General Terms and Conditions of Delivery and Performance
(Version 01/2025)

1. General Provisions

1.1 These General Terms and Conditions of Delivery and Performance (hereinafter referred to as the “Delivery Terms”) shall apply exclusively to our deliveries, including any software contained in or delivered with the goods (hereinafter collectively referred to as “Deliveries”), and our services. Any terms and conditions of the customer that conflict with or deviate from our terms shall not apply unless we have expressly agreed to their applicability in writing. These Delivery Terms shall also apply even if, with knowledge of the customer’s conflicting or deviating conditions, we render our services to the customer without reservation.

1.2 These Delivery Terms shall remain valid for all future deliveries and services to the customer until our new Delivery Terms come into force.

1.3 Any modifications to the Deliveries or services at the customer’s request (e.g., changes in design or execution) shall be made solely on the basis of a written agreement specifying the effects of such changes, particularly regarding any increase or decrease in costs and any impact on delivery deadlines. Oral agreements made before, during, or after the conclusion of the contract shall only become effective if confirmed by us in writing.

1.4 Our offers are non-binding unless we expressly and in writing provide a binding quotation. In particular, any cost estimates we provide are non-binding and subject to a fee unless otherwise expressly agreed in writing.

1.5 If our Deliveries include software (see Clause 1.1), our license terms shall take precedence. If our Deliveries include open source software (“OSS”), the respective OSS license terms shall take precedence over any conflicting license terms or other conditions relating to the Deliveries. These license terms shall be provided along with the Deliveries and made available to the customer upon request.

1.6 Any legally relevant declarations and notifications by the customer regarding the contract (e.g., the setting of deadlines, notification of defects) must be made in written or text form unless stricter legal form requirements apply.

1.7 References to statutory provisions are for clarification purposes only. Such statutory provisions shall apply even without explicit reference, unless they are directly modified or expressly excluded in these Delivery Terms.

1.8 The customer may not return any goods to us unless we have expressly agreed to such return. This provision shall not apply where the customer is entitled to rescind the contract by law.

2. Prices, Payment Terms, and Invoicing

2.1 Unless otherwise agreed in writing, payment shall be made in Swiss francs (CHF) within 30 days from the invoice date without any deductions. However, we may also make our performance contingent upon payment on delivery (e.g., cash on delivery or direct debit) or an advance payment.

2.2 Pricing is based on the list prices valid at the time of delivery, plus any applicable value-added tax (VAT). VAT shall not be charged only in cases where the conditions for tax exemption on export deliveries are met.

2.3 Unless otherwise specifically agreed, prices are FCA (Incoterms 2020) and do not include packaging.

2.4 We reserve the right to reasonably adjust our prices if, after the conclusion of the contract, cost reductions or increases occur, particularly due to changes in wage costs (e.g., as a result of collective bargaining agreements) or material price fluctuations.

2.5 Orders with a net value of less than CHF 300 may be subject to a reasonable surcharge for small quantities. For custom-made products with an item value below CHF 100 net, a minimum custom manufacturing surcharge of CHF 50 shall be charged.

2.6 The customer’s payment obligation is only deemed fulfilled upon receipt of the payment in our postal checking or bank account (value date). The acceptance of bills of exchange or checks as a means of payment is at our discretion. In the case of bills of exchange or checks, the payment obligation is deemed fulfilled only once the amounts have been credited following their redemption.

2.7 If the payment deadline passes without payment, the customer shall be in default without the need for a reminder. If the customer is in default, all our claims arising from the business relationship with the customer shall become immediately due. This right shall not be excluded by any deferral or the acceptance of bills of exchange or checks.

2.8 If the customer is in default of payment or if there are any other changes in the customer’s circumstances that jeopardize payment of our claims, we shall be entitled to:

• Withdraw from the contract at any time and discontinue our contractual services or demand their return from the customer;

• Declare all existing claims against the customer immediately due for payment, regardless of their maturity, or request securities for these claims;

• Render any outstanding services, notwithstanding any agreements to the contrary, only against advance payment;

• Claim damages from the customer.
   

2.9 The customer shall only have the right to withhold payments or set them off against counterclaims to the extent that such counterclaims are undisputed or have been established by a final court judgment.

2.10 Replacement deliveries and the return of repaired goods, insofar as they are not covered by warranty, shall be made subject to a reasonable flat-rate charge for shipping and packaging costs, in addition to remuneration for the services provided by us.

2.11 The place of performance for all payments the customer is required to make shall be our registered office.

3. Delivery, Delivery Periods, and Default

3.1 Unless otherwise agreed, our Deliveries and services shall be provided “FCA the shipping point of our supplying plant/warehouse” (Incoterms 2020), which is also the place of performance for the Deliveries and services as well as any subsequent performance.

3.2 Delivery periods and deadlines shall be agreed upon individually or specified by us in the offer. The commencement and observance of agreed delivery periods require the fulfillment of all obligations to cooperate, in particular the timely provision of any items, documents, approvals, inspections, and releases to be supplied by the customer, as well as the customer’s compliance with the agreed payment terms. If these prerequisites are not fulfilled properly and on time, the delivery periods shall be extended accordingly, unless the delay is solely our fault. Our other statutory rights remain unaffected.

3.3 If the failure to meet delivery deadlines is due to force majeure or other events beyond our control (in particular, the non-availability of the service, e.g., due to war, epidemics, pandemics, terrorist attacks, import and export restrictions, labor disputes affecting suppliers), the agreed delivery periods shall be extended accordingly. If events of force majeure or equivalent events last longer than three months, each contracting party shall have the right to withdraw from the contract if an adjustment of the contract is not possible.

3.4 If we are responsible for the delivery delay, upon our request the customer must declare within a reasonable period whether it insists on delivery or intends to withdraw from the contract. The customer does not have the right to withdraw from the contract otherwise. For any claims for damages due to delivery delay, Clause 7 below shall apply in cases where delivery deadlines have been legally bindingly agreed.

3.5 In the case of deliveries on call-off, the customer shall be obligated to request the goods within the agreed period. Unless otherwise agreed in writing, the call-off period shall be one year. After this period expires, we may demand immediate call-off.

3.6 If dispatch or delivery is delayed by more than one month after we have notified the customer of readiness for shipment, at the customer’s request, we may charge storage fees of 0.5% of the price of the items to be delivered for each month or part thereof, up to a maximum total of 5% of the price of the items to be delivered. Proof of higher or lower storage costs remains reserved for both parties. Further claims based on the customer’s failure to accept delivery remain unaffected.

3.7 We shall be entitled to make partial deliveries and to issue corresponding invoices, provided these are reasonable for the customer. Partial deliveries shall be considered reasonable if (i) the partial delivery can be used by the customer within the scope of the contractual purpose, (ii) the delivery of the remaining ordered goods is ensured, and (iii) the customer does not incur significant additional expenses or costs (unless we agree to bear such costs).

3.8 The customer may not refuse acceptance of Deliveries due to minor defects.

4. Complaints and Notice of Defects

4.1 Obvious defects must be reported by the customer without undue delay, at the latest within seven days after receipt of the goods, in writing. Hidden defects must be reported immediately upon their discovery. The timeliness of the notice of defect is determined by the date of receipt by us.

4.2 Upon our request, the customer shall return the complained-of Deliveries to us at its own expense. If the complaint is justified, we shall reimburse the costs of the most economical shipping method, unless such costs increase because the goods are located at a place other than the intended place of use. If a complaint is unjustified, we shall be entitled to claim compensation from the customer for the expenses incurred.

4.3 If the notice of defect is not submitted in due time, any claims based on defects shall be excluded.

5. Material Defects and Defects of Title

5.1 After the expiry of 12 months, all claims by the customer for material defects (Sachmängel) shall be time-barred (Article 210(1) of the Swiss Code of Obligations [OR]). For products intended for commercial use (B2B), the warranty period for material defects is 12 months.

5.2 The limitation period for material defects begins upon delivery of the goods (transfer of risk).

5.3 In the event of material defects that have been reported in a timely manner, we shall be obliged either to remedy the defect (“subsequent improvement”) or to supply goods that are free of defects. In the case of software, we fulfill our obligation to remedy the defect if we provide a software version that no longer contains the defect. The installation of software provided as part of the remedy is the customer’s responsibility, provided installation is technically feasible for the customer. For software, the remedy may also consist of demonstrating a way to circumvent the defect, to the extent this is reasonable for the customer, taking into account the impact of the defect and the circumstances of the proposed workaround. All further claims of the customer, such as rescission (Wandelung) (mutual unwinding of the contract), reduction of price (Minderung), and claims for damages for loss or any consequential damages, are excluded.

5.4 No claims for defects shall exist in the event of trade-standard and/or minor deviations from the agreed quality of the goods or in the event of only minor impairment of usability. Unless we have expressly and in writing confirmed otherwise, the properties of any samples submitted shall not be deemed guaranteed if the delivered goods are suitable for their intended use.

5.5 Goods or parts replaced by us shall become our property.

5.6 Excluded from any warranty claims are:

• Normal wear and tear;

• Defects arising after the transfer of risk due to improper handling, storage, or installation, failure to observe installation and operating instructions or FEPA safety recommendations, or excessive use or misuse;

• Non-reproducible software errors.
   

5.7 Also excluded from any warranty claims are defects attributable to the customer’s design specifications or instructions regarding the use of certain materials. Furthermore, no claims for defects shall exist if the goods have been altered by a third party or through the installation of parts from external sources, unless the defect is unrelated to such alteration or use.

5.8 If goods or parts thereof are defective but not manufactured by us, we may discharge our liability by assigning our own warranty claims against our supplier to the customer.

5.9 We assume no warranty for defect rectifications carried out by workshops not authorized by us or by a company belonging to the Hertzfeld Group.

5.10 For defects of title not arising from infringements of third-party intellectual property rights (see Clause 6 below), the provisions of this Clause 5 shall apply accordingly.

6. Intellectual Property Rights and Copyrights

6.1 We shall not be liable for claims based on the infringement of industrial property rights or copyrights of third parties (hereinafter “IP Rights”) if the IP Right is owned or licensed by the customer or by a company in which the customer directly or indirectly holds a majority share of capital or voting rights.

6.2 We shall not be liable for claims based on the infringement of IP Rights unless at least one IP Right from the IP Right family has been published either by the European Patent Office or in one of the following countries: the Federal Republic of Germany, France, Great Britain, Austria, or the USA.

6.3 The customer shall inform us immediately of any (alleged) IP Right infringements or risks thereof that become known and shall allow us the opportunity to jointly counter such claims. At our request—to the extent possible and permissible—the customer shall assign to us the conduct of any legal disputes (including out-of-court proceedings).

6.4 We shall be entitled, at our discretion, to obtain a license for the allegedly infringing Delivery, modify it so that it no longer infringes the IP Right, or replace it with a similar non-infringing Delivery. This shall also apply if the infringement has not been definitively established by a court or acknowledged by us.

6.5 The customer’s claims are excluded to the extent that the customer is responsible for or caused the IP Right infringement, or to the extent that the customer fails to provide us with reasonable support in defending against third-party claims.

6.6 The customer’s claims are further excluded if the products are manufactured in accordance with the customer’s specifications or instructions, or if the alleged IP Right infringement arises from use in combination with another product not supplied or approved by us (including software), or if the Delivery is not used in conformity with the contract.

6.7 Any additional or other claims of the customer arising from the infringement of third-party IP Rights shall be excluded to the extent permitted by law.

7. Claims for Damages

7.1 We shall only be liable for damages arising from breaches of contractual or non-contractual obligations in the following cases:
(i) Intent or gross negligence;
(ii) Negligent or intentional bodily harm;
(iii) Delay, if the delivery period was legally binding;
(iv) Where specific manufacturer warranties provide for such liability;
(v) Where mandatory statutory liability applies (e.g., product liability).

7.2 Damages pursuant to Clause 7.1 above shall be limited to direct and immediate losses; any liability for indirect, consequential, or incidental damages of any kind is, to the extent permitted by law, disclaimed.

7.3 The limitations of liability set out in Clauses 7.1 and 7.2 shall also apply in the event of any fault on the part of an employee, representative, or affiliated company of Hertzfeld in the performance of Hertzfeld’s obligations, as well as to the personal liability of Hertzfeld’s employees, representatives, or affiliated companies.

8. Retention of Title

8.1 We shall be entitled to register our retention of title to the delivered goods in the relevant retention of title register at the customer’s domicile until all of our claims against the customer have been fully satisfied. The customer is obliged to cooperate in such registration and must promptly inform us of any change of domicile by the customer or the goods.

8.2 The customer is entitled to process or combine goods owned by us in the ordinary course of its business. To secure our retention of title, we shall acquire co-ownership of the items resulting from such processing or combination, which the customer hereby transfers to us. The customer shall store such items in which we have co-ownership on our behalf, free of charge. The share of co-ownership is determined in accordance with Articles 726 and 727 of the Swiss Civil Code (ZGB).

8.3 The customer is entitled to resell the goods within Switzerland against cash payment or under retention of title. As security for our retention of title, the customer hereby assigns to us all claims, including ancillary rights, that arise from the resale of the goods, regardless of whether the goods have been processed. The customer is authorized to collect these assigned claims. We may revoke the customer’s rights under this provision if the customer fails to properly fulfill its contractual obligations to us. These rights shall also expire without an explicit revocation if the customer ceases its payments for more than a brief period.

8.4 At our request, the customer must promptly inform us in writing of the identity of any party to whom it has resold goods that are owned or co-owned by us, as well as the claims arising from such resale. The customer must also, at its own expense, provide publicly certified documents evidencing the assignment of these claims.

8.5 The customer shall not be entitled to make any other dispositions over goods subject to retention of title or co-ownership by us, or over claims assigned to us. The customer shall promptly inform us of any attachment or other legal impairment of the goods or claims, whether in whole or in part, that are owned or co-owned by us. The customer shall bear all costs necessary to lift any third-party enforcement measures against these goods, to the extent such costs are not borne by the third party.

8.6 In the event of payment default or any other culpable breach of essential contractual obligations by the customer, we shall be entitled to demand the return of goods that are subject to retention of title or co-ownership. Such a request shall not constitute withdrawal from the contract unless we expressly declare so.

8.7 An application for the opening of insolvency proceedings shall entitle us to withdraw from the contract and demand the immediate return of the Deliveries.

8.8 If the value of the securities existing for us exceeds our claims by more than 10% in total, we shall, at the customer’s request, release securities of our choice to that extent.

9. Export Control and Customs

9.1 Each contracting party shall be entitled to refuse performance of the contract if such performance is hindered or prohibited by foreign trade regulations (in particular, national and international [re-]export control and customs regulations, including embargoes and other governmental sanctions) that apply to the contract in accordance with these regulations (hereinafter “Foreign Trade Regulations”). In such cases, either contracting party shall be entitled to terminate the contract to the extent necessary.

9.2 If the performance of the contract is delayed due to the requirement of obtaining approvals, permits, or similar authorizations, or due to other procedures under Foreign Trade Regulations (collectively “Authorizations”), the agreed delivery periods and deadlines shall be extended or postponed accordingly. No liability shall exist for either party in connection with such delays. If an Authorization is denied or not granted within 12 months from the date of application, we shall be entitled to withdraw from the contract, at least insofar as the performance of the contract requires the Authorization.

9.3 The contracting parties shall promptly inform each other upon becoming aware of any Foreign Trade Regulations that could lead to the restrictions, prohibitions, or delays specified in Clauses 9.1 and 9.2.

9.4 The customer shall, upon our request, provide all information and documentation necessary to comply with Foreign Trade Regulations or that is requested by authorities in this regard. This obligation may include details regarding the end-customer, the destination, and the purpose of use of the Deliveries. We shall be entitled to withdraw from the contract or refuse performance if the customer fails to provide such information and documentation within a reasonable period.

9.5 If the customer hands over our Deliveries to a third party (including companies affiliated with the customer), the customer undertakes to comply with the Foreign Trade Regulations. In the event of the customer’s breach of this obligation, we shall be entitled to refuse performance or terminate the contract for cause.

9.6 To the extent permitted by law, we disclaim any liability for damages arising from or in connection with our refusal to perform or our termination of the contract pursuant to Clauses 9.1, 9.2, 9.4, and 9.5.

9.7 In the event of cross-border deliveries by the customer to us, the customer shall be obliged to enclose all documents and information necessary for a complete and correct customs import declaration, such as commercial invoices and delivery notes. In the case of free-of-charge deliveries to us, the customer must state a value in the pro forma invoice that reflects a customary market price and include the note “For Customs Purpose Only.” When determining the value, all components of the goods (hardware and, where applicable, software) must be taken into account.

10. Confidentiality

10.1 “Confidential Information” refers to all trade secrets and business or technical information provided by us (including features disclosed in any delivered items, documents, or software, as well as other knowledge or experience), irrespective of whether such information is marked as confidential.

10.2 Unless it can be proven that Confidential Information is publicly known or has been released by us for disclosure by the customer, such information must be kept secret from third parties. Within the customer’s own organization, Confidential Information may only be made available to those persons who necessarily need it for its intended use and who are also bound by a confidentiality obligation. Confidential Information shall remain our exclusive property. Without our written consent, Confidential Information may not be duplicated or used for commercial purposes; nor shall the customer be entitled to disassemble or reverse-engineer the Deliveries without our consent.

10.3 The customer shall notify us immediately if it becomes aware of any unauthorized disclosure of Confidential Information in breach of these provisions. In such an event, the customer shall use its best efforts to ensure that the unauthorized recipient does not further disclose or use such Confidential Information and shall ensure its deletion. At our request, all Confidential Information (including any copies or records made) and any items provided on loan shall be promptly returned to us, destroyed, or deleted in full. We reserve all rights to the Confidential Information (including copyrights and the right to apply for industrial property rights, such as patents, utility models, and semiconductor protection). To the extent that such information was provided to us by third parties, this reservation of rights shall also apply in favor of such third parties.

11. Data Protection

11.1 If personal data is processed, we shall comply with the applicable data protection laws. The specific details regarding the data collected and its processing are set out in a privacy policy provided by us or in a separate data processing agreement. Further information on the data collected and its processing is provided in our privacy notice (see www.hertzfeld.ch/datenschutzhinweis/).

12. Compliance

12.1 The customer undertakes to adhere to the principle of strict legality in all actions, measures, contracts, and other processes. The customer shall comply with our current Code of Conduct for Business Partners, which will be provided upon request.

13. Miscellaneous, Place of Jurisdiction, Governing Law

13.1 Should any provision of these Delivery Terms or any further agreements made be or become invalid, the validity of the remaining provisions shall remain unaffected. The contracting parties shall be obliged to replace the invalid provision with a valid provision that comes as close as possible to the economic intent of the invalid provision.

13.2 Subject to any contrary mandatory legal provisions, the exclusive place of jurisdiction for all legal claims of any kind against us shall be the courts at our registered office (Einsiedeln, Switzerland). Actions by us against the customer may, at our discretion, be brought at our registered office (Einsiedeln, Switzerland), or at the customer’s registered office or residence, or before any other court that may have jurisdiction under statutory provisions.

13.3 All legal relationships between us and the customer shall be governed exclusively by Swiss law, excluding its conflict-of-law provisions and the United Nations Convention on Contracts for the International Sale of Goods.

(End of the General Terms and Conditions of Delivery and Performance, Version 01/2025)