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General Terms and Conditions
Applicable to the Contracts for Procurement of Goods and Services Awarded by the Swiss Federal Institutes of Technology
as from January, (amended June 1, 2005)
1. Scope
of application
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1.1
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The
present General Terms and Conditions are applicable to the domain of the Swiss
Federal Institutes of Technology, comprising the Swiss Federal Institute of
Technology Zurich (ETHZ), the Swiss Federal Institute of Technology Lausanne
(EPFL), the Paul Scherrer Institute (PSI), the Federal Institute of Forest,
Snow and Landscape Research (WSL), the Swiss Federal Laboratories for Materials
Testing and Research (EMPA), the Swiss Federal Institute for Water Resources
and Water Pollution Control (Eawag) and the General Secretariat of the FIT
Board («Purchaser»).
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1.2
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These
General Terms and Conditions shall govern conclusion, subject matter and
performance of the contracts for procurement of goods and services.
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1.3
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The
tenderer accepting a purchase order (Clause 3) shall be deemed to have assented
to these General Terms and Conditions.
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1.4
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Modifications
or amendments of these General Terms and Conditions must be confirmed in writing
by the purchaser.
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2. Tender
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2.1
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The
tenderer shall submit its tender (in duplicate) in reply to an invitation to
tender.
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2.2
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Save
as may otherwise be expressly provided for in the invitation to tender, the
tenderer shall submit its tender, inclusive of demonstration, without
remuneration.
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2.3
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The
tenderer shall be bound by its tender for a period of three months from the
date of submission.
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3. Formation of contract
3.1
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The
purchaser shall place its purchase order in writing (in duplicate) with the
tenderer. The contract shall be formed upon receipt by the purchaser of the
duplicate purchase order signed unconditionally by the tenderer.
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3.2
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For
purchase orders not exceeding CHF 10'000.–, the contract shall also be deemed
formed where the tenderer does not reject the purchase order within a
reasonable period of time.
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4. Confidentiality
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4.1
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The
parties agree to keep in confidence any information that is not obvious or
generally available to the public. They shall be bound by this undertaking from
the preaward stage on and after termination of the contract.
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4.2
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The
tenderer may not advertise or publish this contractual relationship without the
purchaser’s prior written consent.
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5. Assignment and pledge
5.1
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tenderer
may not assign or pledge accounts receivable without the purchaser’s prior
written consent.
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6. Compliance with labor law
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6.1
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When
rendering services in Switzerland, the tenderer shall comply with all
occupational safety and health regulations applicable at the place of
performance. The tenderer warrants to ensure equal pay for male and female
employees. The provisions concerning working conditions set forth in collective
agreements and standard employment contracts shall be effective or in the
absence of such provisions, the working conditions customary in the region and
profession concerned.
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6.2
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In
case of non-compliance with the guidelines set forth in Clause 6.1, the
tenderer shall be subject to a contractual penalty amounting to 10% of the
contract price, but not inferior to CHF 3'000.– or superior to CHF 100'000.–.
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7. Applicable law and venue
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7.1
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The
contracts shall be governed by the present General Terms and Conditions and
subsidiarily by the Swiss Code of Obligations.
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7.2
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The
parties exclude expressly the application of the United Nations Convention on
Contracts for the International Sale of Goods (UN Sales Convention).
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7.3
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Venue,
and for foreign tenderers place of enforcement, shall be the purchaser’s seat. The purchaser reserves
the right to institute proceedings against the tenderer before the competent
court of the tenderer’s seat or before any other competent court.
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Special provisions for procurement of goods
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8. Prices
8.1
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The
tenderer shall provide the goods for a firm-fixed price.
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8.2
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If
tenderer reduces its list prices prior to delivery of performance, the reduced
prices shall be applicable to the pending purchase order and the contract price
accordingly abated.
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8.3
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The
prices shall cover all expenditure incurred by the tenderer in the proper
performance of the contract. In particular, they shall include packing,
carriage and insurance as well as all other expenses, license fees and taxes
such as VAT.
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8.4
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FThe
prices of foreign tenderers shall include all delivery costs pursuant to the
INCOTERMS 2000 «Delivered Place of Destination Duty Unpaid» («DDU»).
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8.5
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Failing
specific agreement to the contrary, payment shall be made within 30 days of
receipt of correctly rendered invoices, but at the earliest within 30 days of
acceptance of the goods delivered free of defect. Unless agreed upon in
writing, no partial payments shall be made for delivery by instalments.
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8.6
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Advances
and instalment payments shall be made, where appropriate, in case of orders
exceeding CHF 100'000,-- and conditional upon a security equal to the advance
or instalment (bank guarantee). Payment shall be made as follows: one third
after receipt of the purchase order duplicate and of the confirmation of
security; one third after receipt of the goods ordered and one third after
acceptance of the goods delivered free of defect. The tenderer shall draw up a
separate invoice for each instalment payment.
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9. Place of performance and passing of risk
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9.1
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Place
of performance shall be the destination indicated by the purchaser on the
purchase order.
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9.2
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Risk
of loss and benefit shall pass to the purchaser at the place of performance.
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10. Default
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10.1
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The
tenderer failing to meet the delivery deadline agreed upon shall be immediately
deemed to be in default.
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10.2
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In
the event of default by the tenderer, the purchaser may require specific
performance of the contract, in addition to the contractual penalty and the
compensation for damages (Clause 10.3). It can also renounce the belated
performance of the contract and claim compensation for the damages resulting
from the delay in delivery or terminate the contract.
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10.3
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In
the event of delay, the tenderer shall be subject to a contractual penalty
amounting to 1% of the contract price per complete or incomplete week of delay,
but not exceeding 10% of the total price. The contract penalty shall not
relieve the tenderer from its contractual obligations, but shall be credited
against the damages to be paid.
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11. Warranty
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11.1
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Having
acquainted himself with the intended application, the tenderer as specialist
guarantees that the goods possess the warranted features, comply with the
applicable security regulations in Switzerland and have no material or legal
defect which would diminish their value or fitness for the intended
purpose.
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11.2
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DThe
purchaser shall examine the goods delivered within 30 days of the date of
delivery.
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11.3
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In
case of defects in the goods delivered, the purchaser may, at its option, (i)
require the tenderer to remedy the defects at no charge, (ii) reduce the price
in proportion to the defects, (iii) terminate the contract or (iv) require
delivery of substitute goods. The delivery of substitute goods may consist in
replacing the defective components. In any case, the purchaser retains the
right to claim damages.
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11.4
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The
purchaser’s warranty claims set forth in Clause 11.3 shall prevail over any
warranty issued by the tenderer which restricts the purchaser’s rights (for ex.
exclusion of the right to cancel the contract or to reduce the price). If the
tenderer’s warranty extends the rights set forth in Clause 11.3 (for ex. longer
warranty period), it shall be applicable.
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11.5
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The
warranty is valid for 12 months from the date of acceptance of the goods
delivered, or for a longer period if the tenderer issues such a warranty.
During the warranty period, the purchaser may lodge a complaint in respect of
any defect of the goods.
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12. Supply of spare parts
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12.1
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The
tenderer shall ensure that spare parts are available to the purchaser for a
period of at least five years since the date of acceptance of the goods.
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13. Licensed Software
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13.1
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In
the case of licensed software ordered or delivered with the goods ordered, the
purchaser shall be granted a non-transferable and non-exclusive license to use
the software. All intellectual property rights shall remain vested in the
tenderer or the third parties involved. If the intellectual property rights are
vested in third parties, the tenderer warrants that it has the right to use and
distribute the software products.
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13.2
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IIn
case of infringement of intellectual property rights, clauses 17.2 and 17.3
hereunder are applicable.
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14. Right to inspect
14.1
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In
case of goods to be manufactured by the tenderer, the purchaser is entitled,
upon reasonable notification, to inspect quality and progress of the work at
the tenderer’s or his suppliers’ premises. Such inspection shall not relieve
the tenderer from integral performance of its contractual obligations (particularly
delivery in due time and warranty obligation).
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Special provisions for procurement of services
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15. Prices
15.1
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The
tenderer shall provide the services for a firm fixed-price or on a
cost-reimbursement basis with a price limit (price ceiling). In its tender, the
tenderer shall indicate its cost groups and rates.
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15.2
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The
prices shall cover all expenditure incurred by the tenderer in the proper
performance of the contract. In particular, they comprise all ancillary costs
such as general and administrative expenses, all social security benefits and
other compensations paid for illness, invalidity and death as well as all
charges including VAT. Unless otherwise agreed upon expressly in writing, the
contract price shall not be adjusted on the basis of inflation.
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15.3
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Payments
shall be due in accordance with the payment schedule. Progress payments shall
be made based on accumulated costs. When due, the tenderer shall claim them by
presenting an invoice. The purchaser shall pay the due invoices within 30 days
of receipt of the itemized invoice or if any, of the performance evaluation
agreed upon.
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15.4
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Clause 8.6
applies accordingly to advance payments.
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16. Performance
16.1
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The
tenderer undertakes to perform the contract with all due diligence and
efficiency. As a rule, the performance shall be specified in a statement of
work.
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16.2
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Modifications
and amendments to the contract must be agreed upon in writing.
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16.3
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The
tenderer shall inform the purchaser regularly of progress of work and promptly
notify in writing of any circumstances, which could jeopardize or hinder the
performance of the contract. The purchaser shall be entitled to control and to
be informed about all parts of the task assigned.
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16.4
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As
a matter of principle, the tenderer shall carry out the task assigned using its
own staff. It shall exclusively appoint carefully chosen and highly qualified
personnel. In so doing, it shall take into consideration the purchaser’s need
for continuity. If requested by the purchaser, it shall replace within
reasonable time the employees who lack the necessary qualification or endanger
in any other way the performance of the contract.
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16.5
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Unless
authorized in writing, the tenderer may neither represent, nor engage the
purchaser towards third parties.
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17. Intellectual property rights
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17.1
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All
intellectual property rights arising out of the performance of this contract
(provision of services) shall be the property of the purchaser.
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17.2
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The
tenderer shall promptly defend the purchaser against any third-party claims
based on alleged intellectual property rights infringement and pay any costs
incurred by the purchaser in conjunction with such claims.
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17.3
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The purchaser shall give prompt notice, in writing, to the
tenderer of any infringement claim and make available, to the extent that they
must not be kept in confidence, all documents necessary for the defence.
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18. Default
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18.1
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In
the event the tenderer fails to observe deadlines agreed upon as a material
contractual obligation (deadline contracts), it shall be immediately in
default; in all other cases, a cure period shall be granted after notice of
default.
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18.2
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The
tenderer shall be responsible for the damages resulting from delay in
performance.
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18.3
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In case of default by the tenderer, the consequences set forth in clause 10.3
shall apply accordingly.
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19. Warranty
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19.1
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As
specialist, the tenderer shall be responsible for efficient and diligent
execution of the contract. It undertakes to provide the services in
state-of-the art conformity with the provisions and specifications of this
contract.
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19.2
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The
tenderer shall be liable for the damages caused by its employees in the
performance of their functions.
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20. Cancellation and termination
20.1
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Any
of the parties shall have the right to cancel or terminate this contract at any
time by giving written notice to the other party. Payment shall be due for the
services rendered up to the date of termination.
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20.2
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The
right to claim damages for untimely termination of the contract shall be
reserved, but excluded for loss of profit.
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15 March 2010
15:30
Eawag Kastanienbaum
19 March 2010
11:00
Eawag Dübendorf
22 March 2010
15:30
Eawag Kastanienbaum
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