1. Area of application
The following General Terms and Conditions of Business of CTA AG (hereinafter referred to as 'CTA') shall apply to all contracts concluded between CTA and its customers, in so far these be not modified or supplemented on the basis of written agreements. In concluding a contract with CTA, the Customer acknowledges these General Terms and Conditions of Business and expressly waives the right to assert any General Terms and Conditions of Business of his own. Such terms and conditions shall only be valid if they have been expressly accepted by CTA in a written communication.
2. Offers / plans / technical documents
Offers from CTA are in principle subject to change. When CTA expressly designates an offer as binding, CTA shall be committed to this offer for a maximum period of three months. Without mutual written agreement, no statements in prospectuses, catalogues or technical documents shall be regarded as binding. CTA reserves to itself all rights in respect of its offers, plans and technical and training documents. The Customer hereby recognises these rights, and shall not use these documents for other purposes than those for which they have been issued without the prior written consent of CTA.
3. Orders / conclusion of contracts / scope of services
A contractual relationship between CTA and the Customer comes about on the contract document's being signed by both parties; if such be lacking, with the issue of the written confirmation of the order by CTA; if this too be lacking, with the delivery of the ordered goods. The content of the contract shall be conclusively defined by the contract document which both parties have signed; if such be lacking, by the confirmation of the order by CTA; if this too be lacking, by the note of delivery. Deviations from what has been ordered shall be seen as complying with the contract in so far as they do not affect essential properties of the deliveries and services in question to any significant degree.
Adherence to deadlines shall only be binding on CTA provided that the Customer has complied with all contractual obligations. These deadlines shall be extended to an appropriate extent
if CTA fails to receive information required for fulfilment of the terms of the contract in good time, or if the customer modifies such information subsequently;
if hindrances arise which cannot be obviated by CTA, even when due care is exercised, irrespective of whether these hindrances affect CTA, the Customer or a third party. Examples of such hindrances are serious interruptions to regular operations, accidents, labour disputes, delayed or erroneous delivery of the necessary raw materials, half-finished or finished goods, important workpieces having to be classified as rejects, actions or omissions on the part of the authorities, natural events and other cases of force majeure;
if the Customer or any third parties involved shall be backward with the work to be carried out or in arrears in the fulfilment of their contractual obligations, especially if the Customer shall fail to adhere to the terms and conditions of payment.
If CTA fails to adhere to the deadlines to which it is subject, the Customer shall solely be entitled, after having set an appropriate subsequent deadline to no effect (14 days in the case of warehouse or standard goods, 30 days in case of other goods), to withdraw from the contract. Any further claims by the Customer based on non-adherence to deadlines, in particular the right to assert indemnification claims, are expressly ruled out by this agreement.
5. Withdrawal from contracts for work and services or from orders
If the Customer has ordered a work, so long as the work is as yet incomplete he may, even if no deadline has been exceeded by CTA, withdraw from the contract at any time, subject to full indemnification of CTA (cf. Article OR [Obligationenrecht: the Swiss Law of Obligations]). The indemnification shall correspond to the full remuneration to which CTA would have had a claim in case of execution of the agreed work, less those expenses which CTA has been able to avoid through the Customer's withdrawal from the contract. It shall be at CTA's discretion either to show the concrete amount owing or else to call for a proportion of the full remuneration agreed as a one-off payment, as shown below:
50%, if CTA has not yet ordered any materials and has not yet started to carry out the work;
75%, if CTA has already ordered materials and has started to carry out the work;
100%, if the work has been largely completed.
If an order has been placed, cancellation of the order shall not be regarded as timely if it be cancelled less than one month before the planned start of the work. In this case the Customer shall be liable for payment of a conventional penalty. This shall amount to
50% order value, if the notice of cancellation takes effect less than one month before the planned start of the work;
75% order value, if the notice of cancellation takes effect after a beginning has already been made with execution of the order.
The Customer hereby acknowledges the appropriateness of this conventional penalty. CTA expressly reserves the right to show that more extensive damages have been incurred.
The customer has no right to returns. Returns will only be accepted in exceptional cases if it has been agreed in advance and confirmed in writing. Only products returned in their original packaging will be accepted. Returns are no longer possible after a period of four months as from delivery.
Products which have already been assembled or which have been custom-made will not be accepted, unless they are defective.
The customer shall bear the costs of returns. CTA must be notified promptly of any returns. In the event of a valid, agreed return, which must always include the original delivery slip, CTA will deduct 15% of the credit, with the minimum being CHF 50.
All CTA's prices are to be understood, unless stated to the contrary, as net prices in Swiss francs, excluding VAT. All incidental costs, such as insurance costs, tax, VAT, duties, customs, fees for authorisations or certifications etc., shall be charged to the Customer in addition. The minimum invoice amount in all cases shall be CHF 50.00 plus VAT even if the order value is less than CHF 50.00.
8. Terms and conditions of payment
Payments are to be made net in Swiss francs to CTA's head office, without any deduction of discounts, expenses, tax, duties, fees, customs or the like. In so far as no special terms and conditions of payment have been agreed between CTA and the customer, invoicing shall be at the time of delivery in the case of deliveries, and in the case of services at the time when the essential part of the services shall have been supplied. The payment deadline shall be thirty (30) days from the time of invoicing. With the expiry of the deadline, the consequences of arrears shall automatically come into force, i.e. without any need that a warning be issued. From this time the Customer shall be liable for interest payments on arrears of 10% per annum. CTA expressly reserves the right to the assertion of indemnification claims, to the immediate cessation of all deliveries and services by CTA to the Customer and – following the expiry of an appropriate subsequent deadline – to withdrawal from the contract.
9. Conditions of delivery
Unless any written agreement shall have been made to the contrary, CTA's deliveries will be ex works Münsingen (EXW Münsingen in accordance with Incoterms 2010). If the Customer fails to accept the delivery as agreed, CTA shall be entitled to define the further course of action unilaterally, and the Customer shall be obliged to indemnify CTA for the additional costs arising from the failure to deliver the goods. Except in case of a written agreement to the contrary, standard packaging shall be included in the price. Disposal of the packaging is the responsibility of the Customer.
Storage costs for devices and accessories that cannot be delivered for more than 30 days after the agreed delivery date are billed at a rate of CHF 20 per square metre per week. Transportation from the place of storage to the construction site is charged using a base price of CHF 300 plus CHF 150 per square metre.
10. Scrutiny of CTA's deliveries and services / complaints about defects
The Customer shall be obliged to scrutinise deliveries and services by CTA within two working days from the delivery of the goods and/or notification of the completion of the work, and to notify CTA in writing of any defects within the same period. Otherwise the deliveries and services shall be taken as having been approved. The Customer's having started to use the work supplied shall be considered equivalent to notification that the work has been completed. If any inspection approval of the work has been agreed, this must take place within one month from the notification of completion or the start of use. If the inspection approval shall fail to take place within this deadline for reasons not attributable to CTA, the work shall be considered as having been approved. If at a later stage during the guarantee period defects become apparent which could not have been detected even by careful scrutiny, the Customer shall be obliged to notify CTA in writing immediately on their being discovered. Otherwise the deliveries and services shall be considered as having been approved in respect of these defects as well.
CTA hereby guarantees that its deliveries and services show the properties of which assurance has been given and are free from defects. CTA only guarantees that its deliveries and services are suitable for a specific purpose and only admits responsibility for system or plant performance when an express written agreement to this effect has been entered into. For sales and for the manufacture of new items and works for the Customer's personal or family use, the guarantee period shall be two years. In all other cases the guarantee period shall be one year. The guarantee period shall commence at the time of execution in the case of orders, at the time of delivery in the case of deliveries and at the time the work is approved or deemed to be approved in the case of performance of a work or service. In the case of performance of a work or service for which a guarantee period of one year applies, however, it shall in any case end 18 months after the delivery of the equipment in question by CTA at the latest, irrespective of the date of approval. CTA shall be deemed to have fulfilled its obligations under guarantee if it either, at its own discretion, repairs defective components free of charge or makes replacements available to the Customer free of charge ex works; the repair or replacement of defective components does not bring about an extension of the guarantee period.
Other more extensive claims under guarantee are hereby excluded, so far as permissible in terms of statutory requirements. This includes in particular claims on the part of the Customer to
redhibition, price reduction or indemnification;
compensation for damages arising from inappropriate handling, lack of due care, accidents, force majeure or normal wear and tear;
compensation for damages arising from plant planning or design which does not conform to definitive technological standards, as also damages arising from failure to observe CTA's technical guidelines on project planning, assembly, commissioning, operation and servicing or from the unprofessional work of third parties;
compensation for damages arising from failure to carry out servicing under plant shutdown of ventilators, engines, compressors, pumps and humidifiers or damages caused by the effects of water;
compensation for damages arising from the use of inappropriate heat carriers or from corrosion, especially where water preparation systems or decalcification plant etc. are involved or unsuitable antifreeze agents are used, likewise damages arising from inappropriate electrical connections or inadequate electrical fuses, from erratic currents, induction, the aggressive action of water, excessive water pressure, inappropriate decalcification systems or from chemical or electrolytic factors etc.;
compensation for damages to materials not delivered by CTA, for replacement costs or the costs involved in determining the cause of damage or cost of commissioning expert reports;
compensation for consequential damages, unavailability of equipment for use and consequent loss of profit caused by the use of products and services supplied by CTA or defects in the same.
The guarantee offered by CTA presumes as a precondition that the Customer shall have made the agreed payments to the full extent. CTA's guarantee obligations shall expire
if CTA has not been promptly notified of a defect in writing;
if CTA's express instructions have not been observed;
if modifications or repairs have been executed by third parties on the products supplied by CTA and/or on work carried out by CTA without CTA's express written consent.
Finally components that are subject to natural wear and tear (e.g. sealing materials, packing glands etc.) and operating materials (e.g. coolants and the like) are hereby excluded from this guarantee.
12. Force majeure
“Force majeure” means the occurrence of an event or circumstance that prevents a party from performing one or more of its contractual obligations under the contract if and to the extent that the party affected by the obstacle is able to show that: (a) this obstacle is beyond its reasonable control; and (b) that it was not reasonably foreseeable at the time when the contract was signed; and (c) that the effects of the obstacle could not have been reasonably averted or overcome by the affected party.
Until proof of the contrary, when the following events affect a party the assumption will be made that they fulfil the requirements of the 1st paragraph of this Section 13: (i) war (declared or undeclared), hostilities, attack, actions of foreign enemies, extensive military mobilization; (ii) civil war, riot, rebellion and revolution, military or other seizure of power, insurrection, acts of terrorism, sabotage or piracy; (iii) currency and trade restrictions, embargo, sanctions; (iv) lawful or unlawful official acts, compliance with laws or orders made by a government, expropriation, sequestration of works, requisition, nationalization; (v) plague, epidemic, pandemic, natural disaster or extreme natural event; (vi) explosion, fire, destruction of equipment, prolonged outage of means of transport, telecommunications, information systems or energy; (vii) general labour unrest such as boycott, strike and lockout, go-slow, occupation of factories and buildings.
A party which successfully invokes this Section 13 is released, from the time at which the obstacle makes the performance of its service impossible, from its duty to perform its contractual obligations and from all liability for damages and also from the requirement to pay contractual penalties and from any other contractual remedy on grounds of breach of contract, provided that immediate notice is given. If immediate notice is not given, the release takes effect from the time at which such notification reaches the other party. If the impact of the particular obstacle or event that has been cited is temporary, the consequences set out above shall only apply for as long as the cited obstacle prevents performance of the contract by the affected party. If as a consequence of the duration of the cited obstacle the parties to the contract are substantially deprived of things that they could justifiably have expected in virtue of the contract, each party is entitled to serve notice to terminate the contract by giving a reasonable period of notice to the other party. Save where otherwise agreed, the parties specifically agree that the contract may be terminated by either party if the obstacle persists for more than 120 days.
13. Limitation of liability
CTA’s contractual and non-contractual liability shall be limited to cases of damage occasioned through intent or as a result of gross negligence. Any contractual or non-contractual liability on CTA’s part in the event of slight or moderate negligence, on the other hand, is expressly excluded to the extent permitted by law. This exclusion shall apply especially to material or property damage or to losses caused by delay, as well as to direct, indirect or consequential damages from loss of profit, missed earnings, unrealised savings and the like, for whatever reason at law. Moreover, CTA’s liability for any culpability on the part of its agents is expressly excluded.
If individual stipulations of these General Terms and Conditions of Business should be ineffective, the effectiveness of the other stipulations shall not be affected thereby. A valid provision which approximates as closely as possible in terms of business content to the invalid provision shall be substituted in its place.
Changes to these General Terms and Conditions of Business, as well as any supplementary provisions that become necessary under these General Terms and Conditions of Business, require to be expressed in writing to be valid.
16. Applicable law / place of fulfilment / responsible court of law
All contracts between CTA and the Customer shall be subject to the law of the Federal Republic of Switzerland exclusively, the United Nations Convention on Contracts for the International Sale of Goods (Vienna Sales Law) being expressly excluded. The place of fulfilment shall be Münsingen, Switzerland.
The place of jurisdiction shall be Münsingen, Switzerland. CTA however may likewise take legal action against the Customer at any other competent court..
This document is a translation, and as such has no legal force. In case of doubt the German original should be referred to.