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EN GTCS OF KUMMLER+MATTER LTD. Kummler+Matter Ltd. General Terms & Conditions of Business 18/10/2022, 00A Rietstrasse 14 +41 44 247 47 47 8108 Dällikon E-Mail schreiben Switzerland 2 CONTENTS 1 SCOPE OF APPLICATION 3 2 VALIDITY OF OFFERS 3 3 SCOPE OF DELIVERIES AND SERVICES 3 4 PRICES 3 5 PRICE ADJUSTMENTS 3 6 TERMS OF PAYMENT 3 7 DEADLINES AND DUE DATES 3 8 CUSTOMER'S OBLIGATIONS TO COOPERATE 4 9 RESERVATION OF TITLE 4 10 PROMOTIONAL BROCHURES AND TECHNICAL DOCUMENTATION 4 11 HARD- AND SOFTWARE 4 12 ASSUMPTION OF RISK 4 13 TRANSPORT AND PACKAGING 5
14 INSPECTION AND ACCEPTANCE 5
15 WARRANTY
5 16 WARRANTY PERIOD 5 17 LIABILITY 6 18 COORDINATION ACTIVITIES 6 19 TERMINATION OF CONTRACT 6 20 PROPRIETARY RIGHTS 6 21 SECRECY 6 22 DATA PROTECTION 7 23 COMPLIANCE, CORPORATE GOVERNANCE 7 24 ECO-FRIENDLY PRODUCTS 7 25 SAFETY AND LABOUR LAW 7 26 OTHER PROVISIONS 7 27 PLACE OF JURISDICTION AND APPLICABLE LAW 8 kummlermatter.ch 3 1 SCOPE OF APPLICATION 5 PRICE ADJUSTMENTS These General Terms and Conditions (hereinafter "GTCs") K+M reserves the right to adjust prices in line with inflation. of Kummler+Matter AG (hereinafter "K+M") apply to all An appropriate price adjustment can also be made deliveries and services from K+M. Different terms and regardless of the agreed type of remuneration - if (i) state or conditions of the buyer, ordering party or client (hereinafter official laws or regulations, (ii) exchange rates, (ii) changes in "the Customer") are only valid if they have been expressly raw material prices, (iii) changes in energy prices, (iv) delivery accepted by K+M in writing. times, (v) execution or construction processes or (vi) the type or scope of the agreed deliveries and services are subject to 2 VALIDITY OF OFFERS changes for reasons for which K+M is not responsible and (vii) if the Customer does not comply with the obligations to A written offer from K+M is valid for a period of 60 days from cooperate, or does not fulfil these correctly or in good time the date of issue, unless otherwise agreed. (e.g. if information provided by the Customer or documents supplied do not correspond to the actual conditions or are 3 SCOPE OF DELIVERIES AND SERVICES incomplete). The deliveries and services of K+M are definitively listed in the respectively applicable contractual documents. Weather 6 TERMS OF PAYMENT protection measures (e.g. snow clearing) do not form part of The payment terms are 30 days net from the invoice date the scope of services. K+M is authorised to make any changes without deduction and excluding offsetting from the date of that result in improvements as long as these do not result in the invoice or the agreed payment date. Unless otherwise price increases. Commercially available installation and other agreed, K+M can issue monthly invoices. The payment period material will be used unless otherwise agreed. We reserve must also be observed if, for example, transport, delivery, the right to deliver more or less than the agreed quantity for assembly, commissioning or acceptance of the goods and technical reasons. services are delayed or made impossible for reasons for which K+M is not responsible, or if insignificant parts are missing or 4 PRICES reworking proves to be necessary which make the use of the K+M prices are stated net in Swiss francs (CHF), excluding VAT, deliveries and services impossible in the interim. ex works (EXW), without packaging. All ancillary costs such In the event of late payment, the Customer goes into default as freight, packaging, insurance, export, transit, import and without separate reminder and shall pay interest on arrears of other permits as well as documentation, certificates, etc. shall 8% p.a. from the 31st day. A delay in payment entitles K+M be borne by the Customer. Likewise, the Customer shall bear to interrupt its deliveries and services and, after a reasonable the costs of any taxes, duties, fees, customs duties and the like period of grace, to withdraw from the contract in whole or in that are levied in connection with the agreed deliveries and part. We reserve the right to assert claims for damages. services. Work on time and materials basis as well as deliveries and 7 DEADLINES AND DUE DATES services that go beyond what was originally agreed (e.g. Deadlines and due dates confirmed by K+M are only for changes requested by the Customer or additional expenses scheduling purposes. For the delivery of equipment and caused by the Customer) or for which K+M is not responsible materials, the delivery times of the manufacturers or suppliers will be charged additionally. The K+M agency prices valid at alone are decisive. If a specific date is agreed instead of a the time the service is rendered shall apply to agency work; for deadline, this is equivalent to the last day of a deadline. supplements, the conditions set by K+M at the time of levying If K+M is prevented from meeting delivery or service deadlines of supplement. for reasons for which K+M is not responsible, the deadlines For orders net invoice value under CHF 300.-, K+M is entitled shall be extended appropriately. Corresponding impediments to levy a separate small quantity surcharge of CHF 100. In exist in particular if (i) the Customer does not provide the addition, K+M is entitled to levy a surcharge of 20% of the information and documents necessary for the execution of net invoice value but at least CH 500.- for deliveries and the agreed deliveries and services in good time, completely services that must be delivered ex works (EXW) within 24 and with correct content, or if the Customer subsequently hours of receipt of the order or result in changes to production modifies these and thus causes a delay in the deliveries and procedures due to their urgency. services; (ii) the Customer or a third party does not meet their kummlermatter.ch 4 payment, cooperation or other obligations or obligations, or 10 PROMOTIONAL BROCHURES AND does not do so sufficiently or in good time; or (iii) if there are TECHNICAL DOCUMENTATION impediments that K+M cannot avert despite exercising due Promotional brochures and catalogues as well as plans, care and thus make it impossible or unreasonably difficult drawings and other technical documents are only binding for K+M to provide deliveries and services, such as bad if they form an integral part of the respective contract and weather, strikes, lockouts, acts of terrorism, war, civil unrest , have been expressly guaranteed as binding. K+M reserves all natural disasters, fire, water, accidents, epidemics, pandemics, rights to the relevant data and documents. significant operational disruptions, labour disputes, official actions and failures to act, import and export bans, energy 11 HARD- AND SOFTWARE and raw material shortages, late or incorrect delivery of the If the deliveries and services also include hardware and necessary raw materials, semi-finished or finished products, software, the Customer is granted the non-exclusive and rejects of important workpieces etc. ("force majeure"). non-transferable right to use the hardware and software (including the relevant documentation) for the agreed 8 CUSTOMER'S OBLIGATIONS TO COOPERATE purpose. All other rights remain unrestricted with K+M or The Customer shall perform the agreed, necessary and/ any third-party suppliers (in this case, the relevant delivery or customary preparatory work in a professional manner. and license conditions of the third-party supplier apply This includes in particular the establishment of a proper exclusively). Unless expressly agreed otherwise, the Customer project organisation as well as the timely examination and is not entitled to grant sublicenses, make copies (except for acceptance of the designs, interim results, evaluations, etc. archival purposes), update, upgrade, expand, disassemble, submitted by K+M. decompile, decrypt, reverse engineer the software, etc. In
The Customer is also obliged to provide K+M with all the event of an infringement, K+M is entitled to revoke the necessary documentation, data and information required for
Customer's right to use the software without notice. the execution of the deliveries and services to be provided Desired or required certificates or approvals must be specified by K+M in a timely manner and in a suitable or agreed form by the Customer when requesting an offer. Subsequent tests and to inform K+M to draw attention to special technical or other expenses in this connection are at the expense of requirements and site-specific regulations and standards. If the Customer. the material is supplied by the Customer, it is also responsible for the complete, timely and correctly packaged delivery to
12 ASSUMPTION OF RISK the respective K+M installation site. If K+M provides services, the Customer bears the risk at all When performing services at the Customer's site, the Customer times with regard to its own works and machines as well must ensure the safety of K+M personnel at all times and enable as with regard to the materials, spare parts and aids made the personnel to use suitable workshops, installation areas and available by the latter (including scrap metal, recyclable workplaces free of charge. In the event of inadequate safety, construction components, dangerous goods, etc.). In the case K+M is entitled to refuse work or to stop work immediately or of supply contracts, the risk passes to the Customer when to take the necessary measures at the expense of the Customer. the delivery leaves the factory or, in the case of work (supply) If the Customer does not comply with its obligations to contracts, when the delivery is installed. If the transport of a cooperate, or does not do so correctly or does not do so in delivery is delayed at the request of the Customer or for other good time, K+M shall be entitled to fulfil these obligations reasons for which K+M is not responsible, the risk passes itself at the Customer's expense or to have them fulfilled by to the Customer at the original point in time (scheduled for third parties. delivery ex works). From this point on, the delivery will be stored at the Customer's expense and risk. 9 RESERVATION OF TITLE Deliveries and services remain the property of K+M until 13 TRANSPORT AND PACKAGING full payment. The Customer undertakes to cooperate in the Transport including associated packaging (Incoterms 2020) fulfilment of all formal requirements that are indispensable takes place at the expense and risk of the Customer. K+M for the legal validity of a retention of title at first request and must be informed in good time of any special requests in free of charge. connection with transport and any complaints must be addressed immediately to K+M and the last carrier. kummlermatter.ch 5 14 INSPECTION AND ACCEPTANCE part or service; as well as wear and tear in normal operation (e.g. due to overhead powerline network topography, driving If agreed, an acceptance inspection to be carried out jointly by frequency, electricity consumption, recuperation, weather, the Customer and K+M will take place. Partial acceptances can air pollution, EMC). The warranty is generally excluded if the be conducted where necessary. These do not replace the final Customer or a third party makes changes or repairs without acceptance. The final acceptance inspection must be carried the prior written consent of K+M. For the rest, K+M does not out within 30 days after K+M has reported readiness for guarantee that the software or programs can be used erroracceptance. Any defects must be recorded in a report signed free and without interruption in all the configurations desired by both parties. Minor defects that do not significantly affect by the Customer. This also applies to material supplied or functionality do not prevent acceptance. made available on site or by the Customer. For the rest, the Customer must examine the deliveries and For deliveries and services from subcontractors or suppliers services provided by K+M within a reasonable period of time, that are specified by the Customer, K+M assumes the but at the latest within 14 calendar days of receipt and report warranty exclusively within the scope of the warranty any defects immediately in writing. If the Customer fails to obligation of the subcontractors or suppliers concerned. For do so, the deliveries and services are deemed to have been devices and machines, the respective guarantee or warranty approved or accepted without reservation. of the corresponding manufacturer or supplier applies in any The acceptance or approval of the deliveries and services is case and at most. also deemed to have taken place (i) if the Customer does not participate in any acceptance inspection, refuses to sign an 16 WARRANTY PERIOD acceptance reports or refuses acceptance for other reasons for which K+M is not responsible or is not carried out within 30 The warranty period is twelve months. If joint acceptance days after notification of readiness for acceptance; (ii) if the has been agreed between the parties, the warranty period Customer puts the goods and services into use, puts them into begins at the point in time at which acceptance took place or, storage or otherwise tacitly accepts them; or (iii) if Customer according to Section 14, should have taken place at the latest. refuses acceptance without justification. For the rest, the warranty period begins in the case of services Warranty claims for defects that were not discovered as a with the completion of the service provision and in the case result of the failure to carry out an inspection or a possible of deliveries with the departure of the deliveries ex works. If joint acceptance by the Customer using the usual care are void. the deliveries and services, or their dispatch, transport, etc., are delayed for reasons for which K+M is not responsible, 15 WARRANTY the warranty period ends no later than 24 months after notification of readiness for delivery or service. In the event of a warranty claim, K+M can, at its own For spare parts, upgrades, repaired parts and the like, the discretion, eliminate the defects by rectification, deliver goods warranty period ends 6 months after the original warranty or works free of defects in exchange, or grant a corresponding period according to paragraph 1 of this clause 16. price reduction. Replaced parts become the property of K+M. If a defect is determined, the Customer is obliged to 17 LIABILITY immediately take suitable measures to reduce the damage and to give K+M a reasonable amount of time and opportunity to K+M is liable for immediate and direct damage that K+M rectify the defect. culpably caused in fulfilling the contract up to a maximum K+M bears the costs incurred in its works for any rectification of 10% of the contract amount, in total a maximum of CHF of defects. If the defect cannot be rectified in the K+M works, 1,000,000 (one million Swiss francs). Any further liability the additional costs associated with this will be borne by the for damage of any kind and for whatever legal reason is Customer. The costs for the installation and removal as well as waived to the extent permitted by law, in particular liability the transport of defective parts shall be borne by the Customer for indirect and indirect damage, consequential damage, in any case. unforeseeable damage and pure financial loss (e.g. loss of Excluded from the warranty are defects that can be traced sales, business interruption, lost profit, missed savings, claims back to circumstances for which K+M is not responsible. for recourse; damage from or in connection with power pickup These include, in particular, disruptions due to non-compliance of trolleybuses becoming detached from overhead powerline, with operating and maintenance instructions; excessive or etc.). Liability for personal injury remains unlimited. The right otherwise improper use; chemical or electrolytic influences; of conversion is excluded in any case. unsuitable operating resources; influences from a 3rd party kummlermatter.ch 6 18 COORDINATION ACTIVITIES occurs because the Customer misuses the goods and services or uses them in connection with programs or equipment that The current K+M coordination activity rates apply to were not supplied by K+M, then K+M is discharged from any coordination activities. Coordination activity reports signed liability. by the Customer are deemed to be acknowledgement of corresponding deliveries and services. Coordination activity 21 SECRECY reports are also considered approved if the Customer does not object to them within 7 calendar days of delivery. The Customer undertakes to use the data and documents in accordance with Section 10, as well as know-how, data and 19 TERMINATION OF CONTRACT other information from K+M that is not generally accessible, of which he becomes aware, only within the scope of the The cancellation options and procedures applicable in the purpose of the contract and to treat them confidentially. contractual documents applicable in the respective case Any other use requires the prior written consent of K+M. apply. Unless otherwise agreed, a mutual right of termination The confidentiality obligation continues for 5 years after the of six months to the end of a calendar month applies to end of the contractual relationship. In the event of a breach, recurring services. K+M's expenses are to be compensated with 10% of the total In any case, termination for good cause with immediate contract amount (further damages are reserved). effect remains reserved. Good causes exists in particular (i) in the case of culpable serious breach of contract by the other 22 DATA PROTECTION contractual party, which is not completely remedied within a reasonable period of grace despite a written warning, or (ii) The Customer undertakes and guarantees that personal data if the other contractual party is permanently insolvent or has relating to K+M or third parties, of which the Customer obtains filed for bankruptcy or composition proceedings against it or cognizance in connection with the business relationship with is opened or the opening thereof is rejected for lack of assets. K+M, shall be treated confidentially. The Customer must protect all of this information and results from access by third 20 PROPRIETARY RIGHTS parties and observe all other statutory domestic and foreign data protection regulations. If a third party asserts that its proprietary rights have been The obligations remain in force even after Kummler+Matter infringed by the deliveries and services of K+M, then K+M AG has completed the delivery or service and after the and the Customer will support each other in defending business relationship with the Customer has ended. against these claims. The Customer is obliged to inform K+M If the Customer infringes one of these obligations, K+M is immediately if a third party asserts corresponding claims entitled to demand a penalty of 5% of the gross invoice against K+M or the Customer under any legal title. The amount for each infringement. K+M is entitled to the agreed Customer may not recognise such claims of its own accord. If penalty regardless of whether the Customer is at fault; Proof it is determined by a final judgment or if K+M itself expressly of corresponding damage is not required. Further claims for acknowledges that the deliveries and services by K+M damages by K+M remain unaffected, even in the case of directly infringe a proprietary right of a third party, then K+M minor negligence on the part of the Customer. shall, to the exclusion of all other claims, choose either (i) the deliveries and replace or modify services to the extent that 23 COMPLIANCE, CORPORATE GOVERNANCE the infringement of property rights no longer exists (whereby the replaced or modified deliveries and services must remain The Customer must inform K+M in writing at the latest upon suitable for the use intended by the Customer); (ii) obtain acceptance of the offer if the Customer or members of its for the Customer the right to continue using the deliveries management have been convicted by a national court of bribery and services (e.g. by acquiring a license from the third party); of public officials within the last five years before the order (iii) take back the deliveries and services in whole or in part confirmation and must inform K+M immediately in writing if and reimburse the Customer for the fee paid for them; or (iv) the Customer or members of its management are accused in a indemnify the Customer against any claims of the third party. national court of bribery of public officials at any time between The liability of K+M from this Section 20 is, in addition to the confirmation of the order and the acceptance of the goods/ Section 17, additionally limited to 10% of the total contract services by K+M. This information is intended to meet the amount for the affected part of the deliveries and services requirements of the OECD Anti-Bribery Recommendation in provided by K+M. If the infringement of proprietary rights connection with government export guarantees. kummlermatter.ch 7 The Customer is obliged to comply with the laws of the that comes as close as possible to its legal and financial applicable jurisdiction(s). In particular, the Customer will meaning and purpose. neither actively nor passively, directly or indirectly, participate The Customer may only assign or transfer the contract and in any form of bribery, violation of the basic rights of his the rights and obligations arising therefrom in whole or in employees or child labour. The Customer will also take part to third parties (including group or group companies) responsibility for the health and safety of his employees at with the prior written consent of K+M. work, observe environmental protection laws and promote K+M is entitled to engage third parties (sub-contractors, suband demand compliance with this code of conduct from its agents, sub-suppliers) to fulfil its contractual obligations. suppliers as best as possible. If partial deliveries or services are provided, the provisions If the Customer culpably violates these obligations, K+M is relating to acceptance and warranty will be applied to these entitled, without prejudice to further claims, to terminate the separately. contract in whole or in part with immediate effect. If the breach If a description in the contract documents permits different of duty can be remedied, this right may only be exercised after interpretations and if this is not corrected in writing before a reasonable period of time has elapsed to remedy the breach the contract is executed, K+M's interpretation shall be of duty. deemed binding. The Customer undertakes to comply with all provisions of In the event of differences between different language the Bouygues CSR Charter, 2022. By accepting the GTCs, the versions of these GTCs, the German version shall prevail. Customer confirms full compliance. 27 PLACE OF JURISDICTION AND APPLICABLE 24 ECO-FRIENDLY PRODUCTS LAW
Our customers shall ensure that energy and natural resources
The exclusive place of jurisdiction is at the registered office are used sparingly when developing products and services. of K+M. However, K+M is also entitled to prosecute the
Our customers shall always comply with the REACH regulation
Customer at his registered office. as well as the specifications of the RoHS directive and the
The legal relationship is exclusively subject to substantive SVHC regulation. Swiss law. The provisions of the "Vienna Sales Convention" (CISG) and the conflict of law provisions of the Federal Act on 25 SAFETY AND LABOUR LAW International Private Law are expressly excluded. When employing personnel, the Customer undertakes to comply with all legal regulations applicable to the employment and leasing of personnel, in particular the regulations on illegal employment, work and residence permits, security, equality and social security contributions. When entering buildings, areas or construction or assembly sites of K+M, the safety rules and regulations of K+M must also be observed. In the event of non-compliance, K+M rejects any liability. 26 OTHER PROVISIONS Changes and additions to these terms and conditions as well as all agreements and legally relevant party declarations must be made in writing to be valid. However, express reservations by K+M with regard to orders, instructions or measures by the Customer or with regard to actual circumstances can be made in writing or verbally. If a provision of these General Terms and Conditions is or becomes invalid in whole or in part, the validity of the remaining provisions shall thereby remain unaffected. In this case, the invalid provision will be replaced by a new provision kummlermatter.ch
