User Manual

16-5
Siemens Switzerland Ltd www.siemens.com/gamma 2019
Building Technologies Division
Appendix
Ordering information
5. Transfer of Risk and Title
5.1 Risk of damage to or loss of any part of the Supplies shall pass to
the Customer upon delivery.
5.2 The Supplies shall be deemed delivered if and when the Custo-
mer fails to take over the delivery without cause. In such case,
the Supplies can be stored and insured at the risk and expense
of the Customer, any payment shall become due, and all other
consequences of the delivery shall apply accordingly. The same
consequences shall apply on the scheduled date of delivery if the
dispatch is postponed for reasons attributable to
the Customer.
5.3 Title in any part of the Supplies shall remain with Siemens until
Siemens has received full payment for that part of the Supplies.
Upon conclusion of the Contract the Customer authorises Sie-
mens to notify or enter this retention of title into public registers,
books or similar records kept for this purpose by the competent
authorities of the relevant countries and to fulfil all required
formalities at the Customer’s expense.
6. Force Majeure
6.1 A “Force Majeure Event” means any event which is beyond
the reasonable control of a party or its subcontractors, which
could not have been prevented by good industry practice and
which results in a party (the “Affected Party”) being unable to
perform or being delayed in performing in whole or in part its
obligations under this Contract. Force Majeure Events include,
among others, acts of war, riot, civil commotion, terrorism,
natural disaster, epidemic, strikes, lock-outs, attacks on Siemens’
IT systems (such as virus attacks, hacker attacks), non-issuance
of licenses, permits or approvals, or any other act or failure to
act by any public authority, or embargos or any other trade sanc-
tions.
6.2 If a Force Majeure Event occurs, the Affected Party will be
deemed not to be in breach of its obligations under the Con-
tract for so long as and to the extent necessary to overcome the
effects of the Force Majeure Event.
6.3 The Affected Party shall notify the other party as soon as reason-
ably practicable of the For
ce Majeure Event and of its affected
obligations.
6.4 If one or more Force Majeure Events and their effect lasts for a
period of 180 days in aggre gate either party may terminate the
Contract by giving to the other a written notice of termination
with regard to the part of the Supplies not yet delivered. With
regard to the part of the Supplies not delivered, Siemens shall be
entitled to reimbursement from the Customer of its unavoidable
costs related to such termination.
7. Obligations of the Customer
7.1 The Customer shall on its own apply for and obtain all necessary
licenses, permits and approvals required for the commissioning,
acceptance, and use of the Supplies.
7.2 If Supplies are delayed due to circumstances for which Siemens
is not responsible, the Customer shall pay Siemens all additional
costs arising from such delay.
8. Changes
8.1 If applicable laws, rules and regulations, engineering and codes
of practice, and decisions or guidance issued by courts or public
authorities are amended or added to after the date of Contract
signature, Siemens shall be entitled to an adjustment of the
Contract, including inter alia an adjustment of the Contract Price
to reflect any additional costs to be incurred by Siemens, the
time schedules and scope of Supplies, as necessary in order to
compensate for any adverse effects or additional requirements
deriving from such changes.
9. Defects Liability
9.1 In this Contract, and subject to Clause 9.2, a defect shall mean
any non-conformity of the
Supplies with the express terms of this
Contract resulting from circumstances existing in the Supplies at
the time of the transfer of risk to the Customer (“Defects”).
9.2 In particular, the following
shall not be Defects:
a) normal wear and tear, non-conformity resulting from excessive
strain,
b) non-conformity resulting from faulty or negligent handling;
non-compliance with instructions or recommendations in
operation or maintenance manuals and other documents;
c) installation, erection, modification, commissioning, or precom-
missioning, in each case not carried out by Siemens,
d) non-reproducible software errors,
e)
defects which do not significantly impair the use of the respec-
tive Supplies.
9.3 The Customer shall immediately inspect the Supplies upon deli-
very and shall notify Siemens in writing of any Defects without
undue delay. The Customer’s claims in respect of defects shall be
excluded for any apparent defects, if the Customer has failed to
do so.
Upon such written notification, Siemens shall, at its option,
remedy a Defect by repair, replacement, or re-performance. Sie-
mens shall be given a reasonable period of time and opportunity
to remedy the Defect. For this purpose, the Customer shall grant
Siemens working access to the nonconforming Supplies, shall
undertake any necessary disassembly and re-assembly, and shall
provide access to operation and maintenance data, all at no
charge to Siemens. Upon Siemens’ request, the Customer shall
ensure that the title to the replaced parts/items shall pass to
Siemens.
9.4 Unless otherwise agreed, the defects liability period for any part
of the Supplies is 12 months. It starts at the date of transfer of
risk.
For replaced or repaired parts of the Supplies, the defects liability
period is 6 months from the date of replacement or repair, if the
original defects liability period for the Supplies expires earlier.
In any event, the defects liability period shall end no later than
24 months from the beginning of the original defects liability
period.
9.5 If software is defective, Siemens shall only be obliged to provide
the Customer with an updated version of the software in which
the Defect has been remedied when such updated version is
reasonably available from Siemens or, if Siemens is only licensee,
from Siemens’ licensor. If the software has been modified or indi-
vidually developed by Siemens, Siemens shall in addition provide
the Customer with a workaround or other interim corrective so-
lution until the provision of an updated version of the software,
if such workaround or interim solution is feasible at reasonable
expense and if otherwise the Customer’s business operations
would be substantially impeded.
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