General Terms and Conditions of ELAG Elektronik AG

Version dated 6 December 2024

A. General provisions

1. Scope of application

1.1 These General Terms and Conditions of ELAG Elektronik AG (hereinafter referred to as “ELAG”) apply to all contracts for sales, deliveries, services (including after-sales services) and other work carried out by ELAG as a service provider for its customers as service recipients.

1.2 Provisions deviating from these General Terms and Conditions of ELAG (“GTC”) shall only apply if they are expressly agreed on in writing. Conflicting provisions in the customer’s general terms and conditions shall only apply if their validity has been expressly confirmed in writing by ELAG, in deviation from these GTC.

2. Contract conclusion

2.1 Contracts, amendments to contracts and legally valid declarations by the parties must be made in writing in order to be valid. Orders placed by the customer shall only be deemed confirmed upon ELAG’s written confirmation. Electronic communication channels such as email, which enable proof by text, are equivalent to the written form.

2.2 ELAG is authorised to refuse an order without stating reasons or to make the acceptance or execution of an order contingent on payment in advance.

3. Deliveries and services provided by ELAG

3.1 ELAG’s deliveries and services shall be exhaustively described in the quote, in the order confirmation or in the written contract. Services not included in the scope of services shall be invoiced separately.

3.2 Information in brochures, catalogues, on the website, in technical documents and in drawings produced by ELAG shall not be binding unless their binding nature is expressly guaranteed by ELAG in writing.

3.3 Insofar as the scope of services or delivery includes third-party products (embedded systems, operating system, middleware, remote access, etc.), the licence, warranty and terms of use provided by the manufacturer for the products in question shall apply exclusively. The customer shall be liable for any breach of the terms of use and licence conditions on the part of the customer itself, its employees and any third parties involved.

4. Documentation

4.1 ELAG shall supply the agreed documents and instructions for ELAG’s deliveries and services. Unless otherwise agreed, ELAG may provide the documentation in physical or electronic form at its own discretion.

5. Obligations of the customer to provide materials and services and cooperate

5.1 The customer shall be obliged to assist ELAG with the provision of the service, in good time and free of charge. Namely, it shall
a) provide ELAG with all documents and information relevant to the provision of the deliveries and services;
b) appoint a contact person who has the necessary technical and decision-making authority for the execution of the contract and is authorised to make and receive the legal declarations necessary for the execution of the contract;
c) grant ELAG the necessary access to the sites so that ELAG can fulfil its order unhindered and on time;
d) inform ELAG immediately of any circumstances that jeopardise the contractual fulfilment of the services, lead to inappropriate solutions or have an impact on the services;
e) fulfil the other duties to cooperate and provide materials and services as agreed.

5.2 The costs of delays and additional expenses incurred by ELAG due to the incorrect fulfilment of cooperation and provision obligations shall be borne by the customer.

6. Prices and terms of payment

6.1 Unless otherwise agreed, all prices and payments of remuneration are net, excluding any value added tax, and are payable in Swiss francs.

6.2 Unless otherwise agreed, the prices apply for delivery ex works at the Winterthur/Switzerland facility (EXW, Incoterms 2020). All ancillary costs such as packaging, transport, insurance, expenses, certifications, authorisations, fees, charges, customs duties, letters of credit and associated expenses shall be borne by the customer.

6.3 Services shall be remunerated by ELAG on the basis of expenditure, using the rates specified in the quote or contract. If there are no rates stipulated in the quote or contract, ELAG’s standard rates and prices valid at the time when the service is provided shall apply.

6.4 ELAG reserves the right to adjust its prices if, between the time of the quote and the delivery date,
– the prices of suppliers or manufacturers change;
– the customer requests changes;
– changes become necessary for reasons beyond ELAG’s control (e.g. changes to customs tariffs, laws, regulations, exchange rates).

The customer shall be notified of such price adjustments.

6.5 ELAG is entitled to demand full or partial advance payment or other securities.

6.6 The invoice amount shall be due for payment within 30 days of delivery, in the agreed currency and without deduction. The customer shall automatically be in default upon expiry of the payment deadline.

6.7 The customer may not offset claims against ELAG with ELAG’s claims against the customer.

7. Default of payment

7.1 If the customer is in arrears with a payment, ELAG shall be entitled to the following rights cumulatively, and it may exercise these immediately, i.e. without notice or reminder:

a) The customer shall pay default interest of 5% p.a. from the due date.
b) The customer shall reimburse ELAG for the costs arising from the default, including but not limited to those for collection and legal action.
c) ELAG may suspend the further provision of services until payment has been made in full or new payment and delivery terms have been agreed and ELAG has received sufficient security.
d) ELAG may reclaim or withdraw the services provided to date and postpone the fulfilment of other contracts with the customer or (at ELAG’s discretion) cancel such contracts without further formalities or any obligation to pay compensation for premature termination.
e) ELAG may adhere to the contract or withdraw from it after the setting and expiry of a reasonable grace period.
f) ELAG is entitled to demand compensation.

8. Deliveries and deadlines

8.1 Partial deliveries are permissible insofar as they are reasonable for the customer.

8.2 The risk shall pass to the customer at the time scheduled for delivery and notified to the customer. If the customer is in default of acceptance, ELAG may invoice the customer for the costs of storage.

8.3 ELAG shall endeavour to meet the delivery deadlines specified in the contract. However, they shall only be binding if ELAG has expressly confirmed their binding nature in writing. Unless otherwise agreed in the contract, the delivery period shall not commence until all official formalities (such as export and import licences) have been completed and the payments and securities to be provided with the order have been issued.

8.4 The customer shall not be entitled to withdraw from the contract or refuse acceptance if the delivery deadline is not met.

9. Retention of title

9.1 Ownership of the manufactured and delivered products shall remain with ELAG until full payment has been received. ELAG is authorised to have the retention of title registered from the conclusion of the contract.

9.2 The customer is obliged to safeguard ELAG’s property and to inform third parties of this (e.g. in the event of seizure). The customer may not sell, rent or pledge the delivered products until full payment has been made.

10. Liability

10.1 ELAG’s liability for slight and ordinary negligence as well as for loss of earnings, loss of production, costs for the procurement of replacement products from third parties, installation and removal costs, consequential damage caused by defects and other indirect and consequential damage, whether based on a contract, a tortious act or for any other reason, is excluded. This exclusion of liability also applies to damage caused by auxiliary persons.

10.2 ELAG’s entire liability under these GTC shall be limited to the price paid by the customer for the goods and services ordered from ELAG, irrespective of the reason for liability and to the extent permitted by law.

11. Force majeure

11.1 “Force majeure” is defined as an external and extraordinary event for which neither party is responsible, such as fire, war, acts of terrorism, epidemics and pandemics, natural events of particular intensity, disruptions to communication networks or transport routes, official acts or other operational disruptions at a party or its suppliers that are beyond its control.

11.2 A party shall be released from its contractual obligations if and for as long as it is unable to fulfil its contractual obligations or can only fulfil them under considerably more difficult conditions due to force majeure, despite exercising all due care. The party prevented from providing the service due to force majeure shall inform the other party of this as soon as possible.

11.3 The agreed dates and deadlines for the fulfilment of obligations shall be postponed in accordance with the duration of the force majeure. The parties shall enter into discussions as soon as possible in order to mitigate the effects of force majeure on the contractual relationship and to agree on the necessary adjustments.

12. Intellectual property rights

12.1 All intellectual property rights (including but not limited to patent, design, copyright, trademark and company rights) to its products, drawings, know-how and the technical and commercial documents, models, tools and designs made available to the customer shall remain exclusively with ELAG. With the exception of the right to use software in accordance with section 19 of the GTC, ELAG does not grant the customer any ownership or licence rights to use or pass on the intellectual property rights to which it is entitled.

12.2 The customer authorises ELAG to use the customer’s name and logo and a factual description of the business relationship as a customer reference.

13. Confidentiality and data protection

13.1 All quotes, contracts, drawings and documents from ELAG are to be treated as confidential and may not be used or made accessible to third parties without the written consent of ELAG.

13.2 The contracting parties are obliged to treat each other’s business secrets as confidential for an unlimited period of time beyond the duration of the contractual relationship and to not disclose them to third parties. “Business secrets” are understood to mean all information obtained in the course of the fulfilment of the contract.

13.3 The above obligations do not apply to business secrets that
– were already known to the other party prior to their disclosure;
– have become known after disclosure through no fault of the other party;
– have been developed by the receiving party independently and without utilising the other party’s trade secrets;
– the receiving party is required to publish due to a legal provision, official order or court ruling, provided that the other party has been granted sufficient time to defend against this measure.

13.4 Information on the processing of personal data by ELAG can be found in the privacy policy on the ELAG website.

14. Further provisions

14.1 The products supplied by ELAG are subject to statutory export regulations. The customer is obliged to apply for an export licence from the competent authority before (re-)exporting products subject to authorisation.

14.2 Should any provision of these GTC be invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision that comes closest to the original provision in terms of content and economic effect.

15. Applicable law and place of jurisdiction

15.1 The contractual relationship shall be governed by Swiss substantive law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods and conflict of laws regulations.

15.2 The exclusive place of jurisdiction for the customer is at the location of the registered office of ELAG. However, ELAG shall also be entitled to sue the customer at its registered office.

B. Special terms and conditions for the sale and delivery of products

16. Warranty

16.1 ELAG warrants that the delivered products shall be free from manufacturing and material defects at the time of the transfer of risk, and that they shall correspond to the warranties expressly confirmed in writing. ELAG offers no guarantee that the products will fulfil the customer’s requirements. The customer is responsible for the correct selection, application and use of the products, and for the results achieved with the products.

16.2 If no acceptance test has been agreed, the customer must inspect the services for any defects immediately upon receipt and notify ELAG in writing of any obvious defects within five (5) working days. If the customer fails to do so or does not carry out a scheduled acceptance test within one month of delivery, the deliveries and services shall be deemed to have been accepted and approved. Hidden defects must be reported to ELAG in writing within five (5) working days of their discovery. Notices of defects must be sent to ELAG in written or electronic form with as precise a description of the defect as possible.

16.3 The warranty period is one year from the date of delivery.

16.4 If there is a defect covered by the warranty and this has been reported in good time, ELAG shall, at its own discretion, either rectify the defect or supply a replacement. Further warranty rights are excluded.

16.5 Section 10 of the GTC shall apply to claims for damages.

16.6 Warranty is excluded for defects and damage caused by normal wear and tear, improper use or maintenance of the product, or non-compliance with the specifications or recommendations for use, or for which the customer is otherwise responsible. Any warranty is void in the event of modifications or repairs to the product carried out by persons other than ELAG without the prior written authorisation of ELAG.

C. Special terms and conditions for the provision of contractual services

17. Testing and acceptance

17.1 If an acceptance test has been agreed, an acceptance report must be drawn up. Insignificant deviations from the agreed performance characteristics shall not entitle the customer to refuse acceptance. However, ELAG remains obliged to rectify errors in accordance with section 18.

17.2 The service shall be deemed to have been accepted without reservation, even without an express declaration of acceptance by the customer, if the customer
– uses the service for a period of four weeks,
– does not carry out the acceptance tests despite being requested to do so by the supplier,
– does not draw up or sign the acceptance report, or
– pays the final invoice without reservation.

17.3 If no acceptance test has been agreed, the customer must inspect the services for any defects immediately upon receipt and notify ELAG in writing of any obvious defects within five (5) working days. If the customer fails to do so or does not carry out a scheduled acceptance test within one month of delivery, the deliveries and services shall be deemed to have been accepted and approved. Hidden defects must be reported to ELAG in writing within five (5) working days of their discovery. Notices of defects must be sent to ELAG in written or electronic form with as precise a description of the defect as possible.

18. Warranty

18.1 ELAG warrants that the contractual services shall be free from manufacturing and material defects at the time of the transfer of risk (or if an acceptance test is planned, at the time of the planned acceptance date), and that they shall correspond to the warranties expressly confirmed in writing. ELAG offers no guarantee that the services will fulfil the customer’s requirements. The customer is responsible for the correct selection, application and use of the services, and for the results achieved with them.

18.2 The warranty period is one year from the date of acceptance in accordance with section 17.

18.3 If there is a defect covered by the warranty and this has been reported in good time, ELAG shall, at its own discretion, either rectify the defect or supply a replacement. Further warranty rights are excluded.

18.4 Section 10 shall apply to claims for damages.

18.5 Warranty is excluded for defects and damage caused by normal wear and tear, improper use or maintenance of the product, or non-compliance with the specifications or recommendations for use, or for which the customer is otherwise responsible. Any warranty is void in the event of modifications or repairs to the product carried out by persons other than ELAG without the prior written authorisation of ELAG.

D. Special terms and conditions for software

19. Right of use

19.1 If software is included in the scope of delivery, ELAG shall grant the customer a simple, non-exclusive, non-transferable and non-sublicensable right to use the software together with the delivered item as intended. Any modification, processing, translation, adaptation or further development of the software, or its use for purposes other than internal business purposes, is prohibited. Without the express consent of ELAG, the customer is in particular prohibited from copying, reproducing or passing on the software or parts thereof, or developing similar software using the software provided by ELAG. The customer is authorised to make a copy of the software for backup purposes. This must be labelled as a backup copy and protected against unauthorised access by third parties.

19.2 This right of use is subject to full payment of the agreed remuneration.

19.3 Unless otherwise expressly agreed, the right of use refers to the version of the software at the time the contract is concluded. ELAG shall only provide maintenance, care and support services in return for separate compensation, on the basis of a separate maintenance and support contract.

19.4 The decryption of the software is subject to Art. 21 of the Swiss Federal Copyright Act (CopA; SR 231.1). Before decompiling programs that have been created or supplied by ELAG, the customer shall ask ELAG in writing to provide the information and documents required to establish interoperability within a reasonable period of at least thirty (30) working days. Only if this request remains unsuccessful despite the setting of a written deadline is the customer entitled to decompile within the limits of Art. 21 CopA. Before engaging third parties, the customer shall obtain a written undertaking from the third party in which the third party undertakes to maintain confidentiality vis-à-vis ELAG.

19.5 The customer may only transfer the software to third parties together with the delivered item and by relinquishing its own use and passing on the same contractual obligations. The written consent of ELAG, which may not be unreasonably withheld, is a prerequisite for this. The third party shall only be authorised to exercise the contractual rights of use if the customer has assured ELAG in writing that it has passed on the original copy of the program to the third party and deleted all copies it has made itself.

20. Open source

20.1 The software supplied by ELAG may use open source software, to which the corresponding open source licence terms apply. A list of the open source software used for key components can be ordered from ELAG.

21. Warranty

21.1 ELAG warrants that the software it licenses to the customer shall not have any defects at the time of delivery that negate or severely impair its value or suitability for the intended use. ELAG offers no guarantee that the software will fulfil the customer’s requirements, that it is free of errors and security vulnerabilities, and that it will be available without interruption. The customer is responsible for the correct selection, deployment and use of the software, and for the results achieved with the software.

21.2 If no acceptance test has been agreed, the customer must inspect the software for any bugs immediately upon receipt and notify ELAG in writing of any obvious bugs within five (5) working days. If the customer fails to do so or does not carry out a planned acceptance test within one month of receipt, the software shall be deemed to have been accepted and approved. Hidden bugs must be reported within five (5) working days of their discovery. Bugs must be reported to ELAG in written or electronic form with as precise a description of the defect as possible.

21.3 The warranty period is one year from the date of delivery.

21.4 If there is a bug covered by the warranty and this has been reported in good time, ELAG shall, at its own discretion, either rectify the bug, provide the customer with a workaround or supply a replacement. Further warranty rights are excluded.

21.5 Section 10 shall apply to claims for damages.

21.6 Warranty is excluded for the installation of the software by the customer or third parties and for errors caused by interaction with third-party products, improper use of the software, non-compliance with the specifications or recommendations for use, changes to the software not made by ELAG or for which the customer is otherwise responsible. Any warranty shall lapse in the event of changes or modifications to the software made by persons other than ELAG without the prior written authorisation of ELAG.

21.7 If the scope of delivery includes software from third parties, the terms of use and warranty conditions of the third-party supplier shall apply exclusively.

D. Special terms and conditions for test and rented materials

22. Obligations on the part of the customer

22.1 Materials loaned or rented to the customer (in particular for test or demonstration purposes) and products loaned or rented (“rented materials”) shall remain the property of ELAG. The customer may not sublet, lend or otherwise transfer the rented materials to third parties.

22.2 The customer must treat the rented materials with care. The customer may not modify the rented material, for example by removing parts.

22.3 The customer must return the rented materials to ELAG in full and in proper condition, without delay and at its own expense, at the end of the agreed rental period upon first request. If the rental equipment is not duly returned to ELAG within the agreed period, the customer must purchase the rental equipment at the value of the goods at the time the rental commenced. Loaned materials shall be deemed to have been duly returned if they are returned undamaged and in the same condition in which they were delivered. If supplied components, such as cables and accessories, are missing, the loaned materials shall not be deemed to have been returned correctly.

22.4 The customer has no right of retention with respect to the rented materials.

22.5 The customer undertakes to provide ELAG with the logs or the measurement data recorded using the rented materials. ELAG may use this data for the further development of its products.

23. Warranty and liability

23.1Any warranty and liability for equipment provided or hired free of charge or for test purposes is excluded to the extent permitted by law.