General terms and conditions / sales and delivery conditions of Portec
1. General
1.1 The contract is concluded upon receipt of the supplier’s written confirmation that stating its acceptance of the order (order confirmation).
Tenders which do not stipulate an acceptance period shall not be binding.
1.2 These general terms and conditions / sales and delivery conditions shall be valid exclusively to all offers, order confirmations and sales. Any conditions stipulated by the customer which are in contradiction to these general terms and conditions / sales and delivery conditions 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 to be valid.
2. Scope of supplies and services
2.1 The supplies and services are exhaustively specified in the order confirmation and in the appendices if any thereto.
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 any technical documents provided to the other party. The party receiving such documents recognizes 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, safety devices
4.1 The customer shall, in due time prior to placing the order, draw the attention of the supplier to the regulations and standards ruling in the country of destination and concerning the execution of the supplies and services, the operation of the plant and the prevention of illness and accidents. Safety devices shall be supplied to the extent as having been expressly agreed upon.
5. Prices
5.1 Unless otherwise agreed upon in writing, all prices shall be deemed to be ex works of the manufacturer, excluding packing, in freely available Swiss Francs and without any deductions whatsoever.
Any 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 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 has become liable for them.
If the supplier has included in its offer or contract price or indicated separately in its offer or order confirmation the charges for packing, carriage, insurance and other additional costs, it reserves the right to adjust its prices should the rates on which the prices are based be modified.
5.2 The supplier reserves the right to adjust the prices in case a sliding price has been agreed.
In addition, an appropriate price adjustment shall apply in case the delivery time has been subsequently extended due to any reason stated in Clause 9.2, or the nature or the scope of the agreed supplies or services has changed, or any documents furnished by the customer were not in conformity with the actual circumstances or were incomplete.
6. Terms of payment
6.1 Payments shall be made at the supplier’s domicile, according to the agreed terms of payment, without any deduction for cash discount, expenses, taxes, levies, fees, duties, and the like. Payment shall be deemed effected as far as the amount due has been made freely available to the supplier at supplier’s domicile. Costs of letters of credit, banking fees and commissions, expenses for collection (collection fees) shall be borne by the customer.
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 securities to be issued upon the contract being entered into 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 has reason to be 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 liable, without reminder, for interest with effect from the agreed date on which the payment was due, at a rate depending on the terms prevailing at the customer’s domicile, but not less than 5 per cent over the current discount rate of the Swiss National Bank. The right to claim further damages is reserved.
7. Credit - worthiness
7.1 All orders are subject to full solvency accepted by the customer. If this condition proves as incorrect, the supplier reserves the right to provide adequate security, if necessary, performance / delivery step by step against cash payment of all outstanding payments to request or to withdraw from the contract.
8. Reservation of title
8.1 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 and shall, at its own cost, fulfill all formalities necessary for the creation and maintenance of the reservation of title.
During the period of the reservation of title, the customer shall, at its cost, maintain the supplies and insure them adequately. It shall further take all measures to ensure that the supplier’s title is in no way prejudiced.
9. Delivery time
9.1 The delivery time shall start as soon as the contract is concluded, 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 have been given and the main technical points are settled. All agreed delivery dates are guide dates and are subject to change. The delivery date on the order confirmation corresponds to the date ex works. The supplier is entitled to make partial deliveries at any time. Cancellations and claims for damages in the event of any for which the supplier is not responsible, in case of delays or no deliveries at all are in no case accepted.
9.2 The delivery time is reasonably extended:
a) if 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 occur with the supplier or the customer or a third party. Such hindrances include, but shall not be limited to, epidemics, pandemics, mobilisation, war, revolution, serious breakdown in the works, accidents, labour conflicts, late or deficient delivery by subcontractors of raw material, semi- finished or finished products, the need to scrap important work pieces, measures, acts or omissions by any state authorities or public bodies, natural catastrophes, acts of God,
c) if the customer or a third party is behind schedule with work to be executed, or if the performance of the customer’s contractual obligations particularly the observance of the agreed terms of payment is delayed.
9.3 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 9. This limitation does, however, not apply to unlawful intent or gross negligence on the part of the supplier unless unlawful intent or gross negligence attaches to persons employed or appointed by the supplier to perform its obligations.
10. Packing
10.1 Packing can be charged separately by the supplier and shall not be returnable, except if its return to the supplier has been agreed upon. In such case, the packing shall be returned by the customer, carriage paid, to the place of dispatch.
10.2. The supplier is free to choose the appropriate type of dispatch and packaging at the expense of the customer
11. Passing of benefit and risk
11.1 The benefit and the risk of the supplies shall pass to the customer by the date of their leaving the works (ex works).
11.2 If dispatch is delayed at the request of the customer or due to other 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.
11.3 Benefit and a risk are transferred to the customer at the latest on dispatch of the goods from the supplier’s warehouse or from the delivery plant, including clauses such as “free domicile” “carriage paid”, “CIF”, etc. The transport takes place ex warehouse or ex delivery works (ex works) at the risk of the customer.
12. Forwarding, transport and insurance
12.1 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.
12.2 It is up to the customer to take out insurance against damage of any kind. Even if insurance cover is to be arranged by the supplier, it shall be taken out on behalf of the customer and at its expense and risk.
13 Inspection and taking- over of the supplies and services
13.1 As far it is normal practice, the supplier shall inspect the supplies and services before dispatch. If the customer requests further testing, this is to be agreed upon in writing and paid for by the customer. As far as circumstances allow, such tests will be carried out in the supplier’s works.
13.2 The customer shall inspect the supplies and services within 14 days after receipt of the goods and shall immediately notify the supplier in writing of any deficiencies. If the customer fails to do so, the supplies and services shall be deemed to have been taken over. For deficiencies in the supplies or services which cannot be detected at that time, the customer retains its rights regarding guarantees and liabilities as specified in Clause 14.
13.3 Having been notified of deficiencies according to Clause 13.2, the supplier shall as soon as possible remedy those and the customer shall give the supplier the possibility of doing so.
13.4 The carrying out of a taking-over test as well as laying down the conditions related thereto need corresponding agreement.
13.5. Taking- over shall also be deemed completed if the agreed taking-over test cannot be carried out on the date provided for due to reasons beyond supplier’s control, or if the customer refuses the acceptance without being entitled to do so, or if the customer refuses to sign a taking- over report being true to the facts, or as soon as the customer uses supplies or services of the supplier.
13.6 Deficiencies of any kind in supplies or services shall not entitle the customer to any rights and claims other than those expressly stipulated in this Clause 13 or in Clause 14.
14 Guarantee, liability for defects
14.1 The guarantee period is 12 months. It starts when the supplies leave the works or at the taking- over of the supplies and services should such a taking- over have been agreed upon before, or, if the supplier undertakes the erection or the supervision of erection and/or the commissioning, upon completion thereof. If dispatch, taking-over, erection, supervision of erection and/or commissioning are delayed due to reasons beyond supplier’s control, the guarantee period shall end not later than 18 months after notification that the supplies are ready for dispatch.
For replaced or repaired parts the guarantee period will start anew and will last 6 months after replacement or completion of the repair or taking- over but not longer than the expiry of a period of 12 months reckoned from the end of the guarantee period applying as per the preceding paragraph.
The guarantee will expire 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.
14.2 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 supplier’s property.
The supplier shall bear the costs accruing in its works for the repair or the replacement of the defective parts. If the carrying out of a repair in the supplier’s work is impossible or expenses or impediments of an unreasonable degree should be connected therewith, the supplier shall bear the costs of repair and replacement of the defective parts of its supplies occasioned outside its works to such extent as such costs are reasonable under the circumstances prevailing. All additional costs will be at the customer’s charge.
14.3 Express warranties are only those which have been explicitly specified as such in the order confirmation or in the agreed specifications. An express warranty is valid until the expiry of the guarantee period at the latest. However, 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 of the supplies and / or services. If apartial acceptance of the supplies and / or services should be economically unbearable on the part of the customer, then the latter shall be entitled to terminate the contract. The supplier can only be held liable for reimbursing the sums which have been paid to it for the parts affected by the termination.
14.4 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 of the supplies or services, e.g. deficiencies 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 undertaken by the supplier, or deficiencies resulting from other reasons beyond suppliers control.
14.5 For supplies and services of those subcontractor prescribed by the customer, the supplier assumes guarantee and liability for defects only to the extent of such subcontractors guarantee and liability obligations.
14.6 With respect to any defective material, design or workmanship as well as to any failure to fulfill any warranties of any kind, the customer shall not be entitled to any rights and claims other than those expressly stipulated in Clause 14.1 to 14.5.
14.7 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.
15. Exclusion of further liabilities of the supplier
15.1 All cases of breach of contract and the relevant consequences as well as all rights and claim on the part of the customer, irrespective on what ground they are based, are exhaustively covered by these general terms and conditions / sales and delivery conditions of Portec.
Particularly, 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 particularly 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 unless unlawful intent or gross negligence attaches to persons employed or appointed by the supplier to perform its obligations.
15.2 This exclusion of liability does not apply as far as it is contrary to compulsory law.
16. Jurisdiction and applicable law
16.1 The place of jurisdiction for both the customer and the supplier shall be Frauenfeld / Switzerland. The supplier shall, however, be entitled to sue the customer at the latter’s registered address.
16.2 The legal relationship between the customer and the supplier is exclusively subject to Swiss law, excluding the rules of international private law and international agreements.