Imprint

SwissWatt One AG
Aspenstrasse 139
CH-9443 Widnau

Represented by:
Managing Director: Michael Heilig
Tel: +41 79 870 35 85
E-Mail: office@swo.swiss

UID: CHE-429.710.633
CH-ID: CH-320-3095683-0
EHRA-ID: 1562288

SOGC no. 230 of 25.11.2022,
Publ. 1005613082

Responsible for content:
Michael Heilig
office@swo.swiss

General Terms and Conditions of Business & Delivery of Swisswatt One AG

Status: 01.02.23

§1 Validity

(1) All deliveries, services and offers of Swisswatt One AG are made exclusively on the basis of these General Terms and Conditions of Delivery. These are an integral part of all contracts that Swisswatt One AG concludes with its contractual partners (hereinafter also referred to as the "Client") for the deliveries or services it offers. They shall also apply to all future deliveries, services or offers to the Client, even if they are not separately agreed again.

(2) Terms and conditions of the client or third parties shall not apply, even if Swisswatt One AG does not separately object to their validity in individual cases. Even if Swisswatt One AG refers to a letter that contains or refers to the terms and conditions of the client or a third party, this does not constitute agreement with the validity of those terms and conditions.

§2 Offer and conclusion of contract, right of withdrawal, assignment

(1) All offers from Swisswatt One AG are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. Swisswatt One AG may accept orders or commissions within fourteen days of receipt.

(2) The legal relationship between Die Swisswatt One AG and the customer shall be governed solely by the written offer of Die Swisswatt One AG, the written order placed by the customer and the written order confirmation of Die Swisswatt One AG, including these General Terms and Conditions of Delivery. These fully reflect all agreements between the contracting parties on the subject matter of the contract. Verbal commitments made by Swisswatt One AG prior to the conclusion of this contract are not legally binding and verbal agreements between the contracting parties are replaced by the written contract, unless it is expressly stated in each case that they continue to be binding. Additions and amendments to the agreements made, including these terms and conditions, must be made in writing to be effective. With the exception of managing directors or authorized signatories, the employees of Swisswatt One AG are not entitled to make verbal agreements deviating from this. Transmission by fax is sufficient to comply with the written form requirement; otherwise, transmission by telecommunication, in particular by e-mail, is not sufficient.

(3) Information provided by Swisswatt One AG on the subject of the delivery or service as well as representations of the same are only approximate, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics. Customary deviations and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible insofar as they do not impair the usability for the contractually intended purpose.

(4) Swisswatt One AG reserves the right of ownership or copyright to all offers and cost estimates submitted by it as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the client. Without the express consent of Swisswatt One AG, the customer may not make these items accessible to third parties, disclose them, use them himself or through third parties or reproduce them. At the request of Swisswatt One AG, he must return these items in full to Swisswatt One AG and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.

(5) If, in the period between conclusion of the contract and before importation of the photovoltaic modules sold in the territory of a member state of the European Union (EU), the European Union introduces (even provisional) punitive, countervailing or anti-dumping duties on the photovoltaic modules sold, both Swisswatt One AG and the customer shall have the unilateral right to withdraw from the purchase contract, which must be declared within a period of one week from the introduction of the duties in question.

(6) Swisswatt One AG has the right to assign its claims against the client to a third party.

§3 Prices, payment and default of payment

(1) The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services shall be invoiced separately. The prices are quoted in EURO, Incoterm:DDP / DAP / CIP including packaging, excluding statutory VAT, customs duties in the case of export deliveries as well as fees and other public charges.

(2) If the agreed prices are based on the list prices of Die Swisswatt One AG and delivery is to take place more than four months after conclusion of the contract, the list prices of Die Swisswatt One AG valid at the time of delivery shall apply (in each case less an agreed percentage or fixed discount, if this has been agreed).

(3) Offsetting against counterclaims of the client or the retention of payments due to such claims is only permitted if the counterclaims are undisputed or have been legally established.

(4) Swisswatt One AG is entitled to execute or provide outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, it becomes aware of circumstances which are likely to significantly reduce the creditworthiness of the client and which jeopardize the payment of outstanding claims of Swisswatt One AG by the client from the respective contractual relationship (including from other individual orders to which the same framework agreement applies).

(5) If the client is in default of payment with a claim, all other claims against the client can be made due.

(6) The client shall bear all fees, costs and expenses incurred in connection with any successful legal action against him outside Germany.

§4 Delivery and delivery time

(1) Deliveries are made ex warehouse Swisswatt One AG, unless otherwise agreed.

(2) Deadlines and dates for deliveries and services promised by Swisswatt One AG are always only approximate, unless a fixed deadline or a fixed date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transportation.

(3) Swisswatt One AG shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e.g. disruptions of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortage of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the lack of, incorrect or untimely delivery by suppliers) for which Swisswatt One AG is not responsible. If such events make the delivery or service significantly more difficult or impossible for Swisswatt One AG and the hindrance is not only of a temporary nature, Swisswatt One AG is entitled to withdraw from the contract. In the event of hindrances of a temporary nature, the delivery or performance deadlines shall be extended or the delivery or performance dates shall be postponed by the period of the hindrance plus a reasonable start-up period. If the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediate written declaration to Swisswatt One AG.

(4) Swisswatt One AG is only entitled to make partial deliveries if

a. the partial delivery for the client within the scope of the contractual intended purpose

can be used,

b. the delivery of the remaining ordered goods is ensured and

c. this does not result in any significant additional work or costs for the client.

(unless Swisswatt One AG agrees to bear these costs).

(5) If Swisswatt One AG is in default with a delivery or service or if a delivery or service becomes impossible for whatever reason, the liability of Swisswatt One AG shall be limited to damages in accordance with § 8 of these General Terms and Conditions of Delivery.

§5 Place of fulfillment, shipping, packaging, transfer of risk, acceptance

(1) The place of performance for all obligations arising from the contractual relationship is the destination, unless otherwise specified.

(2) The risk shall pass to the customer at the latest when the delivery item is handed over (whereby the start of the loading process is decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made or if Swisswatt One AG has assumed other services (e.g. shipment or installation). If the shipment or handover is delayed due to a circumstance caused by the customer, the risk shall pass to the customer from the day on which Swisswatt One AG is ready for shipment and has notified the customer of this.

(3) Swisswatt One AG shall only insure the consignment against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the customer and at the customer's expense.

§6 Retention of title

(1) Swisswatt One AG retains title to the goods sold until full payment of all current and future claims arising from the contract and an ongoing business relationship (secured claims).

(2) The goods subject to retention of title may not be pledged to third parties or assigned as security before full payment of the secured claims. The customer must inform Swisswatt One AG immediately in writing if an application for the opening of insolvency proceedings is filed or if third parties seize the goods belonging to Swisswatt One AG (e.g. seizures).

(3) In the event of breach of contract by the customer, in particular in the event of non-payment of the purchase price due, Swisswatt One AG is entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for return does not at the same time include the declaration of withdrawal; Swisswatt One AG is rather entitled to demand only the return of the goods and to reserve the right to withdraw from the contract. If the customer does not pay the purchase price due, Swisswatt One AG may only assert these rights if Swisswatt One AG has previously set the customer a reasonable deadline for payment without success or if such a deadline is dispensable according to the statutory provisions.

(4) Until revoked in accordance with (c) below, the client is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.

a. The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of the goods, whereby Swisswatt One AG shall be deemed the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, Swisswatt One AG shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same applies to the resulting product as to the goods delivered under retention of title.

b. The customer hereby assigns to Swisswatt One AG by way of security any claims against third parties arising from the resale of the goods or the product in total or in the amount of any co-ownership share in accordance with the above paragraph. Swisswatt One AG accepts the assignment. The obligations of the client mentioned in paragraph 2 shall also apply with regard to the assigned claims.

c. The client remains authorized to collect the claim in addition to Swisswatt One AG. Swisswatt One AG undertakes not to collect the claim as long as the customer meets his payment obligations to Swisswatt One AG, there is no deficiency in his ability to pay and Swisswatt One AG does not assert the retention of title by exercising a right in accordance with paragraph 3. However, if this is the case, Swisswatt One AG may demand that the customer informs Swisswatt One AG of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In this case, Swisswatt One AG is also entitled to revoke the authorization of the customer to resell and process the goods subject to retention of title.

d. If the realizable value of the securities exceeds the claims of Swisswatt One AG by more than 10%, Swisswatt One AG shall release securities of its choice at the request of the customer.

§7 Warranty

(1) The warranty period is one year from delivery, unless otherwise agreed.

(2) The delivered items must be carefully inspected immediately after delivery to the customer or to the third party designated by the customer. They shall be deemed approved if Swisswatt One AG has not received a notice of defects with regard to obvious defects or other defects that were recognizable during an immediate, careful inspection within seven working days after delivery of the delivery item, or otherwise within seven working days after discovery of the defect or the time at which the defect was recognizable to the customer during normal use of the delivery item without closer inspection, in the form specified in § 2 (2) sentence 6. At the request of Swisswatt One AG, the rejected delivery item must be returned to Swisswatt One AG carriage paid. In the event of a justified complaint, Swisswatt One AG shall reimburse the costs of the most favorable shipping route; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.

(3) In the event of material defects in the delivered items, Swisswatt One AG shall initially be obliged and entitled to rectify the defect or make a replacement delivery at its discretion within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement delivery, the customer may withdraw from the contract or reduce the purchase price appropriately.

(4) If a defect is due to the fault of Swisswatt One AG, the client may claim damages under the conditions specified in § 8.

(5) The warranty shall not apply if the customer modifies the delivery item or has it modified by third parties without the consent of Swisswatt One AG and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the customer shall bear the additional costs of remedying the defect resulting from the modification.

§8 Liability for damages due to fault

(1) The liability of Swisswatt One AG for damages, regardless of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations in contract negotiations and tort, is limited in accordance with this § 8, insofar as fault is involved.

(2) Swisswatt One AG shall not be liable for

a. in the event of simple negligence on the part of its bodies, legal representatives, employees or other vicarious agents;

b. in the event of gross negligence on the part of its non-executive employees or other vicarious agents, insofar as this does not involve a breach of material contractual obligations. Material contractual obligations are the obligations to deliver and install on time and free of defects, as well as obligations to provide advice, protection and care, which are intended to enable the client to use the delivery item in accordance with the contract or to protect the life and limb of the client's personnel or third parties or the client's property from significant damage.

(3) Insofar as Swisswatt One AG is liable for damages in accordance with § 8 (2), this liability is limited to damages which Swisswatt One AG foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which it should have foreseen by exercising due diligence, taking into account the circumstances of which it was aware or which it should have been aware. Indirect damage and consequential damage resulting from defects in the delivery item are also only eligible for compensation if such damage is typically to be expected when the delivery item is used as intended.

(4) In the event of liability for simple negligence, Swisswatt One AG's obligation to pay compensation is limited for a. damage to property or personal injury to an amount of EUR 5,000,000.00 per claim (corresponding to the current coverage of its product liability insurance or liability insurance), b. damage caused by delay to an amount not exceeding 5% of the purchase price, c. damage due to non-performance or defective performance to an amount not exceeding EUR 100,000.00, but not less than 10% of the purchase price.

(5) The above exclusions and limitations of liability shall apply to the same extent in favor of the executive bodies, legal representatives, employees and other vicarious agents of Swisswatt One AG .

(6) Insofar as Swisswatt One AG provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by it, this is done free of charge and to the exclusion of any liability.

(7) The limitations of this § 8 do not apply to the liability of Swisswatt One AG for intentional behavior, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.

§9 Final provisions

(1) The place of jurisdiction for any disputes arising from the business relationship between Swisswatt One AG and the client is, at the discretion of Swisswatt One AG, Widnau (Switzerland) or the registered office of the client. Widnau (Switzerland) is the exclusive place of jurisdiction for legal action against Swisswatt One AG. Mandatory statutory provisions on exclusive places of jurisdiction remain unaffected by this provision.

(2) The relationship between Swisswatt One AG and the client shall be governed exclusively by Swiss law.

(3) Insofar as the contract or these General Terms and Conditions of Delivery contain loopholes, those legally effective provisions shall be deemed to have been agreed to fill these loopholes which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had been aware of the loophole.

Note:

Data protection

The customer grants SwissWatt One AG the right to use the contact information received for marketing campaigns for its own similar goods, works or services. The customer may withdraw this consent at any time. In all other respects, the data protection declaration applies to the processing of personal data by Schweizer

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