General Terms and Conditions
Germany, Austria, Switzerland

Kendox AG, Switzerland General Terms and Conditions

1. Applicability
2. Payment and payment terms
3. Clearing and offsets
4. Duty of confidentiality, data protection
5. Disruptions in service
6. Service and delivery times
7. Liability for material defects
8. Liability for defects of title
9. Liability for compensation
10. Kendox’s right to cancellation under exceptional circumstances
11. Ordinary cancellations on the part of the customer
12. Assumption of risk, subcontractors
13. Governing law, place of jurisdiction, final provisions

1. Applicability
1.1 These General Terms and Conditions apply to all products and services delivered by Kendox AG (“Kendox”).
1.2 Kendox’s terms and conditions are the sole applicable terms: any terms set by the customer which contradict or deviate from the General Terms and Conditions will not be recognised unless Kendox specifically indicates otherwise in writing.
1.3 Kendox’s terms and conditions apply even if Kendox delivers products or services to the customer in knowledge of any contradictory or deviating terms set by the customer, without setting out any additional conditions or reservations.
1.4 These terms shall apply as amended for all future business transacted with the customer.

2. Payment and payment terms
2.1 Where services are billed based on actual work done, Kendox’s most recent price list shall apply. Kendox is authorised to bill the customer on a weekly basis.
2.2 All prices shall be subject to the current applicable value-added tax (Mehrwertsteuer).
2.3 Requests for payment made by Kendox are valid as of the date of the invoice and must be paid within 14 days of the invoice date.
2.4 The customer shall be in arrears either on receipt of a reminder or after the 14-day deadline expires. In the event that the customer enters into arrears, they shall be subject to interest at an annual rate of 5% in line with article 104 OR. Kendox reserves the right to apply a higher penalty for arrears.

3. Clearing and offsets
The customer has the right to offset or clear owed payments only if their counterclaim is legally enforced, undisputed or accepted by Kendox. The customer may only withhold payment in the amount specified for the specific contract in question and which has been legally determined or accepted by Kendox.

4. Duty of confidentiality, data protection
4.1 Kendox is required to maintain for an unlimited period of time the confidentiality of all business and industry secrets, as well as all information which comes to Kendox’s notice in connection with the performance of the contract which is indicated or recognisable as confidential. Such information must not be conveyed to persons not involved with the performance of the contract without the customer’s permission.
4.2 Each party to the contract may automatically process information relating to the other party for purposes associated with the performance of the contract.
4.3 Each party to the contract guarantees and holds the other party liable for holding personally identifying information that they receive in line with data protection regulations and not transmitting, using, processing or altering such information without the permission of the data subject or other legal permission.

5. Disruptions in service
In case of situations for which Kendox is not responsible, including strikes or lockouts, which may affect Kendox’s ability to adhere to deadlines, Kendox may request a reasonable extension to any such deadline. If the amount of work required is increased as a result and the customer is responsible for this increase, Kendox may also request compensation for the additional work.

6. Service and delivery times
6.1 Agreed service and delivery deadlines are always approximations and are not binding; in line with article 102 para. 2 OR, they only constitute acceptance of a timed deadline once expressly agreed.
6.2 In order for Kendox to meet its service and delivery obligations, the customer is required to promptly and properly fulfil its duty of cooperation, in particular to perform all preparatory work required and to supply all documents required.
6.3 The customer shall be entitled to withdraw from the contract due to delays in delivery of products or services only if a reasonable deadline is missed by at least 14 days on two separate occasions. The deadline must be given in writing to the appropriate point of contact at Kendox.
6.4 In line with legal stipulations, Kendox shall be liable for any delay in delivery of products or services that is due to wilful or grossly negligent breach of contract on its part. Should the delay in delivery of products or services result from gross negligence on the part of Kendox, liability shall be limited to the foreseeable typical damages that would arise.
6.5 In line with legal stipulations, Kendox shall also be liable for any delay in delivery of products or services resulting from any culpable breach of an essential contractual obligation. In such a case, however, damages shall be limited to the foreseeable typical damages that would arise.

7. Liability for material defects
7.1 For the services Kendox provides, insignificant deviations from the contractually stipulated quality or usability standards shall not qualify as defects.
7.2 If a guarantee condition is met, Kendox will at its own discretion either improve (by improving the delivery after the fact or by supplementing the missing element) or exchange the defective goods within a reasonable period of time. The other party to the contract shall provide proof that any defect arising within six months of delivery was already present at the time of delivery.
7.3 Claims relating to defects shall not be valid in case of improper use, normal wear and tear, failure of other components in the system environment, or damages arising from external factors not covered by this contract. In particular, this shall include violent impacts of all kinds, unsuitable electricity supply, the effects of magnetism or electrical induction, damp, dust, gas, radiation, and temperatures outside normal standards. This shall also apply to previous (attempted) installations by the customer themselves or by third parties.
7.4 Claims relating to material defects become time-barred twelve months after the point of transfer of risk. In the case that a delivery is intended for personal or family use, the limitation period shall be 24 months. Any measures taken to minimise damages shall not be considered an acceptance of the existence of a defect. In entering into negotiations or receiving a claim, Kendox shall not be considered to have waived any objections that a complaint is outside the period of limitations, factually unfounded, or otherwise invalid. The limitation periods shall be unaffected in the case of malicious concealment of a defect, wilful or grossly negligent breach of duty on the part of Kendox, or harm to life, limb or health.
7.5 In line with article 201 OR, the customer accepts all responsibility for inspecting all deliveries of goods and services and for making complaints on their own behalf.

8. Liability for defects of title
8.1 Kendox warrants that the services provided (provided that they are used in line with all applicable terms, within the European Union, Switzerland and Liechtenstein) are not subject to any third-party property rights and that Kendox has the right to offer said services.
8.2 Should any third party assert that one of Kendox’s services infringes upon its rights, Kendox shall notify the customer immediately. To the greatest extent permissible, the customer cedes to Kendox (and to Kendox’s suppliers, if applicable) the duty of defending any claims for damages. If a service is found to infringe the rights of a third party, Kendox will, at its own discretion and cost, either:
a) Provide the customer with the right to continue using the service;
b) Redesign the service so that it no longer infringes on any other property rights; or
c) Withdraw the service and return the net invoice cost (minus a reasonable deduction for actual usage).
Damages and claims for reimbursement of expenses, where Kendox is liable for such, shall remain unaffected (as described in section 9 of these terms).
8.3 The limitation period for claims from customers relating to defects of title is the same as that laid out in section 7.4 of these terms.
8.4 Kendox is entitled to prohibit the use of the service by the customer in line with the above conditions if Kendox is notified of any claim relating to property rights.

9. Liability for compensation
9.1 In line with legal stipulations, Kendox is liable when notified by the customer of any claim for compensation arising from wilful behaviour or gross negligence on the part of Kendox’s representatives or subcontractors. If Kendox is not accused of wilful breach of duty, liability for compensation shall be limited to the foreseeable typical damages that would arise.
9.2 In line with legal stipulations, Kendox shall be liable for any culpable breach of essential contractual duties. In such a case, liability for compensation shall be limited to the foreseeable typical damages that would arise.
9.3 Any liability under the Swiss Product Liability Law (Produkthaftungsgesetz) shall be unaffected by these terms.
9.4 Unless otherwise specified above, any liability shall be excluded.
9.5 In the case of individual damages, liability shall be limited to the value of the contract. In the case of ongoing contracts requiring regular payments, it shall be limited to the annual sum to be paid. In all cases the sum shall not exceed CHF 500,000. Any liability for wilful or gross negligence, or statutory liability in line with the Swiss Product Liability Law (Produkthaftungsgesetz) shall be unaffected by these terms.
9.6 In case of loss of data, Kendox shall be liable only for the work required to reconstruct the data (given properly documented data security and at least three external backups on the part of the customer). In such cases, Kendox requires that the customer must have the necessary know-how to process such data in order that they may independently ensure proper data security, including adherence to retention periods.
9.7 Claims for compensation against Kendox become time-barred twelve months after the point of transfer of risk. In the case of wilful or grossly negligent breach of duty, or of harm to life, limb or health, the limitation period shall instead be twenty-four months.

10.Kendox’s right to cancellation under exceptional circumstances
10.1 Kendox may cancel the contract under exceptional circumstances, if:
a) The customer is in arrears despite a reminder with a deadline longer than 60 days;
b) The customer breaches essential contractual duties, and this breach continues despite notification or is not remedied;
c) An application for bankruptcy or composition is presented against the customer;
d) The customer delays accepting Kendox’s terms, and this delay continues even after the expiry of a reasonable deadline set by Kendox; or
e) The customer ceases collaboration on the project or ceases the project as a whole, and work is not resumed even after the expiry of a reasonable deadline set by Kendox.
10.2 The customer is obliged to compensate Kendox for any damages arising from the cancellation.
10.3 If the cancelled contract qualifies as a contract for work, the customer must remunerate Kendox for the work already delivered and fully indemnify Kendox as described in article 377 OR.

11. Ordinary cancellations on the part of the customer
Provided that the customer has a right to ordinary cancellation and the cancelled contract qualifies as a contract for work, Kendox is entitled to remuneration in case of ordinary cancellation in line with article 377 OR. The rules described in section 10.3 apply accordingly.

12. Assumption of risk, subcontractors
12.1 The delivery and transport of goods entail costs and risks to the customer, the delivery location and the delivery route. If the customer makes no decision for themselves, Kendox will select a suitable, cost-effective delivery route for the customer.
12.2 Kendox may split deliveries into multiple shipments if each individual shipment would be meaningfully useful to the customer.
12.3 Kendox may engage third parties (subcontractors) to deliver all services.

13. Governing law, place of jurisdiction, final provisions
13.1 Swiss substantive law shall apply, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
13.2 In case of any claims or disputes arising from or in connection with these terms, the place of jurisdiction shall be Kendox’s headquarters. Kendox is also authorised to file suit in the jurisdiction of the customer’s headquarters.
13.3 Any changes or additions to these conditions or the contract itself must be made in writing. This includes any lifting of the requirement to make changes in writing.
13.4 The customer authorises Kendox to name the customer as a user of licensed Kendox materials in promotional publications, or to present the customer as a reference to third parties.