General Terms and Conditions of Windsor Group GMBH

Scope

These general terms and conditions shall be applied to services offered by Windsor Group GmbH, here after referred as Windsor.

Subcontracting

Both Parties shall have the right to use subcontractors for the performance of its obligations hereunder. A Party shall be liable for the performance of its subcontractors as for its own.

Windsor obligations

Windsor shall ensure that the work is executed in a professional manner and in accordance with good industry practices.

Windsor shall provide the Customer with information on the progress of the assignment as defined in the Agreement. Unless otherwise agreed and the assignment includes a final report, the reporting shall take place in connection with the delivery of the final report.

Customer’s obligations

The Customer shall provide Windsor with sufficient and correct information necessary to perform the task in the extent and schedule required by the assignment. The Customer shall be responsible for the material, information and data it provides for the service. The Customer shall be responsible for that the Customer’s material or use thereof for the purposes of this Agreement does not breach the rights of third parties (including intellectual property rights), valid legislation or good practices. The Customer shall to the best of its ability facilitate the realization of the assignment.

The Customer shall give its notices on the services by Windsor regarding the progress of the services as well as on the results of the consulting services without undue delay. If the Customer has not given a written notice within seven (7) days of receipt of the service, data or report, the work shall be deemed accepted. If the service does not include a final report or handing over the results, the service shall be deemed accepted if the Customer does not given a written notice within seven (7) days of the execution of the service.

Unforeseen changes, exceeding the cost estimate and delay

In case the execution of the assignment is delayed or it cannot otherwise be executed in accordance with the plan, or the cost estimate is at risk to being substantially exceeded, a Party shall inform the other Party immediately whereafter the Parties shall negotiate on the amendments required to the Agreement due to the situation.

Force Majeure

​Force Majeure means any failure by a Party to perform its obligations under this Agreement caused by an impediment beyond its control which it could not have taken into account at the time of the conclusion of the Agreement and the consequences of which could not have been reasonably avoided or overcome the such Party. Force Majeure event shall mean, inter alia, strike, boycott, war or comparable armed conflict, Acts of God, disruption of public transport or payment transactions, act or any other measures on the part of the government preventing the performance under the Agreement.

Safe for the obligation to pay money properly due and owing, neither Party shall be liable for delays and damages caused by a Force Majeure event. Strike, lockout, boycott and other labor conflict action shall be considered as Force Majeure also when a Party is subject to or a party in such action. A Force Majeure event suffered by a subcontractor of a Party shall also discharge such a Party from liability if subcontracting from other source cannot be made without unreasonable costs or a significant loss of time.

A Party shall notify the other Party in writing without delay of a Force Majeure event and of the termination thereof.

Termination

Each Party shall have the right to terminate the Agreement with immediate effect if the other Party is in material breach of its contractual obligations and fails to remedy such breach within reasonable time of the other Party’s written notice.

Each Party shall have the right to terminate the Agreement with immediate effect, if the fulfillment of the Agreement becomes impossible or substantially delayed due to Force Majeure reasons.

In case the Agreement is terminated with immediate effect, the Customer shall pay the costs and the work done by Windsor on an hourly basis until the termination date. If the hourly rate has not been agreed upon, the rate shall be determined in accordance with the reasonable rate used between the Parties or by Windsor in its other contractual relationships. The Customer shall also compensate any direct costs caused by the interruption or cancellation.

If no other agreements regarding term the contract can be terminated with a three month notice period.

 

Copyright and other intellectual property rights

This Agreement shall have no effect on any intellectual property rights owned by a Party prior to the effective date of this Agreement nor shall the disclosure of e.g. documents, devices, software and/or parts thereof between the Parties for the purpose of this Agreement have any effect on such rights. Any and all intellectual property rights created by a Party based on this Agreement shall vest solely in such Party.

The Customer shall have the right to use the material, records and reports (jointly ”Material”) produced under this Agreement in its own business operations, provided that the Customer has paid its payments to Windsor under this Agreement. The right to use shall not include the right to assign the Material or any license to a third party.

The Customer shall not have any right to the software or analyzing methods or practices owned or licensed by Windsor, unless otherwise agreed.

Windsor shall have the right to maintain copies of the Material for its internal development purposes and, taking into account the requirements in Section ”Confidentiality”, for its other operations.

Confidentiality

Any and all material, reports and results created for the Customer under this Agreement shall be confidential and any disclosure of such material or parts thereof shall be agreed upon separately between the Parties.

A Party shall keep confidential any trade or business secret of the other Party received from such other Party or its representative during the agreement term and thereafter. Trade and business secret shall include, inter alia, all information provided by the other Party that are marked as confidential, any pricing information and other financial data of Windsor and the Customer, details relating to the assignment, Customer’s product or services selections, all technical details relating to the products or services, solutions and models as well as all information to be held confidential according to law. Confidential information does not include information which has become publicly available prior to the conclusion of this Agreement, which become publicly available without any breach of this Agreement or due to a lawful governmental act, or which are in the public domain.

References

Windsor shall have the right to use the Customer’s name and general description of the services performed for the Customer as a client reference. Windsor shall not however have the right to disclose further details regarding the nature of the co-operation without the Customer’s consent.

Invoicing

The invoice shall specify the grounds for invoicing. Lodging, traveling and other possible costs shall be invoiced according to costs incurred. Travel time shall be charged separately insofar it is not included in the fixed project fee. The invoicing schedule shall be in accordance with Appendix 1 and Appendix 2. The term of payment is 14 days net from the date of the invoice. Notices shall be made within 7 days from the date of the invoice. In case of delay in payment, Windsor shall have the right to discontinue the execution of the assignment.

Limitation of liability

The maximum liability of Windsor in respect of each assignment shall not exceed 50 % of the project price of such assignment (excluding value added tax). In cases where the services are provided against a recurring charge, Windsor’s maximum liability shall not exceed 50 % of the amount paid by the Customer to Windsor (excluding value added tax) for the services in question during the 12 months preceding the cause of the claim for damages. In no event will either Party be liable for any indirect, incidental or consequential damages, including but not limited to, loss of income. The limitation of liability shall not apply to damages caused by willful misconduct or gross negligence.

The Customer shall make any claims, including specified grounds for the claim, in writing within three (3) months of the date when the Customer became aware of the issue giving reason for the claim, however, within one year from the end of the assignment, at the latest.

Applicable law and dispute resolution

This Agreement shall be governed by the laws of Switzerland without reference to its choice of law provisions.

Any dispute, controversy or claim arising out of or relating to this Agreement shall be finally settled by arbitration in accordance with the rules of the Arbitration Institute of the Swss Central Chamber of Commerce. The Parties agree that the arbitration procedure and all thereto related material and information shall be treated as trade or business secrets in accordance with Section 9.
Windsor may, however, file a suit for a claim based on undisputed receivables to the District Court of Zürich.

Either Party may, before or during any legal proceedings, apply to a court having jurisdiction for a temporary restraining order or preliminary injunction where such relief is necessary to protect that Party’s interests in pending completion of the legal proceedings.

Other terms and conditions

Assignment; Neither Party shall have the right to assign the Agreement or the rights or obligations hereunder to a third party without the prior written consent of the other Party. Notwithstanding the foregoing, Windsor may assign its receivables to a third party. Furthermore, Windsor may assign the Agreement or the rights or obligations hereunder to its affiliated company or to a third party to whom the business subject to the Agreement is sold or transferred.

Sections 8, 9, 12, 13 and 14 of Windsor group of companies’ general terms and conditions shall survive the termination or expiration of the Agreement.