General Terms and Conditions

1. Scope

These General Terms and Conditions govern the contractual relationship between the customer of MTP Schweiz and MTP Schweiz and apply if the customer (buyer) or MTP Schweiz (seller) acknowledges them expressly or tacitly. Amendments are valid only if confirmed by MTP Schweiz in writing.

2. Services

2.1. Services of MTP Schweiz

2.1.1. Scope of services

MTP Schweiz provides the customer with high-quality services. The order confirmations and/or quotes of MTP Schweiz are authoritative with regard to the content and scope of the various services offered. The achievement of a specific development goal or the provision of a specific service must be expressly defined in the quote or order confirmation.

2.1.2. Additional services

The customer pays a surcharge for additional services. Such a service is deemed accepted if MTP Schweiz and the customer agree in writing, or if MTP Schweiz has agreed verbally and has sent the customer the minutes in writing, by fax or electronically, and the customer does not reject the provision of the additional service in writing within three working days of receipt of the minutes.

2.1.3. Deadlines

If, for reasons for which MTP Schweiz is not responsible, MTP Schweiz is unable to meet the agreed deadlines, these are extended by the period for which MTP Schweiz is not responsible.

2.1.4. Place of performance

Unless expressly agreed otherwise, the registered office of MTP Schweiz is the place of performance for the services of MTP Schweiz under this agreement.

2.2. Obligations of the customer

2.2.1. Prices

The prices payable by the customer are based on the quote or order confirmation of MTP Schweiz. Prices are exclusive of statutory VAT, which MTP Schweiz invoices separately. Travel time counts as working time. After consultation with the customer, MTP Schweiz is entitled to adjust its rates once a year to changed cost factors such as wages, materials, taxes, fees, etc.

2.2.2. Cooperation of the customer

The customer undertakes to provide the information required for the performance of the contract and to use its own resources to support MTP Schweiz in every necessary way and free of charge. Where necessary and appropriate, the customer must ensure adequate working conditions at the project site. The customer informs MTP Schweiz, without being specifically requested, of all documents and circumstances that are relevant to understanding the project and performing the contracts.

2.2.3. Responsibility of the customer

The customer ensures that the services for which it has concluded a contract with MTP Schweiz are used lawfully and in accordance with the contract. In particular, the customer ensures that all deliverables passed on to the customer by MTP Schweiz in the performance of the contract are used exclusively for the purpose and benefit described in the quote or order confirmation. For any other use, the customer indemnifies MTP Schweiz against all damage caused by third-party claims in this respect, including costs arising from litigation. The customer passes on all safety-relevant information for the performance of the contract to MTP Schweiz in an appropriate form.

2.2.4. Specification of applicable regulations

Unless agreed otherwise, the services of MTP Schweiz comply only with the regulations and standards named in the quote or order confirmation. If MTP Schweiz must comply with specific legal or other standards in providing its services, the customer must inform MTP Schweiz of this in writing.

2.2.5. Acceptance by the customer

The customer must regularly review the interim results submitted to it during the term of the contract (test results, documents, specifications, programme parts, etc.) and inform MTP Schweiz immediately in writing of any objections and defects. The customer is entitled to a 30-day test phase for the services provided. The test phase begins either on the basis of a joint agreement or, otherwise, on the day MTP Schweiz declares its work complete. The services of MTP Schweiz are deemed accepted and approved by the customer unless the customer objects in writing to the functions and services within the test period and provides evidence. Documents and materials are deemed accepted if they are delivered to the customer and the customer does not object within 30 days of delivery. If MTP Schweiz accepts the objection and remedies it, the test phase begins on the day MTP Schweiz sends written notice of completion of the remedy (postmark). This does not apply to minor corrections. If MTP Schweiz does not accept the objection, the customer has two months from the date of the postmark of MTP Schweiz's declaration of completion to bring an action. If the action is not pending after this period, the services of MTP Schweiz are deemed accepted. If an acceptance report is drawn up, the date of this report determines the date of completion of the contractual service. Further claims of the customer are excluded to the extent permitted by law. The productive use of a partial or complete service by the customer is in any case deemed acceptance of the productively used partial system or complete system, without an acceptance report being required.

2.2.6. Invoicing and payment terms

MTP Schweiz invoices the customer monthly for its services unless otherwise agreed in writing. The invoice is payable by the customer within 30 days of the invoice date without deduction, unless otherwise agreed. Unless the customer notifies otherwise, the invoice is deemed accepted after the due date. If the customer fails to meet its payment obligation towards MTP Schweiz, the customer is in default on the due date without an express reminder being required. In this case MTP Schweiz is entitled to charge default interest of 8 % p.a. on the invoice amount. MTP Schweiz may also grant the customer a grace period for settlement. After the fruitless expiry of this grace period, MTP Schweiz is entitled to withdraw from the contract and claim damages for non-performance.

2.3. Warranty for work and services

For contracts for work and services, MTP Schweiz undertakes to remedy at its own expense serious defects in its work that disrupt operations and are reported in time. MTP Schweiz will do so by modifying or replacing the defective items with functionally equivalent goods. Further warranty claims of the customer are hereby expressly excluded to the extent permitted by law. Defects are deemed reported in time if the customer submits a written complaint no later than ten days after their first occurrence and within six months after expiry of the period under clause 2.2.5 "Acceptance by the customer". The defects must be reproducible. After expiry of this period, the customer is no longer entitled to assert its warranty claims. Non-material defects that only slightly impair the usefulness of the work and were disregarded during the acceptance test described in clause 3 are to be remedied by the customer at its own expense within a reasonable period. The customer supports MTP Schweiz in remedying defects, in particular by providing workplaces, computers, rooms and telecommunication facilities. On request, the customer provides MTP Schweiz with all documents and information enabling it to assess and remedy the defects.

2.3.1. Liability of MTP SCHWEIZ

MTP Schweiz guarantees high-quality services. Liability for contractual and non-contractual claims is excluded for all direct and indirect damage (personal injury, property damage and financial loss) incurred by the customer in connection with the contractual relationship with MTP Schweiz and its performance, unless the damage is caused by gross negligence or intent. This exclusion of liability also covers liability under Art. 55 of the Swiss Code of Obligations and for auxiliary persons under Art. 101.

2.3.2. Special limitations of liability / customer service

If a customer requests developments that go beyond the application of the recognised state of the art, the customer undertakes not to hold MTP Schweiz liable and to indemnify MTP Schweiz for damage resulting from the application of techniques that were not yet recognised at the time the contract was concluded. If the customer has made changes or repairs to the work results without the consent of MTP Schweiz, or has used the work results for purposes other than those agreed, no liability exists unless MTP Schweiz can be accused of gross negligence or intent. The customer undertakes to indemnify MTP Schweiz against claims for damages attributable to such changes and repairs by the customer or to the customer's use of the work results for a purpose other than the intended one. Furthermore, the customer undertakes to indemnify MTP Schweiz against product liability claims if the claim is not based exclusively on gross negligence or intent of MTP Schweiz. MTP Schweiz accepts no liability for products it subsequently acquires that prove to be defective.

2.4. Special conditions

2.4.1. Rights to the work results

The contractually owed rights to the work results of MTP Schweiz pass to the customer upon full payment of the agreed remuneration. The rights to use the know-how acquired in the course of the work are excluded from the above provisions in accordance with the following provisions:

2.4.2. Patents

If the contractually owed work result of MTP Schweiz is a patentable invention, the customer is entitled to this patent. The preparation and filing of the corresponding patent application is not part of the services of MTP Schweiz. Should such a patent application prove possible, however, MTP Schweiz will inform the customer at an early stage and the parties will agree on all additional tasks in connection with this patent application in a supplementary agreement.

2.4.3. Software copyright

The copyright in software developed by MTP Schweiz for the customer remains with MTP Schweiz or a possible third-party licensor. Upon full and final payment of the agreed remuneration, the customer receives the non-exclusive right to use the software to the intended extent. The customer's right of use also includes the right to edit, copy and pass on the software to a third party if such use is necessary for the purpose intended by the customer at the time of the order and if such purpose was recognisable to MTP Schweiz at that time (e.g. embedded software). Beyond this, the customer may not make the software available to third parties as a stand-alone product unless expressly provided for in the order confirmation or in the contract with MTP Schweiz.

2.4.4. Know-how

MTP Schweiz may use the know-how acquired in the development process free of charge, provided the customer's business secrets remain protected.

2.4.5. CONFIDENTIALITY and RETURN OF PROPERTY

The customer and MTP Schweiz keep confidential all information about the other party that is deemed confidential by the party to which it appears confidential during the tender and during the term of the contract. This obligation applies in particular to business and manufacturing secrets. This obligation expires five years after termination of the contractual relationship. All documents, whether on paper, in electronic or any other form, whether copies or originals, containing information about the other contracting party that falls under this confidentiality obligation, are returned in full after termination. The party obliged to return material is, however, entitled to keep individual copies of the documents to be returned in safe custody. Such individual copies may be used only to fulfil legal obligations or in legal disputes.

2.4.6. Non-solicitation of personnel

During the term of the contract and for a period of one year after its termination, neither the customer nor MTP Schweiz may directly or indirectly employ or engage the services of persons involved in the performance of the services, unless both parties agree to such measures in writing in advance.

2.4.7. Authority to issue directives

If employees of MTP Schweiz perform their contractual duties on the customer's premises, full authority to issue directives within the meaning of employment law remains at all times and entirely with MTP Schweiz.

2.4.8. Contractual penalty

In the event of a breach of the confidentiality obligations, the return of property or the prohibition on poaching, employing or otherwise engaging personnel or other persons, the breaching party pays the injured party a contractual penalty of CHF 50,000. Payment of this contractual penalty does not release the breaching party from further compliance with the breached provision and does not exclude the assertion of other claims for damages.

2.4.9. Set-off

The customer may not set off its own claims against MTP Schweiz without its written consent.

2.5. Warranted characteristics

The only warranted characteristics are those expressly designated as such by MTP Schweiz in the order confirmation or quote. The warranty applies at most until expiry of the warranty period under clause 5. The warranted characteristic is deemed present if no notice of defects was given during the acceptance procedure under clause 3.

2.6. Term and termination

Subject to mandatory statutory provisions and other contractual agreements, either party may terminate a contract at the end of a calendar month with 60 days' notice. The customer undertakes to pay MTP Schweiz the fees and costs incurred up to termination. International sales law. Exclusive place of jurisdiction is Zurich, Switzerland.

3. Products

3.1. Specification

3.1.1. All goods delivered by MTP Schweiz — the seller — must conform to the specifications and descriptions (if any) expressly set out in the contract. Other specifications, descriptive material, written or verbal assurances, correspondence or statements, advertising or sales literature must, where required, be explicitly incorporated into the contract.

3.1.2. It is the responsibility of the buyer, the customer for products of MTP Schweiz, to ensure before acceptance and use that the intended application is suitable and appropriate. This also applies to the selection of suitable materials. The buyer must ensure that the use of the product is appropriate.

3.2. Prices

3.2.1. Unless agreed otherwise, all prices are in Swiss francs, net, delivered to the agreed delivery address in Switzerland, duty paid (DDP, Incoterms 2020), plus statutory VAT. Transport, customs and import handling are included in the price; the price stated in the quote or order confirmation is the invoiced price.

3.2.2. Prices stated in product price lists and published on the website or otherwise may be changed without prior notice.

3.3. Delivery and delay

3.3.1. Delivery is made in accordance with the International Commercial Terms (Incoterms) valid at the time the contract is concluded. Unless agreed otherwise, delivery is made to the agreed delivery address in Switzerland, duty paid (DDP, Incoterms 2020). The seller organises transport, customs clearance and import.

3.3.2. The delivery period begins when:

3.3.3. the contract has been concluded and any securities exceptionally agreed in the order confirmation have been provided by the buyer; and

3.3.4. the seller has all the information required to execute the order; and

3.3.5. the buyer has fulfilled all other contractual obligations incumbent on it.

3.3.6. The time provided for in the contract is not of the essence of the sale, and in the event of a delay in delivery beyond the planned dispatch date the seller is entitled to a reasonable grace period.

3.3.7. An event beyond the seller's control does not constitute grounds for cancelling the order but extends the seller's delivery period by the duration of the event.

3.3.8. The seller is in no way liable for loss of profit, business, contracts, revenue or anticipated savings due to delays in delivery, or for special, indirect or consequential damage of any kind arising from late delivery.

3.4. Transfer of risk

3.4.1. Benefit and risk pass to the buyer upon delivery of the goods at the agreed delivery address. If the buyer refuses or delays acceptance of the goods made available for delivery, benefit and risk pass upon such provision.

3.5. Payment

3.5.1. Unless agreed otherwise, the buyer pays the seller the full invoiced price of the goods within 30 days of delivery (payment terms 30 days net from delivery). No advance payment is required unless otherwise agreed in the order confirmation.

3.5.2. Production or manufacturing begins when the order has been confirmed by the seller in writing. Discrepancies in the order confirmation must be reported to the seller within 3 days.

3.5.3. Regardless of the means of payment used, payment is deemed made only when the seller's account has been fully and irrevocably credited.

3.5.4. In the event of late payment, the seller may, after written notice to the buyer, suspend performance of the contract until payment is received.

3.5.5. If the buyer has not paid any amount due within three (3) months of the respective due date, the seller is entitled (i) to terminate the contract by written notice to the buyer and (ii) to claim damages covering all losses incurred. Such compensation may not exceed the purchase price.

3.6. Retention of title

3.6.1. Title to the goods or materials reserved for the buyer's orders passes to the buyer only when the buyer has made payment to the seller.

3.6.2. At the seller's request, the buyer assists in taking all necessary measures to protect the seller's title to the goods and bears the costs that may arise from such protection.

3.6.3. Retention of title does not affect the transfer of risk.

3.7. Warranty

3.7.1. The seller is liable only for defects in the goods arising under the operating conditions provided for in the contract and with proper use of the goods. The buyer acknowledges that the seller has no control over or knowledge of the conditions under which the goods are operated or stored by the buyer. The seller expressly disclaims any express or implied warranty if the goods are not used or stored in accordance with the technical specifications for a period of time. In particular, the seller's liability does not apply to defects attributable to faulty maintenance, faulty installation or faulty repair by the buyer, or to modifications made without the seller's written consent. The seller is not liable for normal wear and tear.

3.7.2. The seller warrants to the original buyer of the goods, for a period of 12 months (one year) from the date of delivery, that the goods are of the quality, material and workmanship specified in the seller's contractual specifications of the goods. If the goods prove defective within this period, the seller will, at its discretion, repair and/or replace the goods free of charge for the buyer, provided that

3.7.2.1. written notice of the defects has been given to the seller within fourteen (14) days of their appearance; and

3.7.2.2. such defects are found to be attributable to faulty design, material or workmanship of the seller; and

3.7.2.3. the defective goods are returned to the seller's domicile at the buyer's expense.

3.7.3. The buyer arranges, at its own expense, the dismantling and reassembly of equipment other than the goods to the extent necessary to remedy the defect.

3.7.4. This warranty does not apply to equipment that has not been installed or used within the specifications recommended by the seller for the intended and proper use of the equipment. Repaired or replaced goods are returned by the seller free of charge to the original place of delivery, subject, however, to these General Terms and Conditions.

3.7.5. Instead of the remedies mentioned, the seller is entitled, at its own discretion, to refund the price of the defective goods. This does not release the buyer from its other payment obligations.

3.7.6. Subject to this provision, the seller is not liable to the buyer, whether in contract, tort or otherwise, for defects in the goods or for loss of or damage to the goods, and in particular, without limiting the foregoing, for loss of production, loss of profit and other indirect, incidental or consequential damage.

3.7.7. Apart from the warranties expressly set out, the seller gives no warranties, whether express or implied. ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED.

3.8. Exclusion of liability for damage caused by the goods

3.8.1. The seller is not liable for property damage caused by the goods after delivery and while in the buyer's possession. Nor is the seller liable for damage to products manufactured by the buyer or to products belonging to the buyer.

3.8.2. If the seller is held liable towards third parties for property damage as described in the preceding paragraph or for personal injury, the buyer shall indemnify, defend and hold harmless the seller and its officers, employees, subsidiaries, affiliates and distributors from all claims and bear the costs of damages and reasonable legal fees.

3.8.3. If a claim for damages under this clause is asserted by a third party against either party, that party shall immediately inform the other party in writing.

3.9. Force majeure

3.9.1. The seller is not liable for non-performance of its contractual obligations due to force majeure. After notification by the seller to the buyer of such a cause, the seller is granted a reasonable period to fulfil its obligations.

3.9.2. For the purposes of these terms and conditions, force majeure means fire, explosion, flood, lightning, act of terrorism, war, rebellion, riot, sabotage or official strike or similar industrial action, or other events or circumstances.

3.10. Economic loss

3.10.1. Notwithstanding anything contained in these General Terms and Conditions or in the contract, the seller is under no circumstances liable, whether in contract, tort (including negligence or breach of statutory duty) or otherwise, for (i) loss of profit, business, contracts, revenue or anticipated savings, or (ii) special, indirect, incidental or consequential damage of any kind.

3.10.2. In jurisdictions that restrict or exclude limitations or exclusions of remedies or claims for damages or of liability, such as liability for gross negligence or wilful misconduct, or that do not allow the exclusion of implied warranties, the limitations or exclusions of warranties, remedies, damages or liability contained herein apply to the maximum extent permitted by applicable law.

3.10.3. With regard to costs, damages, interest or claims decided by a court or arbitral tribunal in the United States of America and its possessions (the "USA") or applying the laws of the USA or its states or territories, the seller is in any case liable to the buyer only to the extent it would have been liable under Swiss law.

3.11. Confidentiality

3.11.1. Each of the seller and the buyer keeps confidential and does not disclose to third parties, without the prior written consent of the other, any technical or commercial information obtained through discussions, negotiations and other communications relating to the goods and the contract, unless required by law or regulation.

4. Final provisions

4.1. Assignment and transfer of rights and obligations

Neither party may assign the contract or the rights and obligations under the contract to third parties (including affiliated companies) without the prior written consent of the other party; such consent may not be withheld without reason.

4.2. Written form

All amendments and additions to these General Terms and Conditions and all further agreements must be made in writing and signed by both parties to be legally effective.

4.3. Applicable law and place of jurisdiction

Swiss substantive law applies in all cases, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods. Exclusive place of jurisdiction is Zurich, Switzerland.