AEB

General Terms and Conditions of Purchase (GTC) of APS Applied Power Systems AG

Version: October 2023.

1. Conclusion of contract / Formality / Contract amendments

1.1. Basis

We order on the basis of the enclosed «General Purchasing Conditions APS Applied Power Systems AG», which are binding for you. By accepting an order, you acknowledge these «General Purchasing Conditions APS Applied Power Systems AG». Deviating or additional terms and conditions, especially your general terms and conditions of sale, shall only apply if expressly agreed in writing.

1.2. Costs of offers

The preparation of offers to us is free of charge.
For visits, planning, and other preliminary services provided by the contractor for the submission of offers, the client shall bear no costs and pay no remuneration, unless otherwise agreed in individual cases.

1.3. Discrepancies in orders

Any deviations from the order must be expressly noted in the order confirmation. Such deviations, as well as any additions, shall only form part of the contract if they are expressly agreed. If we accept the goods/services without objection, this shall not be deemed to constitute acceptance of any deviating or supplementary provisions.

1.4. Contractual Relationship

The conclusion of the contract, amendments to the contract and any other legally binding declarations or notifications by the parties in the context of the contractual relationship must be made in writing or in a form that allows for proof by means of text (such as a letter, email, fax, etc.).

1.5 Hazardous substances

For materials (substances, preparations) and articles (e.g. goods, parts, technical equipment, uncleaned empties) which, due to their properties or condition, may pose a risk to human life and health, the environment or property, and which therefore require special handling in accordance with legal regulations regarding packaging, transport, storage, handling and waste disposal, you must provide us with a fully completed safety data sheet in accordance with the Hazardous Substances Ordinance and a transport safety data sheet as part of the quotation. If you are also obliged to carry out installation, this is included in the price, unless a specific fee is expressly agreed.

1.6. Responsibility for Functional Correctness

Before commencement of manufacture, detailed drawings shall be submitted to us for approval upon request. Approval by us does not absolve you of your full responsibility for functional correctness and feasibility, as well as compliance.
your contractual obligations. If the execution, construction, or manufacturing process has changed since the last delivery or sample dispatch to us, you must inform us immediately, even if the changes do not affect the existing properties.

1.7. Changes after the contract has been concluded

We may also request changes to the subject matter of the contract after the contract has been concluded, provided this is reasonable for you. The effects on both sides, particularly regarding additional or reduced costs and delivery dates, must be considered appropriately and agreed in writing in advance. If we cannot agree on a change to the contract price, this does not release you from your obligation to implement the contract change. In this case, the competent court will decide on the additional or reduced price owed.

2. Terms of delivery / Shipping / Packaging

2.1. Terms of delivery

Deliveries shall be made, unless otherwise agreed, «DAP Destination, Incoterms® 2020». All proof and documents that the contractor must submit at the same time as the delivery must be enclosed with the delivery.

2.2. Delivery Documents

A delivery note must be enclosed with every delivery, detailing the delivery by type and quantity, specifying the item number and, where applicable, the weight. Delivery notes, consignment notes, invoices and all correspondence must include our order number and, where applicable, the project name.

2.3. Over-, under- or partial deliveries

Over- or under-deliveries and partial deliveries are only permitted with prior written agreement.

2.4. Shipping

Shipment is at your risk. The risk of any deterioration, including accidental loss, remains with you until the goods have been delivered and successfully accepted at the delivery address or place of use specified by us.

2.5. Packaging materials

Your packaging take-back obligation is governed by statutory provisions. The goods must be packaged in such a way as to prevent transport damage. Only environmentally friendly packaging materials should be used.

3. Termination / Default / Force Majeure

3.1. Dates

The decisive factor for compliance with the delivery date or deadline is the receipt of the goods, work, or service at the receiving or usage point specified by us. The timely performance of the service is determined by the completed readiness for acceptance or handover of your goods, work, or service, including the handover of all legally required, as well as agreed upon or necessary for use documentation (e.g. approvals, test certificates, conformity certificates, operating and maintenance manuals, spare parts lists, user manuals) in German, unless otherwise agreed in the contract.

3.2. Default

If you realise that an agreed deadline is at risk, you must notify us immediately, stating the reasons and the expected duration of the delay. In such cases, you shall take all necessary measures to ensure that the agreed delivery date can be met or that only a minor delay occurs. You shall also inform us of the steps you have taken and will take in this regard in each individual case. If we receive such notification from you, we shall be entitled to cancel the order without thereby assuming any liability. If we do not cancel the order, a contractual penalty of 1% of the purchase price of the goods or services ordered shall be payable for each calendar day of delay. This contractual penalty shall, at our discretion, either be paid or credited. The penalty for delay is limited to 20% of the purchase price of the goods or services specified in the order. Title to the goods passes to us upon delivery.

3.3. Missing documents

You may only rely on the failure to provide necessary documents, data, materials and the like that we are required to supply if you have requested them in good time and have not received them within a reasonable period. Claims for additional costs arising in this connection are excluded in all cases.

3.4. Force majeure

Force majeure, which includes industrial action beyond their control, shall release the contracting parties from their obligations to perform for the duration of the disruption and to the extent of its effect. The contracting parties are obliged, within reasonable limits, to provide each other with the necessary information without delay and to adapt their obligations to the changed circumstances in good faith.
We shall be released from the obligation to accept the ordered goods or services, in whole or in part, and shall be entitled to withdraw from the contract to that extent if the delivery of the goods or provision of the services is delayed by more than four weeks due to force majeure.

3.5. Early Delivery

If delivery is made earlier than agreed, we reserve the right to return the goods at your expense. If goods delivered early are not returned, they will be stored by us at your expense and risk until the agreed delivery date. In the case of early delivery, we reserve the right to defer payment until the agreed due date.

4. Prices / Invoicing / Payment

4.1. Prices

The agreed prices are fixed prices, excluding statutory value added tax. Unless otherwise agreed, the costs for packaging and transport to the delivery address or place of use specified by us, as well as for customs formalities and customs duties, are included in the prices.

4.2. Invoicing

Invoices must be submitted to us separately, together with all relevant supporting documents and data, once the goods have been delivered or the service provided. Invoices that have not been submitted correctly shall only be deemed to have been received by us from the date on which they are corrected.
Your payment is due 14 days after receipt of the invoice, subject to a 21% discount, or 60 days net, once all agreed deliveries and services have been fully completed.

4.3. Payment

Our payments do not constitute an acknowledgement of the accuracy of the invoice or that your goods/services have been supplied in accordance with the contract.

5. Warranty, Notice of Defects

5.1. Warranty

You guarantee that your deliveries/services will have the agreed quality and possess the confirmed characteristics, and will comply with the prescribed performances and specifications, be particularly suitable for use in rail vehicles and electrically powered buses, perform the agreed function, conform to the latest state of the art and the relevant legal provisions and official regulations at the agreed place of destination, and that they will not infringe the rights of third parties. Furthermore, you assure that the delivered goods or services are of standard commercial quality, that the goods and services are suitable and appropriate for the intended use by us, and are free from liens, encumbrances, security interests, claims, or similar rights of third parties. The foregoing assurances are a prerequisite for the order or contract. Your warranty also extends to parts manufactured by sub-suppliers.
If you have any concerns regarding the method of execution we have requested, you must inform us immediately.

5.2. Environmentally friendly products / processes

You undertake to use environmentally friendly products and processes in your deliveries/services, as well as in supplies or ancillary services from third parties, within the scope of what is economically and technically feasible.

5.3. Defects

Any outstanding defects must be reported to us within two weeks of receipt of the delivery, and latent defects must be reported within two weeks of discovery.

5.4. Defects during the warranty period

Any defects in.
If rectification/replacement delivery is not possible or unsuccessful, or if it is delayed or refused beyond a reasonable deadline set by us, then we are entitled to the statutory rights of rescission of the contract or a reduction in price. Claims for damages remain expressly reserved.

5.5. Lack of series / Hidden defect

Should serial defects occur during the warranty period, you are obliged to rectify the cause of the defects by modifying the design, manufacturing processes or the choice of materials. You are obliged to identify the cause of the serial defect and shall bear all costs incurred in doing so, both yours and ours. At our request, in the event of such serial damage, all parts of the affected delivery batch must be replaced at your expense. Costs arising from the replacement of the delivered goods shall be borne by you. If, within the scope of the warranty obligation, parts are modified by changes to the design, manufacturing processes or the use of different materials, or are replaced by other parts, then, at our request and notwithstanding any expiry of the warranty period, damage caused by these changes must be rectified at your expense for a period of 5 years, and any spare parts held by us or our customers must be modified or replaced free of charge. A serial defect exists if the same fault or a breach of contractually agreed characteristics occurs in at least 51% of the delivered parts and this is attributable, inter alia, to design, manufacturing, material, design or execution, or to assembly errors on your part or that of your suppliers or subcontractors.

5.6. Warranty Obligation

If you fail to meet your warranty obligations within a reasonable period set by us, we may, without prejudice to your warranty obligations, take the necessary measures ourselves or have them taken by third parties, at your expense and risk.
In urgent cases, or where unusually high damage is threatened, we may, after consultation with you, undertake the rectification work ourselves or have it carried out by a third party, at your cost and risk. Should prior consultation with you not be possible, we will immediately initiate the necessary measures and inform you thereof without delay, without this affecting your warranty obligations. We may then charge you with the necessary expenses.

5.7. Warranty Period

The warranty period is 2 years (twenty-four months). It begins after installation by us or from the time of an agreed acceptance of the delivered item by us or a third party designated by us at the receiving or usage point prescribed by us, but a maximum of 4 years (forty-eight months) after delivery. If an acceptance with a functional test has been agreed upon, the warranty period begins upon the signing of the minutes of the successful acceptance.

Warranty period for repaired or replaced parts

The warranty period restarts for improved or replaced parts.

5.9. Warranty Claim

The warranty claim becomes time-barred 1 year (twelve months) after the defect notification has been raised within the warranty period, but not before the end of it.

5.10. Limitation of Warranty

Your responsibility is not limited by the official approval of documents or by our delivery or approval of drawings, calculations, and other technical documents. The same applies to our arrangements, suggestions, and recommendations, unless you raise objections thereto.

6. Liability / Insurance

6.1. Liability

To the extent that your delivery/performance is defective or faulty, as well as in cases of other breaches of contract, including exceeding deadlines, you shall be liable to us for any resulting damages in accordance with statutory provisions. You shall be responsible for the fault of your vicarious agents and your suppliers to the same extent as for your own fault.

6.2. Claims for damages

To the extent that claims for production downtime and/or loss of profit arise due to a breach of contract in accordance with Chapter 6.1 Liability, we shall only assert these to the extent that you are guilty of gross negligence or wilful misconduct.
Any claims for reimbursement of costs for necessary measures to avoid or mitigate production difficulties and/or downtime remain unaffected by this limitation of liability, as do all other direct and indirect damages.

6.3. Claims for liability against third parties

To the extent of your liability, you shall indemnify us against all third-party claims. If we are held liable for infringement of statutory safety regulations or due to domestic or foreign product liability regulations or laws as a result of a defect in our product attributable to your supplied items, we shall be entitled to demand reimbursement from you for this damage, insofar as it is caused by the products supplied by you. This damage also includes the costs of a precautionary recall.

6.4. Supplier Liability

We are only liable to you in cases of gross negligence or wilful misconduct.

6.5. Third-party liability insurance cover

You must maintain adequate liability insurance cover with worldwide coverage of at least CHF 10 million, including recall cost risk, for a period of at least 5 years after the last delivery to us. You will provide proof of insurance upon request.

7. Quality Management

7.1. Quality Management System

You shall establish and/or demonstrate a quality management system (e.g. DIN EN ISO 9000 ff.) and/or environmental management system at our request. We reserve the right to inspect the effectiveness of this quality management system on-site.

7.2. Quality Check

If the type and scope of the inspections, as well as the testing equipment and methods, have not been agreed upon, we will, at your request and within our knowledge and capabilities, discuss the inspections with you to determine the required level of testing technology.

8. Export Control

Both parties acknowledge that the export of products and documents may be subject to export restrictions. You will inform us in writing, without prompting, which products or documents are subject to export or re-export restrictions. You will provide us with reasonable assistance in obtaining any necessary export licences.
If the export licence cannot be obtained through no fault of your own, we shall be entitled to withdraw from the contract immediately. You shall compensate us for any resulting damage.

9. Intellectual Property Rights / Copyright

9.1. Intellectual Property Infringement Against Third Parties

You guarantee that the delivery and use of the delivered items do not infringe any third-party property rights.

9.2. Claims for Infringement of Industrial Property Rights against Third Parties

You shall indemnify us and our customers against claims from third parties arising from any infringement of proprietary rights and shall also bear all costs incurred by us in this connection. Any limitations of liability in Chapter 6 Liability / Insurance shall not apply to this Chapter 9 Proprietary Rights / Copyrights. After consulting with you, we shall be entitled, at your expense, to obtain permission from the rights holder for the use of the relevant goods and services supplied.

9.3. Copyright

If the products contain software, firmware or documentation, then we are granted a non-exclusive, irrevocable, worldwide, transferable, perpetual licence to use, reproduce, display, distribute, and generally market these products, and to sublicense them directly or as part of our products. Such a licence also includes the right to use and reproduce the products for use in conjunction with any of our products. These licence rights are included in the price.
The copyright for all documents such as plans, sketches, computations, etc., which we will hand over to you, shall remain with us. You shall use such documents and all further information exclusively for the purpose of executing the order placed with us. Without our prior written consent, you shall not be entitled to produce products for third parties based on such documents and information, or to copy, reproduce, or make such documents and information known in any way to third parties who are not directly commissioned by you to carry out work related to the order.
If there are parts or components in the delivery that are specifically tailored to our needs, all intellectual property rights arising from the work, delivery or goods during manufacture shall belong to us. We may dispose of these without any restriction in terms of time, place or subject matter. The power of disposal includes all current and future possible rights of use, in particular the right to use, publish, sell and modify. Modification in particular includes alteration, further processing and use for the creation of new work results.

10. Reference / Data Protection

10.1. Reference

You may not refer to us as your business partner or otherwise reference us in this regard in customer reference lists or sales presentations without our prior written consent. Each contracting party shall obtain the written consent of the other contracting party before using or referring to the trade marks, logos, copyrighted material, trade names or other similar intellectual property of the other contracting party in advertising materials or documentation, contracts or on a website.

10.2. Data Protection

The Contracting Parties expressly acknowledge and agree that personal data exchanged between the Contracting Parties in connection with this Agreement may only be used strictly limited to the purpose of this Agreement, only for the fulfilment of the respective defined obligations, and in compliance with applicable data protection laws and regulations. To the extent required for the fulfilment of the Agreement, the Parties are authorised to process and disclose personal data to third parties (e.g. subcontractors or customers of a Contracting Party) domestically and abroad.

11. Confidentiality

11.1. Associated Company

«Affiliated company» means any domestic or foreign company which, at the time of signing the contract, has been incorporated and is directly or indirectly controlled by the party concerned or its parent company, or in which the party concerned or its parent company holds, directly or indirectly, at least 50% of the share capital.

11.2. Purpose

«Purpose» means the reasonably necessary undertakings and communications required to fulfil contractual obligations and to enforce rights arising from or in connection with the contract.

11.3. Confidential Information (1)

«Confidential Information» means any information disclosed by or otherwise made available by directors, senior officers, employees, affiliates, representatives (in particular financial advisors, lawyers and auditors) or authorised third parties (collectively, «Representatives») of one party to the Representatives of the other party, which relates to the purpose:
i. Customer materials; or
ii. are marked as «confidential» by the disclosing party; or
iii. are considered confidential by general understanding; or
iv. Access codes, passwords and other information and materials that enable access to restricted and password-protected databases and online accounts, and to all information contained therein.

11.4. Confidential Information (2)

Confidential information does not include information that, and to the extent that:
i. are publicly available at the time of disclosure to a contracting party, or subsequently become publicly available without breach of the provisions of the contract; or
ii. is already known to the receiving contracting party at the time of disclosure (as evidenced by relevant written documents, registers or records) and was not obtained in breach of a confidentiality obligation; or
iii. regardless of the disclosing contracting party, and was developed in good faith by the receiving contracting party or on its behalf; or
iv. becomes known from a source which is not connected to any of the contracting parties, without violating the provisions of the contract.

11.5. Treatment of Confidential Information (1)

The confidential information is to be treated as confidential and, unless the contracting parties have agreed otherwise in writing, must not:
i. neither directly nor indirectly by a contractual partner or their representatives be disclosed in any way, in whole or in part; or
ii. are used by a contracting party or its representatives for a purpose other than that intended.

11.6. Treatment of Confidential Information (2)

The receiving contracting party shall apply at least the same degree of care in protecting the confidential information as it applies in protecting its own confidential information.

11.7. Obligation of the contractual partner

The receiving contracting partner undertakes to,
a) take appropriate measures to protect confidential information; these measures must be at least as protective as those taken to protect its own confidential information;
b) to immediately inform the disclosing contracting party as soon as it becomes aware of any unauthorised use or disclosure of the confidential information;
c) to cooperate with the disclosing party to help regain control of the confidential information and prevent any further unauthorised use or disclosure thereof;
d) the fact that discussions about the contract are taking place between the contracting parties, to treat the content of these discussions and the content of the contract as confidential.

11.8. Disclosure of Confidential Information

The receiving party may disclose the confidential information:
i. to his employees or employees of his affiliated companies, provided that
a. these employees require the confidential information to fulfil the purpose and
b. the receiving contracting partner ensures that these employees are obliged to protect the confidential information under terms consistent with the contract. The receiving contracting partner is responsible and liable for the compliance and proper performance of the terms and conditions of the contract by these employees.
ii. if and to the extent required to comply with a legally binding order or decision of a court, tribunal or other competent judicial or administrative authority, provided that the receiving party, to the extent legally permissible, duly notifies the disclosing party thereof so that it may seek a protective order or other appropriate remedy.

11.9. Confidentiality obligations

The confidentiality obligations set out in this agreement shall remain in force and effect between the parties for a period of three (3) years after the termination of the agreement, for whatever reason.

12. Termination of the Contract

12.1. Termination of Contract

If you cease your payments or if bankruptcy or insolvency proceedings are opened against you, we shall be entitled to refuse to perform the contract in whole or in part and to claim damages for non-performance.
We are entitled to retain a reasonable sum in the event of impending or actual insolvency on your part, for the duration of the respective warranty periods.

12.2. Termination of contract (2)

We are entitled at any time to terminate the contract – in whole or in part – at our sole discretion. In such a case, you are generally entitled to full payment for deliveries/services already provided, as well as for costs incurred as a result of the order that can no longer be avoided. The entitlement to a proportionate share of the profit is limited to a maximum of 51% of the remaining order value.
In the event of termination for good cause, you are entitled to full remuneration for deliveries/services already rendered and for costs incurred due to the order which can no longer be avoided; further claims do not exist. Good cause exists if we no longer have an interest in fulfilling the contract for compelling legal, economic or operational reasons and/or a significant deterioration in your financial circumstances occurs.
The possibility of contract rescission under general legal provisions (e.g., in cases of default, defective performance, etc.) remains unaffected. In such cases, you are only entitled to remuneration for deliveries/services that are economically usable by us. We reserve the right to claim damages.

13. Assignment of Claims / Transfer of Order to third parties

13.1. Assignment of Claims

Claims may only be assigned with our prior consent.

13.2. Assignment of the Contract to Third Parties

You are not authorised to subcontract the order, in whole or in essential parts, to third parties without our prior consent. If we give our consent, you remain responsible for the fulfilment of the contract.

Place of performance / Applicable law / Jurisdiction

14.1. Place of performance

Unless otherwise agreed, the place of performance for the delivery obligation is our desired shipping address or place of use. The place of performance for payments is any location where we maintain an account with a financial institution.

14.2. Applicable Law

Our contractual relationships shall be governed exclusively by Swiss law, to the exclusion of the conflict of laws provisions and the UN Convention on Contracts for the International Sale of Goods (CISG).

14.3. Jurisdiction

The exclusive place of jurisdiction is the court responsible for our registered office in CH-4626 Niederbuchsiten. However, we reserve the right to assert our claims in any other permissible court.