SWISSMEM –The Swiss Mechanical and Electrical Engineering Industries
1.1 The contract shall be deemed to have been entered into upon receipt of supplier’s written acknowledgement stating its acceptance of the order.
Tenders which do not stipulate an acceptance period shall not be binding.
1.2 These general conditions of supply shall be binding if declared applicable in the tender or in the order acknowledgement. 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.
1.3 All agreements and legally relevant declarations of the parties to the contract 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.
1.4 Should a provision of these general conditions of supply prove to be wholly or partly invalid, the parties to the contract shall jointly seek an arrangement having a legal and economic effect which will be as similar as possible to the invalid provision.
2. Scope of supplies and services
The supplies and services are exhaustively specified in the order acknowledgement and in appendices thereto. The supplier shall be entitled to make any changes which lead to improvements provided such changes do not result in a price increase.
3. Technical documents
3.1 Unless otherwise agreed upon, brochures and catalogues are not binding. Data provided for in technical documents are only binding in so far as having been expressly stipulated as such.
3.2 Each party to the contract retains all rights to technical documents 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.
4. Regulations in force in the country of destination and safety devices
4.1 The customer shall, at the latest when placing the order, draw the attention of the supplier to the standards and regulations applicable to the execution of the supplies and services, to the operation of the plant as well as to the health and safety of personnel.
4.2 Unless otherwise agreed upon, the supplies and services shall comply with those standards and regula-tions at the place of business of the customer about which the supplier has been informed under Clause 4.1. Additional or other safety devices shall be supplied to the extent as having been expressly agreed upon.
5.1 Unless otherwise agreed upon, all prices shall be deemed to be net ex works, excluding packing, in freely available Swiss francs without any deduction whatsoever. Any and all additional charges, such as, but not limited to, freight charges, insurance premiums, fees for export, transit, import and other permits, as well as for certifications, shall be borne by the customer. Likewise, the customer shall bear any and all taxes, fees, levies, customs duties and the like which are levied out of or in connection with the contract, or shall refund them to the supplier against adequate evidence in case the supplier is liable for them.
5.2 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 extended due to any reason stated in Clause 8.3, or
- the nature or the scope of the agreed supplies or services has changed, or
- the material or the execution has undergone changes because any documents furnished by the cus-tomer were not in conformity with the actual circumstances, or were incomplete.
6. Terms of payment
6.1 Payments shall be made by the customer at supplier’s domicile according to the agreed terms of payment, without any deduction for cash discount, expenses, taxes, levies, fees, duties, and the like.
Unless otherwise agreed upon, the price shall be paid in the following instalments:
- One third as advance payment within one month after receipt of the order acknowledgement by the customer,
- one third on expiry of two thirds of the agreed delivery time,
- the remainder within one month after supplier’s advice that the supplies are ready for dispatch.
Payment shall be deemed to be effected as far as Swiss francs have been made freely available to the supplier at supplier’s domicile. In case payment by bills of exchange is agreed, the customer shall pay the cost of discounting of such bills, bill of exchange taxes and collection charges.
6.2 The dates of payment shall also be observed if transport, delivery, erection, commissioning or taking over of the supplies or services is delayed or prevented due to reasons beyond supplier’s control, or if unimportant parts are missing, or if post delivery work is to be carried out without the supplies being prevented from use.
6.3 If the advance payment or the contractually agreed securities are not provided in accordance with the terms of the contract, the supplier shall be entitled to adhere to or to terminate the contract, and shall in both cases be entitled to claim damages.
If the customer, for any reason whatsoever, is in delay with a further payment, or if the supplier is seriously concerned that it will not receive payments in total or in due time because of circumstances having taken place since entering into the contract, the supplier, without being limited in its rights provided for by law, shall be entitled to refuse the further performance of the contract and to retain the supplies ready for dispatch until new terms of payment and delivery will have been agreed and until the supplier will have received satisfactory securities. If such an agreement cannot be reached within a reasonable time, or in case the supplier does not receive adequate securities, the supplier shall be entitled to terminate the contract and to claim damages.
6.4 If the customer delays in the agreed terms of payment, it 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 terms pre-vailing at the customer’s domicile, but not less than 4 per cent over the current 3-month CHF-LIBOR target. The right to claim further damages is reserved.
7. Reservation of title
The supplier shall remain the owner of all supplies until having received the full payments in accordance with the contract.
The customer shall cooperate in any measures necessary for the protection of supplier’s title. In particular upon entering into the contract it authorises the supplier to enter or notify the reservation of title in the required form in public registers, books or similar records, all in accordance with relevant national laws, and to fulfill all corresponding formalities, at customer’s cost.
During the period of the reservation of title, the customer shall, at its own cost, maintain the supplies and insure them for the benefit of the supplier against theft, breakdown, fire, water and other risks. It shall further take all measures to ensure that the supplier’s title is in no way prejudiced.
8. Delivery time
8.1 The delivery time shall start as soon as the contract is entered into, all official formalities such as, but not limited to, import, export, transit and payment permits have been completed, payments due with the order have been made, any agreed securities given and the main technical points settled. The delivery time shall be deemed to be observed if by that time the supplier has sent a notice to the customer informing that the supplies are ready for dispatch.
8.2 Compliance with the delivery time is conditional upon customer’s fulfilling of its contractual obligations.
8.3 The delivery time is reasonably extended:
a) if the information required by the supplier for performance of the contract is not received in time, or if the customer subsequently changes it thereby causing a delay in the delivery of the supplies or services;
b) if hindrances occur which the supplier cannot prevent despite using the required care, regardless of whether they affect the supplier or the customer or a third party. Such hindrances include, but shall not be limited to, epidemics, mobilisation, war, revolution, serious breakdown in the works, accidents, labour conflicts, late or deficient delivery by subcontractors of raw materials, semifinished or finished products, the need to scrap important work pieces, official actions or omissions by any state au-thorities or public bodies, natural catastrophes, acts of God;
c) if the customer or a third party is behind schedule with work it has to execute, or with the performance of its contractual obligations, in particular if the customer fails to observe the terms of payment.
8.4 The customer shall be entitled to claim liquidated damages for delayed delivery in so far as it can be proved that the delay has been caused through the fault of the supplier and that the customer has suf-fered a loss as a result 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 ½ 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 delayed delivery, the customer shall grant the sup-plier a reasonable extension of time in writing. If such extension is not observed for reasons within supplier’s control, the customer shall have the right to reject the delayed part of the supplies or services. If a partial acceptance 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.
8.5 In case a specific date instead of a delivery period is fixed, such date shall correspond to the last day of a delivery period; Clauses 8.1 to 8.4 apply by analogy.
8.6 Any delay of the supplies or services does not entitle the customer to any rights and claims other than those expressly stipulated in this Clause 8. This limitation does, however, not apply to unlawful intent or gross negligence on the part of the supplier, but does apply to unlawful intent or gross negligence of persons employed or appointed by the supplier to perform any of its obligations.
Packing shall be charged for separately by the supplier and shall not be returnable. However, if it is declared as supplier’s property, it shall be returned by the customer, carriage paid, to the place of dispatch.
10. Passing of benefit and risk
10.1 The benefit and the risk of the supplies shall pass to the customer by the date of their leaving the works.
10.2 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 account and at the risk of the customer.
11. Forwarding, transport and insurance
11.1 The supplier shall in time be notified of special requirements regarding forwarding, transport and insurance. The transport shall be at customer’s expense and risk. Objections regarding forwarding or transport shall upon receipt of the supplies or of the shipping documents be immediately submitted by the customer to the last carrier.
11.2 The customer shall be responsible for taking insurance against risks of any kind.
12. Inspection and taking-over of the supplies and services
12.1 As far as being normal practice, the supplier shall inspect the supplies and services before dispatch. If the customer requests further testing, this has to be specially agreed upon and paid for by the customer.
12.2 The customer shall inspect the supplies and services within a reasonable period and shall immediately notify the supplier in writing of any deficiencies. If the customer fails in doing so, the supplies and services shall be deemed to have been taken over.
12.3 Having been notified of deficiencies according to Clause 12.2, the supplier shall as soon as possible remedy them, and the customer shall give the supplier the possibility of doing so. After remedy of such deficiencies, a taking-over test according to Clause 12.4 will be carried out at the request of the customer or of the supplier.
12.4 Subject to Clause 12.3 the carrying out of a taking-over test as well as laying down the conditions related thereto need a special agreement. In the absence of such agreement the following shall apply:
- The supplier shall advise the customer in time of the execution of the taking-over test so that the customer or its representative can attend.
- A taking-over report shall be prepared which shall be signed by both the customer and the supplier or by their representatives. Such report shall either state that the taking-over has taken place, or that it has taken place under reservations, or that the customer has refused the acceptance. In the last two cases, the deficiencies shall be listed individually in the report.
- In case of insignificant deficiencies, in particular those which do not substantially hinder the efficient functioning of the supplies or services, the customer shall not be entitled to refuse the acceptance of the supplies or services and the signature of the taking-over report. The supplier shall remedy such deficiencies without delay.
- In case of important deviations from the contract or of serious deficiencies the customer shall give the supplier the possibility of remedying these within a reasonable time.
Thereafter a further taking-over test shall take place. If during this test important deviations from the contract or serious deficiencies appear again, the customer shall be entitled to claim either a price reduction or an indemnity or other compensations from the supplier, provided this has been agreed before. If, however, the deviations and deficiencies appearing during such test are of such importance that they cannot be remedied within a reasonable time and provided the supplies and services cannot be used for their specified purpose, or 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 it, to terminate the contract. In such case the supplier can only be held liable to reimburse the sums which have been paid to it for the parts affected by the termination.
12.5 Taking-over shall also be deemed completed
- if the taking-over test cannot be carried out on the date provided for due to reasons beyond supplier’s control;
- if the customer refuses the acceptance without being entitled to do so;
- if the customer refuses to sign the taking-over report prepared in accordance with Clause 12.4;
- as soon as the customer uses the supplies or services.
12.6 Deficiencies of any kind in supplies or services shall not entitle the customer to any rights and claims other than those expressly stipulated in Clauses 12.4 and 13 (guarantee, liability for defects).
13. Guarantee, liability for defects
13.1 Guarantee period
The guarantee period is 12 months, or 6 months in case of a multi-shift system. It starts when the sup-plies leave the works or at the taking-over of the supplies and services should such taking-over have been agreed upon before, or, if the supplier undertakes the erection, upon completion thereof. If dispatch or taking-over or erection are delayed due to reasons beyond supplier’s control, the guarantee period shall end not later than 18 months after supplier’s notification that the supplies are ready for dispatch.
For replaced or repaired parts the guarantee period starts anew and lasts 6 months after replacement or completion of the repair or taking-over, but not longer than the expiry of a period being double to the guarantee period stipulated in the preceding paragraph.
The guarantee expires prematurely if the customer 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 possibility of remedying such defect.
13.2 Liability for defects in material, design and workmanship
Upon written request of the customer, the supplier undertakes at its choice to repair or replace as quickly as possible any parts of the supplies which, before the expiry of the guarantee period, are proved to be defective due to bad material, faulty design or poor workmanship. Replaced parts shall become the supplier’s property if he does not renounce explicitly. The supplier shall bear the costs of remedying the defective parts in its works. If the repair cannot be carried out in supplier’s works, the customer shall bear the related costs to the extent exceeding the customary costs of transport, personnel, travelling, living, dismantling and reassembly of the defective parts.
13.3 Liability for express warranties
Express warranties are only those which have been expressly specified as such in the order acknowledgment or in the specifications. An express warranty is valid until the expiry of the guarantee period at the latest. If a taking-over test has been agreed, the warranty shall be deemed to have been fulfilled as soon as the test results prove the relevant quality or capacity.
If the express warranties are not or only partially achieved, the customer may first of all require the supplier to carry out the improvements immediately. The customer shall give the supplier the necessary time and possibility of doing so.
If such improvements fail completely or in part, the customer may claim such compensation as has been agreed before for such case, or, if such an agreement has not been made, a reasonable reduction of price. If, however, the defects are of such importance that they cannot be remedied within a reasonable time and provided 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 it, to terminate the contract. In such case the supplier can only be held liable for reimbursing the sums which have been paid to it for the parts affected by the termination.
13.4 Exclusions from the liability for defects
Excluded from supplier’s guarantee and liability for defects are all deficiencies which cannot be proved to have their origin in bad material, faulty design or poor workmanship, e.g. those resulting from normal wear, improper maintenance, failure to observe the operating instructions, excessive loading, use of any unsuitable material, influence of chemical or electrolytic action, building or erection work not under-taken by the supplier, or resulting from other reasons beyond supplier’s control.
13.5 Supplies and services of subcontractors
For supplies and services of subcontractors requested by the customer, the supplier assumes guarantee and liability for defects only to the extent of such subcontractors’ guarantee and liability obligations.
13.6 Exclusivity of guarantee claims
With respect to any defective material, design or workmanship as well as to any failure to fulfill express warranties, the customer shall not be entitled to any rights and claims other than those expressly stipu-lated in Clauses 13.1 to 13.5.
13.7 Liability for additional obligations
The supplier is only liable to the extent of unlawful intent or gross negligence as far as claims arising out of faulty advice and the like or out of breach of any additional obligations are concerned.
14. Non-performance, bad performance and their consequences
14.1 In all cases of bad performance or non-performance not expressly covered by these general conditions of supply – in particular if the supplier, without valid reasons, starts execution of the supplies and services so late that punctual completion is unlikely to be foreseen, or if an execution contrary to the terms of the contract can be clearly foreseen due to supplier’s fault, or if the supplies and services have been executed contrary to the terms of the contract due to supplier’s fault –, then the customer shall be entitled to grant a reasonable additional period for the supplies or services affected thereby by simultaneously warning to terminate the contract in case of non-compliance. If such additional period lapses due to supplier’s fault, the customer shall be entitled to terminate the contract with respect to the supplies or services executed, or certain to be executed, contrary to the terms of the contract, and to claim a refund of the payments already made for such supplies or services.
14.2 In such case Clause 16 shall apply with regard to any claims for damages on the part of the customer and with regard to the exclusion of any further liability, and any claim for damages shall be limited to 10 per cent of the contract price for the supplies and services affected by the termination.
15. Termination of the contract by the supplier
The contract shall be adapted appropriately, if unforeseen events considerably change the economic effect or the content of the supplies or services or considerably affect the activities of the supplier, or if performance subsequently becomes impossible. In so far as such adaptation is economically not justifiable, the supplier shall be entitled to terminate the contract or the parts affected thereby.
If the supplier wishes to terminate the contract it shall – after having recognised the consequences of the event – immediately inform the customer; this applies even if an extension of the delivery time has been agreed before. In case of termination of the contract the supplier shall be entitled to the payment of those parts of the supplies and services which have already been carried out. Claims for damages on the part of the customer because of such termination are excluded.
16. Exclusion of further liability on the supplier’s part
All cases of breach of contract and the relevant consequences 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 conditions of supply. In particular, any claims not expressly mentioned for damages, 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 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, loss of profit and other direct or indirect or consequential damage. This exclusion of liability, however, does not apply to unlawful intent or gross negligence on the part of the supplier, but does apply to unlawful intent or gross negligence of persons employed or appointed by the supplier to perform any of its obligations.
This exclusion of liability does not apply as far as it is contrary to compulsory law.
17. Right of recourse of the supplier
If, through actions or omissions of the customer or of persons employed or appointed by it to perform any of its obligations, personal injury or damage to the property of third parties occurs and if a claim is made against the supplier, then the latter shall be entitled to take recourse against the customer.
If the supplier undertakes the erection or the supervision of the erection, the General Conditions of Erection of Swissmem shall apply.
19. Jurisdiction and applicable law
19.1 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 customer at the latter’s registered address.
19.2 The contract shall be governed by Swiss substantive law.
Appendix: Price adjustment formula
Price Adjustment Formula
issued by Swissmem
P = P0 (a + (b x Lm/Lo) + (c x Mm/Mo))
P = Selling price on date of delivery
P0 = Selling price by tender
a = Coefficient of fixed part of costs (e.g. = 0,1)1
b = Coefficient of part varying with wage index (e.g. = 0,6)1
c = Coefficient of part varying with material index (e.g. = 0,3)1
Lo = Wage index² of Swissmem, Zurich, on date of tender
Lm = Average of all wage indices²
- from date of order acknowledgement to completion in accordance with contract * or
- during period of manufacture, i.e. from ____ to ___ *
Mo = Mean of price indices³ of principal material in category «metals and metal products» required for manufacture, related to their proportion of value of goods on date of tender
Mm = Average of mean values of all price indices³ of principal materials in category «metals and metal products» required for manufacture, related to their proportion of value of goods at time of delivery
- from date of order acknowledgement to completion in accordance with contract * or
- from date of order acknowledgement to date by which supplier had obtained most of these materials, i.e. from ___ to ___ *
1 a + b + c must always total 1.
² Since the wage index is only issued by Swissmem quarterly, the index for the past quarter shall be inserted in each case.
³ Fractions of the official producer price index calculated and published monthly. (If the year serving as a basis for determination of the index is changed by the authority concerned, the supplier is entitled to re-calculate the changes in prices in accordance with the new index values.)
* Delete where inapplicable.
SWISSMEM –The Swiss Mechanical and Electrical Engineering Industries
1. Scope of Validity
These General Conditions of Erection are valid for the erection, commissioning and test operation of machines and plant, to be referred to in the following as services.
These Conditions shall also apply to erection supervision unless individual agreements have been or shall be concluded in this respect.
2.1 The contract shall be deemed to have been entered into upon receipt of Contractor’s written acknowledgement stating its acceptance of the order.
Tenders which do not stipulate an acceptance period shall not be binding.
2.2 These General Conditions of Erection shall be binding if declared applicable in the tender or in the order acknowledgement. Any conditions stipulated by the customer which are in contradiction of these General Conditions of Erection shall only be valid if expressly acknowledged by the Contractor in writing.
2.3 All agreements and legally relevant declarations of the parties to the contract must be in writing in order to be valid.
3. Plans and technical documentation
3.1 Data provided for in technical documents are only binding in so far as having been expressly stipulated as such.
3.2 Each party to the contract retains all rights to technical documents 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.
4. Obligations of the Contractor
The Contractor undertakes to carry out the work in a workmanlike manner and with qualified personnel. Any third parties involved in this respect are also designated as contractors in these Conditions.
5. Obligations of the Employer
5.1 The Employer has to inform the Contractor, at the latest at the time of the order, of any regulations and standards which relate to execution of the erection and other work, to the plant operation as well as to illness and accident prevention.
5.2 The Employer shall undertake all that is deemed necessary in order that the work can be commenced on time and carried out without hindrance or interruption. The Contractor’s personnel shall not be called upon until all preparatory work has been completed.
5.3 The Employer has to ensure that all entry, exit, residence, work and any other official permits required by the Con-tractor’s personnel are obtained in good time.
5.4 The Employer has to carry out all the civil engineering and other preparatory work skilfully at his expense and respon-sibility in accordance with the documentation supplied by the Contractor, if any.
5.5 The Employer has, at his own expense, to carry out all the accident prevention measures required. In particular, he has to inform the Contractor expressly when special consideration has to be shown for him and/or any other contractor. The Employer has also to draw the attention of the Contractor to any regulations which have to be complied with.
The Contractor shall be entitled to refuse or stop any work if the safety of the personnel is not guaranteed.
The Employer is to provide any necessary assistance should the Contractor’s personnel suffer an accident or become ill.
5.6 The materials to be erected are to be stored in such a manner that they are protected from any damage or deterioration. Before erection work is commenced, the materials to be erected are to be checked for completeness and damage by the Employer in the presence of the Contractor’s personnel. Should any items be lost or damaged during storage, they are to be replaced or repaired at the Employer’s expense.
5.7 The Employer is to ensure that the transport access route(s) to the erection site is/are usable and that the erection site itself is in a condition allowing erection work to commence. In addition, the Employer is to arrange that access to the erection site is guaranteed without hindrance and all rights of way required have been assured.
5.8 The Employer is to arrange for the provision of heatable or air conditioned, lockable rooms for the Contractor’s site management, restrooms and changing rooms for the Contractor’s erection personnel, including suitable sanitary facilities for the personnel. In addition, the Employer is to provide lockable, dry rooms for the storage of materials and equipment. All these rooms are to be located in the im¬mediate vicinity of the place of work.
5.9 The Employer is to supply the following at his own expense, in good time, in accordance with the Contractor’s instructions or erection programme:
5.9.1 Qualified skilled and unskilled workers, such as fitters, welders, electricians, masons, painters, sheet metal workers and assistants with the necessary tools and equipment. These workers have to comply with the Contractor’s working instructions, but will nevertheless remain the Employer’s employees, subordinated and responsible to him.
5.9.2 Suitable cranes and other lifting devices, in good working order, with attendant personnel; appropriate scaffolding, as well as means of transport for personnel and materials, appropriate workshop equipment and measuring devices.
5.9.3 Necessary consumable and installation materials, cleaning materials, lubricants and miscellaneous small items required during erection.
5.9.4 Electrical energy and lighting including the necessary connections up to the place of erection, heating, compressed air, water, steam, fuels, etc.
5.9.5 Means of communication, such as telephone, fax, telex, PC-modem.
5.10 The Employer is to ensure that the Contractor receives, in good time, all the necessary permits for the import and ex-port of tools, equipment and materials, and shall bear any related charges.
5.11 The Employer is to immediately return the tools and equip¬ment provided by the Contractor to the location designated by the Contractor. The Employer shall bear the dispatch costs, insofar as these are not included in the price.
Ownership of tools purchased by the Employer from the Contractor, and which the Contractor continues to use during the erection work, shall be transferred to the Employer after completion of the works. Unless instructions are given to the contrary, these tools shall be kept available for the Employer on the erection site, at the latter’s risk.
The tools made available to the Contractor by the Employer shall be returned to the Employer after completion of the works. Unless instructions are given to the contrary, these tools shall be kept available for the Employer on the erection site, at the latter’s risk.
5.12 The Employer shall use future operating personnel to help already during the erection phase, in order that they become familiar with the methods and techniques of the Contractor. The Contractor is prepared to undertake the technical instruction of the said operating personnel, provided this has been expressly agreed.
5.13 Should the Employer not or only partially fulfil his obligations, the Contractor is entitled to remedy such deficiencies either himself or by means of third parties. The costs arising from such a procedure are to be paid by the Employer. The Employer shall also indemnify the Contractor against his liability towards third parties.
5.14 Should the Contractor’s personnel encounter any danger or be considerably hindered in carrying out the work due to any reason beyond the control of the Contractor, the Contractor is allowed to withdraw the site erection personnel. In such cases, and also should personnel be retained after completion of the work, the corresponding hourly/daily rates are invoiced as waiting time, plus the travelling expenses and daily allowances.
6. Work carried out on the instructions of the Employer
Without written permission of the Contractor, the Employer is not allowed to employ the Contractor’s personnel for work which does not form part of the contract. Even if the Contractor has agreed to such work, no responsibility for same is taken by the Contractor. The Contractor accepts no responsibility for any work carried out to the order of the Employer without his particular instruction.
7. Working time
7.1 Subject to differing compelling regulations at the erection site, the working times shall be laid down in the Appendix.
7.2 The normal weekly working time is, in general, to be distributed over five working days. If, due to reasons beyond the control of the Contractor, a shorter working time has to be maintained, the normal working time is invoiced. The working hours of the Contractor’s personnel shall be distributed according to the Employer’s requirements and the local conditions. The limits for normal daily working hours shall be 6 am and 8 pm.
7.3 Working hours in excess of the normal weekly or daily working time are defined as overtime. Overtime work is only permitted when agreed by both parties. The overtime work should not, as a rule, exceed the daily working time by more than two hours and the normal weekly working time by more than ten hours.
7.4 The hours in excess of the normal daily or weekly working time worked between 6 am and 8 pm are defined as overtime.
7.5 The normal working time, worked between 8 pm and 6 am on working days, is defined as night work (except when overtime on night work).
7.6 Overtime worked between 8 pm and 6 am is defined as night work overtime.
7.7 Sunday work is defined as work on Sundays or on other weekdays which are statutory rest days at the erection site. Holiday work is defined as work on days which are statutory holidays at the erection site.
8. Travelling time and other times defined as being equivalent to travelling time
8.1 Travelling times as well as appropriate preparatory and winding up times after the journey which are necessary in order to comply with the contractual conditions are to be regarded as being equivalent to working time in accordance with paragraph 7.1. Travelling time includes:
- the time required for the journey to and from the place of work
- the time required to move into the accommodation on site as well as
- the time required for official registration and departure formalities.
8.2 Should it be impossible to obtain suitable accommodation and/or adequate meal facilities near to the place of work, the time required for the transit each day between the accommodation and/or meal facilities’ location(s) and the place of work in excess of one half hour per single journey is charged as working time. All expenses arising from the above, as well as the costs for the use of suitable means of transport or a hire car, are to be paid by the Employer.
8.3 If the Contractor’s personnel are hindered in carrying out the work due to reasons beyond the control of the Contractor, or if the Contractor’s personnel are retained on site after completion of the work for any reason whatsoever, the Contractor is entitled to invoice the waiting time as working time. All other costs associated with the above are also to be paid by the Employer. The same applies also for any other hours lost due to reasons beyond the control of the Contractor, such as local public holidays at the erection site.
The services of the Contractor are invoiced according to time and material on the basis of his cost rates at the time of execution of the erection work, unless a fixed price (lump sum) or a sliding price as per the Appendix has been agreed upon.
9.2 Work charged according to time and material The services provided by the Contractor are invoiced as follows:
9.2.1 Personnel costs
On presentation of the time sheets, the Employer shall certify the work performed by the Contractor’s personnel with his signature. If this certification is not undertaken by the Employer in due time or is undertaken by personnel not competent for the purpose, the entries of the Contractor’s personnel shall serve as a basis for calculation. The rates given in the Appendix are to apply for the working time, overtime, night, Sunday and holiday working times, travelling time and other times regarded as being equivalent to working time. A maximum of 12 hours per day can be reckoned as travelling time. When the work is carried out under difficult or dirty conditions, for example at great heights or depths, or when special protective clothing or breathing equipment has to be worn, a difficulty/dirty work conditions’ surcharge per working hour is invoiced in accordance with the Appendix, in addition to the Contractor’s generally valid cost rates and to the costs of board and lodging.
9.2.2 Travelling costs
The costs for the journey to and from the country concerned, as well as for travelling within the said country using a means of transport as chosen by the Contractor, are invoiced to the Employer. Invoicing is also to include such associated costs as insurance, freight, custom duties, charges for luggage, passports and visas, provision of the entry residence and work permits, medical examination on arrival and departure, as well as vaccination of the Contractor’s personnel. Unless special circumstances necessitate the use of another class, the following are invoiced:
- business class for air travel
- first class for rail and ship
- use of private car to be reimbursed according to the kilometres travelled, as given in the Appendix, or actual hire car costs.
9.2.3 Costs of board and lodging (daily allowance)
The Employer is to provide the Contractor’s personnel with wholesome and adequate food as well as good, clean, heatable and air conditioned single accommodation at the erection site or in its near vicinity. The daily allowances in the Appendix are to be invoiced to cover the board and lodging costs which are not directly paid by the Employer. This applies also to the supplementary costs for drinks, laundry, etc. The right is reserved to change these rates should the board and lodging costs increase before the commencement of or during the erection work. The same applies also should the daily allowance rates quoted prove to be insufficient. Payment of the board and lodging can take place directly from the Employer to the Contractor’s personnel, provided that the Contractor has given approval in writing for such a procedure. When not otherwise agreed, board and lodging is always to be paid 14 days in advance.
9.2.4 Home leave
If the Contractor’s personnel have to spend a long period of time away from home, they shall be entitled to home leave. The period of absence for such an entitlement is specified in the Appendix. The cost of the return journey, i.e. from the site to the Contractor’s registered office and back, shall be borne by the Employer. The time required for the journey to and from, as well as the total daily allowance, are invoiced according to paragraphs 8.1 and 9.2.3. As far as conditions at the erection site allow, the Contractor’s personnel can decide to take their partners with them as an alternative to home leave. The corresponding travelling costs are invoiced to the Employer.
9.2.5 Costs for tools and equipment
The Contractor is responsible for equipping his erection personnel with a normal set of tools. Further tools, equipment, measurement and testing devices are invoiced in accordance with the Appendix. The duration of use is to be calculated from the day the items are despatched from the Contractor’s premises until their return. Tools and equipment not returned will be invoiced to the Employer at the price required to replace same. Transport and insurance costs, as well as further expenses, dues and charges in connection with the delivery to and return of tools and equipment from the site are to be paid by the Employer.
9.2.6 Consumables and sundry erection materials
Consumables, installation and sundry erection materials supplied by the Contractor shall be charged according to costs.
9.2.7 Costs in connection with sickness and accident
In the case of sickness or accident to the Contractor’s personnel, the Employer shall guarantee the requisite appropriate medical treatment and care, whereby the Contractor’s right to take his personnel home at any time shall not be prejudiced. The Contractor shall be responsible for all costs arising. The Employer shall be required to continue to pay the agreed daily allowance for a period of 10 days from commencement of the treatment. If the return to good health of the ill or injured person is likely to take more than 10 days, then the Contractor is to arrange for an equivalent replace¬ment at his own expense.
9.3 Work to lump sum prices
9.3.1 The lump sum price covers the services to be provided by the Contractor and which have been agreed upon in writing. This price is based on the proviso that all preliminary work is carried out and completed by the Employer in good time and that erection can proceed smoothly and with no hindrance due to matters beyond the control of the Contractor.
9.3.2 Extra work which has to be carried out by the Contractor due to reasons beyond his control, such as subsequent changes to the content or scope of the agreed work, waiting times, re-working, additional travelling, are invoiced to the Employer in accordance with paragraph
9.2. 9.4 Taxes, dues, fees, social insurance contributions Taxes, dues, fees, social insurance contributions and the like, which have to be paid by the Contractor or the Contractor’s personnel in connection with the contract or with work outside Switzerland, are charged to the Employer, with the exception of personal income taxes.
10. Terms of payment
10.1 Unless otherwise agreed, the price and the costs are invoiced monthly and are to be paid by the Employer within 30 days of the date of the invoice. The Contractor reserves the right to require partial or complete payment in advance of the presumed amount. Payments are to be made by the Employer at the Contractor’s registered office without deductions of any kind (discount, expenses, taxes, fees, etc.). Payment is regarded as carried out when Swiss francs to the amount invoiced are made freely available to the Contractor in Switzerland.
10.2 The Employer is not allowed to withhold or decrease payments because of complaints, claims or counterclaims not accepted by the Contractor. The payments are also to be made should the work be delayed or have been made impossible for reasons beyond the control of the Contractor.
10.3 If the Employer fails to effect payment on the agreed date(s), he shall – under the proviso of other rights being claimed and without formal notice – be liable to pay interest on the overdue amount(s) from the date due at a rate based on the interest rates prevailing at the Employer’s registered office. Payment of default interest shall not release the Employer from paying the sums due under the terms of the contract.
11. Time schedule
11.1 A time-limit for the completion of the erection work is only binding when accepted in writing by the Contractor. The erection time begins when all preliminary requirements for the commencement of the work have been complied with. It shall be deemed duly observed if the machinery or plant erected is ready for acceptance on its expiry. A time-limit is also complied with, even though parts are missing or readjustments have still to be made, if operation of the machinery/plant is possible and unhindered.
11.2 The agreed duration of erection shall be suitably extended:
- if the instructions required by the Contractor to carry out the erection work are not provided in good time, or if the Employer subsequently changes such instructions, or
- if the Employer does not comply with his contractual obligations, in particular with regard to the terms of payment according to paragraph 10, or the obligations according to paragraph 5, or if the Employer’s suppliers are behind schedule with their work, or
- in the case of circumstances beyond the control of the Contractor, such as epidemics, threat or actuality of mobilization, war, civil war, acts of terrorism, rioting or sabotage, as well as strikes, working to rule, accidents, late or incorrect deliveries of necessary materials, local or state official actions or omissions, unforeseeable hindrances to transport, fire, explosion, or natural incidents.
11.3 If an agreed completion date is not complied with due to circumstances which are solely the responsibility of the Contractor, the Employer may – but only if a damage has occurred – require the payment of a compensation for damage resulting from delay amounting to 0.5 % per completed week up to a maximum of 5 %. The amount of the compensation is calculated from the price of the Contractor’s work for that part of the plant which cannot be com-missioned at the proper time due to the said delay. Further rights and claims in respect of delay, in particular for damages, are excluded. For erection periods of more than three months, there is no claim for compensation for damage resulting from delay in respect of the first two weeks of delay.
12. Acceptance of the erection work
12.1 The erection work shall be ready for acceptance when the machinery or plant has been erected. The same shall apply if the erected machinery or plant cannot be commissioned for reasons outside the control of the Contractor.
12.2 As soon as the Employer is notified that the erection work is ready for acceptance, it shall be inspected by the Employer or his appointed representative in the presence of the person in charge of the erection. Any deficiencies are to be reported immediately in writing to the Contractor. If the Employer fails to do this, the erection work shall be deemed to have been accepted.
13. Non-performance, faulty performance and their consequences
13.1 In all cases of faulty performance or non-performance not expressly dealt with in these Conditions, in particular if the Contractor, without cause, commences execution of the works so late that completion of the works on time is no longer anticipated, if execution in breach of the contract through the fault of the Contractor is unquestionably anticipated, or if work has been executed in breach of the contract through the fault of the Contractor, the Employer shall be authorised to set the Contractor a reasonable further deadline for remedy of the work concerned, under threat of withdrawal, should he fail to comply. Upon the fruitless expiration of this subsequent deadline through the fault of the Contractor, then the Employer may withdraw from the contract with respect to the works which have been executed in breach of the contract or the execution of which in breach of the contract is unquestionably anticipated, and reclaim the associated portion of pay-ments already made.
13.2 In such a case, the provisions under paragraphs 15 and 16 shall apply accordingly with respect to any claim for dam ages by the Customer and with respect to the exclusion of further liability. The claim for damages shall be restricted to 10 % of the contractual remuneration for the work to which the withdrawal relates.
14. Risk of damage or loss
The Employer shall bear the risk of damage or loss for the material to be erected during performance of work, and for tools, equipment and materials provided by him. The Contractor shall be entitled to claim the agreed remuneration even if the erection cannot be carried out or can only be partially carried out, as a result of destruction or partial destruction of the items to be erected.
15.1 The Contractor guarantees for a period of twelve months after the completion of the work and in accordance with the following provisions, that the work has been carried out in a workmanlike and careful manner. Should the work be interrupted due to the reasons quoted in paragraph 11.2, the warranty period for the work completed before the interruption commences at the latest three months after the beginning of the interruption. The warranty period is terminated in all cases three years after the agreed commencement of erection.
15.2 Any deficiencies in the erection work detected during the warranty period shall be remedied free of charge, provided that such deficiencies are notified to the Contractor in writing immediately upon their discovery. The Contractor shall only be responsible for deficiencies related to the work performed under his supervision by the Employer’s personnel or those of a third party, if it can be proven that such deficiencies are attributable to the fact that the Contractor’s personnel has acted with gross misconduct in the course of instruction or supervision.
15.3 No warranty shall be provided if the Employer or a third party undertakes modifications or repairs without the Contractor’s written permission, or if the Employer does not immediately take suitable measures to reduce the possible damage.
15.4 For work carried out under warranty, the Contractor shall provide warranty to the same extent as for the original work but not beyond the warranty period of the latter. 15.5 Any claims and rights relating to deficiencies other than those specified under paragraphs 15.1 to 15.4 are excluded.
16.1 The Contractor shall be liable to the Employer only for such property damage which his personnel has caused through its fault during the preparation for the erection, the execution of the works or during the repair of any deficiencies. The total liability shall be restricted to CHF 5,000,000.– (five million Swiss francs). In case of personal injury, the statutory liability shall apply. Subject to illegal intent or gross negligence, the Contractor’s liability towards the Employer for production shutdown, lost profit, loss of use, financial damages and losses resulting from a delay or interruption in erection as well as for contractual losses or consequential damages, shall be excluded. In addition, any further claims by the Employer, in particular for the compensation of damages of any kind, regardless of their legal basis, shall be excluded.
16.2 The Employer shall be responsible for any damage caused by his personnel. This applies also if the Contractor’s personnel are directing or supervising the work, unless it can be proved that gross negligence in connection with instructions, omissions or with the supervision caused the damage. The Employer shall also be responsible for any damage caused through deficiency in the tools, equipment and materials provided by him. This applies also when the Contractor’s personnel has used them without lodging a complaint, unless they could have noticed the deficiency had they exercised due attention.
17. Cancellation of the contract by the Contractor
Should unforeseen events take place, changing the commercial value of the contents of the services considerably or affecting the operations of the Contractor’s plant considerably, or should the execution of the work subsequently prove impossible, the contract shall be adapted reasonably. If this cannot be justified from the economic aspect, the Contractor is entitled to cancel the contract wholly or in part. The Employer has no right to claim for compensation as a result of such cancellation. Should the Contractor decide to make use of his right to cancel, he is to inform the Employer immediately after the consequence of the event has been recognized, even if an extension of the erection time had been agreed with the Employer.
18. Place of jurisdiction and applicable law
The place of jurisdiction for both Employer and Contractor is the registered office of the Contractor. However, the Contractor shall also be entitled to sue the Employer before the court having jurisdiction over the place of business of the latter. The contract shall be governed by Swiss substantive law.
19. Final conditions
Any changes to the contract are only valid if agreed upon in writing. Should any provisions herein prove to be ineffective, this shall not affect the validity of the remaining conditions. The parties agree to replace non-valid conditions by new ones, which are consistent as far as possible with the economic objective of the contract.
The following Appendices form an integral constituent of these Conditions of Erection. In the event of any contradictions, the Appendices shall prevail over the Conditions of Erection.
AUTEFA SOLUTIONS GERMANY GMBH – Download as PDF
1. Scope, conflicting Supplier terms and conditions, overriding agreements
1.1 The legal relations between AUTEFA Solutions Germany GmbH (“Buyer”) and its suppliers or contractors (each a “Supplier”) shall be governed by these General Purchase Terms (“General Purchase Terms”). Supplier terms conflicting with or deviating from these General Purchase Terms will not be accepted, unless they have been specifically approved in writing by Buyer. These General Purchase Terms also apply to all future contracts between Supplier and Buyer in ongoing business relationships.
1.2 Any individual agreements with Supplier shall take precedence over these General Purchase Terms, as shall any Buyer specifications set out in Buyer’s orders that deviate from these General Purchase Terms.
2. Written form, conclusion of contract
2.1 All orders and acceptance confirmations, side agreements and other arrangements made prior to or at conclusion of the contract must be set forth in written or text form (letter, fax, e-mail, together “written form” or “in writing”) to become legally effective.
2.2 Supplier must confirm all orders in writing without delay, stating the order number. Buyer remains bound by its orders for five days after their receipt by Supplier, unless an order confirmation within a shorter time is requested in the order.
2.3 Supplier shall inspect the order without delay for obvious mistakes, unclear points and incomplete information and shall advise Buyer without delay of any necessary amendment or further clarification of the order.
3. Delivery dates and deadlines, pre-schedule deliveries and delivery by instalments, goods acceptance times, forwarding insurance, late delivery
3.1 All agreed dates and times for deliveries and services are binding. Supplier shall advise Buyer in writing without delay of any foreseeable delay in delivery, indicating the reasons and the anticipated duration of the delay.
3.2 Pre-schedule deliveries and deliveries by instalments are permitted only with Buyer’s consent. If the place of fulfilment is at Buyer’s registered office, compliance with a delivery date or deadline depends on the arrival of the goods including the required shipping papers at Buyer’s premises within Buyer’s goods acceptance times, which are: Monday to Thursday from 7 to 12h and from 12:30 to 15:30h, and Fridays from 7 to 11:30h, except public holidays at Buyer’s registered office.
3.3 Buyer is a customer exempted from SLVS coverage. Where it has been agreed that Supplier engages the forwarder for Buyer’s account, no forwarding insurance will be effected.
3.4 If Supplier is late with any delivery or service, Buyer will have the right to charge damages at a fixed rate of 1% of the value of the goods or services with which Supplier is late but no more than 5% of the value of such goods or services, for each full week of delay. Supplier may show that a lower damage and Buyer may show that a higher damage has occurred and, provided the legal requirements are met, may enforce further rights, especially claim damages instead of performance or reimbursement of expenditures, and withdraw from the contract.
4. Supplier’s rights of retention / setoff
4.1 Supplier has a right of retention against claims of Buyer only on the basis of claims from the same contractual relationship that are undisputed, ripe for adjudication, or have been established by final enforceable judgment.
4.2 Any set-off by Supplier shall only be permitted on the basis of Supplier counterclaims that are undisputed, ripe for adjudication, or have been established by final enforceable judgment.
5. Shipping papers, packaging/labelling, delivery clauses, Supplier declaration, export restrictions
5.1 All goods must be duly and properly packaged and labelled in accordance with Buyer’s instructions and as set out in the terms of this section 5 below. Supplier will be liable for any loss sustained by Buyer as a result of Supplier breaching this duty.
5.2 Every shipment of goods must include the shipping papers, in particular but not limited to the packing slip and shipping notes, as well as any further documents as may be contractually required (for example, test certificates in accordance with the agreed specifications and contractually agreed certifications). The papers must be fixed to the outside of the shipment, in a clearly visible manner and protected against loss in a transparent sheet protector. If the shipment consists of several packages, the package including the shipping note must be labelled “LS-hier” in a clearly visible manner. All orders for collection, shipping and freight papers must show at least the following information:
- the sender,
- Buyer’s order number,
- the order item, and
- the material or drawing number.
Supplier further shall comply with the following obligations:
- All goods shall be packaged so as to prevent damage to the goods during normal shipping and storage handling.
- Every package must include a detailed packing list.
- Every packing unit may include no more than one order item.
- Every packing unit must be labelled with the order item, the name and the quantity included in it.
- Component groups (sets) that are delivered as unassembled parts shall be packed by sets, that is to say the parts of the same component group shall be combined in one packing unit.
- In shipments of small parts the goods and the filler material must be clearly distinguishable from one another.
- Hazardous products must be packed and labelled in accordance with the applicable national and international regulations.
5.3 Unless a place of fulfilment outside of Germany has been agreed, Supplier shall retrieve its transport packaging from the place of fulfilment at Supplier’s expense, in compliance with the German Packaging Ordinance (Verpackungsverordnung).
5.4 All delivery clauses shall be construed in accordance with Incoterms 2010.
5.5 Supplier shall forward the required declarations certifying the origin of the goods for customs purposes under the Regulation (EC) 1207/2001 to Buyer without delay and in a timely manner, at the latest at delivery. Supplier will be liable for any and all disadvantages sustained by Buyer as a result of a Supplier declaration being submitted not in proper form or late. If necessary Supplier will prove the information about the origin of the goods by way of an information certificate issued by Supplier’s customs office. Supplier shall advise Buyer without delay whether the goods or services are subject to any export restrictions in Germany (for example under the Foreign Trade Act - Außenwirtschaftsgesetz [AWG] or the War Weapons Control Act - Kriegswaffenkontrollgesetz [KrWaffKontrG]).
6. Invoices, pricing, shipping and packaging costs
6.1 Invoices shall be submitted in verifiable form and for this purpose indicate at least the order number, the full order reference and Buyer’s order date, as well as the shipping note number and the delivery date. Invoices must be itemised in conformance with the order and indicate the customs tariff number and country of origin for each item. Invoices shall be transmitted separately from the shipment.
6.2 Unless agreed otherwise, the prices are fixed prices DDP Buyer’s registered office (Incoterms 2010), inclusive of shipping and packaging. Where DDP Buyer’s registered office has not been agreed and Supplier is obliged to dispatch the goods, Supplier shall choose the most economic shipping method. Where, notwithstanding the 1st sentence of this clause, the agreed price is not inclusive of packaging the packaging shall be billed at cost.
7. Payment terms, no assignment, passage of title, processing of goods in Buyer’s business
7.1 Payment shall be made within ten days after the delivery or service and receipt of a due and proper, verifiable invoice (see section 6.1) with a 2% discount, and within thirty days net, however, not before the acceptance under section 8.3 2nd sentence of any work results and other services for which acceptance has been agreed. Any invoice failing to meet the criteria of section 6.1 above may be rejected by Buyer, in which case the beginning of the period for payment shall be the date of receipt of the new, duly prepared invoice. In the event of early delivery or services the agreed date of delivery or service shall take the place of delivery or service for the calculation.
7.2 Supplier shall have no right to assign its claims against Buyer or have them collected by a third party without Buyer’s written consent, unless Supplier has granted its supplier an extended reservation of title in the ordinary course of business. Nothing in this shall prejudice Sec. 354a HGB (German Commercial Code).
7.3 Where a reservation of title has been agreed the title to delivered goods shall pass to Buyer upon payment. Buyer accepts no increased or extended reservation of title.
7.4 Buyer has the right to process, sell or otherwise dispose of delivered goods in the ordinary course of business, including before the passing of the title.
8. Supplier responsibility for deliverables/work results, defects, acceptance, warranty, statute of limitation for warranty claims
8.1 Buyer’s warranty rights are governed by the applicable laws, as amended by the terms of section 8 and 9 below.
8.2 Supplier has sole responsibility for the deliverables and work results, whether or not Buyer has approved any drawings, calculations and other documents or attended technical or official inspections, tests and acceptance tests. This also includes proposals, recommendations and other contributions by Buyer.
8.3 For deliveries of goods (including manufacture, if applicable) Buyer must report any obvious defects to Supplier within fourteen days after delivery and any hidden defects within seven days after their discovery. For work results and other services for which acceptance has been agreed, Buyer must accept any results that are ready for acceptance within fifteen days after completion and notification that the results are ready for acceptance. Where Buyer inspects the goods prior to delivery at Supplier’s premises in agreement with Supplier or where the parties have agreed acceptance for services that are not work results, the inspection at Supplier’s premises or the acceptance shall take the place of any inspection on delivery according to Sec. 377(1) HGB; Buyer is obliged to further inspect such goods only for obvious defects that were not yet in evidence at the inspection at Supplier’s premises or the acceptance (for example, obvious damage in transit).
8.4 Supplier will bear all expenditures incurred in connection with determining and removing defects, including disassembly and assembly costs, and including expenditures incurred by Buyer.
8.5 Any payments towards the purchase price prior to the determination of a defect or acceptance of the goods by an agent of Buyer from Supplier shall not constitute an acknowledgment that the goods are free of defects or release Supplier of its liability for defects.
8.6 Buyer may in its discretion choose between the removal of a defect or delivery of a replacement or, where work results are concerned, the completion of a new work result.
8.7 Where, due to particular urgency of the matter, it is not appropriate to set a deadline for Supplier to take remedial action Buyer, without prejudice to its legal remedies, has the right to undertake or arrange for substitute performance at Supplier’s expense. Buyer will give Supplier advance notice of any such substitute performance, where possible.
8.8 Buyer’s warranty claims for deliveries and services rendered by Supplier shall become time-barred 36 months after the beginning of the statutory limitation. Warranty claims for structures, for goods that were used for a structure in accordance with their ordinary usage and caused the structure to become defective, and for the event that Supplier fraudulently concealed the defect shall become time-barred within the statutory limitation periods. Without prejudice to any other or further reasons for suspension or interruption of the limitation period, the limitation period will be suspended for deliveries and services that cannot be used as agreed by contract for reason of remedial action, for the duration of such remedial work.
9. IP rights, Supplier deliveries to third parties
9.1 Supplier shall indemnify Buyer against any and all claims of third parties resulting from any infringement of patents, copyrights, design rights, trademark rights, name rights and other intellectual property rights and applications for intellectual property rights (“IP Rights”) through the contractually agreed use of the deliverables, unless Supplier is not responsible for the infringement of rights. This applies equally to all necessary expenditures incurred by Buyer in connection with any such third party claims, in particular the costs of legal defence. Supplier further is liable for all consequential losses incurred by Buyer, particularly as a result of shortage of supplies and disruptions of production.
9.2 IP Rights that arise from developments based on special orders by Buyer or joint developments with Supplier are vested solely in Buyer if they are based exclusively on proprietary Buyer knowhow and/or if Buyer bears the development costs. For this purpose, Supplier herewith assigns to Buyer any and all IP Rights in such developments at the latest at the moment of their creation. If it is impossible to assign the resultant IP Rights to Buyer, Supplier will grant Buyer at the latest at the moment of their creation exclusive rights of use at no charge, for full exploitation, in particular with no limit as to time, territory and subject matter.
9.3 Supplier may use any goods made with designs, drawings and specifications of Buyer, which include IP Rights or secret knowhow of Buyer, only to fulfil the contract with Buyer. This includes goods including no IP Rights or secret knowhow of Buyer but for the manufacture of which Supplier requires drafts, plans or other documents prepared by Buyer or for Buyer’s account, or stencils, moulds, tools or related accessories owned by Buyer, if the goods manufactured by Supplier differ significantly in form, function or composition from other products made by Supplier or available in the market.
10. Liability, limitation of claims
Unless set forth otherwise in these General Purchase Terms the liability and the limitation of claims shall be governed by the applicable laws. Any limitations and exclusions of liability of Supplier will not be accepted.
11. Tools, drawings, provision of materials, manufacturing means, insurance, sub-suppliers
11.1 If, at Buyer’s expense, Supplier makes any tools for purposes of fulfilling the contract (whether such tools are indicated separately or included in the total price), the parties agree that such tools shall be Buyer’s property. In lieu of their actual handover, Supplier has the right to keep the tools on loan until the contract has been completed. Supplier may not use the tools for fulfilling other orders from third party buyers. Upon fulfilment of the contract and on Buyer’s request Supplier must release the tools to Buyer.
11.2 All items, models, documents, drawings, samples and tools made available to Supplier by Buyer are the property of Buyer. This includes items acquired by Supplier at Buyer’s expense for fulfilling the contract, and material provided by Buyer. The items and documents made available to Supplier may only be used and – as permitted by copyright legislation and only as strictly necessary to fulfil the contract – copied for fulfilling the contract with Buyer. After fulfilment of the contract and at Buyer’s request, they must be returned to Buyer without delay, including all duplicates made thereof.
11.3 Supplier bears the risk of loss of and damage to Buyer property, however, not for normal wear and tear. Supplier will store Buyer’s property separate from other property of Supplier, with the diligence of a prudent businessman, handle it with care, maintain it in good condition and, as reasonably feasible, mark it as Buyer property. Buyer’s property may not be removed from Supplier's business premises and/or the agreed location, sold, used as collateral, pledged, etc. without Buyer’s prior written approval.
11.4 Buyer’s property may not be joined, mixed or processed with Supplier's or a third party's property unless this is necessary for fulfilling the contract with Buyer. In the event of processing or transformation, Buyer shall be considered the producer. If Buyer’s property is joined or inseparably mixed with other items, Buyer shall be considered co-owner at the proportion of the value (purchase value plus value-added tax) that the items had at the time of joining or mixing. If such joining or mixing is such that Supplier's property may be considered the main component, it shall be agreed that Supplier transfers proportionate co-ownership to Buyer. Supplier shall store the sole or joint property for Buyer.
11.5 Supplier shall insure Buyer’s property at Supplier’s expense. Supplier hereby assigns to Buyer, who accepts the assignment of, any payment claims against Supplier’s insurance.
11.6 Any sub-suppliers must be subjected to obligations equivalent to those laid down in this section.
12. Spare parts
Supplier shall supply spare parts at reasonable conditions for the duration of the ordinary technical service life of the deliverables but at least for twelve years after the last delivery. If Supplier discontinues the delivery of spare parts upon expiration of the term set out in the 1st sentence of this clause or discontinues delivery of the deliverables prior to the expiration of such term, Supplier must allow Buyer the opportunity of placing a final order.
13. Change of production, Buyer inspections, compliance
13.1 In an ongoing business relationship, Supplier shall advise Buyer without delay in writing of any intended change of materials or bought-in parts as well as any intended product modification, conversion or relocation of production, change of analysis methods and other alterations that may impact the quality and safety of the products purchased by Buyer. Any changes to the agreed specifications will not be permitted, except with Buyer’s prior written consent.
13.2 Buyer has the right to demand access to the manufacturing sites of Supplier and/or of Supplier’s sub-suppliers during normal operating hours in order to inspect the status of production, the use of suitable materials, the deployment of the required skilled personnel and professional workmanship as well as Buyer’s property (see section 11). Where required, and requested by Supplier, to protect any trade or business secrets of Supplier these inspections shall be carried out by a third party sworn to secrecy, who must not forward any information about trade and business secrets to Buyer. Any such inspections will remain without legal effect on the formal acceptance of the deliveries and services.
13.3 Supplier shall comply with all laws applicable to the deliveries and services, in particular but not limited to environmental protection, health and occupational safety, including any minimum wage, product safety, anticorruption, and data protection legislation.
14. Confidentiality, advertising
14.1 The contracting parties shall treat as a business secret and keep confidential any and all commercial and technical information that is not publicly known and which is disclosed to them in connection with the business relationship. This confidentiality undertaking shall survive and remain in effect after the termination of the contract. The confidentiality undertaking does not extend to information which (i) is or becomes publicly known other than by a breach of rights, (ii) is known to the other party at conclusion of the contract, or (iii) is disclosed to the other party by a third party without breaching any nondisclosure obligation.
14.2 The contracting parties may not advertise their business relationship or use it for reference purposes, except with prior written consent.
15. Place of fulfilment, governing law, forum
15.1 The place of fulfilment shall be at Buyer’s registered office, unless stated or agreed otherwise.
15.2 The legal relations between the parties shall be governed exclusively by the substantive laws of Germany to the exclusion of the UN Sales Convention (CISG).
15.3 The exclusive place of jurisdiction shall be the courts having jurisdiction at the registered office of Buyer, if Supplier is a trader or if Supplier has no general place of jurisdiction in Germany at the time the lawsuit is filed. Buyer has the right, however, to appeal to any court having legal jurisdiction.
Last amended: Tuesday, 1 March 2016