GENERAL TERMS & CONDITIONS
1. Scope
1.1 These general terms and conditions (the “General Terms”) govern all contracts for the purchase of goods entered into between any company belonging to the Elixi Group, acting as supplier (each, “Elixi”), and any client. The General Terms, together with the special conditions set out in the relevant order form (the “Order”) and any additional specific conditions agreed between the parties (the “Specific Conditions”), constitute the sole and exclusive terms governing such contractual relationships (collectively, the “Agreement”). Any general terms or conditions issued or applied by the client are hereby expressly excluded and shall have no effect.
1.2 In the event of discrepancy in the contractual documentation, with reference to the provisions in conflict, the following will apply in a descending order of priority:
a) Technical documentation (Supply, Quality Agreement, Distribution Agreement)
b) Quotation
c) Order
d) Specific Conditions (if any)
e) General Terms
2. Orders and changes
2.1 The Agreement shall be deemed concluded when Elixi gives to the client written confirmation of the Order by e-mail. Until such time, Elixi shall have the right to cancel or change the Order received from the client.
2.2 Once the Order is confirmed by Elixi, the client shall not be entitled to cancel or modify it without Elixi’s written consent. In proving the consent, Elixi may update the economic terms and conditions of the Offer.
2.3 Each Order shall refer to a single Quotation only. Even if for the same Goods, Elixi shall be entitled to propose different Quotation.
2.4 The acceptance by Elixi of an Order sent by client constitutes full and unreserved acceptance of these General Terms by the client.
2.5 Unless expressly requested by the client, the Quotation does not include shipping costs, packaging materials, documents, handling costs, insurance coverages, duty and customs fees.
2.6 The Quotation does not include any certificate of analysis, certificate of conformity or any other technical certification. The Certificates of analysis, as well as other technical documents, shall be issued only upon the clint’s prior request and prior agreement between the Parties. Upon client’s request, Elixi shall provide information on the costs of this service in the Quotation.
3. Subject matter of the contract
3.1 Elixi guarantees the possession of all requirements and permits or licenses necessary for the performance of the supply in accordance with applicable law and regulations.
3.2 Elixi warrants that the goods supplied (hereinafter the “Goods“) are fully compliant with the Order, suitable for use in accordance with the applicable laws and regulations, free from faults and defects and fully functional; it also guarantees the absence of rights of third parties and, where applicable, the minimum performance stipulated in the Order.
3.3 Elixi shall exercise its reasonable effort to meet the client’s demand. Should the quantity of Goods available do not correspond to the quantity ordered, Elixi shall, at its discretion, (i) cancel the order without any penalty (ii) supply the Goods in its availability.
3.4 No form of exclusivity is granted to the Client.
4. Delivery
4.1 The delivery must be performed at the place and time specified in the Order. Unless otherwise specified, the place of delivery shall be deemed to be the registered address provided in the Regulatory License. The risks related to transportation of goods shall be EXW Chiasso (Incoterms 2020).
4.2 The Goods should also be packed in such a way as to be clearly identifiable. The packaging must be appropriate to the type of Goods and in accordance with the applicable laws and regulations. The Goods shall be packed by Elixi to preserve them from any damage or product’s deviation. In addition, Elixi shall provide all instructions (including, without limitation, temperature requirements) necessary to ensure the preservation of the quality and integrity of the Product, in accordance with the manufacturer’s specifications. Should the client not comply with Elixi’s instructions, the client shall defend, indemnify, hold Elixi and all the officers, directors, and employees thereof harmless from and against all liabilities, damages, losses, costs or expenses (including but not limited to reasonable legal fees and expenses) resulting from any third party claim made or suit brought against Elixi and its affiliate and licensees and all the officers, directors and employees to the extent the same is arising from any product liability claim related to the product sold by the client at any time.
4.3 Unless otherwise agreed, dispatch and all delivery costs are borne by the client.
4.4 For goods stored at Elixi, a storage fee as per below template will be charged starting from the 30th day after notification of availability. Any unpaid goods will be invoiced and become immediately payable from the invoice date.
Storage of Product |
Price |
| Shelf Space (2°-8°) | 350 CHF/week |
| Shelf Space (15°-25°C) | 200 CHF/week |
| Pallet Space (15°-25°C) | 250 CHF/week |
| Frozen Shelf Space (-20°) | 500 CHF/week |
5. Claims for defects and non-conformities
5.1 Within 2 days of receipt of the Delivery, client shall notify Elixi of any non-compliance and/or non-conformance with the Order and/or the presence of faults, defects or deficiencies of the Goods. The defects, faults and/or non-conformance shall be reported within 2 days of their discovery.
5.2 In case of non-conformance of the goods supplied, Elixi shall, at its option, (i) reduce the price, or (ii) replace the Goods. Elixi shall assume no responsibility for product defects or out of specifications due to the wrong transport conditions managed by the client. It is understood that in case of faults, defects or deficiencies of the Goods, the client shall not sell, commercialize or otherwise cease the Goods, if requested or otherwise specified by Elixi shall destroy them at its cost and expenses, giving Elixi evidence of such destruction.
6. Consideration and payments
6.1 As consideration for the supply of Goods, the Client shall pay the full amount in accordance with the terms agreed upon in writing. All bank fees are paid by the customer.
6.2 On expiry of the payment term specified above, Elixi is entitled to interest on late payment at the rate applied.
6.3 The price is to be regarded as excluding customs duties to the place of delivery, customs fees, import VAT, and insurance. The prices will be expressed in CHF or USD or Euro, as agreed upon at the time of the offer.
7. Advance payments and penalties
7.1 If specified in the Order or in the Special Conditions, Elixi has the right to request client to pay a down payment. Any down payment, where due, shall be automatically deducted from the first invoice due.
7.2 If a contract penalty for delay payments has been agreed upon and is incurred, Elixi is entitled to claim such penalty until the final payment is made.
8. Prohibition of assignment of the contract and credit
8.1 The Agreement may not be assigned or transferred to third parties by the client, even in part.
8.2 It is understood that the Agreement may be assigned by Elixi to other companies of the Elixi Group without the consent of the client.
9. Confidentiality and ownership of information
9.1 For the whole duration of the Agreement and for the longer of (i) 5 years after its termination or expiration and (ii) the moment in which the Confidential Information becomes of public domain, client shall not use, directly or indirectly, nor to reveal to anyone – without preventive written permission of Elixi – information, data, results and documents directly related to or resulting from the Agreement (the “Confidential Information“), of which the client has knowledge, possession or detention, as a consequence or in relation to this Agreement.
9.2 Confidential Information does not include any information where (i) the information is or subsequently becomes generally known to the public without any violation of this Agreement by client; (ii) client can demonstrate by authentic business records to have been lawfully in possession of such information prior to first receipt from Elixi; (iii) the information is disclosed to client by a third party who has the right to make such disclosure without any obligation of confidentiality to Elixi; or (iv) the information is independently developed by client without reference to Elixi’s Confidential Information.
10. Personal Data
10.1 The Parties undertake to comply with the European General Data Protection Regulation no. 679/2016 (“GDPR”) and Legislative Decree no. 196/2003, also with reference to the personal data of third parties, including employees, representatives, collaborators, consultants and auxiliaries, possibly processed.
10.2 Each Party guarantees the existence of the conditions of legitimacy to expressly consent to the processing of personal data of the other Party, including the data of employees acting on behalf of each Party in execution of this Agreement. Each Party also guarantees the conditions of legitimacy so that its personal data may be communicated to third parties if such communication is necessary for the fulfilment of this Agreement.
10.3 When processing personal data of employees and collaborators of the Client and/or any third parties who may be involved in implementing the Agreement (e.g. employees and collaborators of any authorised subcontractors), the Client undertakes, before implementing the processing operations of the aforementioned data, to give suitable information and, if required, to acquire the consent to data processing of the interested parties, including the transfer of the same to Elixi.
11. Consummation of Intellectual Property Rights
11.1 The supply of Goods under this Agreement will determine consummation of any intellectual property rights on drawings, specifications, calculations, processes, programs, concepts, ideas, know-how, images, trademarks, skills, working methods, discoveries, inventions, whether patentable or unpatentable, software, source code, object code, incorporated in the Goods.
11.2 Elixi shall therefore further dispose and/or distribute the Goods, and any intellectual property rights incorporated in the same, without the consent of the client.
12. Force Majure
12.1 If due to any occurrence beyond its reasonable control, Elixi is unable to perform its obligations under the Agreement, then Elixi shall be entitled to immediately cease its performance until such occurrences have ceased. Elixi shall not be liable to client for any delays, failures or suspensions in performance, due to such occurrences. For the purpose of this article, occurrence “beyond its reasonable control” can be also considered any act of the authority of the country where the product will be delivered such as customs, health and regulatory authority.
13. Audit
13.1 Elixi has right to carry out audits at the offices of the client with 14 (fourteen) days prior written notice, to verify compliance with the obligations assumed by the client under this Agreement.
13.2 Information and documents of the client examined during the Audit are covered by the same provisions set out in art. 9 of this Agreement.
14. Applicable laws and Jurisdiction
14.1 This Agreement shall be construed and interpreted according to the laws of Switzerland.
14.2 Any dispute concerning the validity, effectiveness, interpretation, performance and/or termination of this Agreement shall be referred exclusively to the Courts of Lugano (Switzerland).