General Terms and Conditions of Business
Kostad Switzerland AG
- These GTC shall form the basis for all legal transactions (hereinafter "Services") between Kostad Schweiz AG (hereinafter "Kostad") and its contractual partners (hereinafter "Customer"). The GTC shall also apply, without specific reference, to all future services with the Customer.
- The Customer's general terms and conditions shall not apply, even if Kostad is served with them and performs services for the Customer without a corresponding reservation.
- These GTC apply to all services unless otherwise agreed in writing. Contracts and any amendments and supplements as well as all ancillary agreements must be stipulated in writing and signed by both parties in order to be valid. This formal requirement can only be waived by written agreement. Annexes and the GTC may be amended by Kostad. In the event of amendments, the Customer shall be informed in writing and shall have the right to withdraw from the contract within 14 days. If the right of withdrawal is not exercised, the new GTC and annexes shall be deemed accepted.
- Kostad complies with the applicable data protection regulations when processing your data. By placing an order for a quotation, the customer agrees that name and address are recorded and processed for the purpose of handling the order.
2. offers / orders / delivery conditions
- Offers made by Kostad in brochures, price lists, etc. or diagrams and drawings ("Offers") shall be subject to change and non-binding. They shall not oblige Kostad to accept any performance. The Customer's order shall be deemed to be an offer to Kostad.
- All drawings, diagrams, calculations and other documents shall remain the property of Kostad and may only be made accessible or passed on to third parties with express consent.
- Delivery or installation dates and deadlines (hereinafter "dates and deadlines") are only binding if this has been agreed in writing and they have been expressly designated as fixed dates. Compliance with dates and deadlines shall be conditional upon the timely and proper fulfilment of the Customer's obligations, such as, in particular, the timely receipt of all information and documents, approvals and releases to be provided by the Customer or compliance with the agreed terms of payment. Kostad shall not be responsible for any delays in delivery for which it is not responsible. In the event of delays in delivery, the Customer shall set Kostad a period of grace of at least 14 days in writing by registered letter in order for the delay to occur.
- Kostad's obligation to perform shall be subject to the proviso that Kostad receives timely and correct deliveries from suppliers or manufacturers. Otherwise Kostad shall be entitled but not obliged to provide a service of equivalent or higher quality and price or to withdraw from the contract in accordance with clause 11. In this case Kostad undertakes to inform the Customer of the unavailability.
- If Kostad is responsible for a delay in delivery, damages shall be limited to a maximum of 3% of the value of the performance outstanding at the expiry of the dates and deadlines. Further claims arising from delays in performance, including claims for interest on arrears, shall be excluded.
- Unforeseen, unavoidable events or events for which Kostad is not responsible (e.g. force majeure, strikes, operational disruptions, difficulties in procuring materials, transport delays, shortages of labour, energy and raw materials or measures taken by public authorities) shall extend the dates and deadlines by the duration of the disruption and its effects. Claims for damages by the customer are excluded in these cases.
- If the hindrance lasts longer than three months, both contracting parties are entitled to withdraw from the contract. Claims for damages by the customer are excluded in these cases and also in the event of withdrawal from the contract in accordance with clause 8.
3. authorisation procedure
- If an installation, feed-back or construction permit or a plan submission is required by law for an energy generation system, the customer is obliged, unless otherwise agreed in writing, to submit the application for this permit or plan submission without delay. The costs shall be borne by the customer. The prerequisite for the installation is the approval of the installation without conditions.
4. installation by the customer
- For all components and systems not ordered as turnkey systems, the customer must ensure professional installation. Especially in the case of power generation systems and their components, installation may only be carried out by instructed specialist personnel.
- In the event of non-compliance with the standards (such as SIA standards), installation regulations (such as NIN 2015) and specifications for photovoltaics (ESTI) valid in Switzerland at the time of conclusion of the contract, liability for damages of any kind is expressly excluded.
5. information obligations of the customer
- The Customer undertakes to inform Kostad upon conclusion of the contract about any existing interference-sensitive equipment and property-specific features (such as statics, asbestos, lack of electrical installations, etc.).
6. network connection
- The network integration only includes functions that are necessary for any services.
- Connectivity on the charging station side (GPRS) is guaranteed for 5 years and can be extended for a fee.
- By means of a separate agreement with the customer, a variant without connectivity is also possible (whitelist).
7. services for the operation
- Kostad operates the customer's charging stations with its own software. The following services are included for operation and service:
- person-independent documentation of all movements and processes at the ward;
- for customers with a service contract, software updates are carried out regularly with regard to device optimisation and security;
- For customers without a service contract, the necessary data will be collected for 5 years and viewed upon request and separate payment for the purpose of rectifying faults;
- a 5-year access to the service portal;
- access to the service portal can be extended for a fee;
- simple network faults can be remedied by remote access;
- the charging stations are equipped with an OCPP connection;
8. terms of payment
- Unless otherwise agreed in writing, payments shall be made within 30 days of the invoice date without deduction to the account specified by Kostad. Transfer charges shall be borne by the Customer.
- The set-off of claims of the Customer against claims of Kostad shall only be permitted if the claims of the Customer have been confirmed by Kostad or established by a court of law.
- Kostad reserves the right to demand advance payment. The costs incurred in this regard shall be borne by the customer. For invoices of CHF 20,000 or more, 30 % of the invoice amount shall be payable in advance. If agreed advance payments are not made in accordance with the contract, Kostad shall be entitled to adhere to the contract or to withdraw from the contract and in both cases to claim damages.
9. default of the customer / retention of title
- After expiry of the payment period, the Customer shall be in default without reminder. If the Customer is in default, or if Kostad is in fear of not receiving the Customer's payments in full or on time due to a circumstance arising after the conclusion of the contract, Kostad shall be entitled, without further warning and without limiting its statutory rights, to suspend all further services to the Customer in whole or in part until its claims have been settled or secured. In addition, Kostad may charge interest on arrears at the rate of 5 %. If neither repayment nor security is provided within a reasonable period of time, Kostad shall be entitled to rescind the contract and claim damages.
- Kostad shall retain title to the goods delivered until receipt of all payments. Kostad shall be entitled to have the retention of title entered in the competent retention of title register. If a current account relationship exists, the retention of title shall extend to the recognised balance.
- The customer is obliged to treat the goods not yet paid for with care and to store them properly until they have been paid for in full or until they are resold.
- In the event of seizure, attachment or other dispositions or interventions by third parties, the Customer shall immediately notify Kostad in writing.
- If the Customer becomes insolvent, all credit balances shall become due and payable without regard to any agreed dates and may be claimed immediately. Kostad shall also be entitled in this case to suspend or cancel all performance obligations.
10. transfer of risk (benefit and risk)
- The risk (benefit and risk) shall pass to the customer as soon as the lorry or other means of goods transport arrives with the delivery at the place of delivery. The risk is already transferred to the customer during the unloading process.
11 Commissioning / Acceptance / Notice of Defects
- The Customer shall be obliged to inspect Kostad's services immediately and to notify Kostad in writing of any defects within 7 days of receipt or after the first (partial) commissioning, and in the case of hidden defects within 10 days of discovery at the latest.
- Unless otherwise agreed in writing, the limitation period shall be 5 years for Kostad products and 2 years for purchased products and shall commence on the date of delivery or after the first (partial) commissioning, but no later than 2 months after the transfer of use and risk. Failure to give notice of defects in due time in accordance with clause 29 shall result in the forfeiture of all rights in respect of defects, including the right to claim damages, unless a longer period is mandatorily provided for.
- The limitation period shall not be interrupted by any action of the Customer or Kostad.
- The customer may not refuse to accept the service due to insignificant defects.
- Defects shall not be deemed to be defects for which Kostad is not responsible, in particular defects due to force majeure, improper handling and interventions (such as modifications or repairs) by the Customer or third parties without the written consent of Kostad, use of unsuitable operating materials, defective construction work, overvoltage, special climatic conditions, lightning strikes, environmental influences (such as immissions or air pollution) or as a result of system concepts and designs that do not comply with the recognised rules of technology.
- Likewise, insignificant or optical deviations from the condition, changes in colour, insignificant impairments of usability, natural wear and tear or normal wear and tear (including seals, electrical parts, etc.) as well as comparable equivalent or better products/models shall not be considered defects.
- Any further liability for indirect and consequential damages, for lost profits and for intentional or grossly negligent conduct of any vicarious agents is excluded to the extent permitted by law.
- Any claims for damages by the customer shall be limited to the purchase price to the extent permitted by law.
- To the extent that Kostad's liability is excluded or limited, this shall also apply to the personal liability of Kostad's employees, staff and representatives.
- In the event of duly raised and justified notices of defect, Kostad shall be entitled, to the exclusion of all statutory warranty claims, to deliver a replacement or to remedy the defect at its discretion.
- All other defect rights of the customer, in particular withdrawal from the contract, reduction or compensation for consequential damage caused by a defect, are expressly excluded, insofar as legally permissible.
- Kostad shall not assume any warranty for the use of the OCPP connection. Liability for the use of the OCPP connection is excluded to the extent permitted by law.
13. manufacturer's warranty
- Insofar as the defect has been caused by products of third parties, liability shall be limited to the warranty claims and rights agreed in writing (warranty provisions of the manufacturers or the suppliers) to which the customer is entitled vis-à-vis the suppliers or manufacturers of these products.
14. loss prevention and loss minimisation obligations of the customer
- The customer shall take all reasonable measures in good time to counteract the occurrence or increase of damage.
- The Customer further undertakes to comply with and observe Kostad's, the manufacturer's and/or supplier's operating, maintenance, installation, operation or servicing instructions as well as instructions concerning proper use and to take out the corresponding insurance policies.
- If the Customer has failed to comply with the obligations set out in Clauses 42 and 43, any liability on the part of Kostad shall be excluded (pursuant to Clauses 33 - 36).
15. use of visual material
- Before, during and after completion of the installation work, Kostad shall take photographs to document the work. The contracting party expressly agrees that the photographs may be taken and published on Kostad's website and used for further marketing purposes. This shall only apply to photographs in which no persons are depicted. If persons are depicted in the photographs, their consent to use them shall be obtained in a separate declaration.
16 Applicable law, severability clause and place of jurisdiction
- In addition to these GTC, all legal transactions between the contracting parties shall be governed by Swiss law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods of 11 April 1980 (Vienna Sales Convention).
- Should any provision of this agreement be legally ineffective, void and/or invalid or become legally ineffective, void and/or invalid due to legal provisions or official decisions, this shall not affect the validity and legal effect of the other provisions of this agreement. The parties undertake to replace such legally ineffective, void and/or invalid provision with another legally effective and valid provision that achieves the same economic objective as the legally ineffective, void and/or invalid provision without undue delay after becoming aware of such legal ineffectiveness, voidness and/or invalidity.
- The place of jurisdiction for all disputes shall be Frauenfeld, unless another court has exclusive jurisdiction on the basis of mandatory statutory provisions. Kostad shall, however, also be entitled to bring an action at the Customer's place of business or at any other competent court.