General Terms and Conditions (GTC) of Pro Tunnel GmbH

  • General Terms and Conditions GTC
  • General  Delivery Conditions GDC
  • General Purchase Conditions GPC

General terms and conditions Pro Tunnel PLC

  1. General information

The following terms and conditions apply to all deliveries and works contractor from purchase or contract for work. Deviations from it are only valid if they have been agreed in writing between the parties.

  1. Offer

a) Technical basics

The technical basis of the offer are binding for the supplier. Significant deviations from illustrations in catalogues, brochures, drawings and photos are to inform the customer when the tender submission. All documents shall remain the property of the supplier. You may not be copied or reproduced, nor third parties or used for the user-supplied of the relevant objects. You are to return it upon request.

b) Reservation of the prior sale

The supplier remains free until the legally valid conclusion of the contract in the sense that she at any time can sell objects offered for sale to a third party.

c) Project planning costs

Has the customer instructs the supplier with the elaboration of a project, it does not transfer but after submission of the offer of whose execution, so that has the right to demand the payment of the costs of designing it KBOB tariff (publications: coordination of the construction and real estate institutions of Federal KBOB, recommendations on the remuneration). Costs for policy clarification for the elaboration of offers are excluded.

(d) Structural measures

All construction work related to the installation of the objects to be delivered (determination of the location of the machine, check the soil conditions, procurement of construction plans and regulatory permits, creating foundations including tracks and el.) Installations, provision of water, creating a flawless access, provision of viable work surface for any intermediate storage and pre-Assembly, provision of requested crane capacity, allocation of resources (E.g., fuel, compressed air, etc.) and other construction work) are the purchaser’s and are not subject to the offer.

  1. Conclusion of the contract

Purchasing and contracts are only binding on the parties, if they are mutually signed. Contracts entered into by a travel agent, the delivery company is only bound, if not within writing has declared her resignation by 10 working days since the conclusion of the contract.

  1. Prices

(a) The prices are excl. VAT, ex warehouse of the supplier, transport loaded.

(b) Price increases are conveyable only in agreement with the customer after conclusion of the contract.

(c) Ordering procedures are regulated separately in the contract (currency, inflation, transport, packaging, insurance, customs duties, taxes and charges).

  1. Delivery

a) Delivery time

The delivery time begins with the conclusion of the contract, but not before receipt of all information to be procured by the purchaser and documents, as well as to paid any advance payments. It is set according to the conditions existing at the time of the contract was concluded and is binding. In the event of unforeseen events which are beyond the control of the supplier – as in cases of force majeure, difficulties in the procurement of materials, operating errors, etc. – she be appropriately extended. She is also suspended, as long as the purchaser not comply with his payment obligations.

b) Transport

The purchaser has to bear the costs of transport. Shipping is at risk of the purchaser, even if carriage-paid delivery has been agreed. The risk passes to him, as soon as the shipment transport loaded ex-warehouse of the supplier is provided the carrier, freight forwarder, or customer. If the customer upon arrival of the shipment finds any damages or defects, he is invited to report it to the carrier or forwarding agent of the supplier and the insurer immediately and a protocol signed by the parties where this is necessary to secure the evidence, to have. The quantities must be checked after the delivery. If no written complaint arrives within 8 working days at the supplier, the shipment is deemed to be approved.

Later complaints are only accepted if the defects at the time of delivery despite regular testing were not identifiable and the purchaser within one week since the discovery of the defect in writing claimed, but at the latest until the end of the warranty period.

(c) Storage

If the ordered goods may not be delivered after completion and notification of readiness to ship through no fault of the supplier, she will be stored at the expense and risk of the purchaser at the supplier or a third party.

d) Assembly and disassembly

Only if explicitly agreed upon, the supplier assumes the Assembly or disassembly of the delivered objects. In other cases she provides fitters the purchaser on request against payment of travel, work and waiting time, travel expenses and accommodation costs, in accordance with the respective approaches of the suppliers. Can mechanics without her or the fault of the supplier not to start a job or to continue, so all extra costs arising therefrom to the detriment of the customer go, even if a lump sum has been agreed upon for the Assembly and disassembly work. The purchaser has the necessary auxiliaries and Assembly equipment (E.g. cranes) according to agreement and in a timely manner to provide. If the purchaser is obliged to provide the supplier technicians or assistants, are their wages, social security benefits, insurance premiums and expenses by the customer to wear. The times specified by the supplier relating to a) to be made by installing and dismantling are binding. Circumstances (E.g. barriers, force majeure, bad weather, not contractual construction site preparation, etc.) can have a deadline extension resulted. Failure to comply with the Assembly and disassembly times as a result of above mentioned reasons are the purchaser neither a law on withdrawal of order yet on damages.

  1. Terms of payment

Without contrary agreements following payment terms shall apply:

(a) For supply of spares and repairs 30 days net after the invoice, free of all deductions.

(b) For machinery and equipment machinery < 5 to: 10 days net after the invoice, free of all deductions.

Machines > 5 to:

50% upon completion of the contract, free of all deductions,

50% within 10 days net after the invoice, free of all deductions.

(c) For works contracts

30% when ordering.

30% upon delivery of the planning documents by the Pro tunnel GmbH.

30% for readiness to deliver message of Pro tunnel GmbH.

10% upon completion of commissioning by the Pro tunnel GmbH, no later than 90 days after delivery of Pro tunnel GmbH.

The payments are always free of charge and also to pay to the delivered objects work are to provide or replace parts, or if the goods for reasons attributable to the customer, not time can be delivered. Wrong deliveries or massive defects, the supplier has to represent, which does not permit commissioning, last third after receipt of contractual provisions, discontinue delivery or repair the defects to afford.

  1. Delay of the purchaser

Claims that are paid not by the Convention shall become due without further, and it is by the maturity date, without prior notification of delay, made an interest charge which normally is 1% higher than the usual overdraft interest of banks. Agreed instalments 30 days provided at least according to their maturity, the entire balance is due without further ADO. The right to the buyer wrong deliveries or massive defects, the supplier has to represent, which does not permit commissioning, is to request extension of the due dates of payment. The supplier expressly reserves the right to withdraw from the contract in case of payment delay and to reclaim the delivered goods. Part – and hire-purchase transactions, it is entitled to request the rest of the purchase price in a single payment or to withdraw from the contract. The supplier may even rescind the contract and reclaim the delivered goods if the buyer with the last partial payment in arrears.

(a) The supplier supports the rescission of the contract, the purchaser – except for the immediate return of the goods already delivered – is committed to following services:

-to pay a rent of 5% of the agreed purchase price for each full or incomplete month from delivery until the return of the delivered goods;

-to pay compensation for any extraordinary wear and damage to the delivered goods.

-to pay for the dismantling, transport and insurance costs for the return of the delivered goods and any other expenses related. The customer owes these services even if there is no fault to the load drops him.

b) exceeds that under a the damage suffered by the contractor) fixed services, so you the buyer has to replace the additional amount, if he is unable to prove that there is no fault hits him.

(c) In other cases of non-performance of the contract by the purchaser, such as E.g. non-purchase of order objects, the preceding provisions shall apply mutatis mutandis.

  1. Retention of title

The delivered items remain the property of the supplier, until the agreed price with all additional costs and interest is paid. You may up to this point not be mortgaged, sold or rented without prior information of the suppliers; however, the liability remains by the contractual partner. The supplier is authorized to register the reservation of property at the residence of the purchaser in the title-retention register. In addition, the customer is obligated to immediately follow the supplier if he changes his domicile or his place of business.

  1. Insurance

The buyer is obliged to buy any insurance with effect from transfer of risk for not or not fully paid objects, such as theft, fire, explosion, elemental damage, transport -, machines – and/or machine hull and Assembly insurance. His resulting claims arising on his assigns benefits to the supplier. Is the customer unable to prove the conclusion of the necessary insurance, the supplier is entitled to complete these to be borne themselves. The Buyer has to sign every claim of the supplier immediately. The position of equivalent collateral may be agreed between the customer and the supplier.

  1. Warranties and liability

The warranty period is laid down in the contract (contract) or in the confirmation of order. The customer is the spare parts needed for the maintenance and repairs of tunnel GmbH refer Pro during the warranty or financing period.

  1. Scope of

The supplier gives its warranty for proper construction, proper quality of the material used and flawless execution. The owner, change the delivered objects before the regular warranty period the warranty at the time of transfer of ownership ends. The supplier disclaims all warranty and liability:

-for used objects or parts thereof.

-for data supplied not by your provided material and not from her.

-for installation work concerned not by her, dismantling work and data processing, as well as for objects, modifications or repairs have been made to them without their consent.

-in the event that changes, in particular additional equipment on the object, be made by the purchaser without the prior written consent of the supplier,

-for damages of any kind due to normal wear and tear, incorrect or violent treatment, excessive use, insufficient foundations, unsuitable operating and maintenance, defective or missing checks, freezing, use unsuitable materials and lubricants, accidents or force majeure and the like are.

-Merchandise, material or data from suppliers, such as electrical equipment, tires, geometric data, etc., (here the supplier only in the context of the warranty of the manufacturer shall be liable for),

-for any other claims beyond of the described warranty obligations. In particular, any further warranty claims (such as reduction or cancellation) and any further liability of the supplier for direct or indirect damages of the buyer (such as those from the unavailability of the leased premises and the trial of the purchaser because of third-party damages, related to the supply and the operation of the leased premises in the context) are expressly excluded. We reserve the right to damages, caused by the supplier personally proven gross negligence or with unlawful intent.

b) Recourse

Assumes the supplier by a third party from an event in claim and solidary liability exists, so she can take recourse for all costs to the customer, unless she personally proven no gross negligence.

c) Warranty

The outgoing based on this guarantee at the expense of the supplier defects are fixed as soon as possible for free and replace the appropriate parts. The plant inspections required by the customer in addition by fitters of contractor not covered by the warranty, but will be charged. The warranty expressly excludes any transport and operating under breakage costs. Work on the workplace of the buyer must be executed, the travel time and staff expenses are borne by the buyer; In addition, he’s free to provide staff and resources (see also installation regulations).

(d) Use

Operating and maintenance instructions of the manufacturer and/or the supplier as well as instructions regarding proper use and permissible load are strictly observed. Any liability of the supplier is excluded for their non-compliance.

  1. Applicable law and Court of jurisdiction

The contracts are subject to Swiss law. Court of jurisdiction for judging all disputes resulting from this contract is the headquarters of the supplier.

Stetten, May 30, 2017

General  Delivery Conditions of Pro Tunnel PLC

Packaging material is invoiced at cost price and is non-returnable. Complaints must be notified to us within 8 days of receipt of goods. Return shipments containing goods in absolutely as-new condition in original packaging will be refunded as follows:

  1. Goods received by us up to 30 days at the latest after original dispatch:

S = stock items

95% of the invoiced net goods value for stock parts

N = non-stock items

75% of the invoiced net goods value for non-stock parts

X = no return possible

0% of the invoiced net value for non-returnable goods

  1. Goods received after the 30-day deadline will only be accepted in exceptional cases and by individual agreement.

The status of the goods is specified in the offer, order confirmation, delivery note and invoice. Please complete the return form attached to our delivery note and enclose it with the return shipment. We cannot accept parts that are damaged, used or not in their original packaging; also parts from delivery-of-goods consignments (“Factory delivery”), all rubber items, hydraulic hoses, sealing items, V-belts and parts expressly designated as non-returnable in our delivery note. Further claims arising from faulty parts, in particular claims for compensation for direct or indirect consequential damage, are excluded. New parts are covered by a 6-month warranty.

Additional terms and conditions for replacement parts:

  1. We will exchange defective aggregates/parts for fully rebuilt aggregates/parts under the following conditions:

1.1 The defective aggregate shall be returned within 7 days, carriage paid.

1.2 Aggregates requiring predictable repair work will be invoiced at fixed prices. Aggregates requiring repairs that deviate from the expected scope will be invoiced on a time & material basis.

  1. If an aggregate is supplied cash down or collect on delivery, or if the defective aggregate is not returned within 7 days in repairable condition, we will invoice 85% of the price of the new part.
  2. Replacement parts are covered by a 12-month warranty.

3.1 If a customer places an order on the basis of a warranty claim, he shall assert the warranty claim when placing the order. Failure to do so will cause the warranty claim to be rejected.

3.2 If the claim is justified, we will issue a credit note for the defective and previously invoiced part.

General Purchasing Conditions of Pro Tunnel PLC

  1. General

a. Pro Tunnel GmbH places orders with the supplier on the basis of these purchasing conditions. These conditions are considered as agreed even if the supplier confirms and executes the order with reference to his conditions of delivery. The general conditions of contract or delivery sent to us by the supplier or referenced by him are therefore invalid unless acknowledged by us in writing. This shall also apply in the event that Pro Tunnel GmbH subsequently accepts deliveries and makes payments. Silence does not by any means imply agreement.

  1. Contractual content, conclusion of contract

a. Only orders placed in writing are valid. Orders and agreements communicated by other means must be confirmed by us in writing to be valid.

b. If special conditions differing from these general purchasing conditions are agreed for a specific order, the latter shall apply as subordinate and supplementary to the special conditions.

c. The supplier is obliged to confirm orders placed by Pro Tunnel GmbH immediately in writing (including email) unless the ordered products are delivered immediately. Pro Tunnel GmbH shall not be bound to the underlying order if notice of confirmation stating a binding delivery date is not received within one week.

d. The Pro Tunnel GmbH order number and the name of the ordering party must be stated on all documents. The order or invoice will otherwise be returned.

e. Any additional costs arising from a failure to comply with Pro Tunnel GmbH’s regulations shall be borne by the supplier.

f. Quotes provided by the supplier shall be without obligation and free of charge.

  1. Prices

a. Quoted prices do not include sales tax.

b. Unless agreed otherwise in writing, prices quoted to Pro Tunnel GmbH shall include packaging and shipping costs, duties, taxes, fees and (where applicable) additional official charges in addition to the value of the goods or service. All ancillary costs shall be listed separately for the purpose of trade statistics.

  1. Delivery and transfer of ownership

a. Orders are subject to Incoterms 2010. FCA Supplier applies.

b. The type, scope and time of delivery are defined in the order. Deviations require the written consent of Pro Tunnel GmbH.

c. Product ownership and risk shall be transferred to Pro Tunnel GmbH as soon as it is in possession of the goods.

d. The risk of accidental perishing and incidental deterioration lie with the supplier until the goods are handed over at the intended destination; this rule also applies to free deliveries and freight prepaid deliveries.

e. Compliance with the recipient/delivery addresses and any opening hours applicable at the receiving address is mandatory. Pro Tunnel GmbH retains the right to refuse delivery and to send the delivery vehicle or courier away.

f. Pro Tunnel GmbH retains the right to reject deliveries with inadequate packaging, labelling or documentation as well as partial or advance deliveries not agreed in writing or to accept such deliveries and to store them at the supplier’s expense and risk until the contract is properly fulfilled.

g. Packaging must be recyclable to enable environmentally friendly disposal. Otherwise, the cost of disposal and any other additional costs will be charged to the supplier.

h. Each party shall bear its own costs in the event of a contractual or regulatory acceptance inspection or incoming goods inspection. A report detailing implemented acceptance inspections or incoming goods inspections shall be drawn up and signed by both parties.

i. In the event an inspection is not passed the costs directly associated with a repeat inspection shall be borne by the supplier unless he demonstrates that he is not responsible for the cause of failure.

j. Intermediate acceptance does not trigger the start of a warranty period; see article 8.

  1. Declaration of originating status

a. The following shall apply in the event the supplier provides or is required to provide a declaration of originating status relating to the goods sold:

b. The supplier undertakes to enable the verification of the originating status by customs authorities and to provide the necessary information as well as the required confirmation on all records and documents.

c. The supplier is obliged to compensate any damage caused by the refusal of the authorities to acknowledge the declared origin due to inadequate certification or an inability to verify the declared origin. However, this liability shall only apply in the event of culpable behaviour on the part of the supplier or deficiency of a warranted characteristic.

  1. Default

a. Agreed delivery dates and deadlines are binding. The supplier is obliged to counteract imminent or recognisable delays immediately and to inform Pro Tunnel GmbH accordingly in writing.

b. Compliance with the delivery date or deadline is determined by the receipt of goods at the location determined by us or by the timeliness of acceptance.

c. If the supplier is in default after expiry of a defined period of grace Pro Tunnel GmbH shall be entitled to demand fulfilment in addition to payment of a contractual penalty and damages; Pro Tunnel GmbH shall also be entitled to waive subsequent fulfilment and to either demand compensation for the damage resulting from non-fulfilment or to withdraw from the contract.

d. If the supplier is in default he shall owe a contractual penalty of 0.5% of the order value per commenced week of default, at the most 5% of the order value in question. Payment of the contractual penalty does not discharge the supplier from his contractual obligations; it will, however, be offset against the compensation to be paid.

  1. Invoice and payment

a. Unless agreed otherwise, Pro Tunnel GmbH shall pay invoices net within 30 days. The supplier’s payment terms shall apply if they are more favourable.

b. Payment and discount periods shall apply as of the date of receipt of invoice; however, they shall not apply before goods are received or, in the event services are provided, before due acceptance, nor shall they apply before documents or other paperwork pertaining to the scope of supply and services have been handed over to us in compliance with the contract.

c. In the event of deficient performance Pro Tunnel GmbH shall be entitled to retain a part of payment until proper fulfilment is complete.

d. Down payments to suppliers shall only be made in conjunction with the provision of an irrevocable bank guarantee at no cost to Pro Tunnel GmbH.

  1. Warranty and guarantee

aa. Unless the supplier has specified longer periods, the guarantee and warranty period is 24 months from the date of commissioning or use, or 36 months from the date of delivery of the product.

b. Claims for concealed defects can be made after the expiry of the warranty period if raised immediately upon discovery, but no later than five years after acceptance.

c. The guarantee also covers design and manufacturing defects as well as deficient installation and commissioning.

d. The orderer’s obligation to immediately examine the goods and provide notice of non-conformity pursuant to article 201 of the Swiss Code of Obligations is explicitly excluded. Pro Tunnel GmbH is entitled to provide notice of non-conformity at any time during the warranty period.

e. In the event of a claim under warranty Pro Tunnel GmbH shall be entitled to demand rectification of defects or a replacement delivery from the supplier as well as compensation for any costs incurred.

f. The warranty period for replaced or repaired components shall start over again upon delivery. The warranty also includes actual defects or defects of title relating to the product as well as the absence of warranted or presumed characteristics.

  1. Liability

a. The supplier shall provide goods and services free from material defects and defects of title. In particular, he shall ensure that they reflect the generally acknowledged standards of technology and the contractually agreed warranted characteristics, as well as complying with relevant standards, health and safety regulations, accident prevention guidelines and other regulations.

b. The supplier shall hold harmless and indemnify Pro Tunnel GmbH from all third party claims raised in connection with the goods or services provided on the grounds of product liability, environmental protection and the protection of intellectual property. Pro Tunnel GmbH is obliged to inform the supplier immediately of substantiated claims raised against Pro Tunnel GmbH.

  1. Spare parts

a. The supplier is obliged to supply spare parts under reasonable conditions for the duration of expected use, but at least for 10 years after delivery.

b. If the supplier or his supplier intends to discontinue the production of spare parts he shall be obliged to inform Pro Tunnel GmbH in good time and to enable Pro Tunnel GmbH to place a final order for an adequate quantity.

c. Otherwise Pro Tunnel GmbH shall be entitled to procure the spare parts elsewhere at the supplier’s expense unless the supplier offers Pro Tunnel GmbH an alternative that corresponds with the characteristics, specifications and price of the previous product and replaces it in full.

  1. Copyright and confidentiality

a. Tools, models, drawings and other documents provided by or produced for us may only be used to execute our orders. It is prohibited to make them accessible to third parties without our consent; after final use they must be duly retained until further notice, at the longest for a period of two years, and then returned to us.

b. Tools, models, drawings and other documents produced or processed by the supplier on our behalf as the manufacturer shall pass into our ownership.

  1. Information and data protection

a. The supplier shall compile the necessary product information and certification records and forward them to Pro Tunnel GmbH. All documents and (where applicable) test or inspection certificates shall be provided together with the goods or services.

b. The supplier undertakes to treat commercial and technical details that are not in the public domain and that become known to him through the business relationship confidentially and not to make them accessible to third parties.

c. The supplier may only use his business relationship with Pro Tunnel GmbH for advertising purposes with the latter’s prior written consent.

  1. Place of jurisdiction and applicable law

a. The contractual relationship between Pro Tunnel GmbH and the supplier is subject to Swiss law. The place of jurisdiction is Baden in Switzerland.

b. However, Pro Tunnel GmbH is also entitled to prosecute the supplier at his place of registration.

  1. Partial invalidity

a. If some of these conditions of purchase should be invalid the contract shall nonetheless remain valid. The invalid stipulation shall be replaced by a valid stipulation that comes as close as possible to the meaning and purpose of the invalid stipulation.