GENERAL TERMS AND CONDITIONS OF PURCHASE
1. Exclusive application
1.1. These general terms and conditions of purchase shall apply for all purchases made by the purchaser, unless otherwise expressly agreed.
1.2 By accepting this order our GTCs are simultaneously accepted. Furthermore, the supplier ensures that the order and delivery conditions are treated confidentially and are not made accessible, directly or indirectly, to third parties. “
1.3 Differing or additional terms and conditions, in particular also general terms and conditions of delivery of suppliers, shall only apply for purchases made by the purchaser if these are expressly acknowledged. In this case the terms and conditions of the purchaser shall take priority.
1.4 In the case of orders that require technical clearance, the technical data and drawings of the purchaser must be approved before execution of the order. Reductions or increases to deliveries arising as a result of this technical clearance are to be calculated immediately and regarded as the main order. The supplier may not claim any remuneration as a result of any possible reductions to deliveries.
Tenders issued in response to enquiries shall be free of charge for the purchaser. When issuing tenders the supplier shall take into consideration all descriptions, requirements, specifications and the declared intended use. All tenders must be binding for a minimum of 90 days. The tenderer must observe these conditions.
3. Form of Orders
3.1 The purchaser shall submit all orders and supplements to orders in writing on the dedicated order forms. The employees of the purchaser are not authorised to submit orders or supplements to orders verbally. Sketches, drawings, commentaries, specifications etc. shall form an integral part of orders, insofar as these are expressly specified, dated and bindingly referred to in the order.
3.2 The tendering supplier shall be responsible for the fact that the tendered product meets the required standards of quality and design.
4.1 The supplier shall be unrestrictedly liable for products or components supplied by his sub-suppliers.
4.2 If the supplier intends to source products or components that are normally manufactured in his production facilities from third party manufacturers, the prior consent of the purchaser is to be obtained in good time.
5.1 The agreed prices shall be deemed fixed prices. These shall include all costs for the complete fulfilment of the contract.
5.2 In the case of orders without fixed prices, evidence is to be provided of how the invoiced price has been arrived at. The purchaser reserves the right of approval.
6. Provision of Materials
Materials delivered by the purchaser for the purpose of the execution of an order shall remain the property of the purchaser, even after processing or treatment. Such materials are to be clearly labelled and stored separately until the time of processing
7. Delivery Times and Consequences of Delays
7.1 The delivery times specified in the order are intended as the delivery times for receipt of goods (9.1.) at the place of destination. If the supplier has grounds to suspect that it may not be possible to make all or part of the delivery at the agreed time, he shall notify the purchaser of this immediately stating the reasons for this and the predicted duration of the delay.
7.2 In the event that delivery times are not met, the purchaser reserves the right to make all statutory claims, irrespective of whether the supplier has given notification of delays or whether a contractual penalty has been agreed.
7.3 The supplier may only plead in his defence the absence of required documentation or additional objects or individual components to be provided by the purchaser if he has submitted a prompt written request for these items or, in cases in which deadlines had been agreed for such items, he has issued immediate reminder notices.
7.4 Partial deliveries and advance deliveries shall only be permissible with express prior written consent.
8. Packaging, Written Correspondence, Transport, Insurance and Transfer of Risk
In the absence of dispatch instructions of the purchaser to the contrary, all deliveries are to be sent carriage paid to the place of destination.
8.2 Packaging must ensure that the goods are effectively protected against damage and corrosion during transport and any possible subsequent storage. The supplier shall be liable for all damages resulting from improper packaging.
8.3 The supplier shall be liable for all costs and disadvantages arising from the failure to follow the instructions of the purchaser with regard to transport, customs clearance etc.
8.4 The supplier shall be liable for the coverage of all possible risks of damage being caused during transport (transport insurance).
8.5 If particular care is to be exercised during the unpacking of goods, the supplier shall notify the purchaser of this in good time.
8.6 The purchaser reserves the right to return all packaging materials. The cost of the return transport of packaging materials shall be borne by the supplier.
8.7 Written correspondence
Each consignment is to be sent together with a detailed delivery note containing the order reference of the purchaser. Invoices are to be sent to the purchaser in duplicate under separate cover.
8.8 All correspondence (letters, delivery notes, invoices etc.) must contain the purchaser’s purchase order number.
8.9 Delivery notes must be signed by the installer of the purchaser that is supervising the installation site. The installer supervising the installation site authorised to accept the delivery is to be notified to the supplier when the order is placed. If such notification is not forthcoming, the supplier shall make these available to the purchaser. Without the corresponding signature deliveries shall be deemed as
not having been correctly delivered.
8.10 Transfer of use and risk
Unless otherwise agreed, use and risk shall be transferred to the purchaser upon takeover of the delivery at the place of destination (15.1.). The mere takeover of the delivery shall not be deemed in itself as being acceptance and formal approval in the legal sense.
In the event that a delivery is not accompanied by the prescribed delivery documents pursuant to the prevailing regulations, the delivery shall be placed in storage until the arrival of these documents at the cost of and at the risk of the supplier.
9. Acceptance and Guarantee
9.1 Deliveries shall be inspected as soon as the normal course of business allows. If deliveries correspond to the order of the purchaser, they will be accepted.
9.2 The supplier guarantees in his capacity as a specialist that the delivered goods do not have any defects that impact on their value or suitability for use for the intended purpose, that they are of the guaranteed qualities, that they meet the prescribed performance and specifications and that they comply with the prevailing legislation, regulations and other prevailing provisions.
9.3 At the discretion of the purchaser, defective products or components are either to be replaced or subsequently improved, in each case free of charge. All costs arising from assembly or disassembly of defective products or components or transport costs to the place of destination shall be borne by the supplier.
9.4 If defective products or components cannot be replaced or subsequently improved within the period set by the purchaser, the purchaser shall be entitled to withdraw from the contract and obtain replacement products or components from a third party. The supplier shall bear all costs incurred for replacement deliveries. The supplier shall also reimburse the purchaser all damages directly or indirectly suffered as a result of defective deliveries, in particular additional checking costs, additional
work costs and consequential costs.
9.5 Complaints arising from defects shall be notified once discovered. The supplier renounces any pleading of a delay to notification of defects.
9.6 In the event of the discovery of defects in materials during processing or use, such materials are to be replaced immediately and free of charge by the supplier, irrespective of the amount of time that has passed since the delivery of these materials.
9.7 For all deliveries not falling under subsection 9.6 above, the guarantee period shall be 2 years from acceptance of the complete installation, unless otherwise agreed. Furthermore, the supplier guarantees that he will eliminate defects caused by design defects and defective performance for a period of 6 years.
9.8. The guarantee period shall be extended by the period for which the installation is not in operation due to improvement works.
9.9 In the event of differences of opinion with regard to quality assessments, the results of checks and inspections by the Swiss Federal Laboratories for Materials Testing and Research shall be decisive. The cost of these tests and inspections shall be borne by the party that is mistaken in its assessment.
9.10 In the event of replacement deliveries, the delivered goods shall remain available free of charge to the purchaser until a defect-free replacement delivery has been made available and is ready for use.
9.11 A guarantee shall apply for replacement deliveries and improvements to goods to the same extent as for the originally delivered goods, whereby the guarantee period for repaired or replaced products and components shall begin again at the time of acceptance of these.
9.12 All statutory rights of guarantee are reserved.
10. Indemnification and Compensation Obligations
10.1 The supplier shall compensate the purchaser for damage caused by the supplier and suffered by the purchaser due to the breach of contractual provisions or statutory regulations as a result of the utilisation or use of delivered goods in products of the purchaser or as a result of the distribution of these goods; the supplier shall indemnify the purchaser against all claims of third parties enforced against the purchaser.
10.2 The supplier shall compensate the purchaser for all damages caused by the supplier and suffered by the purchaser due to breach of intellectual or industrial property rights or copyrights as a result of the distribution, sale or use of the delivered goods; the supplier shall indemnify the purchaser against all claims enforced against the purchaser. This shall also apply for products or components that the supplier has sourced from third parties.
11. Work at the Factory/Sites
In cases of work at the factory of the purchaser, at construction sites or at installation sites, in addition to these terms and conditions for purchases the safety regulations and guidelines and factory and construction site regulations of the purchaser shall
12. Drawings, Test Certificates and Operating Instructions
12.1. The approval of working drawings by the purchaser shall not release the supplier from liability for his delivery. Definitive working drawings, test certificates, maintenance and operating instructions and replacement parts lists required for proper maintenance of the delivered goods are to be provided to the purchaser in the required number and in the required language at the latest together with the delivered goods.
12.2 All drawings, tools, models etc. provided to the supplier by the purchaser shall remain the property of the purchaser and are to be returned to the purchaser after execution of the order. These items are to be properly stored by the supplier and insured against all damages, irrespective of the type of damages.
13.1 All information, drawings etc. that are provided to the supplier by the purchaser for the purpose of the preparation of a tender or for the manufacture of the delivered goods shall not be used for any purpose other than that for which they are intended, shall not be copied or reproduced and shall not be made accessible to third parties. All copyrights are held by the purchaser. All documents and all copies or duplicates are to be returned immediately to the purchaser at his initial request. If a delivery of goods is not made, the supplier shall return all documents to the purchaser upon request.
13.2 The supplier shall treat the order and all work and/or deliveries connected with the order with the utmost of confidentiality.
13.3 Technical documents belonging to the supplier or his sub-suppliers shall be treated by the purchaser with the utmost of confidentiality. They shall remain the intellectual property of the supplier and/or sub-supplier.
14. Terms of Payment
14.1 Unless otherwise agreed, the purchaser shall make payment within 60 days of receipt of the goods, and the documentation to be delivered with the goods and the invoice.
14.2 The purchaser reserves the right to offset counterclaims. The supplier may only assign claims to third parties with the prior consent of the purchaser. The purchaser shall not refuse to consent to this unless there is good reason to do so.
14.3 The purchaser shall not accept cash on delivery or bills of exchange.
15. Place of Performance, Applicable Law, Place of Jurisdiction
15.1 The place of performance for deliveries shall be the agreed place of destination; the place of performance for payment is the domicile of the purchaser.
15.2 All disputes arising from or in connection with the orders placed by the purchaser shall be subject to the substantive law of Switzerland (to the exclusion of
the United Nation Convention on Contracts for the International Sale of Goods from April 11, 1980 (CISG)).
15.3 Unless otherwise contractually agreed, the conditions set out in SIA norms 118 and 181 shall be declared integral parts of the contract.
15.4 Unless otherwise contractually agreed, in the event of disputes arising from the deliveries or services provided by the tenderer the arbitration tribunal of the Zurich Chamber of Commerce (ZKH) shall have exclusive jurisdiction. The decision of this arbitration body shall be binding upon both parties.
15.5 In special cases the place of jurisdiction for the supplier and for the purchaser can be agreed as the respective domiciles of the parties. The purchaser reserves the right to also enforce his rights at the domicile of the supplier.
GENERAL TERMS AND CONDITIONS, AND TERMS OF DELIVERY
1. General remarks
1.1 The contract shall be concluded with the receipt of the supplier's written confirmation regarding acceptance of the order (order confirmation). Offers which are not subject to an acceptance deadline are non-obligatory and non-binding.
1.2 These terms of delivery are valid if they are stated to be applicable in the offer or in the order confirmation. If the orderer has other terms, these are only valid if the supplier explicitly approves them in writing.
1.3 Section 1.2 is also valid for all other provisions that are specified as applicable in the offer or the order confirmation. Such provisions shall take precedence over these terms of delivery in the case of possible divergences.
1.4 By accepting an order the supplier accepts that the order and delivery conditions are neither directly nor indirectly made accessible to third parties. In case of violations, the supplier shall be held liable for the damage.
1.5 All agreements and legally relevant declarations made by the contracting parties must be in writing in order to be valid.
2. Scope of the deliveries and services
The deliveries and services of the supplier are comprehensively listed in the order confirmation including any supplements.
3. Plans and technical documents
3.1 Unless agreed otherwise, brochures and catalogues shall not be binding. The details provided in the supplier's technical documents shall only be binding when expressly confirmed as such.
3.2 Each contracting party shall retain all rights to the plans and technical documents which it has handed over to the other party. The receiving party shall recognise these rights and shall not make the documents available to third parties in full or in part, or use them for a purpose other than the one for which they were handed over, without the written authorisation of the other party.
4. Regulations and safety measures
The orderer shall inform the supplier in good time before making the order about any regulations and norms to be observed in the country of destination relating to the execution of deliveries and services, the operation of the delivered items as well as measures aimed at preventing diseases and accidents.
Protective equipment shall also be supplied with the shipment where this has been arranged in an agreement.
5.1 Unless other agreements have been made, all prices are ex works, not including packaging, in freely disposable Swiss Francs, without any deductions.
All other costs such as packaging, freight, insurance, permits to export, import and transport across frontiers as well as other certifications shall be charged to the ordering party.
Further, the orderer shall bear the cost of all types of taxes, charges, fees, customs duties and suchlike which may be payable in connection with the contract, or reimburse them to the supplier against corresponding proof of payment when the supplier had been obliged to pay them.
5.2 The supplier reserves the right to adjust the prices if sliding scale pricing has been agreed.
6. Payment terms
6.1 Payments are to be settled at the supplier's domicile, net without deduction of discount, expenses, taxes, tolls, fees, customs duties and the like, in accordance with the agreed payment terms. The payment obligation shall be deemed as fulfilled as soon as the amount due has been put at the free disposal of the supplier at his domicile. L/C fees, bank charges and commissions, collection expenses and, in case payment by bills of exchange is agreed, bills of exchange and tax on bills of exchange, are to be borne by the orderer.
6.2 Due dates for payment are to be complied with even if the transport, delivery, assembly, commissioning or acceptance of deliveries or services is delayed or rendered impossible for reasons for which the supplier is not to be held responsible, or if insignificant parts of the delivery are missing or if rectification proves to be required that does not make it impossible to use the delivered goods.
6.3 If the advance payment or the contractually agreed sureties are not provided in accordance with the contract, the supplier shall be entitled to choose whether to adhere to or to withdraw from the contract, and shall in both cases be entitled to claim damages.
If the orderer, for any reason whatsoever, is in arrears with a further payment, or if the supplier is seriously concerned that he will not receive payment in full or in due time because of circumstances having taken place since entering into the contract, the supplier, without being limited in his rights provided for by law, shall be entitled to refuse the further performance of the contract and to retain the deliveries ready for dispatch until new terms of payment and delivery have been agreed and until the supplier has received sufficient sureties. If such an agreement cannot be reached within a reasonable time period or if the supplier does not receive adequate sureties, he shall be entitled to withdraw from the contract and claim damages.
6.4 If the orderer fails to comply with the agreed payment deadlines, he shall be liable, without reminder, for interest with effect from the agreed date on which the payment was due at a rate depending on the usual terms prevailing at the customer's domicile, but not less than 6% over the current bank rate set by the Swiss National Bank. We reserve us the right to charge the orderer with a fee of CHF 20.00 per collection letter. The right to claim further damages is reserved.
7. Reservation of title
The supplier shall remain the owner of all deliveries until receiving the full payments in accordance with the contract.
The orderer shall be obliged to cooperate in measures which are necessary for the protection of the supplier's property, and at his own expense fulfil all necessary formalities required for justifying and upholding the reservation of title (e.g. submitting entries in registers as required).
During the period of the reservation of title, the supplier shall, at his own expense, maintain the supplies and insure them appropriately. Furthermore, he will take any measures required to ensure that the supplier's claim to ownership is neither prejudiced nor invalidated.
8. Delivery period
8.1 The delivery period shall start as soon as the contract is entered into, all official formalities such as import, export, transit and payment permits have been completed, the payments and any sureties incurred by the order have been provided and the principal technical issues have been resolved. The delivery period shall have been complied with if the notification that the shipment is ready for dispatch has been sent to the orderer before the period expires.
8.2 The delivery deadline shall be appropriately extended:
if the information required by the supplier for performance of the contract
is not received in time, or if the orderer subsequently changes it, thereby causing a delay in the delivery of the deliveries or services;
if hindrances occur which the supplier is unable to prevent despite exercising due care, regardless of whether they originate with him, the orderer or a third party. Such hindrances include for example epidemics, mobilisation, war, revolution,
serious disruptions to operations, accidents, labour conflicts, late or deficient delivery by subcontractors of the needed raw materials, semi-finished or finished products, the need to scrap important workpieces, official measures or omissions by government authorities, natural catastrophes;
if the orderer or a third party is late in performing his assigned tasks, or if the orderer fails to meet his contractual obligations, particularly the agreed payment terms.
8.3 The orderer is entitled to make claims for losses resulting from delayed deliveries, if it can be demonstrated that the delay has been caused through the fault of the supplier and that the orderer has suffered a loss as a result of such delay. If the orderer is provided with a remedy in the form of a replacement delivery, then the entitlement to compensation for a late delivery no longer applies.Compensation for each completed week of delayed delivery shall be a maximum of 0.5%, and not more than a total of 5% calculated on the selling price ex-works (without packaging) of that part of the delivery which is delayed. For the first two weeks of delay there shall be no entitlement to compensation for delay.When the maximum amount of compensation for delay has been reached, the orderer shall inform the supplier about an appropriate extension period in writing.
If such an extension is not observed for reasons that lie within the supplier's responsibility, the orderer shall have the right to refuse acceptance of the delayed part of the delivery, insofar as there are no reasonable prospects for performance. If a delay for which the supplier can be held responsible and which exceeds the extended time gives rise to unreasonable economic consequences for the orderer, he shall be entitled to withdraw from the contract and claim refund of the money already paid against return of the deliveries supplied.
8.4 Any delay of the supplies or services does not entitle the orderer to any rights and claims other than those expressly stipulated in section 8. This restriction shall not apply if the supplier has acted with unlawful intent or with gross negligence.
Packing shall be charged for separately by the supplier and shall not be returnable, unless it has been agreed that it shall be returned to the supplier, in which case the packing must be returned by the orderer postage-free to the place of dispatch.
10. Transfer of benefits and risks
10.1 The benefit and risk of the deliveries shall pass to the orderer by the date of their leaving the works, at the latest.
10.2 If dispatch is delayed on request, or due to other reasons for which the supplier cannot be held responsible, the risk of the deliveries shall pass to the orderer at the time originally foreseen for their leaving the works. The deliveries will be stored thereafter at the expense and at the risk of the orderer.
11. Dispatch, transport and insurance
11.1 Special requests concerning dispatch, transport and insurance shall be communicated to the supplier in due time. The transport shall be at the expense and risk of the orderer. The orderer must report any complaints in connection with the dispatch or the transport of the deliveries to the last carrier upon receipt of the deliveries or the consignment documents.
11.2 Insurance against damages of any kind shall be the responsibility of the orderer. Even when such insurance is to be arranged by the supplier, it shall be deemed taken out by the order of and for the account of the orderer and at his risk.
12. Inspection and acceptance of the delivered goods and services
12.1 As far as being normal practice, the supplier shall inspect the deliveries and services before dispatch. If the orderer requests further tests, these are to be specially agreed upon and paid for by the customer. Insofar as the circumstances allow it, they should be performed in the supplier's factories.
The orderer shall inspect the deliveries and services within an appropriate period and shall immediately notify the supplier in writing of any defects. If he neglects to do this, the deliveries and services shall be deemed to be accepted and approved. With regard to defects in the deliveries or services that are not visible at this time, the orderer shall remain entitled to claim under the warranty against defects in accordance with section 13.
12.3 The supplier must remedy the defects reported to him under section 12.2 as quickly as possible, and the orderer must give him the opportunity to do so.
12.4 The performance of an acceptance test and the determination of the conditions valid for it shall require a corresponding agreement.
Acceptance shall also be deemed to have been occurred if a scheduled acceptance test cannot be carried out on the agreed date for reasons beyond the supplier's control, or if the orderer refuses to sign an acceptance report stating the facts, or if the orderer uses the deliveries or services of the supplier, or the delivery is operational and only small rectifications need to be completed.
12.6 The existence of defects of the deliveries or services does not entitle the orderer to any rights and claims other than those expressly stipulated in section 12 or 13.
13. Warranty, liability for defects
13.1 The warranty period (term of guarantee) is 12 months. It commences with the departure of the deliveries ex-works or with the possibly agreed departure of the deliveries and services, or, as far as the
supplier has also taken on the responsibility for the assembly or monitoring the assembly, with its completion. Should dispatch, acceptance, assembly, monitoring the assembly, or placing in service be delayed due to reasons for which the supplier cannot be held responsible, the warranty period shall end no later than 18 months after notification that the shipment is ready.
For replaced or repaired parts the warranty period starts anew and lasts 6 months
after replacement, completion of the repair or acceptance, but not longer than 12 months, calculated from the end of the valid warranty period in accordance with the previous section.
The warranty expires prematurely if the orderer or a third party undertakes inappropriate 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 opportunity to remedy such defect.
13.2 Upon written demand of the orderer the supplier undertakes, as quickly as possible and in the manner the orderer chooses, to make good or replace those parts of the deliveries which become demonstrably harmful or unserviceable as a result of poor material, errors in design or faulty manufacture before the expiry of the warranty period.
Replaced parts become the property of the supplier.
Here the supplier shall bear the costs of remedying or replacing the defective parts in his own factory; if the repairs cannot be carried out in his factory, or only at an unreasonable expense or disadvantage, the supplier shall bear costs reasonable under the circumstances which are incurred outside of his plant for remedying the delivery or replacing the defective parts of his delivery.
Any costs over and beyond this shall be borne by the orderer.
13.3 Only those features of the deliveries or services shall be assured which have been explicitly defined as such in the order confirmation or the agreed specifications. Such an assurance shall only be valid until the end of the warranty period. However, if an acceptance test has been agreed upon, the assurance shall be deemed to have been satisfied upon verification of the particular features, following said test.
Should the warranted features be only partially provided or not provided at all, the orderer shall for the time being have a right to immediate rectification by the supplier. The orderer shall give the supplier the necessary time and opportunity to do this.
If this rectification is not successful or only partially successful, the orderer shall have a right to compensation agreed upon for such event or, if no such agreement was entered into, to an appropriate reduction of the price. Should the defect be of such significance that it cannot be rectified within a reasonable period and the deliveries or services for the performance of the declared purpose be unusable or only usable in significantly reduced measure, the orderer shall have the right to refuse acceptance of the defective part of the deliveries or services. Should a partial acceptance of the deliveries and/or services be commercially unreasonable for the orderer, he shall have the right to withdraw from the contract. The supplier can only be held liable to reimburse the sums which have
been paid to him for the parts affected by the withdrawal from the contract.
13.4 Excluded from the supplier's warranty and liability are any deficiencies which cannot be shown to be the result of bad materials, faulty construction or poor workmanship of the delivered goods or services, for example those resulting from natural wear and wear or inadequate maintenance, disregard of operating regulations, excessive use, unsuitable operating equipment, chemical or electrolytic influences, construction or assembly works not conducted by the supplier, as well as any other reasons for which the supplier cannot be held responsible.
13.5 For deliveries and services of subcontractors appointed by the orderer, the supplier assumes guarantee only to the extent of such subcontractors' guarantee and liability obligations.
13.6 The orderer has no right on claims due to defects relating to material, construction or execution as well as the lack of guaranteed features except for the ones explicitly mentioned in sections 13.1 and 13.5. The supplier is only liable to the extent of unlawful intent or gross negligence as far as claims of the orderer arising out of faulty advice and the like or out of breach of any additional obligations are concerned.
14. Exclusion of further liability of the supplier
All cases of breach of contract and the relevant consequences as well as all rights and claims on the part of the orderer, irrespective on what legal ground they are based, are exhaustively covered by these terms. In particular, all claims for compensation not specifically mentioned, abatement of the price, rescission of the contract or withdrawal from the contract shall be excluded. Under no circumstances shall the orderer be entitled to claim compensation for damage not resulting from the delivery object itself, such as loss of production, loss of effectiveness, loss of contracts, loss of profit as well as other direct and indirect damages. This exclusion of liability does not apply to unlawful intent or rough carelessness of the supplier, with the exception of it being on the side of his auxiliary persons.
If the supplier is also commissioned with assembly, monitoring the assembly or placing in service, the general assembly terms shall apply.
16. Place of jurisdiction and applicable law
16.1 The place of jurisdiction for the orderer and the supplier shall be Zurich. The supplier shall, however, be entitled to institute proceedings against the orderer at the latter's registered address.
16.2 This legal relationship shall be subject exclusively to substantive Swiss law to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).