GENERAL TERMS & CONDITIONS OF BUSINESS
of Genesis Technologies AG (Germany), Branch of Genesis Technologies AG Switzerland, in Hamburg of 22nd of February 2021
These general terms and conditions apply to all offers and agreements between Genesis and its partners, unless expressly agreed otherwise in writing. Provisions or conditions set by the partner that deviate from or do not appear in these general terms and conditions are only binding for Genesis if and insofar as they have been explicitly accepted by Genesis in writing.
Article 1: Definitions & conflicts with other terms
1.’Genesis’ refers to the legal entity that applies these terms and conditions, in this case Genesis Technologies AG (Germany), Branch of Genesis Technologies AG Switzerland.
2. The client, or legal entity that is buying products and / or services from Genesis, is referred to as the ‘partner’.
3. ‘service’ refers to the service or services that Genesis will provide on behalf or for the benefit of the partner, including, but not limited to training, design, programming, calibration, support, troubleshooting and commissioning.
4. ‘agreement’ refers to the contract between Genesis and the partner under which Genesis will provide service or supply products.
5. ‘intellectual property rights’ include, but are not limited to the following: copyright, database rights, design rights, trademark rights, patents, any right to obtain these intellectual property rights by application, registration or otherwise, any intellectual property rights vested in the service, the performance to be delivered, the products and tools such as drawings, designs, models, moulds and equipment realised with regard to or for the execution of the agreement between Genesis and the partner.
6. Deviations from these terms and conditions as well as general terms and conditions of the partner only apply if these have been explicitly accepted and confirmed in writing by Genesis to the partner.
7. These general terms and conditions also apply to all subsequent and future business with the partner unless other rules have been adopted by both parties in writing.
8. The current terms and conditions, as of 22nd of February 2021, replace all previous general terms and conditions of Genesis and all current terms and conditions of the partner.
Article 2: Offers
1. Any costs associated with making offers or quotations, including the costs of advice, drawings and the like made by Genesis will not be charged for, unless specifically agreed in writing between Genesis and the partner in the form of an agreement for service.
2. An offer or quotation is non-committal for the partner, and it is valid for 30 days after sending by Genesis, unless stated otherwise in the offer or quotation.
Article 3: Confidentiality, exclusivity & intellectual property rights
1. The partner undertakes to treat offers, quotations, prices, price lists, calculations and any other data and information received from Genesis (e.g. discounts, dealer margins, other remuneration, etc.) as confidential and shall only use them within the framework of the agreement with Genesis. This obligation continues to apply, without restriction and for an unlimited period, after the agreement between the partner and Genesis has ended and / or before it has even come to exist.
2. All resources provided to the partner by or on behalf of Genesis, including but not limited to models, design information, images, drawings, know-how, information regarding compliance and end-users and any other documents, of whatever nature and in whatever form are confidential, and the partner will not use these for any purpose other than for the performance of the agreement and its particular project related to it.
3. The partner will not disclose or reproduce the information and resources referred to in paragraph 1 and 2 of this article without the prior written express consent of Genesis.
4. The partner does not receive any exclusive distribution rights. Genesis is entitled to authorize additional partners at any time.
5. The intellectual property rights to products and services as well as the intellectual property rights in any documentation which Genesis provides to the partner in connection with service, making offers or quotations or placing orders, such as calculations, drawings, etc., remain solely with Genesis and or its suppliers.
6. Genesis and its suppliers are considered to be the maker, designer or inventor of the products and services created in the context of the agreement. Genesis and its suppliers therefore have the exclusive right to apply for a patent, trademark, domain-name, model, registered copyright or other registrable rights; this exclusive right applies worldwide.
Article 4: Penalty
1. In the event of violation of the provisions set out in article 3, the partner will owe an immediately due and payable penalty of € 20.000,00 per violation. This penalty can be claimed in addition to compensation according to article 3 and to compensation by virtue of the law. The payment of the penalty does not release partner from (further) fulfilment of its obligation pursuant to article 3.
Article 5: Orders
1. Genesis accepts orders electronically in writing. When an order has been placed by the partner, the agreement takes effect upon confirmation by Genesis. Genesis will process the order as soon as possible after the agreement has become effective.
Article 6: Delivery time & shipping documents
1. The delivery time and / or execution period specified by Genesis presupposes the timely and proper fulfillment of partner's obligations towards Genesis. Genesis will act with its best effort to meet the specified delivery time, however, this may not always be possible due to third party factors. Therefore, as soon as Genesis knows that the agreement will not be executed entirely on time, it will inform the partner immediately.
2. Genesis is not liable for any damages suffered by the partner as a direct or indirect result of exceeding the delivery time and / or execution period as referred to in paragraph 1 of this article. The partner renounces the right to any legal claims due to any delays in delivery / execution.
3. Genesis will include all relevant shipping documents requested with the order by the partner, including:
- Delivery note (including serial numbers if applicable)
- Certificate of Origin, if required.
Article 7: Prices & payment
1. The prices Genesis mentions in its offers are based on delivery and shipping as referred to in these terms and conditions.
2. All prices are expressed in Euros, to which VAT at the currently applicable rate is to be added, if applicable, and inclusive of suitable packaging and shipping, unless stated differently.
3. Unless expressly agreed otherwise, the prices offered for service apply to performance from Monday to Friday from 8 a.m. to 5 p.m. Genesis charges a 35% overtime surcharge (see also article 17 below) for any services performed outside of these times.
4. Payment of the purchase price must be made exclusively to the bank account mentioned on the invoice and order confirmation.
5. Unless otherwise agreed and stated on the invoice or order confirmation, the purchase price for products and / or services must be paid within 10 days of delivery or provision. If payment has not been made, Genesis will send the partner an electronic reminder and a reminder period of 10 days will be granted. After this deadline has expired, the partner is in default. Interest on arrears will be due immediately and will be charged at 10% of the agreed contract price. This penalty can be claimed in addition to compensation by virtue of the law. The additional assertion of compensation for damage caused by default remains reserved.
6. Unless a ‘fixed price agreement’ has been made, Genesis reserves the right to make reasonable price changes due to changed wage, material and distribution costs for deliveries that are made 3 months or later after the conclusion of the agreement.
Article 8: Delivery & risk transfer
1. Delivery takes place when Genesis delivers or sends products or services to the partner’s business location.
2. When products are requested by and sent to the partner, the risk of accidental loss or accidental deterioration of the products is transferred to the partner as soon as they are shipped to the partner, at the latest when they leave the factory / warehouse. This applies regardless of where the goods are dispatched from or of who carries the freight costs. The partner holds the risk of inter alia storage, loading, transport and unloading and shall insure itself against these risks.
Article 9: Retention of title
1. Genesis reserves title to the delivered item(s) until all fees from the agreement have been paid in full and may register such retention of title at the competent authority at any time. Genesis is entitled to take back the purchased product(s) if the partner behaves contrary to the contract.
2. If ownership has not yet passed to the partner or if the due price has not yet been fully paid by the partner to Genesis, the partner is obliged to treat the delivered item(s) with care. In particular, the partner is obliged to insure them adequately at replacement value at its own expense. If maintenance and inspection work must be carried out, the partner must carry this out in good time and at its own expense. Until title has passed to the partner, it is not allowed to make any modifications to the shipped goods.
3. The partner is at all times prohibited from exercising the right of retention with regard to goods belonging to Genesis that it has in its possession for whatever reason.
Article 10: Performance of services
1. After the conclusion of the agreement, Genesis will perform the service as soon as possible in accordance with the quotation, considering the reasonable requests of the partner. If prices for certain parts or the whole of the service must be paid in advance, Genesis is not obliged to deliver or schedule these before payment has been received.
2. The partner is obliged to do everything that is reasonably necessary and desirable to enable a timely and correct performance of the service. In particular, the partner will ensure that all data, of which Genesis indicates that they are necessary or of which the partner should reasonably understand that they are necessary for the performance of the service, are provided to Genesis in a timely manner. In case of default on behalf of the partner, Genesis is entitled to charge the full amount of the agreement even if the service cannot (fully) be performed.
3. The partner must ensure that Genesis always has a working email address of the partner. Genesis can send all communications and questions regarding the agreement to this e-mail address. The partner must therefore regularly check the mailbox linked to this email address. Not responding or not responding in time to emails from Genesis to this email address is at the expense of the partner. In case of default on behalf of the partner, Genesis is entitled to charge the full amount of the agreement even if the service cannot (fully) be performed.
4. As part of the service, Genesis may provide the partner with a username and password and indicate for which purposes they are intended. With this data, the partner has access to a portal with which the partner can manage delivery of services in accordance with the agreement.
5. Without the permission of Genesis, the partner is prohibited from making the username or accounts or tools created by Genesis available to third parties or using them in any other way than for the stated purposes. However, the partner is entitled to allow auxiliary persons engaged by it (such as members of its project team) to use these accounts or tools.
6. Any action that takes place through the account or management tool is considered to take place under the responsibility and risk of the partner. In the event of a suspicion of abuse of an account, the partner must report this to Genesis at once so that it can take measures.
7. If and insofar as required for the proper execution of the service, Genesis has the right to have certain activities performed or to have services provided by third parties. Genesis will inform the partner of this in good time. Any unexpected additional costs related to this are at the expense of the partner, unless otherwise agreed.
8. Genesis has the right to (temporarily) suspend or limit the provision of the service if, in the opinion of Genesis, the partner does not fulfill an obligation towards Genesis with respect to the agreement or acts in violation of these general terms and conditions. Genesis may require securities from the partner before resuming and / or completing the services.
Article 11: Changes and additional or less work
1. All changes to the service and all activities that are outside the agreed service, either at the request of the partner or as a result of the fact that a different or additional performance is necessary due to any circumstances whatsoever (e.g. that it turns out that a task is more difficult than expected), are considered additional work when additional costs are associated with this.
2. Additional work will be invoiced to the partner based on subsequent calculation according to the standard hourly rates of Genesis as communicated to the partner. It is rounded to the nearest quarter of an hour. However, work of less than 15 minutes will be rounded off to 15 minutes.
3. If Genesis must perform any additional work outside of its normal working hours as described in article 7, Genesis is entitled to charge the 35% overtime surcharge to the partner as described in article 7.
4. A condition for the rights from the previous paragraphs is that Genesis has timely informed the partner of the circumstances and additional costs referred to therein. If the partner cannot agree with the additional costs involved, it has the right to cancel the part of the additional work that has not yet been performed, but without the right to a refund or remission of the fees and other costs of any work already carried out.
5. If any service agreement is cancelled by the partner in less than 72 hours in advance, it will be charged at 50%. If any service agreement is cancelled by the partner in less than 48 hours in advance, it will be charged in full. In case any expenses have already been made by Genesis, such as travel bookings, they will always be charged in full regardless of the notice that has been given. No refunds for any service already provided will be given by Genesis to the partner in case of cancellation of a service agreement.
Article 12: Installation and maintenance of (user) software
1. If the service (partly) extends to the installation, configuration and / or maintenance of software, the provisions of this article apply.
2. Genesis will endeavor to keep any software used with the service up to date. However, Genesis is dependent on its suppliers for this. If the suppliers prevent updates, adjustments or patches for whatever reason or if the suppliers cause any damage to the software for whatever reason, Genesis has no responsibility and no liability towards the partner. Moreover, Genesis is entitled not to install certain updates, adjustments or patches if, in its opinion, this does not benefit a correct service.
3. Genesis will make every effort to add changes and new functionality requested by the partner to the software. However, Genesis is always entitled to refuse such a request if, in its opinion, it is not feasible or if it may impede the proper functioning, manageability or availability of the software itself or any part(s) of the system connected to it.
4. If the partner implements a change to the software without consultation of Genesis, this will be done entirely at the partner's own risk and responsibility, unless the partner has notified Genesis of the desired change in advance and Genesis has approved it in writing. Genesis may attach conditions to this approval.
5. The end user and the partner must refrain from unauthorized use of the user software and will act and behave in accordance with what Genesis or the supplier may expect from a careful manager of the user software.
Article 13: Liability & insurance
1. The partner is liable for any damage caused by Genesis without intention to the partner or a third party during any on-site service carried out by Genesis for the partner.
2. The partner indemnifies Genesis against all third-party claims for compensation of damage in connection with on-site services of Genesis as referred to in the first paragraph.
3. The partner is obliged to take out adequate insurance covering any damage that Genesis may suffer due to a failure or wrongful act on the part of the partner or third parties engaged during any on-site service carried out by Genesis for the partner. At Genesis’ first request, the partner will provide copies of the relevant policy and proof of payment of premiums.
Article 14: Licences & safety measures
1.The partner will, at its own expense, arrange the licences, permits and safety measures required in connection with the deliveries to be made and the performance of any service that Genesis provides at the partner’s offices or on-site. This includes travel by any employees or sub-contractors of Genesis to and from this service location.
Article 15: Warranty
1. Genesis guarantees the proper functioning of the delivered products for a period of 24 months after delivery of products and / or services unless stated differently on the order confirmation and / or invoice.
2. Claims for defects shall not exist in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear and in the case of damage after the transfer of risk as a result of incorrect or negligent treatment, excessive use, unsuitable equipment, defective or unsuitable construction work, unsuitable building ground or due to special external influences that are not required by the agreement. If modifications or changes to any product sold by Genesis or improper repair work are carried out by the partner or a third party, there are equally no claims for defects or the consequences thereof. Any expenses incurred at Genesis due to the false accusation with reference to this will be invoiced at the normal rate plus the full costs of defense.
3. Within 10 days of delivery the goods should be inspected and approved. In case not communicated otherwise, 10 days after delivery the goods are considered as approved.
4. ‘force majeure’ is considered an extraordinary and unforeseeable event which interferes from an external source and which cannot be avoided despite of utmost care, including but not limited to war, riots, strikes, storms, natural disaster, epidemic, pandemic (including Covid-19). In case of force majeure any responsibility and liability from Genesis is excluded.
Article 16: Support & commissioning and training
1. Pricing and contents of the different support, commissioning and training packages that are available with Genesis can be found in appendix I.
2. To be able to give the partner the very best service with Genesis’ highest efficiency, considering all the partners’ particular requirements as much as possible, support, commissioning and training can be contracted by appointment only. An appointment can be made and a ticket can be opened via:
- Email: email@example.com/ firstname.lastname@example.org
- Phone : +41 32 36 56 060
3. Once a ticket has been opened, prepayment must be made to Genesis. As soon as this payment has been received by Genesis, it will contact the partner to confirm the scheduled support, commissioning and training session(s) of its choice. Once confirmed, this is binding and will be subtracted (if applicable) from the total of the support, commissioning and training package contracted. For any cancelations article 11 para. 5 will apply.
4. If the hours of the package that was contracted have not been fully used, they will stay valid for the duration of 1 calendar year from the moment in which they have been purchased. This excludes on-site support, commissioning, and training, as soon as travelling arrangements have been made by Genesis.
5. Any expenses, such as flight(s) and hotel(s) are not included in the support packages and will be charged in addition.
6. Besides the above, the rest of these terms & conditions apply, including article 7 regarding 35% surcharges and article 11 regarding additional work.
Article 17: Applicable law and competent court
1. These general terms and conditions and all agreements concluded between Genesis and the partner with reference to these general terms and conditions are subject to the substantive laws of Switzerland, under exclusion of the international private law and the Vienna Sales Convention.
2. The exclusive jurisdiction is Bern.
Article 18: Changes to these general terms & conditions
1. The present general terms and conditions can be changed by Genesis at any time and be replaced by new provisions, which Genesis can publish on its website or otherwise communicate to the partner. The changed terms and conditions apply to all orders placed by the partner after their publication on its website or other communication to the partner.
Article 19: Miscellaneous
1. Should individual provisions of this contract be or become ineffective or contain a loophole, this shall not affect the remaining provisions. The parties undertake to replace the ineffective regulation with a legally permissible regulation that comes closest to the economic purpose of the ineffective regulation or fills this gap.
HAMBURG, GERMANY, 22nd February 2021