General Terms and Conditions of Delivery and Assembly
1.1 MB-01.01 Scope
The following provisions apply to all services (deliveries + work) in addition to the offer or the order. The GTC in particular apply to the delivery and assembly of machinery of TechnoWood AG (TW) at the principal’s premises. Agreements between TW and the principal that deviate from these GTC take precedence, provided they are in writing. Amendments to these GTC require the written form in order to be valid. The possible invalidity of individual provisions does not affect the validity of the remaining provisions.
1.2 MB-02.01 General obligations of TW
TW is obliged to carry out the work professionally by qualified personnel or to have it carried out by third parties, which are also included in the term “TW” in these GTC. The machinery is constructed in accordance with the Machinery Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2006.
1.3 MB-02.11 General obligations of the AG
The principal is obliged to inform TW in writing, at the latest at the time of the order, of any regulations and standards of its jurisdiction which relate to performance of the assembly, immigration regulations and other services, the operation as well as the prevention of illness and occupational accidents etc. If the principal does not fulfil its obligations or only partially fulfils them, TW is entitled to fulfil them itself or have them fulfilled by third parties at the principal’s expense. For such a case, the principal unconditionally acknowledges its obligation to hold TW harmless.
1.4 MB-11.01 Delivery costs, price adjustments and number
a. Delivery costs to be borne by the principal
All ancillary costs, e.g. for freight, insurance, export, transit, import and other permits and certifications must be borne by the principal. The principal must also bear all taxes, levies, fees, customs duties and the like charged in connection with the contract, or to reimburse TW unconditionally against appropriate proof, if TW has become liable to pay them.
An appropriate price adjustment in favour of TW applies if:
- …the delivery period is extended after conclusion of the contract for a reason for which TW is not responsible, or…
- … …the nature or scope of the agreed deliveries or services are changed after conclusion of the contract, or…
- …the material or the performance require changes because the documents supplied by the principal did not correspond to the actual circumstances or were incomplete.
The reasons mentioned here for an appropriate price adjustment must be communicated by TW without delay and documented in a comprehensible manner.
The principal may not withhold, offset or reduce payments due to complaints, claims or counterclaims not recognized by TW. Payments shall also be made if the work is delayed or becomes impossible for reasons for which TW is not responsible.
c. Default in payment
If the payment deadlines agreed are exceeded, interest on arrears applies at a rate based on the usual interest rates at TW’s domicile, without formal notice and without limitation for further rights. The payment of interest on arrears does not absolve the principal from its contractual payment duty.
Unless explicitly stated, software licenses form not part of the scope of delivery and are not included in the purchase price.
1.5 MB-12.01 Work on the order of the AG, waiver of warranty and right of recourse
Without TW’s written permission, the principal is not authorized to use its own personnel or third parties for work which does not form part of the contract. Even if TW has agreed to such work, no liability for the same is accepted by TW. The principal waives any liability and warranty claims against TW for work carried out on the principal’s instructions without specific instructions from TW. If persons are injured or objects / IP damaged as a result of actions or omissions on the part of the principal or its auxiliary persons and if a claim is made against TW for this reason, TW shall be entitled to an unlimited right of recourse against the principal, subject to the proviso that no gross negligence occurred on behalf of TW.
1.6 MB-21.01 Delivery deadlines, extensions, violation and cost consequences
A binding execution deadline shall be reasonably extended in favor of TW,…
…if the information required by TW for the execution of the work is not received in time or if the principal subsequently changes it, or…
…if the principal does not fulfil his contractual obligations, in particular if it is in arrears with payments, or…
…in the event of circumstances for which TW is not responsible, for example, if mobilization, war, civil war, riot, sabotage or pandemic are imminent or have occurred, as well as in the event of labor disputes, accidents, illnesses, delayed or defective deliveries of the necessary materials, measures or omissions by authorities or state bodies, unforeseeable transport obstacles, fire, explosion and natural disasters.
If an agreed deadline is not met for reasons for which TW is demonstrably solely responsible, the principal may, to the extent that he has demonstrably suffered damage as a result, demand compensation limited under all titles of 0.5% per full week up to a maximum of 5%. The compensation shall not exceed the proven damage and shall be calculated from the price of TW’s work for that part of the machinery which cannot be put into operation on time due to the delay. Further claims and rights as a result of delay, in particular damages for consequential loss and contractual penalties, are excluded. Generally, there shall be no claim for compensation for the first six weeks of delay. In the event of a breach of the deadline by the principal, the principal undertakes to fully compensate TW for the resulting and proven transport costs, storage costs, labor costs and administrative expenses. The new deadlines shall be set by TW. With the acceptance of the extension of the deadline by the principal, the principal accepts all subsequent delays without any claims for compensation against TW.
1.7 MB-31.01 Plans and technical documentation, property rights
Without prejudice to the mandate or contract for work and services, each party retains its intellectual property rights such as plans, source codes, know-how, patents etc. The receiving contracting party recognizes these rights and shall not make the documents accessible to third parties in whole or in part without the prior written authorization of the other contracting party or use them outside the purpose for which they were provided. The principal shall only be entitled to receive documents in PDF format. Explicitly agreed services for the design of machining tables and simplified collision volumes, which are delivered in 3D, are excluded from this regulation. The principal shall allow TW to use the process and production data from the machinery for internal evaluation. The data shall also be available to the principal in the form defined by TW and without entitlement to associated work performance.
1.8 MB-32.01 Conditions – foundation
The principal is responsible for a suitable, safe and reliable foundation. An unsuitable subsoil may cause a subsidence, which may require additional alignment work on the machinery,which is charged to the principal. TW provides the specifications for the planning.
1.9 MB-41.01 Retention of title, transfer of ownershipg
Upon full payment of the total price, ownership of the machinery delivered by TW and all related materials / parts shall pass to the principal.
1.10 MB-42.01 Transfer of benefit and risk
The transfer of risk occurs upon acceptance by the principal. If the principal takes over the transport, the principal bears the risk for the machinery to be assembled (including tools, materials etc.) from loading at TW until final unloading at the assembly site.
1.11 MB-51.01 Non-performance, poor performance and their consequences
In all cases of faulty or non-performance not expressly dealt with in these GTC, the claim for damages shall be limited to 5% of the agreed purchase price. In the event of failure to perform partially or in full, the principal must grant TW a reasonable period of extension in writing to remedy the defect If this extension period expires unused due to TW’s fault, the principal may withdraw from the part of the contract in relation to the work that has been carried out in breach of contract or whose execution in breach of contract is foreseeable and reclaim the related share of payments already made. Withdrawal by the principal from the entire contract is excluded. In such a case, the provisions under “MB-54.01 Liability and MB-71.01 Warranty” apply mutatis mutandis with regard to any claim for damages by the principal and the exclusion of further liability.
1.12 MB-53.01 Contract termination by TW
In the event of unforeseen circumstances, insofar as they significantly change the economic value of the performance or have a significant effect on TW’s operations, and in the event that the performance proves to be impossible after conclusion of the contract, the contract shall be adjusted accordingly. If this is not justifiable economically, TW is entitled to cancel the contract wholly or in part. If this is not justifiable economically, TW is entitled to cancel the contract wholly or in part. If TW intends to exercise the right of cancellation, it shall notify the principal in writing without delay after realizing the significance of the event, even if an extension of the assembly time was initially agreed with the principal. If the cancellation of the contract by TW is communicated in writing before the date on which the material is ordered, the principal has no claim for damages. In the event of cancellation by TW and insofar as the principal has demonstrably suffered damage as a result, the principal has a claim for damages of a maximum of 2.5% of the order sum, limited to a maximum of CHF 50,000.
1.13 MB-54.01 Liability
TW accepts liability towards the principal only for property damage that its personnel has caused by gross negligence during the preparation of the assembly, the performance of the work or the remedy of any defects. The liability is limited to a total of CHF 1,000,000. In case of personal injury, the statutory liability applies. Subject to unlawful intent or gross negligence, TW’s liability towards the principal for production shutdown, lost profit, loss of use, financial damages and losses resulting from a delay or interruption in assembly as well as for contractual penalties or consequential losses, is excluded. Likewise, any further claims by the principal are excluded, in particular claims for damages of any kind, irrespective of the legal grounds The principal is liable for damage caused by his personnel or by defects in the tools, equipment and material provided by it. The same applies even if TW’s personnel directs or supervises the work, unless it can be proven that the damage has been caused by gross negligence in instruction, omission or supervision.
1.14 MB-62.01 Assembly
The principal must ensure that …
- … – the necessary immigration, emigration, residence, work and any other permits required by TW’s personnel can be obtained in good time.
- … …TW receives in good time all the necessary permits for the import and export of tools, equipment and material and the principal must bear any levies in this respect. The materials to be assembled must be stored in a place protected from all harmful influences. Materials lost or damaged during storage must be replaced or repaired at the principal’s expense.
- … the transport access routes to the assembly site are usable and that the assembly site itself is in a condition allowing the work. In addition, the principal must ensure unhindered access to the assembly site and that all rights of way are open and available for use.
- … lockable rooms with heating and air-conditioning are provided for TW’s personnel in the immediate vicinity of the place of work.
In accordance with TW’s specifications or assembly schedule, the principal must provide in good time the following services at his own expense:
- … …Qualified skilled workers such as electricians and assistants with the necessary tools and equipment. These workers must perform the necessary services in accordance with TW’s specifications and schedules. …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.
- … …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.
- … …Electrical power and lighting including the necessary connections up to the assembly site, heating, compressed air, water, operating materials etc.
The principal must immediately return the tools and equipment provided by TW to the location designated by TW. The principal must bear the dispatch costs insofar as these are not included in the price. The ownership of tools purchased by the principal from TW which the latter continues to use during the assembly work shall pass to the principal after completion. Unless instructions are given to the contrary, these tools shall be kept available to the principal at the assembly site at the latter’s risk.
1.15 MB-63.01 Accident prevention / safety
The principal is obliged to take the necessary accident prevention measures at its own expense If TW’s personnel are endangered or significantly impeded in the performance of their work, TW is entitled to order the return of the personnel. In such cases, as well as in the event that personnel are retained after completion of the work, the principal must indemnify TW for the waiting time billed according to the corresponding hourly or daily rates, including travel and accommodation expenses.
1.16 MB-64.01 Acceptance
The principal is entitled to accept the machinery as soon as it has been notified of the completion and a designated workpiece has been successfully produced as provided for in the contract. The contractual warranty period begins upon acceptance. If the machinery proves not to be in conformity with the contract, TW is obliged to remedy the defect. This, however, does not apply if the defect is insignificant or is due to a circumstance attributable to the principal. If there is an insignificant defect, the principal may not refuse acceptance. If acceptance is delayed through no fault of TW, acceptance is deemed to have occurred after two weeks since notification of the completion and/or the start of production with the machinery by the principal. Upon acceptance, TW’s liability for recognizable defects ceases, unless the principal has reserved the right to assert a specific defect.
1.17 MB-71.01 Warranty
The warranty period is 12 months.
The warranty period begins either upon start of production or upon acceptance by the principal. The event that occurs first is relevant. Work under the warranty is performed or allocated to a third party by TW The maintenance and wear parts defined by TW (e.g. seals etc.) and the auxiliary and operating materials (e.g. oils, fats etc.) are excluded from the warranty. The following are the prerequisites for warranty by TW:
- The timely and correct implementation of all maintenance work in accordance with the maintenance schedule and instructions and their detection with the forms provided by TW.
- The use according to its purpose and the correct operation according to instructions.
- The implementation of any possible repair work exclusively by employees of TW.
- That no changes or modifications are made to the product by the principal.
- That in case of product defects TW is granted an adequate and timely opportunity for their rectification.
- The immediate notification of the warranty claim to TW.
TW reserves in any case the right to limit or reject any warranty if these prerequisites are not or only partially fulfilled.
1.18 MB-72.01 Spare parts availability
TW warrants that spare or wear parts (or compatible parts) for mechanical parts are available for at least 10 years and IT related spare or wear parts for at least 3 years upon final acceptance. The retention obligation for drawings is 10 years.
1.19 MB-72.03 Availability Support
Support is available, except on official holidays at TW’s domicile, from Monday to Friday, 08.00 to 12.00 and from 13.30 to 17.00 Swiss time.
1.20 MB-81.01 Access to plant
In principle, TW, together with interested parties, has the right to visit the machinery and the immediate surroundings of the machinery. Visits must be announced and the visiting company or the names of the representatives must be communicated. TW must schedule these visits reasonably and must ensure that the production process is not affected. In return, the principal is granted a right to visit at the premises of the interested party. The principal reserves the right to refuse the visit in justified individual cases.
1.21 MB-82.01 Publication of images and movies
TW is entitled to publish pictures and films of the machinery. Pictures and films will be appropriately marked with a reference to their origin when published.
1.22 MB-92.01 Jurisdiction and applicable law
The legal relationship shall be governed by Swiss law, excluding application of the provisions of international private law and the UN Convention on Contracts for the International Sale of Goods (CISG). Any differences shall be settled amicably whenever possible. If an amicable settlement is not reached, the ordinary courts at the domicile of TW shall have exclusive jurisdiction.
1.23 MB-99.01 Validity of the offer
The offer is valid for 30 days from the date of receipt.