This is the translation of the german version. The german version is legally binding.

1. Scope of application

These General Terms and Conditions (GTCs) govern the relationships between the customers of ADS-E and ADS-E and apply wherever the customer and ADS-E have not expressly agreed otherwise. These GTCs take precedence over conflicting or deviating terms and conditions of the customer.

2. Services of ADS-E

Scope of services

ADS-E offers its customers high-quality services. The content and scope of the individual services arise from ADS-E’s service descriptions, e.g. in the offer or the order confirmation by ADS-E. The fulfilment of a specific purpose of a development or the performance of a specific service must be expressly formulated in the offer or the order confirmation. ADS-E commits to reporting to the customer periodically regarding the status of work, the knowledge gained, the procedure in the next period and, in the case of orders involving a guide price, the costs incurred so far.

Additional services

Additional services shall be additionally remunerated by the customer and shall be considered to be recognised if they were either agreed in writing between the customer and ADS-E or recorded by ADS-E following a verbal agreement and notified to the customer in writing, by fax or electronically, unless the customer refuses the provision of the additional service in writing within three working days of receiving this record.

Deadlines

If ADS-E is unable to meet deadlines set for performance for reasons beyond its control, these deadlines shall be extended in accordance with the length of time for which the circumstances that are beyond ADS-E’s control are in effect.

Place of performance

Unless otherwise expressly agreed, the domicile of ADS-E shall be the place of performance for the services provided by ADS-E under this contract.

3. Services performed by the customer

Prices

The prices to be paid by the customer arise from the offer or the order confirmation and, secondarily, from the fee regulations of ADS-E. The prices are exclusive of statutory value added tax. This is charged additionally by ADS-E. Travel time constitutes working time. ADS-E is entitled to adjust the rates once a year to changing cost factors such as salaries, materials, taxes, charges, etc.

Customer’s obligation to cooperate

The customer undertakes to provide the necessary information for order fulfilment and to provide ADS, without charge, with all necessary support that is possible by its own efforts. Where necessary and sensible, the customer is responsible for ensuring that appropriate working conditions are provided at its project location. Without being specifically asked to do so, the customer shall give ADS-E notice of all documents and circumstances that may be important for understanding the project and carrying out the orders.

Responsibility of the customer

The customer shall ensure that the services for which it has concluded a contract with ADS-E are used in accordance with the law and the contract. In particular, the customer shall ensure that all services provided to the customer within the framework of contract fulfilment are used exclusively for the purpose and use described in the offer or the order confirmation. In the event of any other use, the customer shall compensate ADS-E in full for any damages arising from corresponding claims by third parties, including the costs of legal disputes. The customer shall provide ADS-E with the necessary support for contract fulfilment by ADS-E and shall provide the information required for this free of charge.

Specification of applicable regulations

If ADS-E is required to comply with statutory or other standards when providing a service, the customer must communicate this to ADS-E in writing before the offer is prepared.

Acceptance by the customer

The customer must continually check the intermediate results (test results, documents, specifications, programme sections, etc.) during the contract term and notify ADS-E of any objections or defects without delay and in writing. The customer is entitled to a test period of 30 days for the services provided. This test period begins either as mutually agreed and stipulated or on the day on which ADS-E declares its work to be finished. The services provided by ADS-E shall be deemed to have been accepted and approved by the customer unless the customer objects to the functions and services in writing, providing evidence, within the test period. Paperwork and documents shall be deemed to have been accepted if they have been delivered to the customer and the customer has not objected to them within 30 days of their delivery. If ADS-E accepts the objection and makes improvements, the test period begins again on the day that ADS-E delivers the written notification of the end of improvement work by post (postmark). This also applies to non-essential improvement work. Further claims by the customer are excluded to the extent permitted by law. Productive use of whole or partial services by the customer shall always constitute acceptance of the whole or partial system used in production, without the need for an acceptance protocol.

4. Invoicing and payment terms

ADS-E invoices its services to the customer on a monthly basis unless expressly agreed otherwise. The invoice is to be paid by the customer by the due date given on the invoice. Unless otherwise notified by the customer, the invoice shall be deemed to have been accepted once the due date has passed. If the customer fails to meet their payment obligation to ADS-E, they shall be in default of payment on the due date with no need for an explicit payment reminder. In this case, ADS-E is entitled to charge default interest of 5% p.a. on the invoice amount. ADS-E can also set the customer a grace period for payment. If this grace period also elapses without result, ADS-E shall be entitled to withdraw from the contract and to demand compensation for non-performance.

5. Warranty in the case of work contracts

If a work contract is in place, ADS-E undertakes to rectify, at its own expense, any defects in the work that are notified in a timely manner. Any further claims under warranty by the customer are hereby expressly excluded to the extent permitted by law. Defects shall be considered to have been notified in a timely manner if they are notified in writing and correctly described by the customer within the statutory periods.

In the case of software, the defects must be reproducible. The customer shall support ADS-E in remedying defects and shall, in particular, provide workplaces, computers, rooms and telecommunication facilities. On request, the customer shall provide ADS-E with all information and documents that allow ADS-E to assess and rectify the defect.

6. Liability of ADS-E

ADS-E guarantees high-quality services. Liability for contractual and non-contractual claims is excluded in relation to all direct and indirect damages (injuries, damage and financial losses) suffered by the customer in connection with the contractual relationship with ADS-E and its fulfilment unless the damage was the result of gross negligence or wilful intent. This disclaimer also includes the liability of employers in accordance with Art. 55 of the Swiss Code of Obligations (CO) and liability of associates in accordance with Art. 101, CO.

7. Special limitations of liability/indemnification by the customer

If a customer requests developments that go beyond the application of the recognised rules of technology, they declare to ADS-E that they will not hold the company liable and will indemnify it for damages arising from the use of technologies that were not yet recognised at the time of contract performance. If the customer has made modifications or repairs to work results without the consent of ADS-E, all liability is excluded unless ADS-E can be accused of gross negligence or intent. The customer undertakes to indemnify ADS-E in the event of claims for damages that are due to such modifications or repairs by the customer. The customer also undertakes to indemnify ADS-E for claims for damages due to product liability unless the claim for damages is based exclusively on gross negligence or intent on the part of ADS-E.

8. Special provisions

Retention of title

Work results produced by ADS-E for customers remain the property of ADS-E until full payment is made by the customer. The customer is also required to support ADS-E with all measures aimed at protecting its property. This includes especially, but not exclusively, entering or reserving the retention of title in public registers, books and suchlike. The customer shall also take the necessary measures to avoid any cancellation or impairment of the retention of title. The customer shall keep already delivered items in such a state that they retain their value and insure them against all risks.

Rights to work results, intellectual property rights and expertise

Once the customer has paid the agreed prices in full, they obtain non-exclusive usage rights – alongside ADS-E – to the work results. Where available, ADS-E shall deliver a copy of the source code to the customer once the agreed prices have been paid. In particular, ADS-E has the right to modify the work results in any way, to make copies of them, and to continue to use them while respecting the duty of secrecy. In particular, ADS-E also has the right to use the expertise, ideas, concepts and processes acquired while carrying out the services alone or in collaboration with the customer’s staff in order to carry out work of a similar nature for other customers, provided they are not based on a trade secret of the customer.

Unless otherwise agreed in writing, the two contracting parties are jointly entitled to the intellectual property rights to the work results. The contracting parties mutually grant one another the authority to use and exploit these rights in any way while respecting the duty of secrecy. If ADS-E and the customer created the work results jointly, they are both individually entitled to the rights as soon as the customer has paid the agreed prices. In this case, the customer and ADS-E can each individually use the work results without consent from the other party.

Patents, discoveries and inventions

If, during the provision of services, any discoveries, inventions or improvements are made that include ideas, concepts, experience or methods relating to the processing of information, then patents on discoveries, inventions or improvements shall be transferred to the customer in full once they have performed the contract in full.

Duty of secrecy and return obligation

The customer and ADS-E shall maintain secrecy regarding information that they have received during the negotiation phase and during the term of the contract via the respective other party and that is confidential according to the will of that party, including, in particular, business and manufacturing secrets. This obligation does not expire when the contract ends. Documents, whether in paper, electronic or other form and whether they are a copy or the original, that contain confidential information from the respective other party are to be returned in full after termination of the contract. However, the party with the return obligation has the right to retain a copy of the corresponding documents under lock and key. This copy can only be used to fulfil legal obligations and in the event of legal disputes.

Prohibition of poaching, hiring and engagement

During the contractual term for a year thereafter, the customer and ADS-E shall not poach any staff from the respective other party that were involved in providing services to them, nor shall they hire such employees or otherwise engage such employees directly or indirectly.

Authority to issue instructions

When staff are deployed at the customer’s company in order to deliver the contracted service, the authority to issue instructions under employment law remains fully with ADS-E at all times.

Contractual penalty

For every breach of the duties of secrecy and return or of the prohibition of poaching, hiring and engagement, the party in breach shall pay the other party a contractual penalty of CHF 50,000. The payment of the contractual penalty does not release the party from further compliance with the breached obligation and does not exclude claims for compensation for further damages.

Warranted characteristics

Only the details expressly described as such in the order confirmation or the offer from ADS-E shall be considered warranted characteristics. The warranted characteristic shall be considered to be present if its absence was not objected to during acceptance pursuant to section 3.

9. Duration and termination

Subject to other obligatory statutory provisions and other contractual agreements, each party can terminate the contract with 60 days’ notice to the end of a month. The customer agrees to pay the fees and costs of ADS-E that are incurred until the termination of the contract.

However, the obligations regarding secrecy, the prohibition of poaching and the right to work results, intellectual property rights and expertise, along with any provisions relating to contractual penalties, shall remain in force even after the contract is terminated.

10. Final provisions

Assignment and transfer

The contract, or individual rights and obligations arising from it, can only be assigned or transferred to third parties (including associated companies) with prior written consent from the other contracting party, although such consent must not be refused without reason.

Written form

All amendments and additions to these GTCs, as well as all ancillary agreements, must be made in writing and signed by both contracting parties in order to be valid.

Applicable law and place of jurisdiction

The substantive law of Switzerland shall apply with the exclusion of the Vienna Sales Convention. The sole place of jurisdiction is Pratteln (ordinary courts).