General terms and conditions of installation

1. General and scope

1.1. These General Terms and Conditions of Installation shall apply to the installation or installation supervision, commissioning and support during test operations of machines and systems by the Contractor for the Purchaser, to the extent they have agreed in writing on one or more of such services (hereinafter the “Contractual Services”).

1.2. The Contractor hereby rejects any General Terms and Conditions of the Purchaser which contradict the General Terms and Conditions of Installation of the Supplier. Such provisions shall not form part of the contract and shall likewise be inapplicable if contained in a written confirmation issued after the Contractor’s order acknowledgment and the Contractor does not object thereto, as the silence of the Contractor is to mean its refusal.

1.3. Oral or telephonic agreements which vary from the General Terms and Conditions of Installation must be confirmed in writing by the Contractor in order to be valid. The same shall apply to side agreements and commitments by the Contractor’s representatives and employees, which shall not become binding on the Contractor until written confirmation is received.

1.4. Any and all agreements and legal declarations of the parties must be in writing in order to be valid, i.e. they must include the signature of all persons intended to be bound thereby. The qualified electronic signature based on a qualified certificate of a recognized provider of certification services within the meaning of the Swiss Federal Act 19 December 2003 on electronic signature or a comparable foreign legislation shall be deemed equal to the personal signature. Declarations without certified digital signatures which are transmitted via electronic media shall be deemed equal to the written form if explicitly agreed by the parties in writing.

2. Offers and contract execution

2.1. Offers made by the Contractor shall always be non-binding and subject to change without notice, i.e. they are to be understood only as an invitation to make an offer. Acceptances and all orders shall be legally effective only if confirmed by the Contractor in writing or if the Contractor provides an actual service.

2.2. The extent and execution of the contractual services shall conform to the order confirmation if one exists.

2.3. Side agreements, amendments of and additions to these General Terms and Conditions of Installation shall be valid only where confirmed in writing by the Contractor.

3. Technical specifications, advertising, confidentiality

3.1. Any and all technical documents, such as drawings, specifications, illustrations, including any information as to dimension, properties or weight shall be for informational purposes only and contain no guarantee or assurance. The same shall apply to specifications and illustrations in offers, brochures, advertisements, catalogues, in addition to other public statements, promotions or advertising by the Contractor. Guarantees and assurances by the Contractor shall be confirmed exclusively in writing and designated as such.

3.2. The Contractor reserves all property rights and copyrights with respect to cost estimates, illustrations, drawings and other technical documents. Such documents may not be made available to third parties and may be used only for the purposes agreed or indicated by the Contractor. The foregoing shall apply, in particular, to written documents that are marked “confidential” by the Contractor. The Purchaser must obtain the Contractor’s express written consent prior to distributing the same to third parties.

4. Obligations of the contractor

4.1. The Contractor undertakes to perform the Contractual Services in a workmanlike manner. It shall be entitled to have the Contractual Services performed through third parties. In the event of such a substitution, the term “Contractor” in these General Terms and Conditions of Installation shall also refer to a contractor rendering the Contractual Service through a third party.

5. Obligations of the purchaser

5.1. The Purchaser shall inform the Contractor, no later than at the time its order, of the regulations and standards relating to the performance of the Contractual Services, its business operations and illness and accident prevention.

5.2. The Purchaser shall take all necessary steps to ensure that the Contractual Services can be commenced on time and completed without delay or interruption. The Contractual Services of the Contractor shall not be obtained until all preparatory work on the part of the Purchaser is finished.

5.3. The Purchaser shall ensure that all necessary entry and exit visas, residency and work permits and other authorizations can be obtained for the Contractor’s personnel in a timely manner.

5.4. The Purchaser shall perform all necessary preparatory work in a professional manner at its own expense and risk, and where applicable, in accordance with the documentation supplied by the Contractor.

5.5. The Purchaser shall take the necessary accident prevention measures at its own expense. In particular, it shall specifically inform the Contractor when particular care should be taken as to the Contractor and/or other contractors, or relevant regulations are to be observed. The Contractor shall be entitled to refuse or to stop work when the safety and health of personnel is not safeguarded. In the event of illness or accident sustained by the Contractor’s personnel, the Purchaser shall provide the required support.

5.6. The Purchaser shall store all material to be installed safely away from all harmful elements. Prior to the commencement of the work, the Purchaser shall inspect the material for completeness and damage in the presence of the Contractor’s personnel. Material that is lost or damaged during storage shall be redelivered or repaired for the Purchaser at its own expense.

5.7. The Purchaser shall ensure that transportation routes to the site and the installation area are in useable and ready-for-work condition and that the entrance to the installation area is kept unobstructed and all necessary rights of way have been secured.

5.8. The Purchaser shall provide at the installation site heatable or air-conditioned, lockable lounge and changing rooms with appropriate sanitary facilities for the Contractor’s installation personnel. In addition, it shall make available lockable dry rooms for the safekeeping of material and equipment. All such areas should be located in the immediate vicinity of the installation area.

5.9. As part of its obligations pursuant to Sections 5.4 – 5.8, the Purchaser shall supply the following resources at its own expense in accordance with the Contractor’s specifications or installation program:

  • Provide qualified skilled and unskilled labour with the necessary tools and equipment. Such workers shall follow the work instructions of the Contractor. Notwithstanding the foregoing, their contractual relationship shall be with the Purchaser.
  • Provide equipment such as operational cranes and lifting gears with sufficient load, as well as service personnel, appropriate equipment and transport means for the conveyance of personnel and material, appropriate workshop equipment and measuring equipment.
  • Provide necessary consumable and installation materials, cleaning materials and lubricants, in addition to incidentals for installation, etc.
  • Provide necessary power and lighting, including the required connections up to the installation area, heating (minimum 12°C), compressed air, water, steam, operating supplies, etc.
  • Provide means of communications such as telephone, fax, telex, PC modem.

5.10. The Purchaser shall ensure that the Contractor receives in a timely manner permits required for the import and any export of tools, equipment and material and shall bear the related charges, where applicable.

5.11. The Purchaser shall return without delay the tools and equipment provided by the Contractor to the place designated by the Contractor. The Purchaser shall bear shipping costs to the extent not included in the price. Ownership of any tools that the Purchaser – to the extent expressly agreed in writing – purchases from the Contractor and that the Contractor continues to use during installation shall be transferred to the Purchaser following completion of the work. Unless contrary instructions are given, they shall be kept available at the installation area at the latter’s risk. Tools made available to the Contractor by the Purchaser shall be returned to the Contractor upon delivery of the Contractual Services. Unless contrary instructions are given, they shall be supplied to the Purchaser for delivery of the Contractual Services at the installation area, at its own risk.

5.12. The Purchaser shall also use future operating personnel to assist during installation in order to familiarize them with the Contractor’s methods and technology. The Contractor shall be prepared to undertake the technical training of such personnel to the extent expressly agreed in writing.

5.13. Should the Purchaser fail to discharge its obligations or do so only in part, the Contractor shall be entitled to substitute performance (including through third parties), without notice or the granting of a grace period. The costs arising therefrom shall be borne by the Purchaser. The Purchaser shall indemnify the Contractor against liability to the third party charged with the substitute performance.

5.14. Should the Contractor’s personnel be endangered or substantially impeded in the performance of the work due to reasons beyond the Contractor’s control, the Contractor shall be entitled to order the withdrawal of such personnel. In such cases, as well as in the event that personnel are retained after the completion of their work, the corresponding hourly or daily rates shall be invoiced to the Purchaser as standby time, in addition to travel expenses, inclusive of layover costs.

6. Work at the direction of the purchaser

6.1. The Purchaser shall not be authorized to enlist the Contractor’s personnel for work other than Contractual Services without the Contractor’s written consent. Even where the Contractor consents and the work is separately paid for by the Purchaser, such work shall not thereby become Contractual Services, and the Contractor assumes no liability therefor, to the extent such work is not expressly agreed in writing to constitute an expansion of the contractual scope of the Contractual Services.

6.2. The Contractor shall assume no liability for work performed within the scope of the Contractual Services – by any person whatsoever – that is carried out at the direction of the Purchaser without the Contractor’s specific instruction.

7. Payment

The Contractual Services shall be billed according to time and expenditure (Section 7.1) or on a lump-sum basis (Section 7.2). The means of payment agreed by the parties shall be controlling. Unless otherwise agreed in writing, the respective payment shall conform to the following conditions.

7.1. Work Charged According to Time and Expenditure

7.1.1. Personnel costs The Purchaser shall certify the working hours spent by the Contractor’s personnel (Section 8.1), as well as time equivalent to working hours (Section 8.2) with timesheets. If the Purchaser does not issue such certification in a timely manner or does so through personnel not responsible therefor, invoicing shall be based on the records of the Contractor’s personnel. Subject to specific written agreement, the respective current hourly rates and additional compensation surcharges in effect at the time the Contractual Services are performed shall apply. No overtime compensation shall be assessed for travel time during airplane and train trips, including nights, Sundays or holidays. If a journey by car exceeds the daily regular working hours of 7 hours, overtime compensation shall be assessed. Night, Sunday and holiday extra compensation shall be assessed for all trips. Extra compensation for overtime, night, Sunday and holiday work may be aggregated.

7.1.2. Costs for room and board If an employee of the Contractor is unable to find room and board within a reasonable distance from the worksite, the Purchaser shall arrange for sufficient board as well as respectable and clean, heatable/air-conditioned single accommodations at the installation site or in its close vicinity. Costs borne by the Purchaser for room and board will be invoiced only upon specific written agreement on the accommodation rate (Section 7.1.3).

7.1.3. Accommodation allowance The Purchaser shall be invoiced per employee for each absent calendar day (including Sundays and holidays, as well as outbound and inbound trips), and for each out-of-town overnight stay according to the rate tables valid at the time. Overnight stays shall be charged as actual costs based on documentary proof in the event that the actual costs exceed the lump-sum accommodation rate.

7.1.4. Travel costs Costs for outbound and inbound trips as well as trips within the country of operation by means of transportation to be selected by the Contractor, including necessary incidental expenses, e.g., insurance, freight, tolls, baggage, passport and visa fees, issuance of entry, residency and work permits, medical examinations upon outbound and inbound trips and immunizations for the Contractor’s personnel, shall be invoiced to the Purchaser according to time and expenditure. Unless special circumstances require the use of another class, charges shall be as follows:

  • economy class for flights
  • 2nd class for travel by train or boat
  • Euro 0.70 per kilometre driven when using a personal or company car, or actual rental costs when using a rental car.

7.1.5. Home leave The Contractor’s employees shall be entitled to home leave, in each case once:

  • every week distances up to 350 km from the Contractors site
  • every second week distances between 350 km and 600 km from the Contractors site
  • every third week distances over 600 km from the Contractors site.

Costs for outbound and inbound trips home shall be deemed travel costs pursuant to Section 7.1.4 and the time spent considered working time, not including, however, travel preparation and post-travel time allowances (Section 8.2.1, first bullet point).

7.1.6. Costs for illness and accidents Should an employee become ill or sustain an injury due to an accident, the Contractor shall be entitled to continue to charge for recovery time at the installation site the rate set pursuant to Section 7.1.3. If replacement by another Contractor employee becomes necessary, the Purchaser shall be additionally invoiced based on time and expenditure pursuant to Section 7.1. In the event of illness or accident sustained by a Contactor employee outside of Germany, the Purchaser undertakes to assume costs and expenditures for the necessary and appropriate medical treatment and care, as well as hospital stays, etc., to the extent such costs are not covered by insurance (where the Contractor is not obligated to procure insurance with foreign coverage). The Contractor’s right to send its personnel home at any time shall not be affected thereby.

7.1.7. Tool and equipment costs The Contractor shall provide its personnel with the customary hand tools for the performance of the work. Additional tools, equipment, measuring equipment and test equipment shall be charged to the Purchaser pursuant. The duration of use shall be calculated from the day of dispatch from the Contractor’s premises until the tools are returned to the Contractor’s premises. Retained tools and equipment shall be invoiced to the Purchaser according to their replacement value. Shipping and insurance costs, in addition to expenses, taxes and fees in connection with the import and export of tools and equipment, shall be borne by the Purchaser.

7.1.8. Costs for consumable and installation material Consumable, set-up and installation material supplied by the Contractor shall be invoiced according to expenditure.

7.2. Lump sum work

7.2.1. If a lump-sum price is agreed, it shall cover the Contractual Services to be performed by the Contractor as agreed in writing. This assumes that the work is performed without hindrance and that the Purchaser furnishes the preparatory work and additional services in a timely manner.

7.2.2. The Purchaser shall bear extra expenditures incurred by the Contractor for circumstances beyond its control, such as subsequent amendments to the contents or scope of agreed Contractual Services, standby time, night work and additional trips. Such expenses shall be invoiced pursuant to Section 7.1.

7.3. Taxes, duty, fees, social security contributions With the exception of individual employee income taxes, taxes, duty, fees, social security contributions and the like, which are to be paid by the Contractor or its personnel in connection with the contract or with work outside of the Federal Republic of Germany, shall be borne by the Purchaser.

8. Regulation of working hours

8.1. Working hours Subject to differing mandatory regulations at the installation site or a differing separate agreement, of which the Purchaser shall provide timely advance written notice, the following working hour regulations shall apply to the employment of the Contractor’s personnel:

8.1.1. Regular working hours shall generally be divided into 5 work days (Monday through Friday), and shall comprise 7 hours per day, 35 hours per week or 152 hours per month. If, due to circumstances beyond the Contractor’s control, shorter working hours must be implemented, the regular working hours shall be invoiced where billing based on time and expenditures has been agreed. Hours worked in excess of the daily, weekly or monthly regular working hours shall be deemed overtime. Overtime shall be permitted only upon mutual agreement between the Purchaser and Contractor. As a general rule, overtime work should not exceed regular daily working hours by more than 3 hours and weekly working hours by more than 21 hours.

8.1.2. With respect to the division of regular working hours, the Contractor’s personnel shall comply with the Purchaser’s business requirements and local circumstances in line with the following conditions. Regular daily working hours must be between 6:00 am and 8:00 pm. Working hours between 10:00 pm and 6:00 am constitute night work and shall be compensated with a 25% bonus per hour commenced. Work on Sundays or weekly days off as applicable at the installation site shall constitute Sunday work. Work on official holidays of the Federal Republic of Germany shall constitute holiday work.

8.2. Travel time and other time equivalent to working hours

8.2.1. Travel time shall count as working hours. Travel time includes:

  • [5] hours flat for travel preparation and [3] hours flat for post-travel time;
  • time for the outbound and inbound journey, including all commuting time between lodging at the installation site and the installation area;
  • time for governmental registration and departure formalities.

8.2.2. If, due to circumstances beyond the Contractor’s control, the Contractor’s personnel are delayed in their work or are held back for any reason after the completion of work, the standby time shall constitute working hours.

8.2.3. Seven regular working hours shall be invoiced on days which are holidays at the installation site, but are neither a Sunday nor a holiday in Germany, and on which no work can be performed.

9. Payment terms

9.1. Unless otherwise agreed in writing, the Contractual Services shall be invoiced monthly; invoices are to be paid by the Purchaser within 30 days of the invoice date. The Contractor shall be entitled to require a partial or full advance payment on the anticipated invoice amount.

9.2. Payments shall be made by the Purchaser without any deductions (discounts, expenses, taxes, fees, etc.) at the Contractor’s head office. The payment obligation shall be satisfied once [Euro] have been made available for the Contractor’s free disposal in Germany.

9.3. The Purchaser may not withhold or reduce payments on account of objections, claims or counterclaims not acknowledged by the Contactor. Payments shall also be made in the event that the work is delayed or becomes impossible due to circumstances beyond the Contactor’s control.

9.4. If agreed payment dates are missed, default interest shall be invoiced, with no specific demand notice being issued, at the rate conforming to customary interest at the Purchaser’s domicile, without prejudice to the exercise of any other rights. The right to additional damages for delay is reserved. The payment of default interest shall not nullify the obligation to make payment in accordance with the contract.

10. Performance periods

10.1. A performance period for the completion of the Contractual Services shall be binding on the Contractor only when confirmed by the Contractor in writing. The performance period shall begin as soon as all requirements for the commencement of the Contractual Services are satisfied; the performance period shall be deemed met if during the course thereof the installed equipment or machines are ready for acceptance.

10.2. A performance period shall also be deemed met in cases where, although parts are missing or subsequent work is necessary, the intended operations are possible or not affected thereby.

10.3. An agreed binding time period shall not begin to run or shall be suspended:

  • as long as preparatory services or specifications which the Contractor requires for performance of the work have not been provided to it in a timely manner or if the Purchaser subsequently modifies such specifications; or
  • as long as the Purchaser is delinquent on payment obligations to the Contractor – including those arising from previously performed Contractual Services or under different contracts that are unrelated to the current Contractual Service – or has failed to discharge or has inadequately discharged its obligations pursuant to Section 5; or
  • in circumstances beyond the Contactor’s control, e.g., in the case of potential or actual mobilization, war, civil war, unrest or sabotage, as well as labour conflicts, accidents, illnesses, delayed or defective deliveries or pre-contractual services by third parties, acts or omissions by officials or state bodies, unforeseeable transportation delays, fire, explosion or acts of nature.

10.4. After a reasonable grace period is set, the Purchaser shall have the right to cancel the contract with respect to the uncompleted part if a performance period is delayed or suspended for more than 6 months pursuant to Section 10.3.

10.5. If the Contractor fails to meet a deadline agreed in writing as binding and no event under Section 10.3 has occurred, the Purchaser shall have the right to cancel the contract after a grace period of 8 weeks, to be granted in a written declaration, has run without performance being rendered. There shall be no other claims or rights on account of delay or lack of performance, in particular, compensation for damages.

11. Risk of loss

11.1. Once performance of the Contractual Services is commenced, the Purchaser shall bear the risk of destruction of the materials to be installed, tools provided to it during the performance of the work and those made available by it, equipment, auxiliary materials and any completed installation services. The Contractor shall retain its right to the agreed payment even where the installation cannot be completed or can only be partially completed on account of the destruction or partial destruction of the items to be installed.

12. Installation warranty

12.1. If installation has been agreed, the Contractor shall guarantee, pursuant to the following conditions, workmanlike and diligent installation for a period of 12 months following the conclusion of the installation work. If installation supervision or support of the Purchaser by the Contractor during commissioning or test operations has been agreed, the Contractor shall be liable for the foregoing pursuant to the legal duty of care in accordance with Section 13.1.

12.2. Subject to Section 12.3, the Purchaser shall inspect the installation as soon as the Contractor has given notice of completion to the Purchaser. Evident defects shall be reported to the Contactor immediately during inspection; latent defects (i.e., those not readily identifiable upon ordinary inspection) are to be reported to the Contractor in writing immediately upon discovery. Should the Purchaser breach its inspection or notification obligation, the installation shall be deemed approved and warranty rights shall become forfeit. Timely dispatch of the defect notice shall constitute compliance with the notification obligation.

12.3. If the installation work is interrupted due to the reasons set out in Section 10.3, the Contractor shall not be liable for defects arising from work performed prior to the interruption for which notice with proof is not given within ten calendar days following the interruption.

12.4. If the inspection and notification obligation is satisfied, the Purchaser shall initially only have the right to demand remediation from the Contractor in the event of defects. The inspection and notification obligation pursuant to Section 12.2 shall also apply to the results of remediation. If the remediation attempt fails, the Purchaser once again shall only have the right of remediation. If this latter attempt at remedying the defects is also unsuccessful and the inspection and notification obligation is satisfied, the Purchaser shall then have the right only to request a reduction of the installation price to the extent of the reduction in value. The Purchaser shall not be entitled to cancel the installation contract on account of defects, even where the reduction in value is equal to or greater than the installation price. There shall be absolutely no right to contract damages in any warranty case.

12.5. The Contractor shall assume liability for defects caused or contributed to by the Purchaser’s personnel or third parties not engaged by the Contractor only if and to the extent that the instructions or supervision by its personnel were demonstrably grossly negligent and lead to the conduct causing the defects.

12.6. There shall be no warranty where the Purchaser or third parties not engaged by the Contractor undertake, without the Contractor’s written consent, interventions, modifications or repairs or where the Purchaser does not promptly take the proper measures to mitigate loss of value.

12.7. The Contractor shall assume liability for remedial work under the warranty to the same extent as for the original work, not to exceed, however, the last applicable warranty period.

13. Liability and liability exclusion

13.1. If installation supervision, commissioning or support during test operations is agreed, the Contractor shall be liable exclusively on account of gross negligence for damages thereby proximately and directly incurred by the Purchaser.

13.2. The Purchaser shall have no other or additional damage claims under any legal basis whatsoever, in particular, on account of breach of obligations under a creditor-debtor relationship and tort, whether by the Contractor, its legal representatives or agents. In no event – including under Section 13.1 – shall the Contractor be liable for indirect or consequential damages, for example, production losses, loss of use, loss of orders and lost profits. The foregoing shall not apply to the extent applicable law (Section 16) mandates liability.

13.3. If, notwithstanding the liability limitation pursuant to Section 13.1 or despite exclusion of liability under Section 13.2 the Contractor is liable for the Purchaser’s damages, its total liability – including liability for reductions pursuant to Section 12.4 – under contract, tort or any other basis shall be limited to 10% of the invoiced amount of the contractual service giving grounds to damages or in the absence of such to 10% of the invoiced amount for the total of all contractual services, to the extent to which such limitation is not impermissible by applicable law (Section 16). The foregoing liability exclusions and limitations shall also apply to the liability of the Contractor and its legal representatives, as well as the personal liability of the latter. The Contractor shall not be liable for employees who do not hold a company position or other subcontractors.

14. Termination of the contract by the contractor

14.1. In the case of unexpected events, to the extent they considerably affect the economic significance or the content of the Contractual Services or significantly affect the Contractor’s operations, as well as in the case of subsequent impossibility of performance, the Contractual Services shall be reasonably modified. To the extent this is not economically feasible, the Contractor shall have the right to cancel, in whole or in part, the affected Contractual Services.

14.2. Such a cancellation shall not give rise to any right to damages. Should the Contractor desire to exercise its right of cancellation, it shall so inform the Purchaser immediately after it learns of the import of the given event, even where an extension of the performance period has first been agreed with the Purchaser.

15. Severability

15.1. The invalidity of any provision of these General Terms and Conditions of Installation, or a provision forming part of other agreements, shall not affect the validity of the remaining provisions or agreements. In such event, the parties hereby undertake to engage in negotiations with the aim of replacing the invalid provision with a clause that most closely approximates their previous business intention.

16. Applicable law and jurisdiction

16.1. These General Terms and Conditions of Installation and all legal relations between the Contractor and Purchaser shall be governed by the laws of Switzerland, excluding conflict of laws provisions and the United Nations Convention on Contracts for the Internal Sale of Goods of 11 April 1980 (Vienna Convention) and other uniform law.

16.2. The Commercial Court of Zurich shall have exclusive jurisdiction over disputes directly or indirectly arising from this contract. Notwithstanding the foregoing, the Contractor shall also be entitled to prosecute or to sue the Purchaser in the jurisdiction in which the latter’s registered office is located.