Terms & Conditions of Sale

1. General

1.1 These general terms and conditions of sale (the “GTCS”) 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 customers (each, the “Customer”; SWISSto12 and the Customer, collectively, the “Parties”, and each, individually, a “Party”). 

1.2 These GTCS apply concurrently with the specific purchase order(s) placed by the Customer, including its or their annexes and schedules (each, a “Purchase Order”), which together constitute the sale contract between the Parties (the “Contract”), provided that the Contract is entered into by the Parties in accordance with Clause 3. 

1.3 In case of conflicts or discrepancies between the Purchase Order, its annexes and schedules, and these GTCS, these documents shall prevail in the following decreasing order of priority: 

(i) the Purchase Order (as agreed between the Parties and amended, from time to time, by a Change Order approved by SWISSto12); 

(ii) the annexes and/or schedules to the Purchase Order (as agreed between the Parties and as amended, from time to time, by a Change Order approved by SWISSto12) that may include the firm fixed price offer, as signed by SWISSto12 for the Works and Goods (each, as defined below) described in the Purchase Order, excluding any Rough Order of Magnitude (“ROM”) (the “Offer”); and 

(iii) these GTCS. 

1.4 The documents referred in Clause 1.3 apply exclusively. Any reference to general terms and conditions of the Customer or other oral or written agreements which differ from, contradict or supplement any of said documents, including these GTCS, shall be considered as a part of the Contract only if and to the extent that SWISSto12 has agreed to their applicability expressly and in writing. 

1.5 Whenever the words “include”, “includes” or “including” are used in these GTCS, 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 GTCS, refer to these GTCS as a whole and not to any particular provision of these GTCS; 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. 

2. Scope of Work

SWISSto12 shall perform the work including the services and/or deliver the products (the “Goods”) as set out and agreed in the relevant Purchase Order (the “Works”). 

3. Offers and Orders

3.1 Upon enquiry and/or following discussion between SWISSto12 and a Customer, SWISSto12 may issue an Offer to said Customer. Unless otherwise stated in the relevant Offer, Offers made by SWISSto12 shall remain valid for ninety (90) calendar days. Where labelled as firm and fixed, the Offer is binding on SWISSto12 to the extent set out therein and subject to Clauses 3.2 through 3.5 (inclusive). Other estimated offers, as well as ROMs, and in particular, costs, estimates, quotes or any other term, shall be considered as indicative only and not binding on SWISSto12 in any way. 

3.2 An Offer is limited to and only valid for the duration set out therein or in Clause 3.1 (as the case may be). 

3.3 In accordance with the Offer, a Customer may place a Purchase Order. If the Purchase Order has been issued by said Customer on the basis of a binding Offer made by SWISSto12 and provided that the Purchase Order stipulates the same terms and conditions as said binding Offer, the relevant Contract shall be entered into by the Parties upon receipt of the Purchase Order by SWISSto12, who will thereafter issue an acknowledgment of order. 

3.4 In the event that the Purchase Order has been issued by the Customer (i) on the basis of a non-binding Offer made by SWISSto12; (ii) on the basis of a binding Offer made by SWISSto12, where the terms and conditions of the Purchase Order are not the same as those of said Offer; or (iii) without the issuance of an Offer by SWISSto12, the Purchase Order placed by a Customer is a binding offer to enter into a Contract, subject to the Purchase Order being subsequently accepted by SWISSto12, and the relevant Contract shall be entered into by the Parties upon acceptance of the Purchase Order by SWISSto12, at SWISSto12’s sole discretion, through the issuance of an acknowledgment of order. 

3.5 Unless decided otherwise by SWISSto12 on a case-by-case basis, a Contract will be entered into by the Parties in accordance with Clause 3.3 and SWISSto12 will accept a Purchase Order in accordance with Clause 3.4, respectively, only if the Customer has provided SWISSto12 with an acceptable and executed end use/end user certificate. 

4. Change Order

4.1 In the event that the Customer is willing to change the terms and conditions of the Works under any Purchase Order, the Customer shall provide SWISSto12 with a proposed change order detailing such changes (each, a “Change Order”). 

4.2 Any Change Order placed by the Customer shall become binding only when approved by SWISSto12 in writing. Such an approved Change Order will serve as an amendment to the Purchase Order and shall be an integral part of the Contract. The terms and conditions of the Purchase Order, other than those amended by the Change Order, shall apply as unchanged. 

5. Options and Maintenance Services 

5.1 Irrespective of any Clause to the contrary in the Contract, any option set out in an Offer is subject to the terms and conditions, including any validity period with respect to the price and costs related to such option, set out therein. SWISSto12 expressly reserves the right to apply a price escalation or price adjustment to any option that is not selected in accordance with the terms and conditions of, and during the period of validity set out in the relevant Offer. 

5.2 Irrespective of any Clause to the contrary in the Contract, SWISSto12 expressly reserves the right to apply a price escalation or price adjustment to any Prices and other amounts due under the Contract for Works to be continuously or recurringly supplied by SWISSto12 such as maintenance or support services. 

6. Purchase Order Cancellation 

6.1 Purchase Orders entered into by the Parties in accordance with Clause 3 are subject to cancellation by the Customer upon thirty (30) calendar days written notice. SWISSto12 may, by written notice, terminate the Purchase Order for default, in whole or in part, if the Customer fails to make any payment required under the Purchase Order by the date on which payment is due, subject to a thirty (30) calendar day grace period which shall be granted to the Customer on the condition that it has confirmed in writing that it is taking measures to cure such non-payment prior to the beginning of such grace period. 

6.2 Upon a cancellation or termination under Clause 6.1, SWISSto12 shall cease work and hold for the Customer all completed and partially completed articles and work in progress and the Customer shall pay SWISSto12 for (i) all Works that have been performed/delivered to, and accepted by, the Customer; (ii) all completed and partially completed Works, including Works in progress, in relation to the Purchase Order along with any costs for storage thereof; (iii) any cancellation, termination or other charges due to commitments made by SWISSto12 with respect to the Works, or the Purchase Order to its suppliers or subcontractors, or any other costs incurred in connection with the cancellation; (iv) any inventory held and materials acquired by SWISSto12 for the specific purpose of the Works or the Purchase Order, such as raw materials and components; plus (v) a cancellation charge equal to ten percent (10%) of the Price. 

6.3 Once the termination is final SWISSto12 will request disposition instructions for any completed or partially completed Works for which the Customer is entitled. 

7. Price and Customs Formalities 

7.1 Where labelled as firm and fixed, the price for the Works shall be firm and fixed in accordance with the terms of the Offer and shall be set out in the relevant Purchase Order (the “Price”). 

7.2 Unless otherwise stated in the Offer, the Price and any other amounts mentioned in the Contract are expressed in Swiss Francs (CHF) and according to “Ex Works” (EXW Incoterms® 2020). Unless otherwise agreed in writing, Prices and any amount due under the Contract are exclusive of any export, transit and import clearance formalities, and related applicable duties, taxes and other costs, as well as value-added-taxes, stamp duties, levies, fees or equivalent taxes levied on account of sales in or upon exportation from Switzerland, which shall be paid additionally by the Customer. In order to ensure the application of tax exemptions, if applicable, the Customer shall provide SWISSto12 with any necessary information and documents in a timely manner. 

7.3 Any and all income tax, withholding tax, and any other fiscal taxes or levies, whatever their nature, (direct/indirect) potentially due in the country of the Customer or any country of delivery of the Goods or performance of the Works are under the sole responsibility of the Customer. Where a relief, waiver or reduction of the withholding tax is possible in accordance with the applicable law, the Customer shall procure such tax exemption from the competent authorities. The Customer, in such event, may request reasonable support from SWISSto12 to obtain such exemption. 

7.4 In the event SWISSto12 is required to pay any such taxes or duties, as stipulated in Clauses 7.2 and/or 7.3, these taxes and duties shall be invoiced and paid by the Customer in addition to the agreed Price and any other amounts due under the Contract. In the event that the Customer has to self-assess any such taxes, the Customer shall pay directly these tax amounts to the respective tax authority without reduction of the agreed Price any other amounts due under the Contract that shall be paid to SWISSto12. Should this be prevented by the local legislation, the Parties agree that SWISSto12 shall increase the Price quoted in the Purchase Order, or any other amounts due under the Contract, in proportion of the tax load actually borne. 

7.5 In the event SWISSto12 suffers (or will suffer) additional taxes as a result of any changes in tax regulation, the Price, and any other amounts due under the Contract, shall be adjusted by the Customer to reflect such changes in tax laws as is necessary to ensure that SWISSto12 receives the same amount it would have received if there had been no changes in tax regulation. 

7.6 In the event of any delay in delivery from the Customer of information, equipment or materials, or a failure by the Customer to provide SWISSto12 with adequate information or instructions, the Parties shall promptly agree upon an equitable adjustment to the Price and/or delivery schedule and shall amend the Purchase Order accordingly prior to the performance or the delivery of the Works. 

8. Payment Terms 

8.1 Unless otherwise agreed in writing as reflected into the Purchase Order and subject to Clause 8.2, the Price shall be paid as follows: (i) thirty percent (30%) of the Price shall be paid by the Customer upon acceptance of the Purchase Order; (ii) forty percent (40%) of the Price shall be paid by the Customer upon conduct of the critical design review or similar milestone with receipt of such payment prior to performance of the Works or shipment of the Goods; and (iii) thirty percent (30%) of the Price shall be paid by the Customer upon completion of the Works or delivery of the Goods in accordance with Clause 11.1. 

8.2 Unless otherwise payable pursuant to the relevant Purchase Order, all payments from the Customer to SWISSto12 shall be made via direct bank transfer to the bank account designated by SWISSto12 in writing and shall be made within thirty (30) calendar days from SWISSto12’s delivery of the corresponding invoice.

8.3 Notwithstanding any other remedy available to SWISSto12, in case the Customer is in default for the payment of one or several invoices, SWISSto12 may charge a default interest at a rate of one point two five percent (1.25%) per month, starting thirty (30) calendar days from the date of the invoice. 

8.4 Any failure on the part of the Customer to make payment in accordance with the terms of this Contract shall entitle SWISSto12, at its option and without prejudice to any other right or remedy it may have, to withhold further deliveries or perform any Works both in respect of this Contract or series of contracts and/or any other contract for delivery of the Goods or performance of Works to the Customer until such payment has been made. 

8.5 Prices are based upon the assumptions, scope, specifications, technical description, time schedule, conditions and quantities set out explicitly in the Offer and/or the Purchase Order accepted by SWISSto12 and shall not be treated as divisible or able to be changed. In the event of any variation or addition requested by the Customer of any provision or term not expressly included in the Offer and/or the Purchase Order, including in relation to, inter alia, the assumptions, scope, specifications, technical descriptions, delivery dates, conditions or quantity of the Works ordered, whether set out in a Change Order or otherwise, SWISSto12 expressly reserves the right to vary the Price and adjust delivery dates. 

8.6 The Price shall be adjusted to take account of any increase in cost resulting from a change in the laws of the country or the countries in which the Contract shall be performed or in which any Work shall be performed/delivered, made after the date of the Offer, which affect SWISSto12 in the performance of obligations under the Contract. If SWISSto12 suffers (or will suffer) delay and/or incurs (or will incur) additional cost as a result of these changes in the laws or in such interpretations, made after the date of the Offer, SWISSto12 shall give notice to the Customer and shall be entitled to: 

(i) an extension of time for any such delay if completion is or will be delayed; and 

(ii) payment of any such cost, which shall be included in the Price. 

9. Delivery/Performance 

9.1 Unless otherwise specified in the Purchase Order, the Goods shall be delivered according to the place of delivery and Incoterm specified in Clause 11.1. 

9.2 Unless otherwise agreed in writing, the agreed date of delivery corresponds to the date when the Goods are put at the disposal of the Customer in accordance with the Incoterm set out under Clause 11.1. The time for delivery will be considered as met when SWISSto12 or a third-party on its behalf hands over the relevant Goods to the Customer or to its first carrier at the agreed time. As regards to the performance of the Works, the date of such performance should be as set out in the Purchase Order. Further no Works shall be performed at the Customer’s premises, unless otherwise agreed in writing by SWISSto12. 

9.3 If SWISSto12 cannot comply with a delivery or performance time for any cause other than the willful default of Swissto12 (including, for example, causes such as the unfulfilled obligation of the Customer to cooperate or default of third parties), the delivery or performance schedule shall be extended appropriately and SWISSto12 shall not be held liable for any loss or damages, directly or indirectly, incurred by the Customer as the result thereof. 

10. Technical Data 

10.1 When any part of SWISSto12’s Works is integrated by the Customer in its own products, SWISSto12 provides interface control drawings (ICD) to assure that the manufactured products will fit the external interface points as per the Customer’s specifications. This task is to be considered part of SWISSto12’s Works. Any further technical data to be provided by SWISSto12 shall be as agreed by both Parties in the Contract or the Purchase Order. 

10.2 The Customer agrees that the necessary technical data for SWISSto12’s performance of the tasks under the Purchase Order shall be provided to SWISSto12 and agreed upon before SWISSto12 can start the development or manufacturing of the ordered Works. Failure to provide the requested data in a timely manner and in a complete and correct form will directly impact SWISSto12’s ability to comply with a delivery date. Such situation would consequently be considered as an excusable delay for SWISSto12 from complying with such original delivery date and shall entitle SWISSto12 to adjust the Price and/or delivery or performance schedule and amend the Purchase Order accordingly. 

10.3 SWISSto12 shall not be liable for any incorrect, contradictory, and incomplete data given by the Customer. Any loss or damages, directly or indirectly, incurred by the Customer or other consequences arising out of or in connection with such data shall be borne by the Customer. Furthermore, SWISSto12 shall not be held responsible for verifying whether layouts, technical data or information delivered to SWISSto12 are correct, contradictory or complete. 

11. Transfer of Ownership and Risks of Loss and Damage 

11.1 Unless otherwise specified in the Purchase Order, all Goods shall be delivered EXW SWISSto12’s premises in Renens/VD, Switzerland in accordance with EXW Incoterms® 2020. Risk of loss and damage in the Goods shall pass to the Customer in accordance with the above stated Incoterm. 

11.2 Transfer of title of any Goods shall pass to Customer upon full payment of the Price of all Goods under the Contract. Payment of the Price shall include the amount of any interest or other sum payable under the terms of the Contract. SWISSto12 may, at all times register its reservation of ownership in the relevant official register. 

11.3 Until such time as title to the Goods passes to the Customer, the Customer shall (i) where appropriate, hold the Goods as the Company’s fiduciary agent and bailee, and shall keep the Goods separate from goods belonging to the Customer and/or third parties, properly stored, protected and insured and identified as SWISSto12’s property and (ii) not resell such Goods to any third party, incorporate them in or commix them with any other products, goods or equipment or pledge, charge or grant liens over such Goods. 

11.4 In the event that the Price for Goods is not paid by the due date in accordance with Clause 8, SWISSto12 may at its sole discretion and without prejudice to any other right or remedy it may have under the Contract, at law or in equity, recover the Goods from the Customer. 

12. Subcontracting and Assignment

12.1 SWISSto12 reserves the rights to subcontract any part of performance of the Works. 

12.2 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 as the case may be, or (ii) which directly or indirectly beneficially owns or holds fifty percent (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”). 

12.3 The Customer may neither assign, transfer, nor delegate any or all part of its respective rights or obligations and/or the Contract without the prior written consent of SWISSto12. Any assignment, transfer or delegation made without such consent shall be null and void. 

13. Inspection and Acceptance

13.1 In accordance with SWISSto12’s standard procedures, all Works shall be subject to pre-shipment inspection and testing at SWISSto12’s premises. SWISSto12 shall notify the Customer of the scheduled date of inspection at least three (3) calendar days before such inspection. Upon prior written authorization of SWISSto12, the Customer may attend any other inspection. All costs and formalities in relation with the Customer’s attendance at any inspection shall be entirely borne by the Customer. 

13.2 The Customer is required to (i) carry out a complete and thorough inspection of the Works upon performance or delivery, respectively, and (ii) immediately notify SWISSto12 in writing of any defect, damage, missing components, or problems. After fifteen (15) calendar days from the date of completion of the Works and/or delivery of the Goods provided by SWISSto12, the Works will be deemed accepted by the Customer. 

13.3 In the event that the Customer notifies a defect or problem according to Clause 14, SWISSto12 will determine the actions to be undertaken to remedy the defect or problem in accordance with Clause 14. No return of any part of the Works shall be made without the prior written authorization of SWISSto12. Any return of such Works by the Customer without the prior written authorization of SWISSto12, will be at the Customer’s risk and the Customer will be liable for any costs and expenses incurred by SWISSto12 in connection therewith and in the resolution of the defect or problem. 

13.4 Minor variations in materials, surface, and color, which are due to the nature of the manufacturing process and do not affect the functional capabilities of the Works, do not entitled the Customer to reject the Works and shall not be considered as a defect. Works purchased on the basis of weight may be subject to variations that will neither constitute a defect nor be a reason for rejection as far as there are in line with the normal practice within the industry. The Customer shall contact SWISSto12 for further explanations if any clarification regarding such minor variations is needed. 

13.5 All costs incurred and damages sustained by SWISSto12 as a result of inspections or rejections made under the provisions hereof shall be borne by the Customer. Extension in the duration of the inspection not due to SWISSto12 will result in an equivalent extension of the time schedule and SWISSto12 reserves its rights to charge the Customer for corresponding extra-costs. 

14. Warranty

14.1 SWISSto12 shall perform and provide the Works that correspond with the agreed specifications in accordance with the Contract at the time of delivery and that are free from defects in material and workmanship under normal use and service for a period of twelve (12) months from the date of delivery of the Goods (the “Warranty Period”). For Goods incorporated into a satellite or other spacecraft, the above warranty applies unless a launch (i.e., intentional ignition) occur earlier than the twelve (12) months period at which point the warranty shall end. 

14.2 Any Good being repaired, replaced or reconfigured under warranty shall not result in an automatic extension of the Warranty Period. Any Goods replaced or repaired under this Clause 14 shall be subject to a warranty period equal to the unexpired portion of the original Warranty Period. Ownership of replaced Goods shall pass to Customer upon delivery. Unless otherwise agreed in writing, the defective parts shall be returned by the Customer, at Customer’s charges, in suitable packaging CIP SWISSto12’s premises in Renens/VD, Switzerland in accordance with “Carriage and Insurance Paid” (CIP Incoterms® 2020), or such other place agreed by the Parties. 

14.3 Any exercise of Customer’s warranty rights shall be subject to the following: (i) (a) regarding defects that could have been reasonably detected upon the Customer’s inspection of the Goods pursuant to Clause 13.2, a written warranty claim shall be sent within the earlier of (aa) seven (7) calendar days from such inspection or (bb) fifteen (15) calendar days from the date of the delivery of the Goods provided by SWISSto12; or (b) regarding defects that could not have been reasonably detected upon the Customer’s inspection of the Goods pursuant to Clause 13.2 or that appears later on, a written warranty claim shall be sent within seven (7) calendar days of the discovery or appearance of the defect; and (ii) the Customer shall have given SWISSto12 the opportunity to examine the relevant Goods and any relevant records of usage, maintenance and storage maintained by the Customer and/or third parties and (iii) the defect shall be confirmed by SWISSto12, SWISSto12 shall, at its sole discretion, either repair, replace or reconfigure the relevant Good in order to bring such Good into conformity with the specifications of the Purchase Order. 

14.4 No warranty obligation of SWISSto12 shall apply in the event: 

(i) of any defect in the Goods arising from any drawing, design or specification supplied by, or instruction of, the Customer; (ii) of use of the Goods by the Customer before acceptance or contrary to any of the specifications or user manuals provided by SWISSto12 with respect to the Goods; 

(iii) of any defect arising from fair wear and tear, willful damage, negligence, abnormal working conditions, improper storage, failure to follow SWISSto12’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without SWISSto12’s approval or improper or inadequate maintenance by the Customer; 

(iv) of minor deviations from the drawings, design or specifications supplied by SWISSto12, insignificant deviations from the agreed quality or minor impairment of usability which do not materially affect the use and/or functionality of the Goods (which shall not be considered to be a defect); 

(v) the Goods have been used in a manner or under a circumstance or for a purpose not disclosed to SWISSto12 prior to entering into the Contract; and/or 

(vi) where the Goods consist of software: for non-reproducible software errors. 

14.5 The Customer expressly agrees that the warranty obligations specified in this Clause 14 are in lieu of all other warranties, expressed or implied, whether arising from law, custom or conduct, in equity or otherwise, and the rights and remedies of the Customer provided herein are exclusive and in lieu of any other rights and remedies. SWISSto12 expressly disclaims and the Customer expressly waives all rights to all warranties, conditions or other terms set out in or implied by statute or law, in equity or otherwise, related to the Works, other than those set out in this Clause 14, including with respect to any implied warranties of merchantability, title, non-infringement, and fitness for a particular purpose or with respect to materials, workmanship or conformity with to specification requirements of the Contract. For the avoidance of doubt, Works and prototyped Goods are not subject to any warranty. In no case, the warranty shall extend further than the net value of the delivered Goods. 

14.6 If not otherwise agreed between the Parties, the defective Goods shall be returned by the Customer in suitable packaging CIP SWISSto12’s premises in Renens/VD, Switzerland in accordance with “Carriage and Insurance Paid” (CIP Incoterms® 2020). The repaired, replaced or reconfigured Goods shall be shipped back CIP Customer’s premises in accordance with “Carriage and Insurance Paid” (CIP Incoterms® 2020). 

14.7 Notwithstanding any provision to the contrary, all open-source software (as defined below) is provided on an “as is” basis, and SWISSto12 disclaims all warranties with regard to open-source software, including all implied warranties of merchantability, title, non-infringement, and fitness for a particular purpose. In no event will SWISSto12 be liable for any direct, indirect, consequential, incidental, punitive, exemplary or special damages or any other damages whatsoever, whether in an action of contract, negligence, or other tortious action, arising out of or in connection with the use or performance of the open source software even if SWISSto12 has been advised of the possibility of such damages and whether or not such losses or damages are foreseeable. 

14.8 Assertion of a defect shall not release the Customer from its payment obligation. 

15. Liability and Limitation of Liability 

15.1 The Customer shall ensure that the end user of the Works, shall be advised as to the nature of the Works and shall be supplied with all relevant information (including any instruction, maintenance manuals and/or safety information) supplied by SWISSto12 to the Customer in respect of the relevant Works. 

15.2 Subject to any express provisions to the contrary contained in these GTCS, all representations, warranties, guarantees and conditions in relation to the Works, whether express or implied, statutory or otherwise, are hereby excluded and SWISSto12 shall not be liable in contract, tort, breach of statutory duty or otherwise for any loss, injury, destruction or damage whatsoever arising in connection with the performance or the supply of the Works. SWISSto12 does not exclude or limit liability arising in respect of death or personal injury caused by SWISSto12’s negligence. 

15.3 Except in respect of liability for death or personal injury caused by SWISSto12’s negligence, SWISSto12’s liability in respect of any claim for loss or damage arising out of or in connection with the performance and/or the supply of Works shall cumulatively be limited to 20% (twenty percent) of the Price inclusive of any amendments thereto made in accordance with the terms of the Contract. 

15.4 Notwithstanding Clauses 15.2 and 15.3, SWISSto12 shall not be liable in any event for any form of incidental, consequential, punitive, or indirect loss or damage, including any loss of use, goodwill, business, profit or contract. 

15.5 The Customer acknowledges and agrees that the exclusions and limitations of liability provided for in this Clause 15 are reasonable and that, if they had not been included, the Price would have been materially increased. 

15.6 Notwithstanding any clause to the contrary, SWISSto12 shall not be liable for any loss or damage caused to or by any spaceborne or airborne solution (including satellites, airplane and other spacecraft or aerial vehicle) incorporating the Works and/or in connection with which the Works are used after its launch (including any failed launch). Accordingly, save in case of proven fraud, misrepresentation, gross negligence, or willful misconduct of SWISSto12, the Customer hereby waives any right of subrogation against SWISSto12 and its subcontractors, and shall hold SWISSto12 and its subcontractors harmless from any claim or action brought either by its customers, its and their representatives, insurers, and/or by any other third party. 

16. Third Party Rights

16.1 The Customer agrees to indemnify and hold SWISSto12 harmless from any claims, demands, liabilities, costs, expenses, or judgments arising in whole or in part, directly or indirectly, out of or in connection with the negligence or lack of care by the Customer or the Customer’s customers, subcontractors, agents, employees or invitees involving the use of the Works performed or supplied by SWISSto12. 

16.2 Such indemnification shall include all costs, attorney’s fees and other expenses paid or incurred by or imposed upon SWISSto12 in connection with the defense of any such claim. 

17. Intellectual Property

17.1 Intellectual Property Rights (“IPR”) means all patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world. 

17.2 Notwithstanding the Customer’s rights under this Clause 17, all rights, titles and interests in and to all IPR of whatever nature arising out of or related to any Works vest in and shall be the sole and exclusive property of SWISSto12 or its third-party licensors, whether or not specifically recognized, registered or finalized under applicable law. SWISSto12 shall be the owner of all IPR developed by it (i) under the Contract, (ii) prior to the Contract or (iii) independent of it. Save with respect to commercial off-the-shelf software, which shall be subject to the provisions of Clause 17.4, SWISSto12 hereby grants to the Customer a worldwide, limited, non-exclusive, non-transferable, non-assignable, non-sublicensable, royalty-free license to use such IPR to the extent strictly necessary for using the Works including the Goods which are the subject of the Contract for their defined purpose, as evidenced by the Contract 

17.3 The Customer hereby grants to SWISSto12 a worldwide, non-exclusive, non-transferable, non-assignable, sublicensable to its Affiliates and its and their subcontractors, royalty-free license to use the Customer’s IPR to the extent strictly necessary for the performance of the Contract. 

17.4 When applicable, commercial off-the-shelf software shall be provided to the Customer in accordance with the particular third party’s usual software license agreement without further payment by the Customer. The Customer shall be granted the right to use such software for the Purpose only in accordance with the provisions of such software license agreement. 

17.5 Nothing in these GTCS shall entitle the Customer to sub-license to any third party or permit or authorize the Customer or any third party to copy, translate, modify, adapt, use, distribute, decompile, disassemble, reverse engineer or make derivative works of any software, data or other items delivered under the Contract, unless otherwise ruled by the mandatory provisions of applicable law. Unauthorized copying shall be strictly prohibited; subject to permission, reasonable back-up copies of each user-loadable program and any related update or revision in order to replace an authorised existing copy may, however, be made. 

17.6 In the event that SWISSto12 reasonably believes that the Customer is breaching or has breached the terms of the above licence, SWISSto12 shall advise the Customer in writing of such fact and present such evidence as is available to it in respect of such breach and shall give the Customer thirty (30) days to cure such breach. If, at the end of such period, the Customer has not cured the breach, SWISSto12 may forthwith, by notice in writing to the Customer, terminate the licences referred to in Clauses 17.2 and/or 17.4. 

17.7 Subject to the conditions and limitations set forth below, SWISSto12 undertakes to indemnify the Customer for any costs, losses or damages finally awarded by a court of competent jurisdiction or approved by SWISSto12 in writing in the course of any settlements arising from the Works proven infringement of IPR of third parties, provided that in case of any claim of infringement, the Customer shall immediately notify SWISSto12 in writing and afford SWISSto12 every possibility to, at SWISSto12’s option (and at no cost to the Customer), modify the Works so as to make it non-infringing or obtain a license from the owner of the right that is alleged to be infringed by Works to defend itself against the claim of infringement. In the event that none of the above is commercially reasonable, then SWISSto12 shall have the right to refund the amounts paid by the Customer for the unusable portion of the Works directly resulting from such infringement. 

17.8 The obligation for indemnification as stipulated in Clause 17.7 shall not apply in cases where (and to the extent that) the claim for infringement is related to (i) any unauthorized modification of the Works by any person or entity other than SWISSto12; (ii) any combination of the Works, including the Goods with other equipment (whether hardware or software) not supplied by SWISSto12; (iii) use of the Works for purposes other than that for which they were expressly designed; or (iv) an alleged or proven infringement that results from compliance by SWISSto12 with any part of the specification that is a mandatory requirement of the Customer and which is not commercially and/or technically reasonably capable of being complied with without infringement of the IPR of a third party. 

17.9 To the extent that a third party makes a claim of infringement against SWISSto12 based on any of the conditions set out in paragraphs (i) through (iv) (inclusive) of Clause 17.8, the Customer shall indemnify SWISSto12 in respect of any costs, losses or damages arising out of such action, subject to the same conditions (mutatis mutandis) as specified in Clause 17.6. 

17.10 SWISSto12’s total liability for infringement of any and all IPR in the Works shall be limited in accordance with the provisions of Clause 15. 

18. Confidentiality

18.1 “Confidential Information” shall mean and include any and all proprietary and/or non-public information, data and/or other materials disclosed by a Party (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 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. 

18.2 Confidential Information shall not include information that the Receiving Party can evidence: (i) was discovered, created by, or was otherwise in the possession of the Receiving Party without restriction on use or disclosure before its receipt from the Disclosing Party; (ii) is or becomes available to the public domain through no fault of the Receiving Party; (iii) is received by the Receiving Party in good faith and lawfully 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. 

18.3 The Parties will maintain the secrecy and confidentiality of Confidential Information received from the other Party in connection with the Contract. The Receiving Party (i) shall not disclose the Disclosing Party’s Confidential Information to any third party without the prior written consent from the Disclosing Party, (ii) shall only use the Disclosing Party’s Confidential Information for the purpose of the Contract and as contemplated by the Contract and (iii) shall not copy or reverse engineer, reverse compile, nor attempt to derive the composition or underlying code or other information of any Disclosing Party’s Confidential Information. Notwithstanding the above, SWISSto12 is authorized to disclose received Confidential Information to: 

(i) its prospective subcontractors and/or consultants who have a need to know the Confidential Information to perform the Works under the Contract or to obtain information, prices, quotes, etc., in order to offer the performance of the Works. Such disclosure is only permitted provided that the potential subcontractors, consultants are required, through written agreement, to hold such information in confidence under limitations at least as restrictive as those set forth herein; and 

(ii) to its Affiliates and its and their respective directors, officers, employees, representatives or agents who have a need to know the Confidential Information, provided that SWISSto12 will be liable to the Customer for any breach of SWISSto12 confidentiality obligation pursuant to this Clause 18 by such Affiliate, director, officer, employee, representative, agent, consultant, prospective subcontractor or information technology provider. 

18.4 The Receiving Party shall not remove any confidentiality, proprietary, or other similar markings from Confidential Information. 

18.5 The Receiving Party shall adopt measures to protect the secrecy and confidentiality of Confidential Information that are reasonable under the circumstances. 

18.6 The Parties are responsible for compliance with the terms of this Clause 18 by their respective directors, officers, employees, representatives, agents, consultants, prospective subcontractors, consultants and information technology providers. The Parties represent and warrant that they have entered or will enter into agreements with any such persons as necessary to fulfill their respective confidentiality obligations hereunder. 

18.7 Upon the end or termination of the Contract for whatever reason, or at the earlier request of the Disclosing Party, the Receiving Party shall, at the election of the Disclosing Party, return or destroy all originals and copies of Disclosing Party’s Confidential Information, or, in case of Confidential Information stored in electronic, magnetic or digital media, shall erase or render unreadable all materials furnished (including, without limitation, working papers containing any Confidential Information or extracts therefrom) which contain Confidential Information. 

18.8 The obligations of confidentiality hereunder shall survive the end or termination of the Contract for whatever reason indefinitely. 

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

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

19.1 Each Party shall comply with all applicable national and international laws and regulations, including sanctions laws and export control laws and regulations. Neither Party shall be obliged to perform any actions (including the provision of any Works) if such action constitutes a breach of any applicable law, including any applicable export control laws and regulations. 

19.2 The Customer shall comply with all applicable export control laws and regulations when using the Works, including the Goods. 

19.3 The Customer shall provide to SWISSto12 in a timely manner whatever end use/end user certificate and in any event prior to the Customer issuing any Purchase Order as required by any applicable authorities (including to the Swiss authorities). 

19.4 The Customer warrants that it has obtained and will maintain all necessary permits and/or authorizations, as the case may be, for the use of the Works, including the Goods. 

19.5 The entry into force of the Contract/Purchase Order is subject to all applicable export or import licenses/authorizations being obtained by the relevant Parties. The Customer shall obtain all respective licenses/authorizations in time for all relevant deliverables and shall prepare and submit the related documentation and carry out all necessary formalities to that aim. 

20. Data Protection 

Each Party undertakes to process personal data with due diligence, in accordance with all applicable data protection law and regulation, including the Swiss Federal Data Protection Act and/or the Regulation (EU) 2016/679 of the European Parliament and the Council of April 27, 2016 (GDPR), as the case may be. 

21. Communications 

Unless otherwise agreed in the Contract, any notice or communication within the framework of the Contract shall be done in writing (including by email) and shall be either personally delivered, mailed by registered mail, or emailed, to the addresses of the Parties set out in the Contract or such other address notified by the relevant Party in accordance with this Clause 21. 

22. Independent Contractor 

The Customer 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, speak for, represent or obligate the other Party in any way. 

23. Force Majeure 

23.1 SWISSto12 shall not be in default by reason of its delay in the performance of, or failure to perform, any of its obligations hereunder or the Contract if such delay or failure is caused by strikes, labor disputes, embargos, pandemics, epidemics, quarantine restrictions, natural disasters, unusually severe weather, floods, earthquakes, fire, explosions, power surges, acts of God, or the public enemy, war, civil unrest, riots, acts or threats of terrorism, transport problems, communication network breakdowns, restrictions on import, export and transit, exchange restrictions on international payments, shortage in raw materials and energy, breakdown of operations of other events or other events which arise from circumstances beyond the reasonable control of SWISSto12 (including delays caused by government priorities or by regulations, delays in obtaining export control approval, revocation, suspension, withdrawal of such export control approval), as well as other force majeure cases commonly recognized under applicable law (“Force Majeure”). 

23.2 During the pendency of such Force Majeure, SWISSto12 shall take all reasonable steps to fulfil its obligations hereunder and/or the Contract by other means and, in any event, shall upon termination of such Force Majeure, promptly resume its obligations hereunder and/or the Contract. 

23.3 An extension of time for delivery or other performance by SWISSto12 shall be granted for a period equal to the duration of the delay caused by the Force Majeure. 

23.4 Notwithstanding the provisions of Clause 23.3, if the Force Majeure circumstances affecting SWISSto12’s performance hereunder continue to cause a delay for a period exceeding ninety (90) calendar days, the Parties shall use their best efforts to agree upon a mutually satisfactory course of action always provided that either Party shall at all times after such ninety (90) calendar day period be entitled to terminate the Contract immediately by notice in writing to the other Party in accordance with Clause 6. 

23.5 Nothing in this Clause 23 shall relieve the Customer of making any payments when due, including, for the avoidance of doubt, any payments due during the period described under Clause 23.3. 

24. Amendments, Waiver and Severability 

24.1 These GTCS, including this Clause 24.1, the Contract, the Purchase Order any of their schedules or Appendices, may be amended or modified only by a written instrument duly agreed, signed and executed by both Parties. 

24.2 Failure or delay of SWISSto12 in exercising any of its rights shall in no way constitute a waiver or renunciation of any of those rights nor shall such failure exempt the Customer from any of its obligations. 

24.3 No single or partial exercise of any right, power, privilege, or remedy by SWISSto12 shall neither prevent nor limit any further or other exercise thereof or the exercise of any other right or remedy. 

24.4 The rights, powers, and remedies of SWISSto12 provided in these GTCS are cumulative and are not exclusive of any rights, powers or remedies provided by law or otherwise. 

24.5 The Parties agree that if any part of the Contract and/or any Purchase Order is found to be invalid, void, unenforceable or unlawful under any enactment or rule of law pertaining thereto of any jurisdiction, neither the legality, validity and enforceability of any other part of (i) the Contract and/or the Purchase Order, or (ii) these GTCS shall be affected in that or any other jurisdiction. Any invalid, void, unenforceable or unlawful provision shall be adjusted rather than voided, if possible, in order to achieve the intent of the Parties to the fullest extent possible. 

25. Flow Down Terms and Conditions 

Any general terms and conditions of (i) the Customer and/or (ii) any Customer’s customers, and/or (iii) any and all flow down provisions, are expressly excluded from the Offer, the Purchase Order and any Contract, unless otherwise agreed in writing. 

26. Amendment 

26.1 SWISSto12 reserves the right to amend these GTCS at any time by publishing the new version on SWISSto12’s website. The Customer is responsible for checking SWISSto12’s website regularly. Provided that SWISSto12 has informed the Customer of an amendment to the GTCS and SWISSto12 has not received a written notice of objection within thirty (30) calendar days of informing the Client, the amended GTCS shall be deemed approved by the Client without reservation. In the event that the Client has not approved the amendment or has made a reservation, the Contract entered by the Parties at the date the GTCS are amended shall remain subject to the version of the GTCS that was in force at the date the relevant Contract was entered. All Contracts entered thereafter shall be subject to the latest version of the GTCS. 

26.2 Without prejudice to Clause 26.1, the Contract may be amended or modified only by a written instrument duly executed by both Parties. 

27. Survival 

The expiry or termination of the Contract will not relieve the Parties of any obligation accrued prior to such expiry or termination. Clauses 1.2, 1.3, 1.4, 3, 4.2, 6, 7, 8, 9.3, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 22, 23, 24, 25, 26, 27 and 28, as well as any Clause which by its nature shall survive the expiry or termination of the Contract, shall remain in full force after such expiry or termination for whatever reason.  

28. Applicable Law and Dispute Resolution 

28.1 These GTCS, the Offer, the Purchase Order 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 Goods is expressly excluded. 

28.2 The Parties shall attempt to settle any dispute, controversy or claim arising out of, or in relation with these GTCS, the Offer, the Purchase Order and/or 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 arbitration in accordance with Clause 28.3. 

28.3 Any dispute, controversy or claim arising out of or in relation with these GTCS, the Offer, the Purchase Order and/or the Contract, including the validity, invalidity, breach or termination thereof, which cannot be settled amicably pursuant to Clause 28.2, shall be finally settled by arbitration in accordance with the Swiss Rules of International Arbitration of the Swiss Arbitration Center in force on the date when the notice of arbitration is submitted in accordance with said rules. The seat of the arbitration shall be Geneva, Switzerland. The language of the arbitration shall be English. The Parties undertake to keep confidential all awards in their arbitration, together with all materials in the proceedings created for the purpose of the arbitration and all other documents produced by another party in the proceedings not otherwise in the public domain, save to the extent that disclosure may be required of a Party by legal duty, to protect or pursue a legal right or to enforce or challenge an award in bona fide legal proceedings before a court or other judicial authority.