General terms and conditions

Version of 14 December 2022. This is a translation; in the event of discrepancies, the German version prevails.

1. Purpose

These General Terms and Conditions (“GTC”) shall apply to all services provided by Tessi Switzerland (“TESSI” or the "Service Provider") to the client identified in the Special Terms (the “Client”).

2. Contractual documents

The "Contract" which governs the contractual relationship between the Service Provider and the Client (hereinafter the "Parties"), is composed of the following documents - to the extent that they are present:

• The Special Terms and their possible exhibits (including Service Level Agreement “SLA” and conditions for processing personal data)
• The present GTC

In the event of a contradiction between these documents, the document of higher rank shall prevail. The Client’s terms and conditions shall not apply to the Contract unless the Parties agree otherwise in writing. This Contract constitutes the entire agreement between the Parties and supersedes and extinguishes all previous drafts, agreements, and understandings between them, whether written or oral, relating to this subject matter. The Contract may only be amended by a written document signed by the Parties.

3. Obligations of the Parties

3.1. Obligations of the Service Provider

The Service Provider undertakes to apply all due diligence and care required for the correct performance of the Services, under the conditions set out in the Service Level Agreement where it exists, and to keep the Client informed about any difficulties or incidents that may arise during the performance of the Services.

3.1.1. Obligation to advise

The Service Provider undertakes to advise the Client during the performance of the Contract in order that the Services may be completed under the best possible conditions.

3.1.2. Security

If access to the Client’s IT system is needed to perform the Services, the Service Provider will do so in accordance with TESSI’s Group Information Systems Security Policy. In this regard, it must ensure that it does not perform services that are not directly resulting from or requested by the Client, deliver results or allow free access to its premises to unauthorised persons.

3.1.3. Resources implemented

The Service Provider is responsible for the selection and deployment of the team members performing the Services as well as their professional skills and competence. The Service Provider undertakes to implement all necessary means to maintain the same level of quality of its team members throughout the term of the Contract. The Service Provider’s employees shall carry out the Services on Tessi’s site if not specified otherwise in the Special Terms. In the event of the performance of the Services at the Client's premises, the Service Provider will designate one employee to conduct the operational monitoring of the Services ; the Client will do everything possible to provide a dedicated space for the Service Provider’s teams that are required to work at its premises. The Service Provider's employees will remain under the authority of the Service Provider throughout the entire term of the Contract. In this regard, it is expressly reminded that the Service Provider, in its capacity as employer, has sole responsibility for the administrative, accounting and social management of its employees involved in the performance of the Services. Under no circumstances will the Client communicate any observations it may have to the Service Provider’s personnel directly ; instead, the Client will inform its designated contact person as indicated in the Special Terms. Any observation related to the behaviour of a member of the Service Provider’s staff at the Client’s premises shall be communicated in writing by the Client to the Service Provider.

3.1.4 Mandate

Where applicable, the Client grants the Service Provider, who accepts it, an express and special mandate to deliver to the postal service any letter, including registered letters, in the Client’s name and on the Client’s behalf, solely for the performance and duration of this Agreement. In this respect, the Client undertakes to take the necessary steps with the postal service, in particular to declare the Service Provider to the postal service as a depositor. The Services shall be deemed completed at the time of deposit.

3.1.5 Postage cost

If the postage Services are not provided under the Client’s postal contract, the Client gives the Service Provider, who accepts it, an express and special mandate to frank any envelope, including registered envelopes, in the Customer's name and on his behalf, solely for the performance and duration of this Contract.

3.1.6 Volumes and deadlines

If processing deadlines are provided for, the Client accepts that these deadlines can only be met if the equipment and tools supplied by the Client (where necessary) are not defective and if the volumes to be processed are not more than 10% higher than the forecast volumes previously communicated by the Client.

3.1.7 Possible penalties

Unless indicated otherwise, the Service Provider is not subject to any penalty. Where penalties are incurred by the Service Provider as provided for in the Special Terms or the appendices, these may not under any circumstances exceed, notwithstanding any provision to the contrary, and resulting from all causes, five percent (5%) of the monthly amount (excluding VAT) invoiced by the Service Provider during the month impacted by the breach. Penalties are invoiced in the month following that in which the breach occurred. They are settled within a period of 45 days following receipt of the invoice. No penalty is applicable if the breach is not exclusively the fault of the Service Provider or in the event of force majeure.

3.2. General obligations of the Client

3.2.1. Obligation to cooperate

(a) The Client will communicate to the Service Provider, as quickly as possible, any information that the Service Provider deems necessary for the correct performance of the Services as defined in this Contract and in all accurate, readable and complete form the data and documents required for the performance of the Services. Where necessary, the Client undertakes to enable the access and use by the Service Provider of its information system for the correct delivery of the Services.

(b) The Client will assign the employees required for the performance of the Services and will ensure that said employees have sufficient availability to fulfil their role in accordance with the organisation of the Services (including workshops for solution design).

(c) The cost outstanding (wages, additional materials and general company expenses) resulting from delays caused to the Service Provider by the non- compliance or insufficient compliance by the Client with its obligation to cooperate shall be borne by the Client;

(d) If the breach by the Client of its obligation to cooperate results in a delay to the Services of more than two (2) months, the Service Provider may, in writing, terminate the contract and ask the Client for indemnification for all damages caused to the Service Provider. The damages shall not exceed the amount agreed in the contract.

3.2.1. Monitoring obligation

The Client is responsible for monitoring the Services provided by the Service Provider. If no complaint is raised within a period of fifteen (15) days as from the date of performance of the Services, said services shall be deemed accepted.

3.2.3. Data and intellectual property rights of the Client

The Client shall retain ownership of any data or database created or collected by the Client. The Client is solely responsible for the content of the data and documents provided to the Service Provider for the performance of Services, and for the data processing instructions which it guarantees shall comply with the legislation in force. Where necessary, the Client guarantees that it has the legally equired authorisations to create and/or transfer its database. In the event that the Service Provider's teams are required to make use of software installed within the Client’s IT environment, in order to perform the Services, the Client guarantees that it has obtained from the relevant vendors the authorisations required to enable the Service Provider to operate or use such softwares on behalf of the Client either on-site or remotely.

3.2.4. Provision of equipment

If the performance of this Contract requires the provisioning of equipment by the Client, the latter undertakes to make such equipment available to the Service Provider under the conditions set out in the Special Terms. The Client is responsible for the maintenance and insurance of this equipment. The failure of the Client to perform to its maintenance obligation for its equipment will exonerate the Service Provider from any damages that may result therefrom in the performance of the Services.

4. Pricing

4.1. Price determination

The financial conditions relating to the Services are mentioned in the Special Terms and any appendices thereto. When the price of the Services is fixed, it is based on the estimated volumes provided by the Client and may therefore be adjusted by the Service Provider with the Client’s agreement if these estimates change. Unless otherwise indicated, prices are exclusive of costs, disbursements, supplies (envelopes, sheets, etc.).Bank transfer fees in case of a SEPA payment shall be borne by the Client. The Client may not under any circumstances offset, reduce, or modify the prices nor suspend payment in advance.

4.2. Pricing revision

The prices may be increased annually on 1 January of each year based on the higher of (i) the Consumer Price Index (CPI) of the Swiss Federal Statistical Office, or (ii) the percentage price increase applied by the vendor of the software under its agreement with Tessi. The new prices will automatically be applied to all the Services performed following the date of the price revision. Where applicable, a drop in volumes below 20% of what was expected shall allow the Service Provider to renegotiate prices.

4.3. Review Clause

Irrespective of the above pricing revision clause, in the event of a significant increase in the costs associated with the performance of the Contract, the Service Provider will have the right to request the re-evaluation of the price of the services that are still to be performed. In accordance with their obligation to cooperate in good faith, the Parties undertake to meet in order to find an agreement on the new financial conditions.

5. Invoicing and payment

5.1. Payment terms

Category	Invoicing
Hardware and/or software	100% at the time of order
Set up/parametrization	Up to CHF 20’000: 100% at the time of order Over CHF 20’000: 80% at th time of order and 20% after completion
Software and/or hardware maintenance	100% in advance annually (with pro rata temporis for the first year and last year)
Price based on volumes	At the end of the month

Invoices must be paid by bank transfer within 30 days from their issuance date. Any delay in payment may result in the application of annual late payment interest at twice the legal rate in force. Furthermore, in the event of such (a) delay(s), the Service Provider may, after having informed the Client in writing, suspend the performance of its obligations until payment is received.

5.2. Taxes withheld at source, other taxes

All prices are stated exclusive of tax. When an indirect tax, in particular VAT, is due, the price will be increased accordingly, and the Service Provider will send to the Client an invoice on which the amount of the tax is indicated separately. In the event that, due to the local legislation in force, a tax or levy should be withheld at source on the payment owed to the Service Provider, the Client must, after having informed the Service Provider, deduct from the price owed the corresponding amount of the tax, provided that this tax is effectively paid to the competent authorities. In this regard, the Client will issue the Service Provider with an official receipt, a certificate, or any other valid proof of payment of the tax, within 30 days following its payment to the authorities. In the event that the Client does not pay the tax, or retains an amount higher than the amount of the tax, or does not provide proof of payment as indicated above, it must immediately reimburse the Service Provider in the amount of the tax or the surplus amount, increased by any penalties and/or interest that may be applicable.

6. Liability of the Service Provider

Notwithstanding any further provisions in the Contract, the liability of the Parties from or in connection with this Contract is limited as follows: for direct damages caused intentionally and by gross negligence, the Parties shall be liable without any limitation in amount; for damages caused by slight negligence, the Parties liability per year of Contract shall be limited to the amount paid by the Client (excluding tax) during the twelve (12) months preceding the event leading to the claim. Indirect and consequential damages are - as far as legally permissible - excluded from liability. The Parties are liable for the conduct of their auxiliary persons (e.g. employees, subcontractors) and subcontractors as for their own. Furthermore, the Service Provider is only responsible for the tasks expressly assigned to it in this Contract. The Service Provider shall not be held liable in any way whatsoever for the use made by the Client of the results of the Services, nor for the content of the data or documents provided by the Client and/or incorporated into the tools provided by TESSI.

7. Continuity of services

In the event of a substantial slowdown in the IT system and/or the unavailability of the equipment that must be provided to the Service Provider by the Client and/or a defect in the provision of elements required for the performance of the Services, that is not attributable to the Service Provider, the Client will in any event be liable for the full price indicated on the Special Terms. Furthermore, the Service Provider will not bear any liability for operational interruptions required for repair or maintenance work or for the introduction of new systems.

8. Insurance

The Service Provider declares that a professional liability insurance policy is in place and is maintained through the duration of the Contract to cover the direct material or intangible damage caused by the Service Provider.

9. Non-disclosure

The Parties acknowledge the confidential nature of all information and data exchanged between them for the performance of the Contract and undertake to maintain the confidentiality of said information and data, with the exception of (i) publicly available data, (ii) data already known to the receiving Party, (iii) data obtained by the receiving Party through the internal, independent work undertaken in good faith by the members of its staff that do not have access to the confidential Information, and (iv) any provision to the contrary expressly agreed between the Parties. All confidential Information communicated by one of the Parties to the other Party will be held by the receiving Party in the same manner as that in which it holds its own confidential Information and will be used for the purposes of the Contract only. The clause shall remain applicable for a period of FIVE (5) years following the end of the Contract.

10. Changes

10.1 At the initiative of the Client

The Client will inform the Service Provider as quickly as possible about any changes it may need. The Service Provider undertakes to provide the Client with a prompt response on the consequences of these changes.

10.2 At the initiative of the Service Provider

The Service Provider may choose to change to the Services, provided that the changes offer service conditions at least equal to those existing before.

10.3. Novation

At any time, the Parties may agree together on new conditions, which they will define in new special terms replacing the previous ones.

11 Term

The duration of the Contract is defined in the Special Terms. If not, the Contract shall be concluded for a period of one (1) year from its signature and shall automatically renew for consecutive one-year periods. Unless agreed otherwise in the Special Terms, each of the Parties can terminate the Contract three (3) months before the expiry of its term or anniversary date. Such ordinary termination implies the obligation for the Client to pay the Service Provider all sums outstanding at the latest on the date of the end of the Contract.

12 Extraordinary termination

In the event of repeated or continuous breach by either Party of any of its obligations under the Contract, the other Party shall be entitled to immediately terminate the Contract in the event that the written notice notifying the breach to the violating Party remains without effect for a period of 30 (thirty) days, without prejudice of any damages that could be claimed by the Party terminating the Agreement. In the event of extraordinary termination, the Client must pay the Service Provider for all the work performed and costs incurred until the Contract termination date.

13 Non-solicitation of staff

Except with the express and prior consent of the Service Provider, the Client, until the end of the performance of each Service covered by this Contract, then for a period of twelve (12) months following its expiry, shall refrain from hiring or employing, either directly or through an intermediary, any of the Service Provider's employees that were involved in the delivery of the said Service, failing which it shall pay to the Service Provider compensation the amount of which shall correspond to the salaries paid to the employee(s) concerned over the twelve (12) months preceding their departure.

14 Personal data

Where personal data is processed under the Contract, the conditions for such processing are governed by the appendix “Processing of personal data”.

15 Force Majeure

Neither of the Parties may be held liable for any delay or breach resulting from the occurrence of a Force Majeure event. The Parties acknowledge that a Force Majeure event may result, among other thing, of: the failure of a telecommunications or electrical network, the occurrence of a strike, lock-outs of third party companies affecting the service, acts of terrorism, riot or civil unrest, a civil or foreign war, an attack, extreme weather conditions or an earthquake, flooding, water damage, fires, storms; government or legal restrictions; pandemics; blockage of traffic routes, means of transport or supply for any reason whatsoever. The Party wishing to claim a Force Majeure event must notify the other Party via registered letter with acknowledgement of receipt as soon as possible once they have become aware of such an event. Once the effects resulting from the Force Majeure event have disappeared, the affected Party will immediately resume the performance of their obligations. In the event that the impact of the Force Majeure event persists for longer than one (1) month, the Parties agree that this Contract may be automatically terminated upon receipt of a registered letter with acknowledgement of receipt, without affecting the payment terms for the Services performed.

16 Sub-contracting – Assignment

The Client authorises the Service Provider to sub-contract all or part of the Services to any Tessi Group subsidiary, except where such subsidiary is established outside Swiss territory ; in this case, the Service Provider shall obtain prior written authorization from the Client. In any event, the Service Provider will remain liable in respect of the Client for the correct performance of the contract and of the Services by any sub-contractor on which it calls. Any assignment, subrogation, substitution or any form of transfer of this Contract by one or other of the Parties is prohibited except with the prior written consent of the other Party. However, the Client expressly authorises the Service Provider to assign the Contract to any Groupe Tessi subsidiary. In the event of the assignment of this Contract by the Service Provider, the latter will in no way be held jointly and severally liable for the correct performance of the Contract.

17 Miscellaneous

The Client authorises the Service Provider to quote and reproduce its name and logo as a commercial reference. No failure, delay or omission on the part of either Party in exercising any remedy, power or right expressed in the Contract shall operate as a waiver of such power or right. Such a waiver shall not be construed as a waiver of said rights in the future. The express waiver by one Party to invoke one of its rights may not be interpreted as a waiver by said Party to exercise its other rights resulting from this contractual relationship. In the event that one of the clauses of this Contract is declared invalid, unwritten, unenforceable or void, said clause will be considered unwritten and will have no impact on the validity or the continuation of the Contract as a whole, unless the said clause constituted a determining factor for any one of the Parties on the signature date of the Contract. In such a case, the Parties are required to negotiate in good faith with a view to substituting said clause with a valid clause that reflects their original intention.

18 Applicable Law - Jurisdiction

The validity of this Contract and any other matter or dispute relating to its interpretation, performance or termination will be governed by Swiss law, with the exception of “Wiener Kaufrecht” (United Nations Convention on Contracts for the International Sale of Goods). The Parties undertake to devote their best efforts to finding an amicable solution for any matters or disputes over which they may disagree, prior to the legal recourse indicated hereinafter. The Parties agree, for cases in which an amicable agreement cannot be reached, that the courts of Zuerich-1 in Switzerland will have exclusive jurisdiction to hear any dispute relating to the validity, interpretation, performance or termination of this Contract, and more generally any dispute arising out of the Contract. Client signature: