General Terms and Conditions
1.1 These General Terms and Conditions apply to all deliveries of goods, works or services by Prime One Contracting (the “Supplier”). In case of softwaredeliveries and of installations, specific Supplier Conditions for Software and Conditions for Installation and Commissioning will be applicable.
1.2 Unless Supplier expressly agrees in writing, Supplier shall not be bound by any terms or conditions, whether written, oral or otherwise, that are different, or vary from or are in addition to these General Terms and Conditions and any such terms or conditions shall be null and void and of no effect whatsoever.
2. Offer and Acceptance
2.1 Offers by the Supplier are made without obligation and any sales contract shall become effective and binding on Supplier only when Supplier delivers to Customer its written Order Confirmation Form and Customer countersigns and delivers to Supplier the return portion of Supplier’s Order Confirmation Form, or if Supplier, at its election effectively delivers the goods to Customer.
2.2 Specifications and quotes in catalogues, brochures etc., are only binding if expressly referred to in the Order Confirmation Form.
2.3 Supplier’s offer and project documentation must not be reproduced nor disclosed to third parties without the Supplier’s written consent. The documentation remains the Supplier’s property and must be returned to Supplier upon Supplier’s request.
3.1 Prices are quoted ex Supplier’s works or warehouse, excluding packaging, dispatch and VAT. All expenses, duties, tariffs, and taxes related to the delivery are paid by Customer.
3.2 If a Customer’s order should differ from the offer, the Supplier reserves the right to change prices accordingly.
3.3 Prices are based on the material and labor costs valid at the time of the first offer. Any changes to these costs prior to the date of delivery entitle the Supplier to change prices accordingly.
4. Delivery and Dispatch
4.1 Delivery periods do not start to run before the date of the Order Confirmation Form and are deemed to be fulfilled when the goods are dispatched from the Supplier’s factory or warehouse.
4.2 If not explicitly agreed to otherwise by Supplier, any governmental or other permits required for delivery in the Customer’s country may delay, unless received in time, delivery dates. Such governmental or other permits must be obtained in the Customer’s country by Customer.
4.3 Terms and obligations of delivery may at the election of Supplier be suspended during any period in which Customer’s payments are in arrears.
4.4 Supplier, at its election, may ship all or part of its goods and immediately invoice Customer for such partial or preliminary shipments.
4.5 The agreed delivery periods are subject to events of force of nature, or unforeseen events or events beyond the control of the Supplier, such as war, terrorism, Acts of God, governmental interventions and bans, energy and raw material shortages or outages, strikes, transport damages or delays. These events entitle the Supplier to extend the time of delivery, also if they affect any of its sub-suppliers.
4.6 In case delivery of the goods ready for dispatch is not possible or not desired by Customer, the goods will be stored at the Customer’s cost and risk. The delivery shall then be considered as performed and Supplier may, at its election, invoice for such delivery.
4.7 Compensation for commercially unreasonable delays in delivery by Supplier shall be payable only upon separate agreement, and shall be limited to an eventual monetary penalty in an amount to be agreed to by the parties, even if delays are caused by the Supplier’s negligence.
5. Performance of Contract and Transfer of Risk
5.1 Costs and all risks of loss are transferred to the Customer at the time of dispatch of the goods from the Supplier’s factory or warehouse, in default of the agreed delivery terms. This also applies in case of installations at the Customer’s premises and transport by the Supplier.
5.2 If delivery is delayed by Customer, transfer of costs and risk of loss shall become effective when the goods are ready for dispatch.
5.3 All periods depending on the Supplier’s performance of contract begin on and run from the dates specified in this section, irrespective of any quality tests or trial runs.
6.1 Unless otherwise agreed in writing, one third of the contract price shall be paid by Customer upon receipt of the Order Confirmation, one third after half of the delivery period and the remaining third at the time of delivery. All invoices of the Supplier shall be due and payable within 30 days from the date of invoice.
6.2 Partial invoices are due immediately upon receipt. This also applies to payments which have to be made for additional performances, beyond the initial terms of contract, regardless of the conditions of payment applicable to the main performance.
6.3 Payment shall be made without any deduction in the agreed currency to the Supplier’s bank. Checks or bills of exchange shall be accepted on account only, and all connected expenses shall be charged to the Customer’s account.
6.4 Customer shall not be entitled to any right of set off or to withhold or reduce any payments due because of warranty or compensation claims.
6.5 In case of delayed payment the Supplier is entitled at its election to do any of the following: a) postpone performance of its own obligations until receipt of the payments due b) accelerate and fix a due date for all outstanding payments (cancellation of periods for payment by Customer) c) charge to Customer from such due date or maturity interest at the current discount rate (main refinancing operations) of the European Central Bank plus 8 percent per year or rescind and cancel the contract if the Customer fails to pay within a reasonable period of grace.
6.6 Until Customer has fulfilled all financial obligations, the goods supplied shall remain the Supplier’s property. Customer shall be obliged to meet all legal requirements in order to safeguard Supplier’s property or security interest. In case of attachment or other kinds of seizure Customer shall evidence Supplier’s title and notify the latter immediately. By signing and returning to Supplier the Customer Order Form or by accepting delivery of goods Customer hereby agrees that it has granted Supplier a secured interest in the goods until such time as Supplier is paid in full.
7.1 Unless otherwise agreed to in writing the warranty period shall be six months from the date of transfer of risk as stated in 5.1, regardless of the legal qualification of goods delivered or works performed. Claims will be accepted only if Supplier is immediately notified of the defect in writing. Supplier’s obligations for such claims are restricted to the repair or replacement of the defective goods. All other costs are to be borne by Customer.
7.2 Defects which are due to abuse, misapplication, failure to follow the instructions for use, warnings, safety or other regulations provided by Supplier, improper or prolonged storage or other mistakes on the part of the Customer, are excluded from the warranty. In case of products which have been produced at the order of or according to the Customer’s instructions or formulae, warranty will only cover the proper production of the goods. Normal wear will not be covered under warranty.
7.3 Supplier’s warranty obligations cease if any changes or repairs are caused by Customer or a third person without Supplier’s prior written consent. The performance of a warranty obligation does not prolong the original warranty period.
8.1 The Supplier’s liability and obligations according to the Product Liability Act or any other products liability acts or laws in any jurisdiction is excluded if specific provisions regarding the handling of the products, instructions for their use and/or warning and safety regulations as specified by the Supplier have not been observed.
8.2 Outside the scope of the Product Liability Act or other products liability acts or laws in any jurisdiction, damages shall be compensated only if the Supplier is held responsible for willful intent or gross negligence. In this case, however, Supplier’s obligations for such claims are limited to personal injury and material damage resulting directly from a defect in the products. All other claims, such as consequential loss of property or profit are explicitly excluded. Claims must be made in writing to Supplier within a period of six months from the date of occurrence of the damage, but not later than two years from the date of delivery, otherwise they are forfeited.
8.3 Customer is liable to subject its customers to the limitations of liability contained in this paragraph.
9. Rescission of Contract
Customer’s financial situation has worsened notably after ordering the products, and Customer is not prepared to pay in advance, or to provide sufficient security. Such rescission of contract shall also be permissible if only parts of the delivery or performance, which are still to be fulfilled.
9.1 Customer at its election may rescind the contract if delivery is delayed more than 60 days because of gross negligence of the Supplier and despite reasonable period of grace granted in writing.
9.2 Apart from the case of delayed payment according to Para 6.5 d) the Supplier can rescind the contract if a) delivery or performance becomes impossible for reasons attributable to the Customer, or is delayed beyond a reasonable period of grace established in writing; b) the Customers financial situation has worsened notably after ordering the products, and Customer is not prepared to pay in advance, or to provide sufficient security.
9.3 In case that, due to events indicated in Para 4.5, the agreed delivery times are delayed by more than one half of the period, but at least six months, either party shall be entitled to rescind the contract with respect to those parts of the delivery or performance which have still to be fulfilled.
9.4 If bankruptcy proceedings are instituted against either party’s assets, or these proceedings are not instituted because of insufficient assets, the other party may rescind the contract with immediate effect.
9.5 In case of rescission of contract for other reasons than the one stated in 9.1 all performances or parts thereof which have already been fulfilled by Supplier, shall be settled and paid according to the contractual provisions, notwithstanding and in addition to Supplier’s claims for damages. This also applies to deliveries and performances not yet accepted by Customer as well as to any preparatory work undertaken by the Supplier. Alternatively, Supplier is entitled to claim the restitution of products already delivered. Any other consequences resulting from a rescission of contract are excluded.
10. Patent Rights, Copyright
10.1 If a product is produced according to the Customer’s construction, drawings or specifications, Customer agrees to indemnify and hold the Supplier harmless for any infringement of patent rights of third parties.
10.2 All technical documents, in particular plans, drawings, technical descriptions, as well as catalogues, brochures, pictures or models etc. are the Supplier’s exclusive property and are subject to legal and statutory restrictions on copy, reproduction, competitive use etc. Para 2.3 also applies to such documents.
11. Place of Jurisdiction, Applicable Law
11.1 In case of controversies arising from the contract the venue of legal proceedings shall be the US tribunal at the Supplier’s registered place of business. The Supplier shall, however, also be entitled to take action before a competent tribunal at the Customer’s place of business.
11.2 The parties may also agree to have controversies settled by arbitration.
11.3 The contract shall be construed and interpreted according to US law. It is mutually agreed that the UNCITRAL Agreement of the United Nations on the law of international sales of goods does not apply.
12.1 Supplier in its sole discretion may assign or delegate any of its duties or rights under the order or contract at any time without prior notice to or consent of Customer. The order or contract may not be assigned by Customer without Supplier’s prior written consent, and in any event shall be binding on Customer’s successors and assigns. No covenant, term or condition of this order or contract can be waived by Supplier except by its written consent. This order or contract may be amended or modified only by a written instrument signed by Supplier and Customer.
General Terms and Conditions for Installation and Commissioning
These General Terms and Conditions shall apply to all contracts for erection, i.e. electrical installation and commissioning, of a device or plant.
2. Co-Operation by Buyer
2.1 The buyer shall undertake at his own cost all that is deemed necessary to ensure that the installation work is started on time and performed without hindrance or interruption. In particular, the products to be erected shall be stored in such a way that they are properly protected against any damage or deterioration, and if so agreed upon, these products shall be pre-assembled as stipulated. In addition, the buyer shall provide that all parts necessary for starting and executing the installation work are available in time on the place of installation. The buyer shall ensure that the access facilities to the site are in a usable state and the place of installation is in such a condition that installation work may be started at any time. If installation work shall take place in closed rooms, the building must be in a condition that allows work under normal working conditions. Prior to starting installation, the buyer shall inform the supplier on all hidden power plants, gas fittings, water supply lines or similar, as well as deliver the required static data.
2.2 At his own cost and in accordance with the instructions specified in the supplier’s installation program the buyer shall do the following in due time:
a) Provide appropriate staff, non-skilled and skilled (masons, carpenters, locksmiths, crane drivers, etc.), in the number required and provided with the necessary tools and equipment.
b) Perform all necessary earthmoving, construction, bedding, mortising, scaffolding and paint work and procure the required construction materials.
c) Provide requisite jigs and mounting materials for installation and commissioning, such as scaffolding, wedges, base supports, cement, cleaning and sealing materials, lubricants, fuels, etc., as well as lifting gears, cranes, and other facilities.
d) Provide the necessary operating media and electrical power as well as compressed air and water, heating and lighting, including the required connections to the place of installation; everything in the quality and quantity required.
e) Arrange for the provision of suitable, dry, lockable rooms in the immediate vicinity of the place of installation for the storage of machine parts, instruments, devices, materials, tools etc. For the supplier’s personnel the buyer shall provide appropriate work and amenity rooms equipped with adequate sanitary installations. In order to protect the supplier’s personnel and property on site, the buyer shall make all arrangements he himself would make to protect his own personnel and property.
f) Provide for protective clothing and safety devices if this is required due to special conditions on site which are unusual in the supplier’s branch of industry.
3. Charges and Payment
3.1 General The installation work shall be charged at lump-sum prices or on a time and material basis. Unless otherwise stipulated, the work shall be charged on a time and material basis. The installation work performed shall be charged as follows:
a) Charging and payment are effected as contemplated in the contract. Unless stipulated otherwise, commissioning of the plant will be charged separately.
b) If the installation work, commissioning or final acceptance in the buyer’s works are delayed owing to circumstances beyond the supplier’s control, the buyer shall be charged with all additional costs caused by this delay.
c) Payments effected by the buyer to the supplier’s installation personnel shall not release the buyer from his obligation to make payment to the supplier, save as stipulated by express agreement.
d) Mutual material supplies on the installation site are subject to receipts to be signed by the site manager and the buyer or a person authorized by him. The same regulation shall be applied for services and performances.
e) If, due to reduction in working hours on the buyer’s place or for other reasons beyond the supplier’s control, except strike by his own personnel, the mounting personnel does not reach the daily working hours provided by tariff, the differential hours will be charged as normal working hours at the rates stipulated or generally used by supplier on a time and material basis.
f) If the supplier performs activities on the buyer’s request which are not stipulated in the contract, these activities shall be charged on a time and material basis.
g) If the supplier, for reasons beyond his control, has to perform activities at times or conditions other than stipulated in the contract and if these activities cause additional costs, the buyer shall have to pay the additional costs if the supplier notifies him in time of the altered working conditions.
3.2 Work Charged on a Time and Material Basis a) For installation work performed on a time and material basis the following shall be charged:
aa) the working time according to the supplier’s applicable schedule of rates, waiting times shall he considered as working times. Travelling times as well as preparatory periods shall be regarded also as working times;
ab) daily allowances paid by the supplier;
ac) expenses on fares, transportation of luggage, tools and incidentals etc.;
ad) installation and erection materials supplied by the supplier, in accordance with the supplier’s schedule of rates;
ae) compensation for the provision of special tools, test and measuring devices, in accordance with the supplier’s schedule of rates;
af) the costs for suitable accommodation of the supplier’s personnel in the town of the site.
b) Daily allowances and expenses shall be charged including taxes.
c) In the event of work demanded by the buyer at times or under conditions causing additional costs, the supplier shall be entitled to make a surcharge on the normal rates in accordance with tariff.
d) The buyer shall verify the working hours performed by the supplier’s personnel with his signature at least once a week. These written verifications shall be taken as a basis for calculation.
3.3 Installation Work Performed on a Lump-Sum Basis
a) The lump-sum price shall cover the agreed extent of work to be performed by the supplier under the specified working conditions and circumstances. Unless stipulated otherwise the lump-sum price shall be based upon the weekly working hours according to tariff applicable to supplier.
b) If the supplier so requires, the buyer shall deliver, to the best of his knowledge, a weekly, non-committal verification of the working hours performed by the supplier’s personnel.
3.4. Overtime, Night-Work, Work on Sundays and Holidays Any hours worked in excess of the normal daily working hours or on Saturdays shall be regarded as overtime. These additional working hours shall be charged according to the overtime rate. The night hours (between 7 p.m. and 6 a.m.) shall be charged in accordance with the respective night rate schedule.
Sunday work and work on public holidays shall be charged according to the relative schedule of rates in accordance with tariff. Holidays, which are not public holidays, shall be considered as workdays and shall be charged as such even if the personnel do not work by order of the buyer or for reasons beyond the supplier’s control. If the installation work is charged on a lump-sum basis and if late work, night-work, Sunday work or work on public holidays is performed by the supplier’s personnel, then the difference between the normal hourly rates and the overtime, night or Sunday work or work on public holidays shall be charged separately.
4. Mounting of Objects and Materials Provided by Buyer
4.1 The supplier agrees to perform the installation work as stipulated in the Contract. He will not accept any liability, however, for the suitability and quality of the objects and materials provided. If the supplier doubts the quality and suitability of the objects and materials provided, he has to inform the buyer immediately. If the buyer does not react to the supplier’s objections, the supplier shall be entitled in serious cases to refuse to perform the work in question.
4.2 The buyer shall bear the risk for the accidental loss or deterioration of the tools, equipment and material provided by him.
5. Acceptance of Work
5.1 The buyer shall be obligated to accept the work performed as soon as notification of completion is received, or as soon as a trial run of the equipment supplied and erected has taken place if called for under the Contract. If the work performed turns out to not meet the provisions of contract, the supplier shall be under the obligation of correcting the deficiency at his own expense and within a reasonable period of time, unless the deficiency must be considered to be immaterial to the buyer’s interests, or if the deficiency is due to circumstances for which the buyer bears responsibility. If the deficiency is of minor importance, the buyer shall not be entitled to refuse acceptance of the work involved if the supplier expressly recognizes his obligation of correcting the deficiency at his expense.
5.2 In the event acceptance by the buyer is delayed for reasons beyond the supplier’s control, acceptance shall be considered to have taken place two weeks after the supplier passes to buyer notification of completion of work.
5.3 After acceptance the supplier shall no longer be liable for disclosed deficiencies, unless the buyer has expressly reserved the right to claim a particular deficiency.
6. Installation Work by Buyer or Third Parties
If the contract provides that the installation work shall be performed by the buyer or third parties entrusted by the buyer and that the supplier only provides for the commissioning of the plant or facility, the following terms shall be applied:
6.1 The installation work must have been completed as specified in the contract.
6.2 Additional costs caused by deficient or uncomplete installation work shall be charged on a time and material basis, in particular if for commissioning a lump-sum price has been provided in the contract.
6.3 If commissioning of the erected plant or device is delayed owing to deficient or uncomplete installation work, the buyer is charged separately with all additional costs on a time and material basis.
6.4 If the contract provides for an inspection of the installation work effected by the buyer, and if deficiencies are found on this occasion, the buyer shall remedy these deficiencies prior to commissioning of the plant or device. The buyer shall be liable for all defects or damages caused by deficient installation work with respect to the plant or device supplied by the supplier.