Terms and Conditions

1. Scope

These General Terms and Conditions (hereinafter referred to as “GTC”) contain the fundamental principles that govern the provision of all Services from or on behalf of PQ Technologies AG, Zurich (hereinafter referred to as “PQT”) to the Client and form an integral part of any Contract between the two Parties.

2. Definitions

In these GTC, the following definitions shall apply:

“Client” shall mean the natural person or legal entity with whom PQT enters a contractual relationship. “Contract” shall mean an agreement between the contractual Parties, including among others, but not limited to, service level agreements or engagement letters. “Deliverable” shall mean a work product or output submitted by PQT to the Client as a total or partial result of the Contract between PQT and the Client. Deliverables may be tangible or intangible, verbal or written materials in any form or medium as specified in the Contract. “PQT” shall mean the legal entity PQ Technologies AG, Zurich, its partners, directors, managers, and employees, as well as any parent, subsidiary or other legal entity associated with PQT including its partners, directors, managers, and employees. “Party” shall mean PQT or the Client; the “Parties” shall mean PQT and the Client collectively. “Service” shall mean a Deliverable to be submitted by PQT under the Contract and these GTC.

3. Scope of PQT’s Obligations and Responsibilities

3.1

PQT shall deliver its Services to the Client as an independent contractual partner. The actions of PQT are on no account to be regarded as the actions of partners, directors, managers, employees, representatives, or shareholders of the Client. PQT shall retain full responsibility for its own commercial and entrepreneurial decisions. Unless agreed otherwise in the Contract, PQT is neither entitled nor authorized to represent the Client or to undertake any obligation on behalf of the Client.

3.2

PQT shall provide the agreed Services to the Client diligently and in accordance with professional ethics standards. PQT shall not have the right to assign or otherwise transfer to another party any benefit or burden of the Contract without the written consent of the Client.

3.3

To comply with its contractual obligations to the Client, PQT shall at any time strive to identify, prevent, and manage any situation that could result in any kind of potential conflict of interest.

3.4

PQT shall carefully observe all health and safety rules and regulations and any other reasonable security requirements which may be in force at the Client’s company.

3.5

Prior to providing any final version of any Deliverable, PQT may choose to supply oral, draft, or interim advice or analysis, reports or presentations. In this case, the final Deliverable will supersede any prior interim Deliverable. PQT shall not be held liable for any content of interim Deliverables.

3.6

Under no circumstances shall PQT be under obligation to update any Deliverable, be it oral or written, for events occurring or additional information communicated to PQT after the Deliverable has been delivered in final form.

3.7

PQT shall preserve tangible Deliverables and all relevant data and documents accrued under the Contract for a period of ten (10) years after the termination of the Contract, unless required otherwise by specific laws and regulations.

4. Scope of the Client’s Obligations and Responsibilities

4.1

The Client shall retain full responsibility for its own commercial and entrepreneurial decisions and is neither entitled nor authorized to represent PQT or to undertake any obligation on behalf of PQT.

4.2

The Client shall undertake to collaborate in good faith with PQT and in particular to provide or to facilitate in good time all information and documentation which may be required for PQT to perform the Services under the Contract. The Client has the sole responsibility for the quality, accuracy, and timeliness of such data. Any suspected insufficiencies in the information and documentation supplied to PQT by or on behalf of the Client shall be immediately disclosed to PQT. The Client will not hold PQT liable for any delay, non-compliance, inaccuracy, negligence, or other detriment resulting of such insufficiencies and will not restrict or alter the right of PQT to be fully paid according to the terms of the Contract despite such insufficiencies.

4.3

In the case of additional requirements of the Client on PQT during the Contract period, PQT will provide the Client with a time and cost estimate for additional professional fees and associated expenses to cover such additional requirements.

4.4

The Client will provide access for PQT to the Client’s employees and premises as may be required.

4.5

Insofar as the Client cooperates with third parties, the Client shall obtain from them all authorizations required for PQT to provide the agreed Services.

4.6

The Client shall not have the right to assign or otherwise transfer to another party any benefit or burden of the Contract without the written consent of PQT.

4.7

Except if specified otherwise in the Contract, the Client shall accept each Deliverable in its final version within thirty (30) calendar days from its delivery by PQT. Failing such acceptance by the Client within the specified period, the Deliverable shall be deemed accepted. In the event of objections to any Deliverable, PQT shall be given the opportunity and adequate time to rectify or settle such objections.

4.8

The Client undertakes to settle the invoices for the Services in accordance with the Contract and the conditions specified in clause 5.

5. Fees

5.1

Professional fees for Services performed by PQT may be billed as a flat-rate fee, as a variable fee, as a unit price or based on the actual number of hours worked to meet the terms of the Contract. The specific provisions shall be regulated in the Contract.

5.2

The hourly rate for PQT partners, directors, managers, and employees may be periodically adjusted, the new rates commonly coming into effect at the beginning of a new financial year. Any such adjustment shall be disclosed by PQT with appropriate lead time. All fees are exclusive of taxes or similar charges and do not include compensation for expenses.

5.3

Expenses incurred by PQT to fulfill the Contract may be invoiced either on a flat-rate basis or at actual cost, as regulated in the Contract. Expenses include in particular costs of telephone calls and other telecommunication means, photocopies, use of IT tools, courier services, deliveries as well as travel, accommodation and food.

5.4

Unless otherwise agreed, invoices for Services and expenses are submitted to the Client on a monthly basis. Invoices are generally due within twenty (20) days following the receipt of each invoice.

6. Property and Intellectual Property Rights

6.1

Upon full and final payment of all fees due by the Client as specified in the Contract, the Deliverables will become the property of the Client in their physical form, and the Client may use them, subject to other provisions in the Contract, for the purpose for which the Deliverables were supplied.

6.2

PQT will own and retain ownership of any and all intellectual property rights (in particular but not limited to any copyright) as well as the expertise developed or used to produce the Deliverables as stated in article 6.1.

6.3

Any intellectual property and other property rights in the material and data provided by the Client to PQT for performing the Services under the Contract shall remain in the property of the Client.

6.4

The Client acknowledges that the Deliverables may not be disclosed to third parties with the following exceptions:

disclosure to a legal adviser, external auditor or reviewer, subject to confidentiality obligations specified in the GTC or the Contract; disclosure to any parent, subsidiary or other related company which is member of the same corporate group as the Client; legal disclosure obligations, provided that strict compliance with the statutory provisions of the respective jurisdiction is guaranteed; disclosure to the extent and for the purposes required by law and regulations, as long as the Client promptly notifies PQT of such legal requirement to the extent the Client is permitted to do so; and with the prior written consent of PQT.

6.5

Any reference to PQT in documents disclosed by the Client to third parties as stated in article 6.4 requires a written, previous authorization by PQT.

6.6

In the case of claims by third parties from the use of PQT’s Deliverables under the Contract, the Client shall indemnify PQT to the extent permissible by law and professional ethics for all obligations, losses, costs and expenses resulting from claims by such third parties. This does not apply to cases in which third parties have been previously authorized in writing by PQT to rely on its Deliverables.

7. Transmission and Communication

7.1

Each Party is solely liable for losses arising from its use of the post, telephone, fax, e-mail (including e-mail exchanged via Internet media), voicemail and other physical or electronic means of transmission, as well as for all associated risks such as loss, delay, irregularities, misunderstandings, manipulations, or duplicate copies.

7.2

In the absence of explicit instructions to the contrary by the Client, PQT is authorized to communicate with the Client by all means of transmission and communication as stated in article 7.1.

8. Confidentiality

8.1

Any information provided by the Client to PQT for performing the Services under the Contract is subject to a strict duty of confidentiality. PQT shall be held liable for maintaining such confidentiality by all its partners, directors, managers, and employees which may be mandated to provide specific services under the Contract.

8.2

Furthermore, all employees of PQT are subject to banking and stock exchange secrecy as well as professional and business secrecy. All documents, data, and information from the business activities and from the business units of the Client which come to the knowledge of PQT in the context of the performance of the Services under the Contract, are protected by commercial, banking and stock exchange secrecy.

8.3

The duty of confidentiality shall not apply to any confidential information which at the time it is disclosed, made available or otherwise provided by the Client, is in the public domain and it shall cease to apply to any information when it subsequently becomes publicly available otherwise than because of any breach by PQT.

8.4

The duty of confidentiality shall continue to apply after the termination of the Contract and remain binding for PQT and its partners, directors, managers, and employees even after their employment or activity with PQT has ended. Both the duty of confidentiality and the compliance with the Swiss Federal Data Protection Act (see article 9) shall also apply vice versa to the Client and all its employees.

9. Data Protection

9.1

The Client consents that PQT may, within the scope of its activities for the Client, process information relating to identified or identifiable natural persons or legal entities (“personal data”) in the jurisdictions in which it operates under the Contract.

9.2

The Client represents and warrants to have the authority and, if required, the permissions of the data subjects concerned to provide their personal data to PQT in connection with the performance of the contractually agreed Services and that the transfer of any personal data provided by the Client to PQT is in accordance with applicable law.

9.3

Both Parties undertake to process personal data exclusively for the purpose of the Contract and to protect it against access by unauthorized parties. They shall be held liable for the fulfillment of all data protection requirements by all their partners, directors, managers, and employees.

9.4

Personal data may be processed in accordance with data protection requirements under applicable law only, in particular the European General Data Protection Regulation (GDPR) and the Swiss Federal Data Protection Act (FADP). In case of conflicts between the relevant laws and regulations, the Parties agree that the Swiss Federal Data Protection Act shall prevail.

9.5

PQT shall ensure that it has in place appropriate technical and organizational measures to prevent any unauthorized or unlawful processing of personal data and to protect personal data against damage, accidental loss or destruction. PQT will also provide an adequate level of protection to any personal data that is transferred.

9.6

The Parties shall notify each other promptly on becoming aware of actual or suspected breaches of the personal data protection clauses. In such cases PQT may, upon the Client’s request, assist with breach investigation, mitigation, and remediation.

9.7

Upon the Client’s request, PQT will promptly supply detailed information about the processing and purpose of the personal data within 30 days at no charge. The Client can request a transfer of the data from PQT to the Client and, if any, PQT will correct inaccurate data upon request and acknowledge the client’s continual right to restrict data processing.

9.8

Upon instruction of the Client, PQT shall destroy or return to the Client personal data and copies thereof as well as written confidential information received from the Client on termination or expiry of the Contract, unless otherwise required by law or governmental regulations (including, but not limited to, record retention requirements).

10. Anti-Bribery and Corruption

Both the Client and PQT warrant that they, their partners, directors, managers, and employees have not, and will not in the future, infringe any applicable law relating to anti-bribery or corruption, regardless of local customs or practice. They also comply with applicable international anti-slavery and human trafficking laws and regulations. In case one of the Parties should fail to comply with this clause the other Party shall have the right to terminate the Contract with immediate effect.

11. Exclusions and Limitations of PQT’s Liability

11.1

PQT shall only be liable for losses caused deliberately or through gross negligence.

11.2

PQT’s liability is limited to direct losses and shall on no account apply for indirect or consequential losses (such as fines, compensation for lost profit, data loss, damage to goodwill or reputation) that arise in connection with the fulfillment of the terms of the Contract.

11.3

PQT’s liability is limited to a maximum of 1.5 times the corresponding fee. Where long-term assignments are concerned this shall mean the fee for the last twelve months.

11.4

This limit does not apply to liability for personal injury and property damage. Otherwise, liability is excluded to the maximum extent permissible by law.

12. Contract Duration and Termination

12.1

A Contract between PQT and the Client shall end on the delivery of the agreed Services, on the expiry of any agreed term, by revocation or by termination.

12.2

Unless agreed otherwise, a Contract entered for an indefinite period can be revoked or terminated at any time by notifying the other Party in writing taking into account the contractually agreed notice period. Fees and expenses that have accrued up to that point are owed by the Client and are payable to PQT at the time of the revocation or termination notice.

12.3

Notwithstanding articles 12.1 and 12.2, either Party may terminate a Contract with immediate effect by written notice to the other Party on or at any time after the occurrence of a request for a moratorium, bankruptcy or insolvency of the other Party. If the Contract includes a minimum term, the Client may also terminate the Contract by written notice with immediate effect under the circumstances described in article 11.1.

12.4

PQT may terminate a Contract in whole or in part with immediate effect by written notice to the Client if a governmental, regulatory or professional entity introduces a new, or overrules or modifies an existing law, regulation, interpretation or decision which could render PQT’s performance of any part of the Contract illegal or otherwise unlawful. The same right of termination by PQT applies in the case of changes in the ownership or organization of the Client or any of its Affiliates, which could render PQT’s continuation of its activities under the Contract illegal or unlawful.

13.1

All legal relationships between the Client and PQT shall be governed by and construed in accordance with the laws of Switzerland.

13.2

In the event of any conflict, inconsistency, or ambiguity between provisions in the Contract and the GTC, the provisions of the Contract shall prevail.

13.3

Should individual provisions of the Contract or the GTC prove unenforceable or void, the remaining provisions shall nonetheless remain valid. If possible, the unenforceable or void provisions shall be modified to the extent necessary to render them enforceable and legally valid, preserving to the best extent permissible the intent of the Parties set forth therein.

13.4

The Parties agree to attempt in good faith to resolve any dispute or claim arising out of or in connection with the Contract through negotiations between senior management. If agreement fails, the dispute or claim shall be resolved by the ordinary courts in Zurich, Switzerland.

13.5

PQT reserves the right to alter the GTC at any time. PQT shall notify the Client of such modifications with appropriate lead time. The altered GTC shall be deemed accepted by the Client, thus automatically replacing and superseding any previous editions of the GTC, unless an objection is raised in writing within thirty (30) calendar days since the receipt of the notification. In the event of objection and disagreement with the modified GTC, the Client shall be free to terminate the business relationship subject to revocation and termination clauses in the Contract or the GTC.

13.6

The English edition of the GTC of PQT is legally binding and shall prevail over versions in other languages, which are only translations.