General terms and conditions of trifact AG

General terms and conditions of trifact AG

1 Scope and applicability

1.1 These General Terms and Conditions (GTC) govern services under contracts for work and services, as well as services under purchase and rental law, including but not limited to software licensing, acquisition, maintenance and care of hardware and software, support, services for the development, adaptation, introduction and operation of applications, outsourcing, online services and communication services between the ‘service recipient’ and trifact AG.

1.2 trifact AG refers to these GTC in the contract document. By submitting a written offer or, at the latest, by accepting an order, the service recipient acknowledges the applicability of these GTC.

1.3 trifact shall provide its services in accordance with the conditions agreed herein and in the orders and individual contracts. trifact is generally entitled to make partial deliveries, as well as to deliver slight excess or shortfall quantities.

1.4 In the event of contradictions between the terms and conditions of the constituent parts of the contract, the contract document shall take precedence over the terms and conditions of these GTC. These GTC take precedence over the offer and the offer takes precedence over the specifications. Deviating agreements of the contracting parties in the contract document remain reserved.

1.5 Amendments and ancillary agreements are only effective if they are confirmed in writing by trifact.

1.6 Should any provision of this contract be or become invalid or should the contract contain a loophole, the legal validity of the remaining provisions shall remain unaffected. In place of the invalid provisions, a valid provision shall be deemed to have been agreed from the outset that comes as close as possible in economic terms to that intended by the parties. The same applies in the event of a loophole.

2 Offer

2.1 Unless otherwise specified in the request for a quotation or in the tender documents, trifact shall remain bound for 30 days from the date of submission of the offer. The GTC are valid for an indefinite period of time as long as they have not been amended by the parties in a written agreement.

2.2 All documents and samples submitted with the offer shall remain the property of trifact. Without the consent of trifact, third parties are not granted access to the
offer documents. The information provided by trifact as a guide is not binding and is only intended to serve as an estimate of dimensions.

2.3 Information provided in writing, by phone, in a personal conversation, by fax or by email shall not be valid unless this clearly constitutes an offer.

2.4 Any changes to service or adjustments to remuneration, dates and other contractual points shall be recorded in writing in an addendum to the contract document prior to execution.

3 Deliveries

3.1 Unless expressly agreed otherwise, benefit and risk shall pass from the sender to the service recipient upon sending of the goods.

3.2 The order confirmation shall be decisive for the scope and execution of the delivery. trifact shall deliver the products in the version ordered, with software in machine-readable form in the valid version at the time of delivery.

3.3 Unless a specific place of performance has been agreed by the parties or is evident from the nature of the transaction, delivery shall be deemed to be the provision of the products at the registered office of trifact.

3.4 trifact undertakes to deliver the agreed products to the service recipient on the dates specified in the order confirmation, while the service recipient undertakes to accept and pay for these products at the predetermined time.

4 Use of subcontractors

4.1 trifact reserves the right to engage subcontractors with the prior written notification of the service recipient. The service recipient may not refuse approval without good cause.

5 Cooperation of the service recipient

5.1 The obligation of the service recipient to cooperate may be specified in a separate appendix to the contract. The service recipient shall fulfil their obligation to cooperate at their own expense. The obligation to cooperate shall be performed during the entire contractual period, unless otherwise agreed. The consequences of delays and additional expenses due to incorrect or delayed fulfilment of obligations to cooperate shall be borne by the service recipient.

5.2 The service recipient shall grant trifact the necessary access to their premises and, if agreed accordingly, shall provide the necessary infrastructure for the performance of the service.

6 Acceptance

6.1 Unless a special acceptance procedure has been agreed, the service recipient shall inspect the products themselves and report any defects in writing. If the service recipient fails to report any defects within 10 days of delivery, the products shall be deemed free of defects in all functions and the delivery shall be deemed approved. The service recipient is then obliged to pay on time.

7 Payment

7.1 All payments are in Swiss francs (CHF) or euros (EUR) exclusive of VAT and any other charges, such as measuring, weighing, packaging or transport costs and costs for checking the goods.

7.2 Invoicing shall take place after performance or ─ if contractually provided ─ after acceptance of the invoiced services. Invoices are to be paid within 30 days of receipt. Deviating agreements in the contract document, in particular a possible payment plan, remain reserved. Thereafter, interest on arrears shall be owed at the rate of 5% p.a. without the need for a reminder.

7.3 Unless otherwise agreed, services shall be invoiced and charged on a monthly basis. For deliveries (hardware, software) exceeding CHF 12,000, the following terms of payment shall apply: • 1/3 on placing the order • 2/3 on delivery, payable net within 30 days, partial deliveries will be invoiced separately.

7.4 The monthly costs in connection with maintenance subscriptions (see section 9 below) shall be invoiced on a quarterly basis in advance, payable within 30 days.

8 Changes to services

8.1 Both contracting parties may request amendments to the agreed services in writing. If the service recipient wishes to make amendments to the order confirmation, trifact shall inform them within two weeks as to whether the amendment is possible and what effects it will have on the provision of the services, deadlines and prices. trifact shall be bound by an offer to amend the service for a period of two weeks. The amendment does not apply to products that have already been delivered. If costs or deadlines are expected to be affected, the amended services shall be re-offered.

9 Maintenance subscriptions

9.1 The maintenance subscription shall come into effect on the date specified in the order confirmation. This is concluded for an indefinite period, unless explicitly agreed otherwise.

9.2 The subscription may be terminated in writing by either party at the end of the year subject to 90 days’ notice.

9.3 trifact shall notify the service recipient of any changes to the services of the subscription in good time so that the service recipient has the opportunity to terminate the contract within the notice period if necessary. In the absence of written notice of termination within this period, the changes shall be deemed to have been approved by the service recipient.

9.4 Immediate termination of the subscription is possible if there are important reasons and these are serious enough that the continuation of the contract is no longer reasonable for the party declaring the termination. Important reasons include, in particular, bankruptcy, moratorium, otherwise proven insolvency of a party as well as full or partial transfer of a party into the possession of a third party.

10 Legal guarantee

10.1 trifact guarantees that its offer and services do not infringe any third-party property rights. The service recipient guarantees that they do not infringe any third-party property rights with the resources they make available to trifact.

10.2 trifact shall defend itself against claims by third parties for infringement of property rights at its own expense and risk. The service recipient shall notify trifact of such claims in writing and without delay and shall leave the exclusive conduct of any legal proceedings to trifact.

10.3 If an action is filed for infringement of property rights or a precautionary measure is applied for, trifact may, at its own expense, at its discretion either procure the right for the service recipient to use the services free of any liability for infringement of property rights or adapt the services or replace them with others that fulfil the contractual requirements in an equivalent manner, or it shall be liable for damages.

11 Information security, confidentiality and data protection

11.1 The contracting parties undertake to keep confidential facts and data that are neither public knowledge nor generally accessible. This obligation shall also be imposed on relevant third parties. In case of doubt, facts and data shall be treated confidentially. The confidentiality obligations already exist before the conclusion of the contract and also after the termination of the contractual relationship or after the fulfilment of the agreed services. This is subject to statutory obligations of clarification and information.

11.2 trifact may disclose the fact and the essential content of the request for offers to possible third parties, but must otherwise treat the request for offers confidentially.

11.3 Advertising and publications about project-specific services require the prior written consent of both contracting parties, as does the naming of the latter as a reference.

11.4 If a contracting party or a third party involved by it breaches the above confidentiality obligations, the breaching contracting party shall owe the other contracting party a contractual penalty unless it proves that neither it nor any third party involved is at fault. This amounts to 10% of the total remuneration per case, up to a maximum of CHF 50,000 per case. The payment of the contractual penalty does not result in release from the confidentiality obligations. Claims for damages in accordance with general liability principles (CO Art. 97 et seq.) or Clause 17 remain reserved; the contractual penalty shall be offset against any damages to be paid.

11.5 Both parties undertake to comply with the applicable provisions on data protection (namely in accordance with the Federal Act on Data Protection (FADP) and the associated ordinance) and to impose this obligation on their employees, other auxiliary persons and third parties.

12 Default

12.1 In the event of a delay in delivery, both contracting parties undertake to contribute at their own expense to ensuring that the services can be provided on time, even if they are not at fault for the delay. In the event of a delay due to force majeure, neither of the contracting parties shall be liable. If, through its own fault, trifact is in default of meeting deadlines that have been expressly agreed as binding deadlines in service or project contracts, the service recipient shall grant trifact a reasonable grace period twice, to be communicated in writing. If trifact also does not comply with the second grace period, the service recipient shall be entitled to withdraw from the contract. Services (hardware/software, services) that have already been provided in accordance with the contract and can be used as such by the service recipient are to be paid for in full and are therefore not covered by the withdrawal.

12.2 If the service recipient is at least 30 days in arrears, trifact shall send the service recipient a written reminder and set a final payment deadline of 7 calendar days. If no payment or no full payment of the due invoice is made within 7 days, trifact reserves the right to suspend all deliveries or services under the relevant contract with immediate effect until the service recipient meets their payment obligation in full, or to withdraw from or dissolve the contract by written notice to the service recipient.

13 Warranty

13.1 trifact undertakes to exercise care and to deliver products of good quality. It further undertakes to carefully select, train and guarantee the professional work methods of the assigned employees and to supervise them.

13.2 Complaints due to recognisable defects, incorrect deliveries or deviations in quantity (in the case of chip cards, excess or shortfall deliveries of 10% are permissible) must (unless otherwise agreed) be notified to trifact in writing without delay, but no later than 14 days after delivery/installation of the products.

13.3 The warranty period is 24 months after delivery or installation.

13.4 Excluded from the warranty are defects and faults for which trifact is not responsible, such as natural wear and tear, force majeure, improper handling, intervention by the service recipient or third parties, excessive use, unsuitable operating materials or extreme environmental influences as well as the aforementioned consequential damage.

13.5 In the case of warranty services, the service recipient must in any case comply with the procedures defined by trifact or the respective manufacturer or supplier for handling returns. The return shipment contains a detailed description of the defect. If the goods are returned without a description of the fault, trifact may carry out a fault search at the expense of the service recipient (minimum time required: one hour). trifact offers the service recipient the same guarantee and warranty that it receives from the manufacturer or supplier.

13.6 If the service recipient wishes to resell the products, they shall be responsible for compliance with domestic and foreign export regulations. If the client modifies the resold products, the client shall be liable for any resulting damage to the supplier, the buyer or third parties. The provisions of the Product Liability Act remain reserved.

14 Liability

14.1 trifact shall be liable for direct damage caused intentionally and through gross negligence by it, its auxiliary persons and any subcontractors involved in connection with the contractual relationship. The liability per claim is limited to the amount of the payment for the contractual service in question, but not more than CHF 50,000.

14.2 The following damages are excluded: • damage that has arisen as a result of a software error, an operating system error or a faulty service pack from the manufacturer, • damage resulting from the non-fulfilment of contractual obligations by the service recipient • damage in the event of a delay in delivery that was not caused by trifact itself • damage that has arisen as a result of damage caused by natural forces • damage that has arisen as a result of a harmful code and/or hacker attack

15 Consequences of the termination of the contractual relationship

15.1 The contracting parties shall stipulate in the contract which resources, data and documents made available within the scope of the contractual relationship shall be returned to the other contracting party or destroyed upon termination of the contractual relationship and within what period of time.

15.2 Upon termination of the contract, irrespective of the legal grounds, trifact shall support the service recipient to the extent necessary and against appropriate remuneration in the instruction of a possible new provider, in the return or transfer of the data that trifact has processed for the service recipient to the service recipient or to a new provider (in a format defined by trifact) and in the return or transfer of the hardware and software that trifact has operated for the service recipient, including the transfer of current, electronically editable versions of documentation produced by trifact in connection with this in accordance with the contract.

16 Assignment, transfer and pledge

16.1 Rights and obligations arising from the contractual relationship may not be assigned, transferred or pledged to third parties without the prior written consent of the contractual partner. The service recipient shall only refuse consent to the assignment and pledging of claims by trifact in justified cases. Individual companies within a group are not considered third parties.

16.2 Upon delivery, trifact shall assume the obligations of the service recipient arising from import certificates, if and to the extent that this is contractually regulated.

17 Applicable law and place of jurisdiction

17.1 The contractual relationship shall be governed by Swiss law, unless otherwise provided in the contract.

17.2 The provisions of the Vienna Sales Convention (United Nations Convention on Contracts for the International Sale of Goods, concluded in Vienna on 11 April 1980) are excluded.

17.3 The place of jurisdiction is Lucerne, Switzerland. The parties shall endeavour to settle any disputes arising from the performance of this contract amicably. B Special conditions

18 Intellectual property rights

18.1 Rights to work results

18.1.1 The rights to the work results produced by the service provider in fulfilment of the contract shall pass to the service recipient upon production. This includes in particular concepts, documents, evaluations, etc. produced by trifact within the scope of a contractual relationship. Both contracting parties are entitled to use and dispose of ideas, procedures and methods that are not legally protected and on which the work results are based.

18.1.2 Third-party products and the pre-existing rights of trifact remain unaffected by this provision unless they are an inseparable part of the created work product. In such a case, trifact shall grant the service recipient an unlimited, non-exclusive, transferable right of use to the pre-existing rights for their own purposes. Any contractual provisions to the contrary shall remain reserved.

18.2 Rights to individual software The exclusive rights to the individual software produced by trifact especially for the service recipient, including source code, programme descriptions and documentation, regardless of whether these are available in written or machine-readable form, shall be transferred to the service recipient upon creation. Both contractual partners shall remain entitled to use and dispose of ideas, processes and methods that are not protected by law. The software documentation (in particular documented source code including overview, data and function model as well as function description) and the other documents shall be handed over to the service recipient before acceptance and, on request, before any partial payments.

18.3 Patent rights Patent rights to inventions created during the performance of the contract belong to: • the service recipient if the inventions were made by their staff; • trifact if the inventions were made by its staff or by third parties engaged by them; • the service recipient and trifact if the inventions were made jointly by the staff of the service recipient and trifact or by third parties engaged by them. They may transfer their rights to third parties or grant third parties rights of use without the consent of the other contracting party.

18.4 Rights to standard software

18.4.1 The intellectual property rights to the standard software remain with trifact or third parties. Insofar as third parties are entitled to the rights, trifact guarantees that it has the necessary rights of use and distribution.

18.4.2 The service recipient acquires the non-transferable and non-exclusive right to use the standard software to the extent agreed in the contract.

18.4.3 The right to use the standard software is granted in accordance with the purchase contract for the specified duration (until contract termination).

18.4.4 The service recipient may make copies of the standard software for backup and archiving purposes.

18.4.5 During a hardware failure, they shall be entitled to use the standard software on replacement hardware without additional remuneration.

19 Software maintenance

19.1 The maintenance of software includes the correction of errors, and the adaptation and the further development of programmes (new releases). Functional extensions are subject to a charge.

19.2 If faults occur, trifact shall be involved in searching for the cause of the fault at the request of the service recipient, even if the fault occurs when several systems or components interact. If trifact proves that the fault was not caused by the software maintained or serviced by it, these services shall be remunerated separately.

19.3 The service recipient is not obliged to adopt every new software version. In this case, trifact is entitled to discontinue maintenance services for previous software versions after an appropriate transition period. Unless otherwise agreed, this period shall be 12 months.

20 Information

20.1 trifact shall inform the service recipient as early as possible in advance of its plans for any changes in relation to the provision of services or the discontinuation of services, in particular if the changes only take effect after the next possible termination date. 21 Take-back In accordance with the Ordinance on the Return, Taking Back and Disposal of Electrical and Electronic Equipment (ORDEE), the supplier undertakes to take back electrical equipment and to dispose of it in an environmentally sound manner. The service recipient shall bear the costs for transport and disposal.