1. Applicability
The general terms and conditions (called GTC) shall be applicable for all services rendered by Swiss Power Consulting (called SPC) to the CLIENT unless different conditions were agreed in a contract between SPC and the CLIENT.
2. Definitions
Professional SERVICEs mean engineering services, project planning, studies, preliminary engineering, project design, supervision, technical services, management and surveillance as well as other related tasks provided by SPC to the CLIENT. CONTRACT means in relation to the SERVICEs provided:
a. The agreed document duly signed by SPC and the CLIENT or (if non-existent)
b. The written offer by SPC accepted by the CLIENT without proposed changes, or
c. The purchase order by the CLIENT accepted by SPC without changes; each of these together with the GTC forming an integral part of the CONTRACT.
Any changes to the CONTRACT have to be done in writing and need to be signed by SPC and the CLIENT. If the content of the
contractual documents is in contradiction the present order of precedence is given.
3. Scope of Services
SPC and the CLIENT agree on the scope of services in a CONTRACT with supplementary amendments.
4. Compensation for the SERVICE
The CLIENT will compensate the SERVICE to SPC in accordance with the payment terms of the CONTRACT. If not agreed otherwise in the CONTRACT, SPC will charge, based on the time consumed, the hourly fees for the SERVICES on a monthly base with the additional direct expenses.
The fee is calculated according to the fee rates of SPC applicable for the SERVICES. The fees are to be paid net within 30 days of the invoice date in the currency agreed in the CONTRACT.
After this date an overdue interest rate of 10% is due. If any part of the invoice is disputed by the CLIENT, the CLIENT shall notice SPC immediately with reason and shall pay the undisputed part of the invoice without delay.
5. Taxes, fees and charges
All prices and payments to SPC are net and exclusive of any taxes as VAT, sales tax, consumption tax, withholding tax or any other
equivalent taxes or banking fees or charges.
If such taxes, fees or charges have to be paid by SPC they will be marked separately in the invoice and paid by the CLIENT. If the CLIENT is legally bound to retain taxes and/or fees and/or charges on payments towards SPC the CLIENT will immediately or latest 60 days after retention issue a certification concerning the retention of taxes and/or fees and/or charges to SPC which enables SPC to ask for compensation at the tax authorities.
If the compensation is rejected by the tax authorities due to delay, lack or incompleteness of such documents by the CLIENT, the CLIENT will compensate such retentions to SPC after written demand. In case of deduction and/or tax related processes the parties of the CONTRACT will support each other in consideration of the principle of good faith. These include in particular the cooperation and communication with tax authorities especially in case of wrongly levied taxes, the submission of tax declarations or the disclosure of further information to the tax authorities.
6. General obligations of the CLIENT
The CLIENT is obliged to promptly provide SPC with all basic data, information, reviews and approvals required to complete the
SERVICEs in accordance with the CONTRACT.
7. Delivery time
SPC delivers the SERVICEs within the time schedule agreed in the CONTRACT except the execution is delayed by reasons not
attributable to SPC.
8. Professional standards and corrections
SPC will perform the SERVICEs in accordance with the standards of skill, care and diligence generally practiced by members of the
engineering profession currently operating in the same region under similar conditions.
If, within one (1) year after completion or termination of SPC’s SERVICEs (whichever is earlier), it is shown that SPC has failed to meet this standard, and the Client has promptly notified SPC in writing of such failure, SPC will perform such corrective services within the original scope of services as may be necessary to make its SERVICEs conform to such standard. This obligation is the only obligation of SPC and the CLIENT’s exclusive remedy in respect of the quality of the SERVICEs.
SPC will not take any warranties (expressed or implied) for cost estimates, changes or modifications of the availability, operation, performance, etc. of the CLIENT’s or end-user’s facility.
9. Construction or commissioning supervision
The SERVICE provided by SPC does not give any warranty or guarantee for the equipment supplies or quality of the contractor’s
work. Construction contractors retained by the CLIENT shall be fully responsible for the quality of their own work and for the compliance to the given plans and specifications. Only the CLIENT is responsible for the supervision and management of the personnel of the contractor, including the means, methods, techniques, processes and health and safety measures.
10. Defects of the agreed SERVICEs
Any alleged defect in the SERVICEs has to be reported promptly to SPC within ten (10) working days to enable SPC to take
immediate measures to remedy the defects.
11. Delays in Services
If SPC and the CLIENT have agreed in the CONTRACT on certain completion milestones for certain parts of the SERVICE or a final
milestone for the complete SERVICE and if SPC is in delay of such dates for reasons solely attributable to SPC, the CLIENT is entitled to liquidated damages for such a delay. The amount of the liquidated damages for delay is 0.5 % of the fee for the particular phase or partial assignment delayed per each full week of delay. The total aggregate amount of the liquidated damages for delay is limited to five percent (5 %) of the total fee for the SERVICEs rendered by SPC under the CONTRACT. This obligation shall be SPC's sole obligation and the CLIENT's exclusive remedy in respect of the delay of the SERVICEs. This is without prejudice to the liability in case of wilful or grossly negligent breach of duties.
12. Changes to the contract
Any agreement upon schedules, completion dates, prices and/or maximum costs shall be adjusted to:
a. the addition to, modification of or deletion from SERVICEs
b. the discovery of any hidden or other conditions which differ from those shown in or reasonably inferable from the CONTRACT those ordinarily encountered and generally recognised as inherent in work of the type contemplated herein;
c. change in the applicable law or in the interpretation thereof, which increases the cost of or time required for performing the
SERVICEs
d. delay or suspension of, or interference with the SERVICEs by the CLIENT or by any other entity
e. modification to or delay in providing design criteria, decisions or other information needed by SPC
f. any increase in SPC’s costs or in time required for completion of the SERVCICEs due to a Force Majeure event as defined in
section 25 hereof, or any other cause beyond SPC's reasonable control.
If the CLIENT requires changes to be made by SPC to the content of the SERVICEs; or the use of methods, materials and constructions objected to by SPC in writing, SPC shall have no liability for damages, losses or delays arising out of such causes.
13. Completion
If SPC deems it has completed the Services, it shall so notify the CLIENT in writing. The CLIENT shall within ten (10) days thereafter inform SPC in writing of any defects of the SERVICEs for which he considers SPC to be responsible under the CONTRACT. As soon as any such defects are corrected, or as soon as the ten (10) day period for such notice has expired if the CLIENT has not advised SPC of any such defects within the period, the CLIENT shall accept the SERVICEs in writing or they shall be deemed accepted.
14. The project team
SPC shall, for all purposes, be deemed to be an independent consultant and nothing in the CONTRACT shall be construed to make
the Consultant the agent, employee or servant of the CLIENT. SPC decides which of its employees are deployed to fulfill the CONTRACT and is, at any time, free to change such deployment with a preceding information of the CLIENT.
15. Non-solicitation
Both parties will not hire away staff or employ, including by way of third parties, staff of the other party to the CONTRACT who have
worked on the realisation of the projects, during the duration of the contract or for 12 months after the end of the contract. In case
of violation of this agreement by one party, the other party has the right to a penalty according to Art. 160 OR in the amount of
CHF 50'000. If the damage to one of the parties higher than this amount, the affected party can claim as well the additional amount if the fault can be substantiated. In case of an employment of an earlier employee of the other party during the CONTRACT duration, the employing party must bear the burden of proving that no breach of the non-solicitation is given.
16. Assignment and sub-contracting of the CONTRACT
Neither party shall, without the prior written consent of the other, assign or subcontract any of its rights or obligations under the
CONTRACT, except that SPC may have parts of the SERVICEs performed by its affiliated entities. In case of any part of the
SERVICEs is performed by SPC's affiliated entities or other subconsultants of SPC, SPC’s responsibility for the SERVICEs
remains unchanged and the CLIENT shall look solely to SPC as if all the SERVICEs were performed by SPC alone.
17. Intellectual property rights
The intellectual property rights to all drawings, specifications, databases and other material supplied by SPC to the CLIENT in accordance to the CONTRACT shall rest with SPC. The CLIENT agrees to use the information contained therein only for the agreed
purpose. The CLIENT agrees not to disclose the information to a third party for purposes other than for which it is intended, without
the prior written consent of SPC. SPC is not responsible for any unauthorised use of the same.
18. Public liability
Each party shall indemnify, defend and hold the other party harmless from all claims, liabilities and causes of action for bodily
injury to and/or death of any person and/or loss of, damage to and/or destruction of third-party property, if and to the extent caused by the negligent acts or omissions of the indemnifying party.
19. Professional liability
SPC shall be liable to the CLIENT for errors, omissions and professional negligence in performing the SERVICEs in accordance
with the CONTRACT, which have caused the Client documented direct damage. SPC has no liability for damages which are caused
by reasons or circumstances not attributable to SPC or which are beyond the reasonable control of the Consultant.
20. Limitation of liability
Notwithstanding anything contained in the CONTRACT, SPC’s total aggregate liability under or in relation to the CONTRACT (including any breach thereof) or the SERVICEs shall in no case exceed
a. the amount of the total fee (exclusive of direct expenses) paid to the Consultant for the Services if the total value of the Contract
is less than 750’000 CHF; or
b. 750’000 CHF plus ten percent (10%) of such part of the total fee (exclusive of direct expenses) paid to Consultant that exceeds
750’000 CHF if the total value of the Contract is 750’000 CHF or more. The Consultant shall have no liability for any minor individual
damage of less than 10'000 CHF.
Claims of the CLIENT towards SPC are not accepted if they can be claimed as well to a third party. In no event shall SPC have any liability under or in relation to the CONTRACT (including any breach thereof) or SERVICEs for any indirect or consequential damages of any nature whatsoever such as but not limited to damages arising out of or pertaining to loss of use of property, loss of profits or other revenue, interest, loss of product, increased expenses or business interruption, however the same may be caused.
The liability in case of professional negligence stays valid.
21. Liability period
The liability of SPC under or in relation to the CONTRACT or SERVICEs shall in all cases expire after one (1) year from the date of acceptance of the SERVICEs or the date when the SERVICEs are deemed accepted as set out in section 13 (Completion) hereof.
All claims to SPC shall be presented immediately upon detection, however before the expiry of the liability period.
22. Insurances and limitations
To cover its professional liability with respect to the SERVICEs performed under the Contract (see chapter 19), SPC shall maintain
professional indemnity insurance for engineering undertakings. SPC’s liability for damages caused by errors, omissions or other professional negligence is limited to the maximum liability defined in section 20 hereof however only to the extent and amount the liability is covered by the professional liability insurance. To cover its public liability (18), SPC shall maintain general liability insurance covering bodily injury and third-party property damage with a limit of not less than 1'000'000 CHF annual aggregate.
23. Remedies
All of the parties' rights, liabilities, responsibilities and remedies arising out of and relating to the CONTRACT (including any breach thereof) shall be exclusively those expressly set forth in the CONTRACT or provided by the applicable mandatory law.
24. Suspension and termination of the CONTRACT
The CLIENT may suspend or terminate the CONTRACT at its convenience upon thirty (30) days’ prior written notice to SPC. SPC may suspend or terminate the CONTRACT if payments are thirty (30) days or more overdue, or the CLIENT or other project
participants have delayed or neglected to fulfil their obligations thus preventing the proper execution of the SERVICEs by SPC and such default has not been corrected within thirty (30) days of the written notice to the CLIENT, or the CLIENT has requested to
deviate from applicable laws and regulations, professional standards as described in section 8 hereof or the working ethics of SPC.
In addition, either party may terminate the CONTRACT upon written notice to the other in the event the other party becomes insolvent or bankrupt, or is the debtor in any receivership or bankruptcy proceeding or effects a general assignment for the benefit of its creditors, or in the event the other party commits a substantial breach of the CONTRACT and fails to correct or take reasonable steps to correct the breach within ten (10) days after receipt of written notice from the other party thereof. Upon any
suspension or termination of the CONTRACT, the CLIENT shall pay SPC the costs incurred and fees earned until the effective date
of termination, and neither party shall have any further liability to the other.
25. Force Majeure
No delay in or failure of performance by either party, other than payment of money, shall constitute default hereunder if and to the
extent such delay or failure is caused by any occurrence beyond the reasonable control of the party otherwise required to perform
and which by the exercise of reasonable diligence by said party could not have been prevented.
26. Confidentiality
During the duration of the CONTRACT and two (2) years thereafter, SPC shall not disclose any information regarding the CLIENT’s business, industrial plants or any aspects of the project, verbally or in writing to any third party without the CLIENT's prior written consent.
Notwithstanding the foregoing and if not agreed otherwise, SPC shall be entitled to describe the SERVICEs and/or the project by title and generally as to scope, type and size, and state the name of the CLIENT in qualifications, promotional and experience materials (so called references). These materials shall not reveal details of the project that contain proprietary technology or trade secrets, but may include such information that is published or otherwise available in the public domain.
27. Validity
In the event that any part of CONTRACT is held to be void or unenforceable, the parties agree to negotiate in good faith to reach
an equitable provision which shall affect the intent of the parties as set forth in the CONTRACT. This is valid as well for the closure of possible gaps within the CONTRACT.
28. Applicable law
The Contract shall be governed by and interpreted in accordance with the laws of Switzerland. The application of the United Nations
Convention of the International Sale of Goods (CISG - "Vienna purchasing law") shall be ruled out.
29. Settlement of disputes
All disputes arising out of or in connection with the CONTRACT shall be finally settled by arbitration in accordance with the Arbitration Rules of the Switzerland. The arbitration procedure shall be conducted Zürich, Switzerland.
30. Information
All notices and information pertaining to the CONTRACT must be in writing but shall be sufficient if sent by telefax or email to the
official addresses of the parties.
31. Deviating terms and conditions
Deviating terms and conditions of the CLIENT are not accepted if not explicitly agreed otherwise. The non-acceptance is applicable
as well on terms which are not described in the terms and conditions of SPC but are mentioned in the terms and conditions of
the CLIENT and deviate from common law and are unfavourable for SPC.