1. Applicability and general terms
1.1. Scope of the General Terms and Conditions
These "General Terms and Conditions" ("T&Cs") apply to all legal relations (offers, contractual negotiations, contracts) between Contec Fiber AG with registered seat in Domat/Ems ("Contec") and its customers ("CUSTOMERS") regarding (i) the sale and delivery of products or work ("DELIVERY ITEMS") and (ii) the supply of services ("SERVICES") by CONTEC to the CUSTOMER.
These T&CS build an integral part of all existing legal relationships and in particular the contracts between CONTEC and the CUSTOMER unless explicitly agreed otherwise. Provisions which deviate from these T&CS are only legally binding if they are expressly offered by CONTEC or are accepted by CONTEC expressly and in writing.
By placing an order to CONTEC, the CUSTOMER confirms and accepts that the sale and delivery of the DELIVERY ITEMS as well as the supply of SERVICES shall be governed by these T&CS. CONTEC reserves the right to amend these T&CS at any time. Amendments shall be applicable upon notice to the CUSTOMER for all legal relationships between CONTEC and the CUSTOMER entered into thereafter.
Unless expressly approved by CONTEC, in writing, the CUSTOMER's general terms and conditions and other contractual documents are expressly waived and excluded. This rule shall also apply in case the CUSTOMER encloses general terms and conditions or other documents to the order or «order confirmation» or discloses such general terms and conditions or other documents otherwise to CONTEC.
1.2. Offers and conclusion of the contract
All offers, price lists, product descriptions, prospects, plans and the like from CONTEC are not binding and may be amended or withdrawn at any time, unless explicitly stated otherwise in the respective document.
A contract with CONTEC only comes into effect on the date of CONTEC's acceptance. The confirmation may take place in form of a written order confirmation (declaration of acceptance), the signing of a written contract or by execution of the order by CONTEC. Orders and «declarations of acceptance» from the CUSTOMER are qualified as offer to conclude a contract only.
The order confirmations of CONTEC contain a detailed description of the DELIVERY ITEMS and/or SERVICES. Possible change requests or discrepancies shall be submitted to CONTEC within two working days after receipt of the order confirmation. In case no order confirmation is issued, the description of the DELIVERY ITEM and/or the SERVICE is evident from the offer of CONTEC or the signed written contract.
Declarations in text form which are transmitted or recorded by way of electronic media (email, SMS and such like), are deemed to be written declarations by a party. The sender bears the burden of proving that such declarations have been received and accessed by the recipient. Such declarations are deemed to have been received from the moment that they are accessed.
1.4. Description of Delivery Items, Services, prospects plans and the like
All descriptions of DELIVERY ITEMS and SERVICES and information provided in brochures, plans and the like are subject to technical modification and improvement. Such descriptions may only depict contractual properties of the DELIVERY ITEMS and SERVICES if explicitly indicated.
2. Delivery Items
2.1. Order, subject and scope
CONTEC may receive orders directly from the CUSTOMER or from a third party being authorized orally or in writing by the CUSTOMER, e.g. a building owner ("THIRD PARTY"). Orders from a THIRD PARTY are considered as orders on behalf of and on the account of the CUSTOMER. From these orders – in case of acceptance by CONTEC and independently from the legal relationship between the CUSTOMER and the THIRD PARTY – only CONTEC and the CUSTOMER shall be entitled and obligated.
Articles not stocked by CONTEC or customized or other DELIVERY ITEMS made-to-measure or according to customer specifications ("CUSTOM BUILT") may only be ordered in written form. The CUSTOMER is committed to accept the full volume of the order.
Subject and scope of the DELIVERY ITEMS is indicated in the order confirmation from CONTEC. Moreover, clause 1.2. para. 3 of these T&Cs is applicable.
Subsequent changes of orders by the CUSTOMER may, if possible at all, only be conducted at the full expense of the CUSTOMER.
2.2. Packaging, provision or delivery of Delivery Items
The provision or the delivery of the DELIVERY ITEMS ("DELIVERY") will be performed in accordance with the packaging units stated in the price lists. Special packing will be charged to the CUSTOMER additionally.
CONTEC shall make available or effect DELIVERY at the location agreed with the CUSTOMER (pursuant to the agreed Incoterms 2010).
Possible transport damages and shortfalls shall be noted in writing on the delivery note and confirmed by the carrier in writing on the delivery note. In case of postal DELIVERY or shipments by rail the establishment of the facts shall be requested at the post office or the rail station on the day of delivery. In the event of failure to comply with these instructions, CONTEC shall be absolved of any liability for compensation.
Where DELIVERY is delayed or impossible for reasons which are outside the control of CONTEC (e.g. refusal to accept delivery, postponements, etc.), DELIVERY ITEMS shall be stored on behalf of the CUSTOMER and at the CUSTOMER's risk.
For DELIVERIES being deposited at the unloading point at the agreed delivery time but in absence of the CUSTOMER, CONTEC assumes no liability for damages or loss of the DELIVERY ITEMS. The CUSTOMER accepts the DELIVERY ITEMS as received without signing of the delivery notes.
In case of collection of the DELIVERY ITEMS by the CUSTOMER ex warehouse of CONTEC, the CUSTOMER is responsible for the loading. In case the CUSTOMER requests the loading by CONTEC, CONTEC assumes no liability for damages which may occur. The CUSTOMER is responsible for the operational safety of the vehicle, in particular the cargo securing, the compliance with the permitted payload as well as the observance of the occupational health and safety rules of CONTEC by its employees or representatives on the area of CONTEC.
CONTEC warrants that the DELIVERY ITEMS are free of substantial defects in material and workmanship at the time of the provision and dispatch, respectively. Any material warranty which goes beyond this, as well as any legal warranty, is expressly excluded.
The CUSTOMER shall immediately inspect the DELIVERY ITEMS after arrival at the agreed place of DELIVERY and give written notice to CONTEC within 7 working days of any defects (postal date stamp applicable). If the CUSTOMER fails to do this or in case the DELIVERY ITEMS are processed without inspection, the DELIVERY ITEMS are deemed to be accepted by the CUSTOMER.
In case objected DELIVERY ITEMS are processed by the CUSTOMER or a THIRD PARTY without prior written consent of CONTEC, the warranty ceases.
After the notification of defects by the CUSTOMER, CONTEC may at its own discretion either inspect the objected DELIVERY ITEMS on-the-spot or request that the DELIVERY ITEMS are returned to CONTEC for inspection purpose. CONTEC will verify the warranty claim and inform the CUSTOMER if the asserted defect is covered by the warranty or not. The CUSTOMER shall keep the DELIVERY ITEMS until the definite verification of the notification of defect has taken place.
In case a warranty claim exists, CONTEC will at its own discretion either repair or replace the DELIVERY ITEM free of charge. The right of the CUSTOMER to withdraw from the contract, to claim reduction of the purchase price or to execution by substitution is explicitly excluded.
In case no warranty claim exists, the CUSTOMER shall bear all costs incurred by CONTEC in connection with the notification being considered as unfounded.
Unless explicitly agreed otherwise, the warranty expires two years following the DELIVERY of the respective DELIVERY ITEM. For DELIVERY ITEMS repaired or replaced by CONTEC the two years period running from the DELIVERY of the originally provided DELIVERY ITEM is applicable.
Any cooperation by CONTEC for the detection of defects or their remediation occurs without any prejudice regarding the existence or the scope of the warranty.
2.4. Liability and restrictions on liability
The liability is based on the legal provisions in force. However, CONTEC shall in no event be liable for: (i) slight negligence, (ii) indirect or collateral damages as well as following damages and loss of profit, (iii) unrealized savings, (iv) damages occurred from delayed DELIVERY of DELIVERY ITEMS or SERVICES as well as (v) all acts and omissions of the vicarious agents of CONTEC, regardless if contractual or non-contractual.
CONTEC shall not be liable for any damage caused by force majeure such as, but not limited to natural events, ice, snow, fire, strike, war, terrorist attack, official instructions and lack of raw materials. Further-more, CONTEC shall not be liable for any damage resulting from the improper use of the DELIVERY ITEMS or using them in breach of contract or unlawfully, or resulting from the fact that there was insufficient assistance from the CUSTOMER.
Moreover, CONTEC is not liable for any damage which may occur out of the following reasons:
- incorrect implementation by the user, particularly the failure to use and/or comply with the documents
attached to the calculations (general implementation details, information for application and use,
finishing etc.) as these form part of the CONTEC solution;
- incorrect or incomplete basic parameters for the calculations (loads, subsoil values, exposure, etc.);
- use of incorrect programmes for the calculations,
- external influences such as sub-surface erosion, subsidence, landslide etc.
- breach of obligations by the CUSTOMER according to clause 7 of these T&Cs.
In principle, DELIVERY ITEMS may not be returned. In exceptional cases, and only for standard catalogue items, DELIVERY ITEMS may be returned, subject to a prior written agreement and under specific conditions, provided they are in their original packaging, complete, undamaged, dry and clean.
CUSTOM-BUILT items cannot be returned.
4.1. Subject and scope
CONTEC mainly provides SERVICES in the field of static calculations and planning support (preparation of tender documents etc.) and support in preparing implementation documents (calculations, planning documents etc.)
All values contained in the calculations of the reinforced concrete manufactured using Fibrofor High Grade, Fibrofor Diamond or Concrix are average values determined by recognised testing laboratories. Since, as a result of local differences in the aggregate and in the cement characteristics, individual values may vary, suitability tests and calculations must be carried out before using types of concrete which differ from the EN standard types.
The calculations, as well as the information and data contained therein, are based on principles, formulas and safety regulations contained in the valid EU standards and the Directive on Reinforced Concrete (ÖBV).
The CUSTOMER shall immediately inspect the SERVICES after DELIVERY and give immediately but at the latest within 7 working days written notice to CONTEC of any complaints. In case of failure, the SERVICES are deemed to be accepted.
4.3. No responsibility for result
Unless explicitly agreed otherwise, CONTEC is only responsible for diligent and faithful SERVICE delivery and does accordingly not assume any responsibility for result.
CONTEC's SERVICES are rendered on the basis of the documentation and the basic parameters (loads, subsoil values, exposure) provided by the CUSTOMER or THIRD PARTY. The actuality, completeness and correctness of the information and documentation provided are in the full responsibility of the CUSTOMER and CONTEC does not assume any liability for incorrect information, basic parameters or documentation.
No claims under warranty against CONTEC may be derived from any advice on the choice of materials.
Moreover, reference is made to clause 2.4 of these T&Cs.
If CONTEC assumes responsibility for result, clause 2.3 of these T&Cs shall apply accordingly.
5. Prices, invoicing and payment
Prices stated in CONTEC's respective offers, price lists etc. at the time of the placement of the order shall be applicable.
All prices and remuneration are exclusive of value added tax and strictly net. Value added tax and other taxes shall be borne by the CUSTOMER.
The prices are to the agreed delivery destination (and pursuant to the agreed INCOTERMS 2010, see Clause
2.2 of these T&CS).
The minimum invoice value is CHF 80.00.
The invoicing shall take place at the full discretion of CONTEC either prior or after the DELIVERY or the SERVICE DELIVERY.
Invoices from CONTEC shall be paid in accordance with the offer. No deductions may be made from the invoice amount unless expressly agreed otherwise. The set-off of counterclaims is not admissible.
Deduction is only admissible if explicitly stated in the invoice and in case the invoice is paid at due date. The term of payment is deemed to have been observed if the amount is credited on the bank account of CONTEC within that term. Unfounded deductions shall be invoiced by CONTEC.
Due date is at the same time expiry date. In case invoices are not paid within the term of payment, five percent (5%) default interest per annum as well as any processing charges shall be due without serving any further notice of default. CONTEC expressly reserves the right to claim any further damages resulting from the delay and withdraw from the contract and claim any further compensation for damages. If the CUSTOMER is in default in payment, CONTEC shall be entitled to have the debt collected by a third party at the expense of the CUSTOMER.
Any complaints regarding invoices shall be addressed in written form to CONTEC within 14 days after receipt of the invoice, otherwise invoices are deemed to be accepted by the CUSTOMER. Payments shall be made in due time also in case unsubstantial parts of the DELIVERY ITEM and/or the SERVICES, which do not make the use of the DELIVERY ITEMS impossible, are missing or in case rework is needed.
6. Delivery times and terms
CONTEC uses its best endeavors to comply with agreed delivery times. However, CONTEC does not assume any warranty for the adherence to delivery times. In particular in case postponements are due to delays caused by the CUSTOMER or/and third parties such as e.g. delayed conceptual and/or static and/or other releases, delayed signing of time-relevant appendices, changes to DELIVERY ITEMS or SERVICES or to the scope of the DELIVERY ITEMS or SERVICES requested by the Customer or in general due to missing or insufficient preparation or assistance by the CUSTOMER or a third party or due to new knowledge, CONTEC does not assume any responsibility.
7. Obligations of the Customer
The CUSTOMER shall undertake all preparation and assistance measures required in connection with the DELIVERY ITEMS and the SERVICES proper and in time. In particular, the CUSTOMER shall provide CONTEC with all information necessary for on-time delivery of the DELIVERY ITEMS and the SERVICES and shall inform CONTEC of any particular official regulations and other regulations, instructions and particularities.
The CUSTOMER shall follow any and all instruction, installation and processing instructions issued by CONTEC stated in packaging, brochures and technical manuals regarding the DELIVERY ITEMS and the SERVICES. In particular, the documents attached to the calculations (general implementation details, information for application and use, finishing etc.) must be observed in any case. The brochures and technical instructions are - if not supplied - available from CONTEC.
8. Further provisions
8.1. Appointment of third parties
CONTEC is entitled to appoint third parties in order to fulfil its contractual obligations. To the extent permitted by law, CONTEC shall not be liable for the SERVICES of third parties whom it has called in.
8.2. Title and Intellectual Property
CONTEC and any of its licensors shall retain title to all rights to the DELIVERY ITEMS and the SERVICES, descriptions, brochures, catalogues, plans, documents and media, including patent rights, copyrights and other intellectual property rights. The CUSTOMER recognises these rights of CONTEC or its licensors.
CONTEC confirms that to its best knowledge, all descriptions of DELIVERY ITEMS and SERVICES, brochures, plans, documents and media handed out to the CUSTOMER do not infringe any third party rights. However, CONTEC does not give any guarantee that the descriptions of DELIVERY ITEMS and SERVICES, brochures, plans, documents and media handed out to the CUSTOMER do not infringe any third party rights.
CONTEC shall retain title to the DELIVERY ITEMS until receipt of the remuneration. The CUSTOMER shall assist in all necessary measures to protect the property of CONTEC. The CUSTOMER authorises CONTEC to enter its ownership rights in the respective retention of ownership register insofar as CONTEC wishes to do so.
8.3. Partial Invalidity
Where individual provisions of these T&Cs are invalid or unenforceable, the other provisions of these T&Cs shall nonetheless remain valid.
8.4. Applicable law and jurisdiction
All legal relationships between the CUSTOMER and CONTEC shall be governed by substantive Swiss law. The Vienna Sales Convention (CISG) shall not apply. The exclusive place of jurisdiction shall be the registered seat of CONTEC. However, CONTEC reserves the right to take legal actions before the competent court at the seat or domicile of the CUSTOMER.
Domat/Ems, January 2018