General conditions of contract for the supply of plant and spare parts
General
The contract shall be deemed to have been entered into upon receipt of the supplier’s written acknowledgement stating acceptance of the order. Tenders which do not stipulate an acceptance period shall not be binding.
These general conditions of supply shall be binding if de- clared applicable in the tender or in the order acknowl- edgement. Any conditions stipulated by the customer which are in contradiction to these general conditions of supply shall only be valid if expressly acknowledged by the supplier in writing.
All agreements and legally relevant declarations of the contracting parties must be in writing in order to be valid. Declarations in text form which are transmitted by or recorded on electronic media will be equated with written declarations when specifically so agreed by the parties.
Scope of supplies and services
The supplies and services are exhaustively specified in the order acknowledgement and in appendices thereto.
Plans and technical documents
Unless otherwise agreed, brochures and catalogues are not binding. Data in technical documents are only binding if they have been expressly stipulated as such.
Each party retains all rights to plans and technical doc- uments provided to the other. The party receiving such documents recognises these rights and shall – without previous written consent of the other party – not make these documents available to any third party, either in whole or in part, nor use them for purposes other than those for which they were handed over.
Prices
Unless otherwise agreed, all prices shall be deemed to be net ex works, excluding packing, in freely available Swiss francs without any deductions whatsoever. Any and all additional charges, such as, but not limited to, freight charges, insurance premiums, fees for permits certifications, taxes, fees, levies and customs duties shall be borne by the customer.
The supplier reserves the right to adjust the prices in case the wage rates or the raw material prices vary between the submission of the tender and the contractually agreed performance. In such case the adjustment shall be made according to the attached price adjustment clause.
In addition, an appropriate price adjustment shall apply in case the delivery time has been subsequently extend- ed due to any reason stated in Clause 7.2, or any docu- ments furnished by the customer were not in conformity with the actual circumstances, or were incomplete, or an amendment has been made to laws, regulations or the principles of interpretation or application.
Terms of payment
Payments shall be made by the customer at the suppli- er’s domicile according to the agreed terms of payment, without any deduction for cash discount, expenses, tax- es, levies, fees, duties, and the like.
Unless otherwise agreed, the price shall be paid in the following instalments:
one third as advance payment within one month af- ter receipt of the order acknowledgement by the cus- tomer,
one third on expiry of two thirds of the agreed deliv- ery time,
the remainder within one month after supplier’s ad- vice that the supplies are ready for dispatch.
If the customer does not adhere to the agreed terms of payment, he shall be liable, without reminder, for inter- est with effect from the agreed date on which the pay- ment was due at a rate depending on the terms prevail- ing at the customer’s domicile, but not less than 4 per cent over the current policy rate of the Swiss National Bank. The right to claim further damages is reserved.
Reservation of title
The supplier shall remain the owner of all supplies until he has received the full payments in accordance with the contract.
Upon entering into the contract, the customer authoris- es the supplier to enter or notify the reservation of title in the required form in public registers or similar records and to fulfil all corresponding formalities, at the custom- er’s expense.
During the period of the reservation of title, the custom- er shall, at his own cost, maintain the supplies and in- sure them for the benefit of the supplier against theft, breakdown, fire, water and other risks. He shall further take all measures to ensure that the supplier’s title is in no way compromised or rescinded.
Delivery time
The delivery time shall start as soon as the contract is entered into, all official formalities have been completed, payments due with the order have been made, any agreed securities given and the main technical points set- tled. The delivery time shall be deemed to be observed if by that time the supplier has sent a notice to the customer informing him that the supplies are ready for dispatch.
The delivery time shall be reasonably extended:
if the information required by the supplier for the per- formance of the contract is not received in time, or if the customer subsequently changes it thereby caus- ing a delay in the delivery of the supplies or services; or
if hindrances occur which the supplier cannot pre- vent despite exercising the required care (force ma-
jeure), regardless of whether they affect the supplier, the customer or a third party. Such hindrances in- clude, but shall not be limited to, epidemics, pan- demics, mobilisation, war, civil war, acts of terrorism, riots, political unrest, revolutions, sabotage, serious breakdown in the works, accidents, labour conflicts, late or deficient delivery by subcontractors of raw materials, semi-finished or finished products, the need to scrap important work pieces, actions or omissions by any authorities or state or supranation- al bodies, travel advice issued by authorities, embar- goes, unforeseeable transport problems, fire, explo- sion, natural catastrophes; or
if the customer or a third party is behind schedule with work he has to execute, or with the perfor- mance of his contractual obligations, in particular if the customer fails to observe the terms of payment; or
if circumstances arise for which the supplier is not responsible.
The customer shall be entitled to claim liquidated dam- ages for delayed delivery insofar as it can be proven that the delay has been caused through the fault of the sup- plier and that the customer has suffered a loss as a re- sult of such delay. If substitute material can be supplied to accommodate the customer, the latter is not entitled to any damages for delay.
Damages for delayed delivery shall not exceed 0.5 per cent for every full week’s delay and shall in no case whatsoever altogether exceed 5 per cent of the contract price of the part of the supplies in delay. No damages at all shall be due for the first two weeks of delay.
After reaching the maximum liquidated damages for de- layed delivery, the customer shall grant the supplier a reasonable extension of time in writing. If such an exten- sion is not observed for reasons within the supplier’s control, the customer shall have the right to reject the delayed part of the supplies or services. If a partial ac- ceptance is economically not justified on the part of the customer, the latter shall be entitled to terminate the contract and to claim refund of the money already paid against return of the deliveries supplied.
Any delay of the supplies or services does not entitle the customer to any rights and claims other than those ex- pressly stipulated in this Clause 7. This limitation does, however, not apply to unlawful intent or gross negli- gence on the part of the supplier, but does apply to per- sons employed or appointed by the supplier to perform any of his obligations.
Passing of benefit and risk
The benefit and the risk of the supplies shall pass to the customer by the date of their leaving the works at the latest.
If dispatch is delayed at the request of the customer or due to reasons beyond supplier’s control, the risk of the supplies shall pass to the customer at the time originally foreseen for their leaving the works. From this moment on, the supplies shall be stored and insured on the ac- count and at the risk of the customer.
Inspection and taking-over of the supplies and
services
As far as being normal practice, the supplier shall in- spect the supplies and services before dispatch. If the customer requests further testing, this has to be special- ly agreed upon and paid for by the customer.
The customer shall inspect the supplies and services within a reasonable period of time and shall immediately notify the supplier in writing of any deficiencies. If the customer fails to do so, the supplies and services shall be deemed to have been taken over.
If the supplier has been notified of deficiencies in ac- cordance with Clause 9.2, he shall remedy them as soon as possible, and the customer shall give the sup- plier the possibility to do so.
The execution of a taking-over test as well as the stipu- lation of the conditions related thereto require a special agreement.
Deficiencies of any kind in supplies or services shall not entitle the customer to any rights and claims other than those expressly stipulated in this Clause 9 and Clause 10 (warranty, liability for defects).
Warranty, liability for defects
The warranty period is 12 months, or 6 months in case of a multi-shift system. It starts when the supplies leave the works or, if the supplier undertakes the installation, upon completion thereof. If dispatch or installation are delayed due to reasons beyond supplier’s control, the warranty period shall end not later than 18 months after supplier’s notification that the supplies are ready for dis- patch.
For replaced or repaired parts the warranty period starts anew and lasts 6 months from the replacement or com- pletion of the repair, but not longer than the expiry of a period double the warranty period stipulated in the preceding paragraph.
The warranty expires prematurely if the customer or a third party undertakes modifications or repairs or if the customer, in case of a defect, does not immediately take all appropriate steps to mitigate the damage and give the supplier the possibility to remedy the defect.
Upon the written request of the customer, the supplier may choose to repair or replace as quickly as possible any parts of the supplies which, before the expiry of the warranty period, are proven to be defective due to bad material, faulty design or poor workmanship. Replaced parts shall become the supplier’s property if he does not explicitly renounce this. Under restriction of proportion- ality, the supplier shall bear the costs of remedying the defective parts provided that they do not exceed the customary costs of transport, personnel, travelling, ac- commodation, dismantling and reassembly of the defec- tive parts.
Express warranties are only those which have been ex- pressly specified as such in the order acknowledgment or in the specifications. An express warranty is valid un- til the expiry of the warranty period at the latest.
If the express warranties are not or only partially achieved, the customer may first of all require the sup- plier to carry out the improvements immediately. The customer shall give the supplier the necessary time and possibility to do so.
If these improvements fail completely or in part, the cus- tomer may claim a reasonable reduction of price. If, however, the defects are of such significance that they cannot be remedied within a reasonable time and pro- vided that the supplies and services cannot be used for their specified purpose, or if such use is considerably impaired, then the customer shall be entitled to refuse acceptance of the defective part or, if partial acceptance is economically not justified for him and he communi- cates this immediately, to terminate the contract. In this
case the supplier can only be held liable for reimbursing the sums which have been paid to him for the parts af- fected by the termination.
All deficiencies which cannot be proven to have their origin in bad material, faulty design or poor workman- ship, e.g. those resulting from normal wear, improper maintenance, failure to observe the operating instruc- tions, excessive loading, use of any unsuitable material, influence of chemical or electrolytic action, building or installation work not undertaken by the supplier, or re- sulting from other reasons beyond supplier’s control are excluded from the supplier’s warranty and liability for defects.
With respect to any defective material, design or work- manship as well as to any failure to fulfil express warran- ties, the customer shall not be entitled to any rights and claims other than those expressly stipulated in Clauses
10.1 to 10.4.
Export control
The customer recognises that the supplies may be sub- ject to Swiss and/or foreign legal provisions and regula- tions on export control, trade sanctions and embargoes and are not allowed to be sold, leased or otherwise transferred or used for a purpose other than the agreed without an export or re-export permit of the competent authority. The customer undertakes to comply with such provisions and regulations. He is aware that these may change and that they apply to the contract in the current valid wording.
Data protection
The supplier shall process the customer’s data in ac- cordance with the supplier’s general data protection regulation.
The parties agree that the customer shall be the data controller ensuring compliance with the applicable data protection laws, in particular the lawfulness of the pro- cessing of personal data. The supplier shall process personal data on behalf of the customer and warrants adherence to those obligations under the applicable data protection laws that expressly address the data processor, and shall act as instructed by the customer.
Personal data (such as name, e-mail address, postal address, payment details) provided by the customer or the supplier for the purpose of ordering supplies and services are used by the supplier or the customer to ful- fil and execute the contract. These data are treated con- fidentially and will not be disclosed to a third party out- side the ordering, delivery or payment process. The employees of the parties involved in the processing of personal data must be informed about the confidential nature of the personal data and receive appropriate in- structions regarding their duties.
The customer agrees that it will not withhold or delay its consent to any amendments to this Data Protection Clause and/or to any additional data processing or data protection agreements and their application to the sup- plies and services provided by the supplier from time to time. This refers in particular to changes that, in the rea- sonable opinion of the supplier, are necessary to com- ply with applicable data protection laws and regulations and/or guidelines issued by a competent supervisory authority.
The customer expressly agrees that the supplier may use data of the customer for advertising and information purposes regarding products and services offered by
the supplier, in particular in connection with marketing e-mails, e-mail newsletters, etc.; yet, the customer may prohibit the use of its data for advertising and informa- tion purposes at any time.
Exclusion of further liability on the supplier’s part
All cases of breach of contract and the relevant conse- quences as well as all rights and claims on the part of the customer, irrespective on what ground they are based, are exhaustively covered by these general con- ditions of supply. In the event that claims of the custom- er in relation to or in connection with the contract or the breach thereof should exist, the total amount of such claims is restricted to the price paid by the customer. In particular, any claims not expressly mentioned for dam- ages, reduction of price, termination of or withdrawal from the contract are excluded. In no case whatsoever shall the customer be entitled to claim damages other than compensation for the costs of remedying defects in the supplies. This in particular refers, but shall not be limited, to loss of production, loss of use, loss of orders, recall costs, loss of profit and other direct or indirect or consequential damage. Liability is also excluded for compensation claims from third parties against the cus- tomer for infringements of intellectual property rights.
This exclusion of further liability on the supplier’s part does not apply to unlawful intent or gross negligence on the part of the supplier, but does apply to persons em- ployed or appointed by the supplier to perform any of his obligations. This exclusion of liability does not apply as far as it is contrary to compulsory law.
Installation
If the supplier undertakes installation or supervision of the installation, the General Conditions of Installation of Swissmem shall apply.
Jurisdiction and applicable law
The place of jurisdiction for both the customer and the supplier shall be at the registered office of the supplier.
The supplier shall, however, be entitled to sue the cus- tomer at the latter’s registered address.
The contract shall be governed by Swiss substantive law.
