Terms & Conditions of Purchase

1. General

1.1 Parties. These general terms and conditions of purchase (the “GTCP”) apply to the contractual relationship between SWISSto12 SA (CHE-370.774.769), a company incorporated under the laws of Switzerland, with its registered office at Avenue des Baumettes 19, 1020 Renens/VD, Switzerland (“SWISSto12”) and its suppliers, service providers and sub-contractors (each, the “Supplier”; SWISSto12 and the Supplier, collectively, the “Parties”, and each, individually, a “Party”). 

1.2 Contract. These GTCP apply concurrently with the specific purchase order(s) placed by SWISSto12 with the Supplier, including its or their annexes and schedules (each, a “Purchase Order”), which together constitute the purchase contract between the Parties (the “Contract”). Purchase Orders are only binding if placed in writing. The Contract shall be entered into by the Parties upon acceptance of the Purchase Order as set out in Clause 3. Unless specifically agreed otherwise by the Parties in writing, these GTCP apply exclusively, and any other general terms and conditions, in particular any general terms and conditions of the Supplier, are excluded and shall not apply. 

1.3 Interpretation and Order of Precedence. (a) Whenever the words “include”, “includes” or “including” are used in these GTCP, they are deemed to be followed by the words “without limitation”. The words “hereof”, “herein” and “hereunder” and words of similar import, when used in these GTCP, refer to these GTCP as a whole and not to any particular provision of these GTCP; and the use of “or” is not intended to be exclusive unless expressly indicated otherwise. Where the context so permits, words in the singular shall be deemed to include the plural and vice versa. (b) In case of conflicts or discrepancies between the Purchase Order, its annexes and/or schedules, and these GTCP, these documents shall prevail in the following decreasing order of priority: (i) the Purchase Order (as amended, from time to time); (ii) the annexes and/or schedules to the Purchase Order (as amended, from time to time), excluding any other terms and conditions, in particular any general terms and conditions of the Supplier; and (iii) these GTCP. 

2. Scope of Work

The Supplier shall perform the services and/or deliver the products as set out in the relevant Purchase Order (collectively, the “Services” and the “Products”, respectively), which defines, inter alia, the specifications, and time and place of performance/delivery, of the Services and/or Products. On-time performance/delivery is a material obligation under the Contract. 

3. Purchase Orders Acceptance 

Acceptance of a Purchase Order by the Supplier shall occur within seven (7) calendar days as of the date the Purchase Order was issued either by (i) the Supplier sending an acknowledgement of receipt of the Purchase Order to SWISSto12 at [email protected], without modification, by mail, email or other electronic means; or (ii) starting the performance of the Services and/or work on the Products under the Purchase Order with notification to SWISSto12 thereof.

4. Change Order 

4.1 Principle. In the event that SWISSto12 is willing to change the terms and conditions of the Services and/or the Products under any Purchase Order, the Parties shall agree in writing and in a timely manner on the terms of the change. 

4.2 Continued Performance. Without a written agreement to the contrary duly signed by SWISSto12’s authorized Representatives, the Supplier shall continue performance of the Services and/or Products as unchanged during the examination of the proposed changes. 

5. Price and Customs Formalities 

5.1 Principle. The price for the Services and/or the Products shall be firm fixed and non-revisable (except in accordance with the terms of these GTCP) and shall be set out in the relevant Purchase Order (the “Price”). The Price is expressed in the currency set out in the relevant Purchase Order and according to “Delivered at Place” (DAP Incoterms® 2020) unless otherwise agreed in the Purchase Order (the “Incoterm”). 

5.2 Taxes and Charges. The Price is inclusive of any taxes, duties, licenses, fees and levies or similar charges of any kind whatsoever in accordance with the Incoterm but is exclusive of value added taxes (VAT) which shall be billed by the Supplier in addition to the Price, if applicable. If SWISSto12 pays directly any tax or other charge under the Supplier’s responsibility, SWISSto12 may withhold or deduct part of the payment made to the Supplier to the proportion of such tax from the payment due to the Supplier. In such event, SWISSto12 will pay the remaining amount to the Supplier and shall send to the Supplier written proof of payment of such tax or charge. 

6. Invoices and Payment Terms 

6.1 Invoices. Invoices shall be issued and addressed to SWISSto12 by the Supplier in accordance with the payment schedule detailed in the Purchase Order at [email protected]. 

6.2 Payment Terms. Unless otherwise stated in the relevant Purchase Order, all payments from SWISSto12 to the Supplier shall be made via direct bank transfer to the bank account designated by the Supplier in writing and shall be made within sixty (60) calendar days from SWISSto12’s receipt of the corresponding invoice in accordance with Clause 6.3, unless rejected pursuant to Clause 6.4 or the payment thereof is not due under Clause 6.5, net of any set off made by SWISSto12 for any amount owned by the Supplier to SWISSto12. 

6.3 Invoices Details. Invoices shall contain the Purchase Order’s reference, description of the Services and/or Products, including number of items ordered and delivered, series number, currency as per the Purchase Order, declaration or certificate of origin and customs tariff number of goods (minimum 6-digit HS code)/EU customs tariff code (TARIC), where applicable, date and references of the delivery slip, as well as the price of each Service and/or Product. Moreover, the invoice shall mention the payment due date and the rate of late payment liquidated damages (if any). 

6.4 Invoice Rejection. If the Supplier issues an invoice that fails to meet any legal and/or contractual requirement, SWISSto12 may return the invoice to the Supplier stating the reason for the rejection. The Supplier shall then issue a new, correct invoice and the delay for payment shall start on the date on which such correct invoice is received by SWISSto12, provided that such invoice has been submitted in accordance with Clause 6.3, is not again rejected under this Clause 6.4 and the payment thereof is due under Clause 6.5. In case of late payment of a correct invoice, interest on late payment shall be paid by SWISSTO12 at a rate of one percent (1%) per annum subject to SWISSto12 having received a late payment notice (stating that SWISSto12 has failed to pay by the due date) to the following address
[email protected].

6.5 Final Acceptance. The payment of the Price, any part thereof, or any amount under the Contract is subject to the condition precedent that SWISSto12 has given its Final Acceptance of the relevant Services and/or Products for the milestone concerned.

6.6 No Acceptance. Payment by SWISSto12 of the Price or any other amount under the Contract shall not constitute acceptance of the Services and/or Products, or any part thereof, and is without prejudice to any rights that SWISSto12 may have by reason of the Services and/or the Products failing to comply with any specification relating to the Services and/or Products, or any breach by the Supplier of the Contract.

7. Delivery/Performance 

7.1 Principle. Unless otherwise specified in the Purchase Order, the Products shall be delivered in accordance with the Incoterm described in Clause 5.1 to SWISSto12’s premises in Renens/VD, Switzerland and in accordance with the delivery schedule set out in the relevant Purchase Order. Unless otherwise specified in the Purchase Order, the Services shall be performed from the Supplier’s premises in the country of its registered office in accordance with the performance schedule set out in the relevant Purchase Order. 

7.2 Email Notification and Advance Delivery/Performance. The Supplier shall notify by email to SWISSto12’s authorized Representatives as soon as the Services and/or Products are ready to be performed/delivered. The Supplier shall not deliver the Products or perform the Services in advance without SWISSto12’s prior written consent. If the Services and/or Products include the provision of technical and/or quality documentation, such documentation shall form an integral part of the Purchase Order. The delivery of the Services and/or Products shall therefore only be completed once the technical and/or quality documentation has been handed over to SWISSto12 as contemplated in the relevant Purchase Order. 

7.3 Labelling. The Supplier shall ensure proper labelling, including any necessary instructions relating to risks associated with the Products, and if applicable in accordance with any SWISSto12’s instructions. If a Product ordered has a limited shelf life, the material shall be identified on each container with the applicable specification, lot number, date of manufacture, and expiration date. 

8. Late Performance/Delivery 

8.1 Principle. In the event that the Supplier fails to (i) perform the Services and/or deliver the Products, including the relevant documentation, on the due date, and/or (ii) provide Services and/or Products meeting the requirements of the Contract, SWISSto12 shall be entitled, without prior notice of default being necessary and without prejudice to any other remedy available under the Contract, including termination pursuant to Clause 20.1, at law, in equity or otherwise, to claim liquidated damages as per Clause 8.2. 

8.2 Liquidated Damages. Unless otherwise specified in the Purchase Order, the rate of liquidated damages for late performance of Services and/or delivery of Products shall be at a rate of one per cent (1%) of the total Price of the relevant Purchase Order per week of delay up to a maximum of ten per cent (10%) of such Price, which shall be due upon notification of the liquidated damages amount by SWISSto12. A delay or a reasonable expectation of a delay under Clause 8.1 of more than thirty (30) calendar days shall be deemed a material breach of the Contract within the meaning of Clause 20.1. 

8.3 No Recovery. Liquidated damages represent a reasonable determination of the damages’ amount that SWISSto12 will suffer in connection with the late delivery, without prejudice to evidence of a higher damage demonstrated by SWISSto12 and is not to be considered as a penalty. The Supplier hereby waives any defense to SWISSto12’s recovery of such liquidated damages on the basis that actual damages are ascertainable or that such liquidated damages do not represent a reasonable determination of SWISSto12’s damages. 

8.4 Notification and Steps in Case of Risk of Late Delivery. The Supplier shall promptly notify SWISSto12 of any event that could jeopardize its compliance with a performance or delivery date as set out in the relevant Purchase Order and shall take all commercially reasonable steps to avoid or limit a late performance or delivery by taking any corrective measure necessary (without prejudice to the Supplier’s performance obligations). 

9. Transfer of Risks and Loss, and Title 

Title to each Product shall pass simultaneously with the transfer of risks and loss as defined under the chosen Incoterm as per Clause 5.1. 

10. SWISSto12 Furnished Items

10.1. When the performance of the Services or delivery of the Products by the Supplier requires that one or more items owned or provided by SWISSto12 be handed over to the Supplier, such as drawings, designs and other specifications and tools (collectively, the “Customer Furnished Items”), the Supplier shall, subject to Clause 15, assume custody of such Customer Furnished Items under its entire responsibility. The Customer Furnished Items are SWISSto12’s property and shall be used by the Supplier only to fulfil Purchase Orders from SWISSto12. The Supplier shall keep Customer Furnished Items clearly labelled as being Swissto12’s property. 

10.2. SWISSto12 does not provide a guarantee regarding the nature or quality of the Customer Furnished Items, which are furnished “as is”. The Supplier shall not make any change in the manufacturing, process, components, or design of the Customer Furnished Items without SWISSto12’s prior written consent. The Supplier shall return all Customer Furnished Items to SWISSto12 immediately upon request. 

10.3. The Supplier shall be liable for the loss of, or any damage to, the Customer Furnished Items between the time SWISSto12 physically delivers the relevant Customer Furnished Items to the Supplier and the time they are physically delivered back to SWISSto12. The Supplier shall, at its cost, store and maintain all such property in good condition and repair. 

10.4. The Supplier shall always maintain sufficient insurance coverage with respect to Customer Furnished Items (including with respect to loss, damage, theft or destruction). Upon request by SWISSto12, evidence of such insurance shall be submitted to SWISSto12 by the Supplier. All amounts received under such insurance shall be paid directly to SWISSto12. 

10.5. The Supplier shall not pledge, charge, or grant liens over, or claim any title, right or interest in or to Customer Furnished Items. 

11.Final Acceptance 

11.1 Principle. Upon performance or delivery, and within thirty (30) calendar days from receipt of the Services or delivery of the Product at the place set forth in Clause 7.1, or such other longer reasonable period as determined by SWISSto12 and notified to the Supplier, SWISSto12 shall conduct a post-delivery inspection of the performed Services and delivered Products. Provided the relevant Service/Product has demonstrated full compliance with the requirements of the Contract at the entire satisfaction of SWISSto12, SWISSto12 shall give its final acceptance thereof (the “Final Acceptance”). Acceptance of any Service and/or Product shall only occur when SWISSto12 formally accepts it in writing. In the event Final Acceptance has not been notified in writing or in the event that comments and/or requests for corrective measures have not been made within fifteen (15) days of receipt of said Service and/or Product, SWISSto12’s acceptance of the Service and/or Product is presumed to have been granted. 

11.2 Non-Compliant Services/Products. At any time before the Final Acceptance, SWISSto12 may notify the Supplier that the relevant Service/Product is non-compliant as it does not meet the requirements of the Contract and reject such Service/Product, indicating those particulars not meeting such requirements. In such case, without prejudice to any other remedies which may be available under the Contract (including liquidated damages), at law, in equity or otherwise, SWISSto12 shall have the right to return the non-compliant Service/Product to the Supplier at the Supplier’s sole risks and expenses (including removal, investigations, installation, re-installation, testing works, transportation costs incurred by SWISSto12 or the Supplier) for repair or replacement within a reasonable deadline set forth by SWISSto12. 

11.3 Remedies. In the event that (i) the Supplier has demonstrated a refusal to repair or replace the non-compliant Service/Product within the reasonable deadline set forth by SWISSto12 in accordance with Clause 11.2, such as by failing to propose acceptable remedial measures within seven (7) calendar days from the rejection notification (unless a longer period for such proposal has been agreed in writing by the Parties); (ii) the Supplier fails or is reasonably expected by SWISSto12 to fail to successfully repair or replace the non-compliant Service/Product within the reasonable deadline set forth by SWISSto12 in accordance with Clause 11.2, SWISSto12 may elect, at its discretion, to repair or have repaired, or replace or have replaced (including by procuring third parties repair the relevant Service/Product and purchasing service or product identical or similar to the non-compliant Service/Product from third parties) the non-compliant Service/Product, and the Supplier shall be liable to SWISSto12, for any extra costs for such repair or replacement in excess of the relevant portion of the Price agreed with Supplier pursuant to the relevant Purchase Order. 

11.4 Final Acceptance of Repaired/Replacement Services/Products. Any repaired or replacement Service/Product shall be subject to the Final Acceptance procedure mutatis mutandis. 

11.5 Certificate of Conformity. When stipulated in the relevant Purchase Order, the Supplier shall complete, sign, and send with the relevant deliverables a duly completed Supplier’s certificate of conformity. The Supplier shall perform, at its own expense, the inspections and controls specifically requested in the Purchase Order or those required to obtain a certificate of conformity and shall establish the corresponding protocols. 

11.6 Costs. All costs incurred and damages sustained by SWISSto12 as a result of non-compliance that will imply repair or replacement that will cause new inspections under the provisions hereof shall be borne by the Supplier. 

11.7 No Waiver. Any inspection and Final Acceptance by SWISSto12 shall be without prejudice to any contractual and legal warranties. 

12. Warranty 

12.1 Principle. The Supplier warrants to SWISSto12 that the Services and the Products comply with the Contract, including the specifications of the Purchase Order, the agreed item data sheet, the technical specifications and/or the statement of work, with all legal requirements and good industry standards and that they have been performed with due care and diligence (without prejudice to the Supplier’s performance obligations) and that SWISSto12 shall receive good title thereon. 

12.2 Warranty Period. The warranty period is twenty-four (24) months from the date of the Final Acceptance of the relevant Service or Product (the “Warranty Period”). 

12.3 Remedies. In the event that any Service or Product does not conform with the warranty set out in Clause 12.1 during the Warranty Period, SWISSto12 may, at its sole discretion, without prejudice to any other remedies that SWISSto12 and/or its customers may have against the Supplier under the Contract, at law, in equity or otherwise, in order to bring such Service or Product into conformity and at the Supplier’s costs, expenses and risks, elect to (i) have the relevant Service or Product repaired or replaced by the Supplier and/or any third party; or (ii) repair or replace the relevant Service or Product itself. 

12.4 Repair/Replacement. Provided SWISSto12 elects repair or replacement by the Supplier, the Supplier shall repair or replace the relevant Service or Product within seven (7) calendar days as from the notification of the defect unless a longer period is agreed between the Parties in writing. 

12.5 Warranty Period of Repaired/Replacement Services/Products. Any repaired Product or Service by the Supplier under the terms of this Clause 12 shall be covered by a new warranty period equal to the remaining period of time of the initial Warranty Period. Any replaced Product or Service under the terms of this Clause 12 shall be covered by a new warranty period of twenty-four (24) months from delivery or performance, respectively. 

13. Inspections 

SWISSto12 and its Representatives shall have unrestricted access (including remote access) to the Supplier’s facilities, where the Purchase Order is performed during normal business hours in order to conduct inspections, subject to twenty-four (24) hours prior notice and to such Representatives being subject to appropriate confidentiality undertakings. 

14. Insurance 

The Supplier shall carry and maintain insurance coverage necessary to be properly insured against all risks which may arise from or in connection with the performance of the Contract. When requested by SWISSto12, and at least once a year the Supplier shall furnish satisfactory evidence of such insurance coverage. 

15. Intellectual Property

15.1 Background IP Ownership. Any registered and unregistered intellectual property rights and any other rights entitled to or eligible for other forms of legal protection, including patents, designs, trademarks, services marks, copyrights (including rights in computer software and code), trade secrets and rights in semi-conductor layouts, inventions, distinctive signs, trade names, business names, domain names, works of authorship, know-how, data, results, concept, discovery, development, research, technology, software, firmware, content, material, tool, process, technique, plan, device, apparatus, specification, design, prototype, circuit, layout, algorithm, program, code, documentation, catalogues, brochures, illustrations or other material or information, tangible or intangible, including corresponding applications to register and rights to apply for registration, as well as the associated goodwill (collectively, the “IP”) (i) owned or controlled by either Party prior to entering into the Purchase Order, or (ii) created, discovered, generated or developed by either Party at any time outside the scope of the Contract (collectively, the “Background IP”) shall remain the property of the owning Party. 

15.2 Background IP License. (a) The Supplier hereby grants to SWISSto12 a worldwide, non-exclusive, transferable, sublicensable (through multiple tiers) irrevocable and perpetual license to use, have used and exploit the Background IP of the Supplier to the extent that such Background IP is necessary to use and exploit the Products, Services and/or the Foreground IP. (b) SWISSto12 grants no IP rights to the Supplier except for a limited, non-transferrable, non-sublicensable right to use the Background IP contained in the Customer Furnished Items solely for the performance of the Services or the development of Products in accordance with the Contract. Any Background IP included in any Customer Furnished Items shall be returned to SWISSto12 with the Customer Furnished Items in accordance with Clause 10 and all of the Supplier’s records thereof shall be destroyed. 

15.3 Foreground IP Ownership. Any IP generated by, or on behalf of, the Supplier within the framework of the performance of the Services and/or the Products (collectively, the “Foreground IP”) shall be the sole property of SWISSto12 and vest exclusively and immediately in SWISSto12 upon generation. 

15.4 Hold Harmless. The Supplier shall hold harmless and shall fully indemnify SWISSto12, its Affiliates and customers from and against any claim brought in any place whatsoever by any third party founded on the infringement of that third party’s IP by the use and/or exploitation of the Services or Products. SWISSto12 shall notify the Supplier of any claims of such kind. In the event of a disputed claim, whether substantiated or not, the Supplier undertakes under the aforementioned hold harmless and indemnification obligation, at SWISSto12’ discretion, either to cooperate with or actively assist the relevant person during proceedings or to intervene voluntarily and promptly in proceedings and to manage the legal action. In the event of an extra-judicial claim, whether substantiated or not, the Supplier undertakes to take all necessary measures to settle the dispute with the third party and to keep SWISSto12 informed. If a user has to discontinue using all or part of the Services or Products, without prejudice to SWISSto12’s right to terminate the Purchase Order, the Supplier undertakes to immediately implement one of the following solutions, in any event at its sole expense: either obtain the right for the user to freely use and exploit the Product or Service; or provide a fit, form and function equivalent modification or replacement so that the user’s rights may no longer be contested. 

15.5 No Assertion. The Supplier will not assert or transfer to any third party a right to assert against SWISSto12, its Affiliates and/or customers any claim with respect to IP that the Supplier has or may have with respect to the Products and/or Services. 

15.6 Further Actions. The Supplier shall undertake all reasonable actions and execute and deliver all documents and instruments necessary for SWISSto12, its Affiliates and its customers to give full effect to this Clause 15, including executing any document confirming any direct vesting or formalizing any assignment hereunder. 
2 In the event of SWISSto12 it includes any of its Affiliates  

16. Confidentiality

16.1 Principle. The Receiving Party will maintain the secrecy and confidentiality of the Disclosing Party’s Confidential Information received or obtained in connection with the Contract during the term of the Contract and for a period of five (5) year after the date on which all obligations under the Contract have been completed or termination of the Contract for whatever reason (the “Non-Disclosure Period”). During the Non-Disclosure Period, the Receiving Party shall (i) not disclose the Disclosing Party’s Confidential Information to any third party without the prior written consent of the Disclosing Party, (ii) only use the Disclosing Party’s Confidential Information for the purpose of the Contract and as contemplated by the Contract; (iii) not copy or reverse engineer, reverse compile, nor attempt to derive the composition or underlying code or other information of the Disclosing Party’s Confidential Information; (iv) not remove any confidentiality, proprietary, or other similar markings from Confidential Information; and (v) take all necessary measures to with its Representatives and its subcontractors and their respective Representatives to ensure strict compliance with the obligations herein. 

16.2 Confidential Information. “Confidential Information” shall mean and include any and all proprietary and/or non-public information and materials (including any information contained in Customer Furnished Items) disclosed by one Party2 (the “Disclosing Party”) to the other Party (the “Receiving Party”), or otherwise received or
obtained by the Receiving Party, in view or in connection with the Contract, whether technical, commercial, financial, or otherwise (in oral, written, or any other form), and including any and all intellectual property in any form or stage of development, and any other subject matter, material, or information that is considered to be proprietary or confidential and/or that otherwise qualifies for protection under any law providing or creating intellectual property rights. Information and materials will be considered Confidential Information regardless of the form or manner of disclosure or whether or not it is marked as “confidential” or with a similar label. Confidential Information shall include information generated on the basis of Confidential Information. The Receiving Party may only disclose Confidential Information on a strictly need-to-know basis to those of its Affiliates and its and their respective directors, employees, representatives or agents (collectively, the “Representatives”) provided that, in the case of the Supplier, such Representative is not developing, manufacturing, selling, marketing or offering at the time of disclosure of Confidential Information to it, or intending to develop, manufacture, sell, market or offer within three (3) years from the time of disclosure of the Confidential Information to it any product or service that is substantially similar to any product or service that SWISSto12 develops, manufactures or sells, that is otherwise contemplated in the Confidential Information or that SWISSto12 may develop, manufacture, sell or offer in connection with the Purchase Order. The Receiving Party is responsible for compliance with the terms of this Clause 16 by its Representatives to which Confidential Information of the Disclosing Party is disclosed.

16.3 Exclusion. Confidential Information shall not include information that the Receiving Party can evidence: (i) was discovered or created by, or was otherwise in the possession of the Receiving Party before its receipt from the Disclosing Party; (ii) is or becomes available to the public through no fault of the Receiving Party, its subcontractors and/or any of its or their Representatives; (iii) is received by the Receiving Party in good faith from a third party having no duty of confidentiality to the Disclosing Party; (iv) is required to be disclosed by law or court action (in which case the Receiving Party shall immediately notify the Disclosing Party to allow the Disclosing Party the opportunity to oppose such disclosure); or (v) is independently developed by the Receiving Party without the use or benefit of Confidential Information of the Disclosing Party as evidenced by written records. The burden of proof of showing that information or materials fall within one of the exclusions above shall
rest with the Receiving Party.

16.4 Cease Use and Return/Destruction. Upon completion of all obligations under the Contract or termination of the Contract for whatever reason, or at the earlier request of the Disclosing Party, the Receiving Party shall, and shall cause its relevant Representatives to, (i) immediately discontinue any use of the Confidential Information of the Disclosing Party; (ii) return to the Disclosing Party, or, at the election of the Disclosing Party, destroy, all information and materials (in any form) that include, incorporate, or otherwise contain Confidential Information of the Disclosing Party; and (iii) provide written confirmation thereof. If any Confidential Information is stored in data processing machines or on the data carriers thereof, such Confidential Information must be deleted in a way as to make recovery impossible. Notwithstanding the above, if the Receiving Party is unable to provide an unlimited confirmation of destruction by reason of any inability of its electronic storage systems to destroy completely the documents (for example as a consequence of automatic back-up or archiving operations) then it shall provide a qualified confirmation stating that it has used its best commercial efforts to delete the primary source materials in question and copies thereof from its systems. Any such residual Confidential Information on the Receiving Party’s systems shall remain subject to the obligations of confidentiality and non-use under this Agreement beyond the term of this Agreement. For the sake of clarity, any Supplier’s Confidential Information included into deliverable data will not be returned by SWISSto12 and any use shall be governed by Clause 15.2 hereinabove.

16.5 NDA. Any specific non-disclosure agreement entered by and between the Parties shall apply and remain unaffected.

17. Compliance with Laws, Regulations and Export/Import Licenses

17.1 Principle. The Supplier shall, and shall cause its subcontractors and suppliers to, comply with all applicable laws and regulations, including anti-bribery, anti-corruption, sanctions, financial and trade restrictions, export control, competition and anti-trust, data protection laws and regulations, and laws and regulations concerning health, safety and environment, including those pertaining to products, chemical substances and dangerous preparations (e.g., REACH, RoHs), including during their transportation to the place of delivery, supply of minerals extracted in conflict areas, circular economy waste (e.g., reuse and recycling) . 

17.2 Export Licenses. The Supplier shall notify SWISSto12, using SWISSto12’s form referred to as the “Commodity Export Classification Certificate” (“CECC”), should all or part of a Service or Product, including, without limitation, the technologies used for its development and/or manufacture be subject to any export control laws and regulations. The Supplier shall ensure that all classification information delivered is complete and accurate. To the extent possible, the CECC shall be delivered with the Supplier’s proposal/offer, or at the latest prior to acceptance of the Purchase Order. The issuance of the Purchase Order is conditioned upon SWISSto12 having the CECC duly completed and signed by the Supplier. The Supplier warrants that the Supplier has obtained, and shall maintain on a continued basis, all necessary official approvals, licenses, permits or authorizations required for the export, transit, import and use of any Services and/or Products under the Purchase Order (if any). The Supplier shall prepare and submit the related documentation and carry out all necessary formalities to that aim in a timely manner so as not to have an adverse effect on the performance or delivery dates. Should a license/authorization be refused or withdrawn prior to the delivery of the Products and/or performance of the Services, the Supplier shall notify SWISSto12 immediately. SWISSto12 shall be entitled to terminate the relevant Purchase Order and obtain full refund of the respective Order. 

17.3 Agreement Rules. The Supplier shall ensure that the provisions of this Clause 17 shall be flowed down on its subcontractors and suppliers, if any. 

18. Subcontracting

18.1 Principle. The Supplier may not delegate or subcontract the Services and/or the Products including any part of thereof, in whole or in part, without the prior written consent of SWISSto12 (the “Authorized Subcontractors”). The Supplier shall be responsible for the performance of the Services and Products by the Authorized Subcontractors. Any approval by SWISSto12 to subcontract shall not release the Supplier from any obligation or liability under the relevant Contract. 

18.2 Agreement Rules. The right of SWISSto12 to conduct inspections and acceptance under Clause 13 shall apply mutatis mutandis to any Authorized Subcontractor of the Supplier and the Supplier shall be responsible for flowing down these provisions to the Authorized Subcontractors. 

19. Liability 

19.1 Liability and Hold Harmless. The Supplier is liable for the performance of its obligations under the Contract and any Purchase Order. SWISSto12 is entitled to claim indemnification for all damages and losses that it and its Affiliates have suffered due to the acts or omissions of the Supplier, its agents, employees, or subcontractors. The Supplier is liable and shall indemnify and hold harmless SWISSto12 and its Affiliates for any and all liability for third-party IP infringement claims, death, illness or injury, as well as damages and losses caused to SWISSto12 or its Affiliates or any third party that are attributable to the Supplier or to its agents, employees, or subcontractors. 

19.2 Limitation of Liability. Except in respect of liability for death or personal injury, and save in case of fraud, misrepresentation, gross negligence, or willful misconduct of the Supplier or its subcontractor, as applicable, infringement of third-party IP, breach of its confidentiality obligations, breach of personal data protection, anti-corruption, anti-bribery laws and/or export control laws and regulations or any other event in which liability may not be excluded or limited, as a matter of law, the Supplier’s liability in respect of any claim for loss or damage arising out of or in connection with the performance of Services and/or the supply of Products under a Purchase Order shall be limited to one hundred and ten percent (110%) of the Price of the relevant Purchase Order. 

19.3 Exclusion of Liability. Notwithstanding Clause 19.3 and save in case of fraud, misrepresentation, gross negligence, willful misconduct or infringement of third-party IP of the liable Party, neither Party shall in any event be liable for any form of consequential, punitive or indirect loss or damage, including any loss of use, goodwill, business, profit or contract in connection with the Contract. 

20. Purchase Order Termination 

20.1 Principle. Purchase Orders are subject, in whole or in part, to termination by SWISSto12 if the Supplier (i) commits or is reasonably expected by SWISSto12 to commit a material breach of the Contract including failure to (a) perform any Services and/or deliver any Products under the Purchase Order in accordance with terms thereof and/or within the applicable deadlines, or (b) obtain or maintain any relevant official approvals, licenses, permits or authorizations required for the export, transit, import and use of any Services and/or Products under the Purchase Order; (ii) is or is reasonably expected by SWISSto12 to become insolvent or subject to assignment for the benefit of creditors, bankruptcy or any similar proceedings; and/or (iii) breaches or is reasonably expected by SWISSto12 to breach any anti-corruption or anti-bribery laws or regulations applicable to it. Notwithstanding the above, a ten (10) calendar day grace period shall be granted to the Supplier in connection with number (i) above on the condition that the Supplier has confirmed in writing that it is taking measures to cure, or prevent the occurrence, of such material breach prior to the beginning of such grace period. 

20.2 Consequences of Termination. Without prejudice to any other remedies which may be available to SWISSto12 under the Contract, at law, in equity or otherwise, upon termination under Clause 20.1, (i) the Supplier shall cease the performance of the Purchase Order; (ii) SWISSto12 may, at its discretion, elect (a) to keep and retain ownership and use for any purpose whatsoever all or part of the completed Services and Products that have been performed/delivered and/or (b) to purchase and use for any purpose whatsoever all or part of the completed and partially completed Services and Products not yet performed/delivered, against payment of a compensation equal to the necessary costs actually incurred by the Supplier in direct connection with the performance of the Services and/or Products so kept or purchased by SWISSto12, as demonstrated by documentary evidence by the Supplier (the “Termination Claim”), where, for the avoidance of doubt, the compensation amount shall under no circumstances exceed the original Price for the relevant Products or Services set out in the Purchase Order; (iii) the Price under the relevant Order shall be replaced by the Termination Claim and no compensation other than the Termination Claim, as applicable, shall be due by SWISSto12 to the Subcontractor and advance payment made in the framework of the Contract shall be set off and/or reimbursed to SWISSto12; (iv) for the avoidance of doubt, SWISSto12 shall retain ownership of all Foreground IP and be assigned all Foreground IP of which SWISSto12 is not already the owner and all licenses granted to SWISSto12 under the Contract shall be maintained, at no costs to SWISSto12; (v) the Supplier shall return to SWISSto12 any Customer Furnished Items and any inventory held and materials acquired by SWISSto12 in connection with the terminated Purchase Order, such as raw materials and components, at no costs to SWISSto12; (vi) the Supplier shall pay to SWISSto12 any amount then due and owed to SWISSto12 under the Contract; and (vii) SWISSto12 may purchase services and/or products identical or similar to the Services and/or Products which remained undelivered by the Supplier, and the Supplier shall be liable to SWISSto12, for any extra costs for such identical or similar services or products in excess of the relevant portion of the Price agreed with Supplier pursuant to the relevant Purchase Order. 

21. Force Majeure 

21.1 Principle. Neither Party shall be liable for any delay or failure of performance due solely to unforeseeable circumstances that are beyond its control and without the Party’s, its suppliers’ or subcontractors’ fault or negligence (each, a “Force Majeure Event”), provided that the Party subject to such Force Majeure Event (i) shall have given written notice thereof to the other Party as soon as the same could be anticipated, and if it could not be anticipated, promptly upon its occurrence; (ii) makes its best commercial efforts to mitigate the expected and actual resulting impact of such Force Majeure Event on its obligations under the Contract and make deliveries as expeditiously as possible; and (iii) upon termination of a Force Majeure Event, promptly resumes its obligations under the Contract. 

21.2 Force Majeure Event. Force Majeure Event (i) includes embargos, epidemics, quarantine restrictions, natural disasters, unusually severe weather, floods, earthquakes, fire, explosions, power surges, acts of God, or the public enemy, declared or undeclared war, civil unrest, riots, acts or threats of terrorism, as well as other force majeure cases commonly recognized under applicable law, but (ii) excludes any non-obtaining, refusal, suspension, cancellation, withdrawal or non-renewal of export licenses, social conflict (except national strikes), labor shortages, defective tooling, transportation difficulties, equipment failure, breakdowns, lockouts, increase in materials and inability to obtain materials, except where such circumstance is itself caused by a Force Majeure Event. 

21.3 Cancellation. If SWISSto12 reasonably believes that the delay or anticipated delay in the Supplier’s deliveries may impair its ability to meet its manufacturing schedules or may otherwise interfere with its operations or commitments, SWISSto12 may at its option, and without liability to the Supplier, cancel/terminate outstanding deliveries under the Contract wholly or in part. 

22. Obsolescence 

22.1 Principle. The Supplier represents and warrants that no obsolete parts, materials, or components of the Products are part of the Purchase Order. The Supplier shall ensure that any part, material, or component of the Products under the relevant Purchase Order remain procurable for the duration of the Purchase Order/ Contract. 

22.2 Costs. Throughout the duration of any Purchase Order, it is expressly agreed between the Parties that all SWISSto12 and Supplier costs associated with treatment of any eventual obsolescence cases occurring to the Products performed under a Purchase Order shall be borne by the Supplier. If the Supplier does not advise SWISSto12 in due time of such obsolescence, the Supplier commits that the potential redesign shall not impact the execution of the obligations of the Supplier under the Purchase Order. 

23. Miscellaneous 

23.1 Amendment. In the event that SWISSto12 amends these GTCP and provided that SWISSto12 has informed the Supplier of such an amendment and SWISSto12 has not received a written notice of objection within thirty (30) calendar days of informing the Supplier, the amended GTCP shall be deemed approved by the Supplier without reservation and apply to the Contract. In the event that the Supplier has objected to the amendment, the Contract already entered by the Parties at the date the GTCP are amended shall remain subject to the version of the GTCP that was in force at the date the Contract was entered, and all contracts entered thereafter shall be subject to the latest version of the GTCP. Without prejudice to the foregoing, any term of the Contract that is not set out in the GTCP, including any term in any Contract schedule and/or appendix, may be amended or modified only by a written instrument duly executed by both Parties. 

23.2 Assignment. The Supplier may not assign or transfer, in whole or in part, or delegate all or any portion of its respective rights or obligations under the Contract without the prior written consent of SWISSto12. Any assignment, transfer or delegation made without such consent shall be null and void. SWISSto12 shall be entitled to assign any of its rights and obligations under the Contract to any person or entity (i) which directly or indirectly controls, or is controlled by, or is under common control with SWISSto12; or (ii) which directly or indirectly beneficially owns or holds 50% or more of the voting rights of SWISSto12, where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise (each such person or entity, an “Affiliate”). 

23.3 Communications. Unless otherwise agreed in the Purchase Order, any notice or communication within the framework of the Contract shall be in writing (including by email) and shall be either personally delivered, mailed by registered mail, or emailed (with copy to follow by registered mail), to the addresses of the Parties set out in the Purchase Order. It being understood that the burden of proving that the information has been correctly communicated shall at all times remain with the issuing Party. Written communication shall be deemed to have taken place on the date of receipt of such communication by the receiving Party. 

23.4 Independent Contractors. The Supplier shall at all times be an independent contractor, and not an agent, partner or joint venturer of SWISSto12, and nothing contained in the Contract shall be deemed to create any agency, partnership or joint venture relationship between the Parties. The Parties and their respective Representatives shall have no authority to bind or commit the other Party to any obligation or agreement, or speak for, represent, or obligate the other Party in any way. 

23.5 Severability. The Parties agree that if any part of the Contract (including these GTCP and any Purchase Order) is found to be invalid, void, unenforceable or unlawful under any enactment or rule of law pertaining thereto of any jurisdiction, the legality, validity and enforceability of the remainder of the Contract in that jurisdiction shall not be affected, and the legality, validity and enforceability of the Contract shall not be affected in any other jurisdiction. Any invalid, void, unenforceable or unlawful provision shall be adjusted rather than voided, if possible, in order to achieve then intent of the Parties to the fullest extent possible. 

23.6 Survival. The completion of all obligations under the Contract or termination of the Contract will not relieve the Parties of any obligation accrued prior to such expiry or termination. Clauses 1, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17.2, 17.3, 19, 20, 21, 22 and 23, as well as any Clause which by its nature shall survive the completion of all obligations under the Contract or termination of the Contract, shall remain in full force after such completion or termination for whatever reason. 

23.7 No Waiver. Failure or delay of SWISSto12 in exercising any of its rights shall in no way constitute a waiver of those rights nor shall such failure excuse the Supplier from any of its obligations. No single or partial exercise of any right, power, privilege, or remedy by SWISSto12 shall prevent any further or other exercise thereof or the exercise of any other right or remedy. The rights, powers, and remedies of SWISSto12 provided in the Contract are cumulative and are not exclusive of any rights, powers or remedies provided by law or otherwise. 

24. Applicable Law and Dispute Resolution 

24.1 Applicable Law. These GTCP and the Contract shall be governed, interpreted, and construed by, under and pursuant to the substantive laws of Switzerland, without regard to conflict of laws principles thereof. The application of the United Nations Convention on Contracts for the International Sale of Products is expressly excluded. 

24.2 Amicable Settlement. The Parties shall attempt to settle any dispute, controversy or claim arising out of or in relation with the Contract amicably. If no amicable settlement is reached within thirty (30) calendar days of a Party raising a dispute, controversy or claim with the other Party, either Party may submit the dispute, controversy or claim to the competent courts in accordance with Clause 24.3. 

24.3 Jurisdiction. Any dispute, controversy or claim arising out of or in relation with the Contract, including the validity, invalidity, breach or termination thereof, which cannot be settled amicably pursuant to Clause 24.2, shall be subject to the exclusive jurisdiction of the courts of Geneva, Switzerland, the right of appeal to the Swiss Federal Tribunal being reserved.