General Terms and Conditions AGB

1Scope of application and validity

1.1.These General Terms and Conditions (hereinafter “GTC”) govern the conclusion, content and execution of contracts for deliveries and services of all kinds provided by Durot Electric GmbH (hereinafter “Company”).

1.2.By concluding the contract, the customer (hereinafter “Customer”) accepts the company’s GTC without restriction. Deviations from these GTC shall only apply if these have been agreed by the parties in writing in the contractual document. The Customer’s general terms and conditions of business or delivery shall not apply.

1.3.The latest version of the General Terms and Conditions of Business and Delivery, which is published on the homepage www.durotelectric.ch, shall apply.

1.4.In the event of contradictions between the terms and conditions of the contractual components, the contract, usually the signed offer, shall take precedence over the terms and conditions of these GTC.

2Offer

2.1The offer shall be prepared on the basis of the request for quotation or the customer’s tender documents. If the company’s offer differs from the request for quotation, the offer shall prevail.

2.2Offers and cost estimates are non-binding.

2.3Unless otherwise agreed between the customer and the company, the company’s offer is valid for one month.

2.4Until the signing of the contract document, an order confirmation by the company or the written acceptance of the offer (order) by the customer, both parties may withdraw from the contract negotiations without financial consequences. Subject to important reasons which have an influence on the deadlines, services or prices mentioned in its offer, the company remains bound by its offer in accordance with Clause 2. 2.3. bound.

3Scope of services

3.1The type, scope and characteristics of the products and services are regulated in the offer or contract. Reference may be made to other documents therein. Services not included will be charged additionally at the prices valid at the time of execution.

3.2The transfer of benefits and risks shall take place upon provision of the services by the company to the customer in accordance with EXW Mörschwil Incoterms 2020.

3.3The contracting parties shall inform each other immediately of any circumstances in their areas of responsibility that jeopardize or could jeopardize the contractual performance.

3.4If the customer fails to comply with its obligations to cooperate, the company shall be released from its further obligation to perform and shall be entitled to adjust the agreed delivery date. Furthermore, the company may withdraw from the contract after issuing a warning to the customer and invoice the costs incurred by the company up to that point.

4Involvement of subcontractors / sub-suppliers

4.1The Contractor is entitled to assign the execution of parts of the services and deliveries defined in the offer to subcontractors.

4.2If a third-party product or a specific subcontractor is specified by the Customer, the Company shall not provide any warranty for these products or services of such subcontractors.

5Obligations of the customer to cooperate

5.1The Customer shall provide the Company in good time with all specifications required for the fulfillment of the contract (e.g. documentation, drawings, provisions, etc.).

5.2The customer shall grant the company the necessary access to its premises and provide the necessary infrastructure, insofar as this is necessary for the provision of services to the customer. Where appropriate and necessary, the Customer shall provide the Company with access to the Customer’s IT systems.

5.3The customer undertakes to make proper use of the deliveries and services of the company and its subcontractors.

5.4The customer must inform the company immediately of any infringements of property rights of which it becomes aware.

5.5Further acts of cooperation by the customer may be agreed separately.

6Dates

6.1Delivery times can only be given as an indication at the time the offer is made. Delivery deadlines are only binding if they have been confirmed in writing by the company. The customer is not entitled to withdraw from the contract due to a delay in delivery and to claim compensation.

6.2If the customer wishes to change the scope of services and if this change requires an adjustment of the deadlines, the company has the right to an appropriate extension of the deadlines and to an adjustment of the remuneration. Both shall be newly agreed in writing. The customer shall take into account the progress of the work and the preparation time required by the company.

6.3The same procedure shall be followed if the customer fails to meet its obligations to cooperate.

6.4In the event of force majeure and disruptions for which the Company is not responsible, such as import and export restrictions, strikes, etc., the agreed delivery periods shall be extended accordingly. The company shall inform the customer as soon as it becomes aware of a delay.

6.5If the agreed delivery date is postponed by the customer by more than 4 weeks, the company reserves the right to charge fees amounting to 5% p.a. of the material or service value.

7Remuneration and terms of payment

7.1The prices for the company’s deliveries and services are based on the current service descriptions. The customer shall be notified of price changes as early as possible. The Company may adjust the prices for the deliveries and services to a reasonable extent during the term of the contract if significant cost factors have changed. In particular, the company is entitled to pass on price surcharges from suppliers or raw material costs. Any price adjustments due to currency fluctuations or changes in technology remain reserved. The customer shall be notified prior to the time of delivery.

7.2Unless otherwise agreed, all prices are quoted net excluding VAT and in Swiss francs (CHF). The corresponding VAT is shown separately. VAT is only not charged in cases where the conditions for tax exemption of export deliveries are met.

7.3Unless otherwise agreed, the offer prices are EXW 9402 Mörschwil SG Incoterms 2020.

7.4Invoices are issued after the services have been provided or, if contractually agreed, after acceptance of the invoiced services. Invoices must be paid within 30 days of receipt. Deviating agreements in the offer or the contract document, in particular any payment plan, remain reserved.

7.5Any objections to the invoice must be raised in writing within 10 days, otherwise the invoice shall be deemed to have been approved by the customer.

7.6After expiry of the payment deadline, the customer shall automatically be in default without any special reminder. The company shall be entitled to 5% interest on arrears from the start of default. The right to claim further damages remains reserved.

7.7If the customer is in default of payment, the company is entitled, without further warning, to suspend all further services to the customer in whole or in part or to suspend services until the company’s claims have been repaid or secured. This shall also apply to claims already rendered by the company at this time but not yet invoiced to the customer, which shall also become due upon the customer’s default in payment. All consequences resulting from such a suspension of performance shall be borne exclusively by the customer.

7.8The company reserves the right to change the terms of payment to advance payment if the customer is in default or if there are justified indications of a payment risk. The company may suspend work until advance payments have been received.

8Retention of title

8.1Ownership of products and materials shall not pass to the customer until the price agreed in the contract has been paid in full.

8.2In the event of default in payment, an application for the opening of insolvency proceedings against the customer or any other culpable breach of material contractual obligations by the customer, the company shall be entitled to demand the return of the items or data subject to retention of title.

9Legal warranty

9.1Within the scope of its duty of care, the company warrants that its offer and services do not infringe any third-party property rights. The customer warrants that the documents, materials and data provided to the company do not infringe any third-party property rights.

9.2Claims by the customer are excluded if the customer is responsible for the infringement of property rights or if the customer does not support the company to a reasonable extent in the defense against third-party claims.

9.3The company shall defend itself at its own expense and risk against claims by third parties for infringement of industrial property rights. The customer shall notify the company of such claims in writing and without delay and shall leave to the company the exclusive conduct of any litigation and the measures for the judicial or extrajudicial settlement of the legal dispute. Under these conditions, the company shall assume any costs incurred by the customer and any damages imposed.

9.4If an action for infringement of industrial property rights is filed or a precautionary measure applied for, the company may, at its own expense, either procure for the customer the right to use the services free of any liability for infringement of industrial property rights or adapt the services or replace them with others that meet the essential requirements. If this is not successful, the company shall be liable for damages.

9.5The benefits under sections 9.3 and 9.4 are excluded for claims under Anglo-American law or from non-European countries.

9.6Hardware elements purchased by the company from third parties are excluded from the legal warranty. The respective warranty and guarantee provisions of the third-party providers shall apply. This also applies within the scope of the material warranty.

10Data protection and confidentiality

10.1The customer undertakes to treat all information of any kind that it receives from the company within the scope of the contractual relationship as strictly confidential and not to pass it on to third parties. This includes in particular, but is not limited to, all information relating to product developments, product design, technical data, operating procedures, prices, etc. Companies that are economically and/or legally affiliated with the customer or the company are not considered third parties, and the customer may only pass on such information to employees who require this information to fulfill the contractual task. A confidentiality agreement must be concluded with them.

10.2The absence of a note of confidentiality on or with the information does not release from the confidentiality obligation.

10.3Unless otherwise agreed, the customer undertakes to return confidential data and documents that have been transmitted or handed over to him to the company immediately upon termination of the contract.

10.4The company complies with Swiss data protection regulations; insofar as deliveries are made abroad and foreign data protection law must be observed, the company also complies with this. The customer shall support the company in complying with foreign data protection regulations, in particular the GDPR.

10.5By accepting these GTC, the customer agrees to the company’s privacy policy in the currently valid version. These documents are permanently available on the company’s website. The customer declares that he is familiar with the document.

11Material warranty

11.1The company guarantees that the products and contractual services it supplies have the agreed properties. It guarantees flawless products in accordance with the published product specifications.

11.2If no dates for inspection and/or acceptance have been contractually agreed, the customer must inspect the deliveries and services immediately upon receipt or collection. If there is a defect, the customer must give notice of this within 10 days of discovery. The date of receipt of the complaint by the company shall be decisive. If the complaint is not made in good time, the rights in respect of defects shall lapse and the deliveries and services shall be deemed to have been approved without reservation.

11.3The customer may not refuse to accept the company’s performance due to insignificant defects.

11.4The customer shall not be entitled to withhold the remuneration owed due to a defect.

11.5In the event of timely notification of a defect, the company shall be entitled to either remedy the defect or supply a replacement within a reasonable period of time. Replaced goods shall become the property of the company.

11.6The material warranty shall expire within 24 months of the Company’s performance.

11.7Excluded from the material warranty are defects which have been implemented by the customer on the basis of design specifications or which are attributable to unauthorized changes or modifications to the goods. Normal wear and tear, defects due to improper storage, stress or use after the transfer of risk and non-reproducible software errors are also excluded from the material warranty. The warranty is limited exclusively to defects that occur upon delivery or final inspection of the parts at the customer’s premises (so-called “zero-km defects” / “zero-hour defects”).

11.8Deviating warranty provisions, such as warranty services for third-party products or the agreement of service levels, as well as the consequences of non-compliance with these (e.g. contractual penalties/credits), must be regulated in the contractual document or in supplementary documents.

11.9Replacement deliveries and the return of repaired goods shall be at the customer’s expense, unless they are made on the basis of the warranty. This also applies to services rendered after expiry of the warranty period The company will prepare a corresponding offer in advance.

11.10If a notice of defects is unjustified, the company is entitled to have the customer reimburse the expenses incurred.

12Liability

12.1Once the company’s services have been successfully inspected, responsibility for the content shall generally pass to the customer. Warranty rights remain reserved in accordance with para. 11.

12.2The Contractor shall only be liable for damage to property and personal injury caused by intent or gross negligence. Otherwise, liability is excluded to the extent permitted by law.

12.3Liability for gross negligence is limited to a maximum of five times the fee amount or five times an annual fee.

12.4In particular, the Contractor shall not be liable:

–for claims arising from the infringement of intellectual property rights which are not published either by the European Patent Office or in one of the countries Germany or Switzerland;

–for claims arising from the infringement of property rights for which the customer is responsible or in which the customer has not supported the company to a reasonable extent in the defense against third-party claims,

–in the event of claims by third parties arising from the infringement of industrial property rights by the company due to products which have been manufactured in accordance with the customer’s specifications or instructions;

–for consequential damages such as loss of profit, loss of savings, damages from third party claims;

–damage attributable to the customer’s lack of cooperation;

–Damage due to force majeure, such as natural disasters, pandemics or epidemics, strikes, lockouts, unrest, import and export bans, acts of terrorism, energy and raw material shortages.

12.5In the case of products expressly marked as functional and/or test samples or prototypes, no liability is accepted for damage resulting from improper use.

13Assignment, transfer and pledge

13.1Rights and obligations arising from the contractual relationship may not be assigned, transferred or pledged to third parties without the prior written consent of the contractual partner. The customer may only refuse consent to the assignment and pledging of claims by the company for good cause.

14Severability clause

14.1In the event that individual clauses of this agreement are invalid in whole or in part, any invalid provisions shall be reinterpreted, supplemented or replaced in such a way that the economic purpose pursued by the invalid provision is achieved. The same applies in the event that there are loopholes in this agreement.

15Applicable law and place of jurisdiction

15.1The legal relationship shall be governed exclusively by the Swiss Code of Obligations to the exclusion of the “United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (so-called Vienna or UN Sales Convention)”. The place of jurisdiction is 9402 Mörschwil SG. However, the company is entitled to take legal action against the customer at his place of residence or registered office.