmitted, sent, presented, sold, licensed or used for any other purpose without the prior written agreement of ECONOXX.
12.2 Suppliers are exclusively responsible for the contents (in particular images) that they post on the ECONOXX platform (including links in connection with the offer).
13. Data protection
ECONOXX hereby undertakes to comply with the provisions of the Federal Law against Unfair Competition and the Federal Law on Data Protection, in relation to the data collected by ECONOXX within the framework of the use of the website and the webshop. ECONOXX's [link] shall apply in relation to the collection and use of personal data in addition to these GTC.
14. General provisions
14.1 The Opposite Parties may not assign their claims against ECONOXX to third parties without the written authorisation of ECONOXX.
14.2 Changes and supplements to these GTC as well as any ancillary agreements require the written form. This also applies to any change to this written form requirement.
14.3 If a provision in these GTC and/or in an ancillary agreement is fully or partially ineffective, the efficacy of the remaining provisions shall not be affected. In this case, the parties undertake to replace the invalid provision by a valid provision which approximates as closely as possible the economic purpose of the invalid provision. This also applies for omissions in the contract.
14.4 The place of performance for all reciprocal claims is 8600 Dübendorf (Switzerland).
14.5 The exclusive place of jurisdiction for all disputes arising out of the contractual relationship is the headquarters of ECONOXX. However, ECONOXX is authorised to sue the Opposite Party in any other court having jurisdiction.
14.6 Exclusively Swiss substantive law shall apply for all the contracts concluded with ECONOXX, with the exclusion of private international law, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG).