General Terms and Conditions of Leasing printers (GTCL) applicable to rental and financial leasing contracts concluded with Fricode Sàrl.
1. Purpose of the contract
The lessor (hereinafter referred to as "Fricode") shall acquire from the supplier the rental/leasing object (hereinafter referred to as "the object"), which is described in the rental or leasing contract (hereinafter referred to as "the contract"). This has been selected by the client from the supplier on the basis of the rental contract concluded between Fricode and the client. Fricode shall then transfer it to the client against payment for an agreed fixed period of time, for professional or commercial use. Fricode's remuneration is paid by the client in the form of contractually-agreed rental payments plus the statutory value added tax (VAT)
2. Duration of the contract
The contract is normally concluded for the duration of the contract set and chosen by Fricode. The contract period begins with the handover of the object and ends with the chosen contract period.
The contract is automatically renewed for the duration of one year unless it is terminated by registered letter at least 6 months before its expiry.
3. Rights and duties of the parties
3.1 Acquisitions and transfer of the object
3.1.1 The client has chosen the supplier and the object itself. Fricode shall acquire the described object in accordance with the client's instructions and on condition that the contract under which the use of the object is to be transferred to the client has been validly concluded – and on condition that Fricode is in possession of the delivery report signed by the client (Sections 3.1.5 and 3.1.6). The contract shall also apply subject to the proper provision of any agreed securities by the client, the supplier or a third party.
3.1.2 In the event of non-performance of the purchase or work contract with the supplier (hereinafter referred to as "the supply contract"), or if the supply contract is terminated for any reason whatsoever, the client shall guarantee to Fricode, to the exclusion of any exceptions or objections, the reimbursement of the payment made by the client to the supplier, unless Fricode is at least responsible for the non-performance or termination of the supply contract due to gross negligence. This provision shall also apply in substance to the following cases: nullity or partial cancellation of the supply contract; subsequent total or partial renunciation of services due to a delay in delivery or a breach of contract; reduction of the price as a result of the application of a guarantee; partial eviction due to a legal guarantee; and partial reimbursement of differences arising from supply contracts with a price clause.
3.1.3 Unless otherwise agreed in the contract, the supplier shall deliver and install the object directly to the client. In doing so, it is expressly stated that the supplier is not the representative of Fricode. The costs and risks associated with the delivery as well as the risk of limited suitability of the object for use shall be borne by the client, insofar as they are not borne by the supplier.
3.1.4 If all or part of the object is software, Fricode grants the client the corresponding right to use and enjoy the software for the agreed period of time, which right shall be derived from the acquisition of the system software or end-user software chosen by the client independently and on the client's sole responsibility from the supplier on the basis of the rental/leasing agreement. The client has taken note of the contractual provisions for the transfer of system software and end-user software it has chosen. The client also undertakes to comply strictly with the provisions of the licence agreement of the software manufacturer or supplier. It assumes unlimited liability to Fricode for damages resulting from a breach of the license agreement. The leasing of software is subject to the corresponding special conditions of these GTCL. In the absence of special provisions for software, the general provisions of the GTCL shall apply.
3.1.5 The client undertakes to examine the goods carefully immediately after delivery and to notify the supplier of any defects in writing without delay (see Sections 3.1.7 and 4.1.1 ff.). The client must complete and sign the delivery report, thus confirming that the delivered item corresponds to the one described in the contract or delivery, subject to possible hidden defects. If, for any reason whatsoever, the delivered item does not comply with the contractual provisions, all objections must be explicitly stated in the delivery report. The latter should be handed over to Fricode immediately.
3.1.6 Once Fricode has received the delivery report signed by the client, it shall pay the purchase price to the supplier, provided that the delivery report does not contain any contractual delivery defects which give rise to a retention of payment and provided that payment has not already been made under the contract with the supplier.
3.1.7 The client shall refuse to accept an item with a defect and shall immediately notify the supplier in writing and inform Fricode at the same time. It shall immediately pursue all contractual and legal remedies and measures suitable for the defence of its rights arising from a defective delivery.
3.1.8 If the client has rightfully refused delivery of a defective product, its obligation to pay the fee shall be suspended until the supplier sends it a compliant item. Section 4.1.3 shall also apply to any claim by Fricode for reimbursement of advance payments made to the supplier. If for any reason the incorrect or defective delivery by the supplier is the fault of the client, the client shall compensate Fricode for the damages caused. In this case, Fricode shall be entitled to take action against the client in accordance with Sections 4.2.1 to 4.2.3.
3.1.9 The client shall also be obliged to compensate Fricode for the damage if it does not fulfil its duties as specified in Sections 3.1.5 and 3.1.7 or if it refuses to accept the delivery of the goods from the supplier without good reason.
3.1.10 Fricode shall not be liable for any delay or non-delivery of the object, unless it is guilty of gross negligence. However, it undertakes to assign to the client the rights which it may exercise against the supplier in the event of late delivery or non-performance in accordance with Section 4.1.3.
3.2 Installation, maintenance and use
3.2.1 The installation, commissioning and delivery of all accessories as well as all additional elements required for the commissioning of the object (in particular the installation of the power supply and the supply of various operating materials) shall be at the client's expense. In this respect in particular, the client must comply with the guidelines of the manufacturer or supplier of the object.
3.2.2 In the case of the rental or leasing of software, the fee shall only cover the costs of acquiring the software or the costs of the corresponding rights of use and utilisation, and only insofar as these are paid in a single instalment (transfer fee, single licence). The leasing of software does not include all other remaining costs, in particular maintenance and update costs. If the delivery contract between the software manufacturer/supplier and Fricode includes any related obligations, the client shall be solely bound by these and shall bear all associated costs. Any payments made by Fricode shall be reimbursed by the client at the time of the first invoice.
3.2.3 The client undertakes to treat the object diligently, to make proper use of it in accordance with the law and to maintain it at the client’s own expense. The care and maintenance guidelines of the supplier and/or manufacturer must be strictly adhered to. The costs of maintenance and repair shall be borne by the client, unless otherwise agreed in writing.
3.2.4 Fricode does not provide any upkeep, maintenance or after-sales service. Insofar as the client does not provide such services itself, it must conclude a contract to this effect with the supplier and/or manufacturer and/or a qualified third party for the duration of the rental or leasing.
3.2.5 The client undertakes to avoid misuse and overloading of the object. Any loss of value that may occur as a result of inappropriate or improper use of the object shall be compensated by Fricode to the amount of the devaluation, payable on the first invoice. In addition, the rights specified in 4.2.2 et seq. apply to Fricode.
3.2.6 The client may only rent or sublet the object or parts thereof to a third party or assign any rights arising from the contract with the express prior written consent of Fricode.
3.2.7 Fricode shall be entitled to inspect or check the object at any time. The object must not be transferred abroad. Fricode must be notified in writing at least two weeks in advance of any change to the client's address. Fricode is entitled to charge the client CHF 50.00 for any address search.
3.3 Ownership of the object
3.3.1 As the owner, Fricode has the sole right to dispose of the object. The client assumes possession of the object upon delivery by the supplier as a representative of Fricode, thereby giving the supplier ownership of the object.
3.3.2 The rented or leased software is the property of Fricode or the software manufacturer. Fricode holds the right to grant the rights to use software that is not its property.
3.3.3 Fricode is entitled, but not obliged, to mark the object as its property. The client undertakes to leave this mark clearly visible for the duration of the contract.
3.3.4 Alterations and modifications to the object may only be undertaken with Fricode’s prior written consent. Such modifications or alterations shall not result in a loss of value and shall immediately become Fricode’s property, without any claim for reimbursement, compensation or indemnification.
3.3.5 The client undertakes to inform the authorities or third parties who claim rights to the object – in particular by means of seizure, retention, attachment, confiscation or within the framework of bankruptcy or debt restructuring proceedings – of Fricode's ownership of the object as soon as possible. In addition, it must immediately communicate these claims to the latter. The client shall be liable to Fricode for all damages and costs incurred by Fricode as a result of such claims and the ensuing defence, unless the client can prove that it is completely free of guilt.
3.3.6 The client shall not transfer or sell the object owned by Fricode to third parties.
3.4 Start of the contract and payment obligation of the client
3.4.1 Upon receipt of the delivery report signed by the client, Fricode shall forward the (remaining) purchase price of the item to the supplier. The transfer of this (residual) amount marks the opening of the contract for Fricode. The opening of the contract shall be notified to the client in writing by Fricode in the form of a letter of entry into force. Openings up to and including the 15th day of the month come into force on the 1st of the current month. Openings after the 15th day of the month come into force on the 1st of the following month with the following effects:
• the beginning of the agreed contract period;
• the first fee is due;
• the agreed processing fee is due;
• interest due on any Fricode advance payments to the supplier (Section 3.4.8).
3.4.2 The client undertakes to pay the agreed fees, including VAT, in advance on the 1st of each month, unless otherwise agreed in writing.
3.4.3 The fees are due even if, for whatever reason, the object cannot be used, or only partially. If delivery cannot be made for reasons for which the client is responsible, Fricode shall be entitled to demand the agreed fees as if the delivery had actually taken place.
3.4.4 Fricode shall not be entitled to any claims against the client for fees or other claims. Any right of retention of the client for any claim against Fricode is excluded.
3.4.5 In the event of a change to the acquisition costs of the object, the contractual fees shall be adjusted accordingly.
3.4.6 If the delivery is made from abroad and the purchase price is paid or calculated in a foreign currency, the basis for calculating the amount of the fee shall be the sum in Swiss francs paid by Fricode at the exchange rate applicable on the day in question (sales currency rate) and including any costs, taxes and/or disbursements.
An annual interest rate shall be payable by the client on advance payments, partial payments and prepayments of the purchase price of Fricode, unless otherwise agreed in writing. The interest calculated in this way is subject to VAT and shall be payable by the client at the latest at the time of delivery of the item. However, Fricode shall be entitled to charge the client interest after three months from the date of the deposit, partial payment or advance payment of the purchase price, even if the item has not yet been delivered to the client. If the client orders additional statements of account, other certificates or calculations, it shall pay Fricode a fee of CHF 50.00 per document ordered. This amount will be due on the first invoice.
3.5 Fees, taxes, contributions and other charges
3.5.1 The client shall bear all costs, taxes, fees and other charges levied or increased on the client or Fricode in connection with the contract. If the client does not fulfil its obligations in this respect, Fricode shall be entitled to do so in its place. In this case, its expenses, increased by an annual interest rate, will be payable by the client at the first billing.
3.5.2 La taxe sur la valeur ajoutée payable par le client sur les redevances se calcule au taux en vigueur à ce moment. Si celui-ci devait être modifié pendant la durée du contrat, alors le paiement dû par le client serait adapté en conséquence. En outre, Fricode est habilitée à répercuter totalement sur le client tout impôt nouveau ou toute augmentation d’impôt de toute nature prélevé directement en lien avec l’objet ou le contrat.
3.6 Financial year end/Duty to inform
3.6.1 The client agrees to provide Fricode with all the information necessary for Fricode to assess the client's creditworthiness. Fricode shall be entitled to request further information and evidence from the client regarding the status of its assets. In addition, the client shall inform Fricode, without being asked to do so, of any event that entitles Fricode to terminate the contract early.
4.1.1 The client has taken note of the supplier's guarantee provisions or the statutory guarantee and liability regulations as well as the limitation periods. Fricode shall only be entitled to compensate the client for legal or quality guarantees or other claims insofar as Fricode itself has been compensated by the supplier for such claims. In particular, the client assumes the risk of insolvency or liquidation of the supplier.
4.1.2 Defects discovered on delivery or during the use of the object must be communicated in detail and without delay to the supplier by the client in a registered letter. All letters should be copied to Fricode. If the defects are not corrected, the client must inform Fricode in writing at the latest one month before the expiry of the limitation period.
4.1.3 In the event of defects in the object, the client may make use of all contractual and legal remedies available to it and assert its rights. Fricode hereby assigns to the client all rights and claims it has against the supplier under a quality guarantee to enforce Fricode's interests. Insofar as such rights are not transferable, Fricode grants the client power of attorney, specifying the scope of this power of attorney.
4.1.4 The fact that the client asserts warranty claims does not release it from its contractual obligations towards Fricode. In particular, these rights do not allow the client to request a suspension or reduction of fees during the period of failure or reduction in performance of the object.
4.1.5 In the event of a reduction in the purchase price, the fees shall be reduced proportionately. In the event of cancellation of the sales contract due to a defect in the goods, the rental/leasing contract shall be dissolved and clause 6.1.1 shall apply. Pending final judgement or recognition of warranty claims by the supplier, the client undertakes to continue to make royalty payments without change.
4.1.6 If a third party asserts any rights to the object, the client shall inform Fricode in writing without delay.
4.1.7 The client shall be obliged to compensate Fricode for damages if the client is negligent or careless in the fulfilment of its obligations as described in Sections 4.1.2, 4.1.3 or 4.1.6.
4.1.8 In the event of the client's failure to use the object in accordance with the contract, Fricode shall only be liable in accordance with and to the extent of the provisions of Section 4.1.1.
4.1.9 In the event of total eviction, the rental/leasing contract shall be cancelled and Section 6.1.1 shall also apply.
4.2 Delays, other breaches of contract and grounds for termination
4.2.1 In the event of late payment, Fricode shall be entitled to charge interest on arrears per annum from the due date without prior notice. Interest on arrears is independent of any other claims, in particular damages, and is due in addition.
4.2.2 If, despite having set a deadline of 30 days upon threat of Fricode terminating the contract without notice, the client does not fulfil its contractual obligations, in particular if it is in arrears with the payment of fees, if it violates its contractual obligations or if it does not comply with the provisions of the contract, Fricode may terminate the contract without notice, with the following legal consequences:
• the client must return the Fricode object immediately;
• the client shall compensate Fricode for all fees due and payable until the agreed expiry of the contract, whereby future fees shall be discounted in accordance with market practice, minus – at Fricode's discretion – either the proceeds of net realisation in excess of the calculated residual value of the object or the market value in excess of the calculated residual value.
4.2.3 All costs for storage, repair and transport of the object, as well as the costs for exercising rights, shall be borne by the client. Fricode expressly reserves the right to claim further compensation. After the first warning, Fricode is also entitled to charge the client CHF 50.00 per warning letter. If Fricode refrains from terminating the rental/leasing contract without notice, even though all the conditions for doing so have been met, and if it continues to demand that the client fulfils its contractual obligations, then Fricode may again terminate the contract without notice if the client still fails to fulfil its obligations despite setting an additional period of 10 days with the threat of termination of the contract without notice.
4.2.4 However, Fricode shall be entitled to withdraw from the contract without notice, with the legal consequences mentioned in Section 4.2.2, without setting a deadline or giving prior notice, if its legal position or contractual rights are threatened, in particular in the event of seizure, bankruptcy, debt-restructuring moratorium or other serious difficulties on the part of the client, or in the event of the retention, sequestration or confiscation of the object.
4.2.5 Fricode shall also be entitled to terminate the contract without notice, with the legal consequences mentioned in Section 4.2.2, if, despite setting a deadline of 10 days with the threat of termination of the contract without notice, the client fails to comply with its obligation to cooperate, which is necessary for Fricode to be able to fulfil its legal and/or regulatory duties in relation to the prevention of money laundering and/or client identification.
4.3 Termination by the client
4.3.1 The rental/leasing contract shall be concluded for the agreed fixed term in accordance with the document itself. In particular, defects in the object do not constitute grounds for termination, but the provisions of Sections 4.1.1 et seq. apply. Unauthorised termination of the contract by the client will result in the legal consequences mentioned in Section 4.2.2.
4.3.2 In the event of early termination of the contract by the client, the client shall owe Fricode:
• all rent payments until the end of the minimum contract period originally agreed;
• the amount corresponding to the copies actually produced;
• 80% of the estimated amount for services agreed upon but not provided, until the end of the minimum period initially agreed. The estimate is based on the average monthly volume of pages. A minimum fee of CHF 120.00 will be charged.
• the cost of taking back the equipment;
• administrative costs.
4.3.3 The contract will not be cancelled by the death of the client.
4.4 Risk responsibility, civil liability and insurance
4.4.1 The client shall bear full responsibility for damages caused by or related to the object or its use. If Fricode is legally liable as the owner of the object under the terms of the structure owner's liability (Art. 58 CO), it can take recourse against the client, irrespective of the latter's liability.
4.4.2 The client undertakes to inform Fricode and the supplier immediately and in writing of any defects in the object. In addition, the user undertakes to inform Fricode immediately and in writing of any damages suffered or caused by the object.
4.4.3 The client shall compensate Fricode for any loss or reduction in value of the object as a result of any loss, destruction, damage or inability to function of the object, irrespective of whether or not the client and/or its employees are responsible.
4.4.4 The client undertakes to insure the object sufficiently against risks in accordance with Sections 4.4.1 to 4.4.3. Fricode shall be entitled to demand proof of sufficient insurance coverage from the client at any time. If the client does not fulfil its insurance or certification obligation, Fricode shall be entitled to conclude an insurance contract at the client's expense. In the event that the client defaults on payment, Fricode may also pay the insurance premiums in lieu of the client, with immediate recourse against the client.
4.4.5 The client hereby assigns to Fricode all future claims under the above insurance policies as well as any claims against third party insurance and claims against third parties liable for damages. Fricode shall be entitled to notify the insurer of this assignment at any time.
4.4.6 The insurance benefits may be used, at Fricode's discretion, for a repair or for the purchase of a new object, for the replacement of damages incurred or for the crediting of the client's payment obligations under the contract.
4.4.7 If the insurance benefits are not sufficient to cover the damage incurred by Fricode or any third parties, the client shall compensate Fricode for the portion of the damage not covered in accordance with Sections 4.4.1 to 4.4.3.
5. End of the contract
5.1.1 Insofar as the client has not exercised the option mentioned in Section 5.2.1, the client undertakes to return the item, cleaned and in the required condition, to the place (in Switzerland) determined by Fricode for the return at the latest on the last day of the contract period.
5.1.2 Any dismantling, repair and restoration work as well as the transport of the object to the place of return specified by Fricode shall be carried out at the client's expense and risk. If these actions result in costs for Fricode, these costs must be reimbursed by the client within ten days of the invoice.
5.2 Extension of the contract
5.2.1 If the client has properly fulfilled its obligations under the contract, Fricode shall, at the request of the client, consider the possibility of extending the contract. The contract can only be extended if both parties agree. If the contract is not extended, then the object must be returned in accordance with the provisions of Section 5.1.1.
6. Additional provisions
6.1 Written form as a condition of validity
6.1.1 Les clauses accessoires orales ne sont pas valides. Les modifications, compléments, réserves et conditions du contrat ne seront valables qu’après avoir été spécifiés par écrit. Cette exigence de la forme écrite ne peut être levée que par écrit.
6.2 Partial nullity
6.2.1 If one or more provisions of this contract are found to be legally invalid, this shall not affect the validity of the contract or its other provisions. Invalid provisions should be replaced by valid rules, if possible of equivalent economic and legal value.
6.3.1 The client may not transfer any rights or claims arising from the contract to a third party.
6.3.2 However, Fricode shall be entitled to transfer the contract with all or some of the rights and obligations to a third party. In particular, Fricode is entitled to transfer ownership of the object. In this case, the client releases Fricode from the obligation to maintain banking secrecy with respect to third parties.
6.4 Applicable law and jurisdiction
The contract is subject to Swiss substantive law. The exclusive place of jurisdiction for all disputes between the client and Fricode relating to the contract is Fribourg.
6.5 Changes to the General Terms and Conditions of Leasing
6.5.1 Fricode reserves the right to change the General Terms and Conditions of Leasing at any time. Such changes shall be communicated to the client in an appropriate manner and shall be deemed to be approved in the absence of any objection within 30 days of their communication.