General Terms and Conditions of Purchase (GTCP)

1. General

1.1. These General Terms and Conditions of Purchase shall apply to all procurements of goods and/or services (together „Goods“) by all HaslerRail’s companies (hereinafter each referred to as the „Purchaser“).
1.2. Additional or deviating terms and conditions proposed by the Supplier, in particular General Terms and Conditions of Sale, shall not apply, even if the Supplier expressly refers to other terms and conditions during the business relationship with the Purchaser and the Purchaser accepts and pays for the Goods delivered by the Supplier without expressly rejecting deviating General Terms and Conditions.
1.3. In the event of contradictions between different contractual documents, the documents shall apply in the following descending order of precedence:

1. the Order confirmed by the Supplier without reservation
2. any Framework Agreement
3. the present General Terms and Conditions of Purchase
4. the Supplier’s offer
5. Purchaser’s request for a quotation

2. Conclusion of Contract, Amendments and Supplements

2.1. Quotations from the Supplier are free of charge and must be valid for at least three months beyond the date set by the Purchaser in the request for quotations.
2.2. In the offer, the Supplier shall expressly point out any deviations from the Purchaser’s request for quotation and any ambiguities, omissions or technical specifications contained therein which may affect the suitability of the Goods for the intended purpose or with regard to the state of the art or applicable laws and regulations.
2.3. Insofar as the order has not been placed, the Purchaser may withdraw at any time from the negotiations, without any compensation whatsoever.
2.4. If the Supplier receives from the Purchaser, some forecasts on the Goods, these shall be considered as information only, without consisting in any order obligation from the Purchaser.
2.5. Orders or changes or additions thereto shall only be binding if they are made in writing. The sketches, drawings, specifications, etc. mentioned in the Order are part of the Order.
2.6. If an Order is not accepted by the Supplier within three (3) working days, the Purchaser shall be entitled to cancel it. The withdrawal does not entitle the Supplier to assert claims.
2.7. Deviations from the Order shall be expressly indicated in the Order Confirmation. Such deviations shall only become part of the contract if they are accepted by the Purchaser in writing.
2.8. The Order Confirmation must contain at least the following information: Purchaser’s Order number, Purchaser’s article number, country of origin, quantity, price, Incoterms, as well as terms of payment. After the conclusion of the contract the Purchaser shall remain entitled to request reasonable changes in the specifications, the manufacture or delivery of the Goods. To the extent such changes lead to an increase or decrease in the Supplier’s prices or to a change in the delivery date, the Supplier shall inform the Purchaser thereof within one calendar week at the latest. The resulting change order shall be mutually agreed between the parties.

3. Approval of Engineering Services

If the Order involves engineering services, such as the preparation of technical drawings and/or calculations, the relevant documents shall be submitted to the Purchaser for approval before the start of production.

4. Subcontracting

4.1. If the Supplier intends to have the Goods designed or manufactured in whole or in essential parts by third parties, the Purchaser’s consent must be obtained in good time and the third party must be disclosed.
4.2. The Supplier shall be liable for Goods purchased from third parties in the same way as for Goods manufactured by himself.

5. Shipping and Packaging

5.1. The Supplier shall send the Goods in accordance with the Purchaser’s shipping and labelling instructions. At least one declaration of content is required for each packaging unit. If the Goods are shipped in several packaging units, each unit must be identified individually.
5.2. The packaging must be such that the Goods are effectively protected against damage and corrosion during transport and subsequent storage. ESD-sensitive components as well as electronic assemblies shall be delivered in ESD protective packaging, i.e. in conductive antistatic packaging material. The Supplier shall be liable for damage caused by improper packaging.
5.3. At the request of the Purchaser, the Supplier shall take back the packaging material and the Purchaser reserves the right to be credited for it
5.4. The Supplier shall also be liable for all costs and expenses incurred as a result of not following the Purchaser’s instructions regarding transport or customs clearance.
5.5. The risk of accidental loss of the Goods shall pass to the Purchaser in accordance with the Incoterms agreed in the Order; in the absence of an agreed Incoterm, the Goods shall be shipped DDP Purchaser’s place of business, Incoterms 2020 or latest edition. If acceptance tests at the Purchaser’s works have been agreed, the risk shall pass after successful completion of these tests.
5.6. Each delivery shall be accompanied by a detailed delivery note containing at least the following data: Delivery note number, delivery date, Order number of the Purchaser, Order date, article number of the Supplier, article number of the Purchaser (if applicable), drawing number and revision (if available), quantity, gross/net weight, country of origin customs tariff number and type of packaging, delivery address (including factory and gate).

6. Delivery Time

6.1. The agreed delivery dates and/or delivery periods are binding. If the Goods are not received at the agreed place and delivery date, the Supplier shall automatically be in default.
6.2. Partial shipments or shipments of three or more working days ahead of schedule require Purchaser’s prior approval.
6.3. The Supplier shall inform the Purchaser without undue delay of any circumstances which have occurred or are likely to occur which may affect the agreed delivery date and of the expected duration of the delay. The Supplier shall use its best endeavors to minimize the delay or to procure substitutes from third parties.
6.4. Delays caused by missing information, documents or items to be supplied by the Purchaser shall only be deemed to be without fault to the extent that the Supplier has requested the delivery of such documents or items in due time or if it has informed the Purchaser in due time that documents are missing.
6.5. Except in the case of force majeure, but otherwise by the sole fact of the delay and without the Purchaser having to prove any damage, the Supplier shall pay a contractual penalty of 1% of the contract price for each week of delay or part thereof. If the penalties reach the 10% of the contract price of the delivery in question, the Purchaser may apply an extra one-off penalty fee of € 5.000 per the delivery in delay. The maximum penalty for each delayed delivery, is limited to 10% of the contract price plus the one-off penalty fee. Contract price is here defined as the total contractual amount, for the relevant delayed position. Shortages of raw materials or delays caused by subcontractors or sub-suppliers shall not exonerate the Supplier unless these delays are also due to force majeure. The right of the Purchaser to claim damages in excess of the contractual penalty is reserved.
6.6. If the agreed delivery date is exceeded by more than 4 weeks, the Purchaser may withdraw from the contract or waive the delivery or service and claim damages for non-performance even without setting a grace period. The same applies, if it is foreseeable that the agreed delivery date will not be met.
In these cases, the Supplier – in addition to all other remedies available to Purchaser – shall refund all payments already received plus 5% interest p.a. from the date of receipt.

7. Prices, Invoicing, Terms of Payment and Transfer of Ownership

7.1. The agreed prices are fixed and can only be changed by mutual agreement of the parties.
7.2. The statutory value added tax shall be shown as a separate item in the invoice.
7.3. Unless otherwise agreed, a separate invoice will be issued for each Order. Invoices must be sent separately for each delivery.
7.4. The invoices must comply with the applicable VAT regulations. In addition, the Supplier’s invoices must at least state the Order number, the article number, the delivery date and also the scope of the delivery, e.g. partial deliveries or remaining deliveries. Furthermore, the Supplier is liable for the proper indication and proof of the country of origin of the Goods.
7.5. Unless otherwise agreed and subject to proper delivery of the Goods and related documents, payment shall be made within 60 days of receipt of a properly issued invoice (except in the case of advance payments).
7.6. Defects in the Goods shall entitle the Purchaser to retain an appropriate part of the agreed price until the defects have been remedied.
7.7. Invoices that do not comply with the aforementioned requirements will not be processed until a properly prepared invoice has been submitted and the corresponding payment will be withheld.
7.8. If the Supplier has undertaken to install or assemble the Goods and no other agreement has been made, the Supplier shall bear all costs such as travel expenses, accommodation, provision of tools, allowances, etc.
7.9. Ownership of the Goods shall pass to the Purchaser on the earlier of the following dates:
■ Delivery
■ Advance payment in full

8. Product Safety, Documentation

8.1. Unless expressly agreed otherwise, protective devices are part of the scope of delivery. If these are missing on delivery or after work has been carried out, they must be supplied and fitted without delay and free of charge.
8.2. The scope of delivery also includes assembly, operating and maintenance instructions as well as spare parts lists or other documentation necessary for the proper use of the Goods or required by law.
8.3. In the event of work at the Purchaser’s works, the Purchaser’s safety instructions and regulations for external companies shall also apply.

9. Incoming Goods Inspections

9.1. The Purchaser shall inspect the Goods upon receipt only for transport damage and other obvious defects as well as for identity and quantity.
9.2. In the ordinary course of business, at the latest within one month of receipt, the Purchaser shall randomly inspect the Goods for conformity with the agreed specifications.
9.3. If more than 10% of the Goods in a consignment do not meet the agreed specifications and quality standards, the Purchaser is entitled to reject the entire delivery. It is then the Supplier’s responsibility to inspect the rejected Goods and to sort out Goods of poor quality.
9.4. In case of deliveries of Products not meeting the agreed quality standards (non-conforming products), the Purchaser shall be entitled to charge a handling fee of EUR 300 for each return shipment.
9.5. The Purchaser reserves the right to claim a compensation of the occurred expenses and of the loss, caused by the non-conformity.

10. Warranty and Liability for Defective Products

10.1. The Supplier warrants that the Goods comply in all respects with the terms of the Contract, perform as agreed, be new and state of the art and fit for the purpose for which they were purchased. The Goods shall also comply with all applicable standards, laws and regulations (including but not limited to those relating to the environment, health and accident prevention) in force at the place of delivery specified in the Order.
10.2. Defects shall be notified to the Supplier within two calendar weeks of discovery.
10.3. The warranty period shall be 24 months and, unless otherwise agreed by the parties, shall commence with the delivery of the products of the Purchaser to its customer, but shall end no later than 36 months (60 months in the case of serial defects) after receipt of the Goods by the Purchaser. A serial defect shall be assumed if
– within a period of 60 months after receipt by the Purchaser
– more than 5% of the Goods show the same defect
– and the defect is attributable to the same cause.
10.4. The warranty period for repairs or replacements ends 24 months from the date of replacement or successful repair, but not before the expiry of the original warranty period for the Goods concerned.
10.5. The warranty period shall be extended by the time during which the Goods cannot be operated or used within the scope of the rectification.
10.6. In the event of defects, the Purchaser shall, at its discretion, be entitled to the following rights, irrespective of its other statutory claims, in particular for damages: a) refusal to accept the Goods, withdrawal from the respective contract and reclaiming of advance payments, b) rectification of defects or replacement of the Goods.
In the event of refusal, unreasonableness or impossibility of repair or replacement by the Supplier: c) repair or replacement of the defective Goods by a third party at the Supplier’s expense, or d) price reduction or e) rescission (withdrawal) or f) combination of the above claims. In any case, the Supplier shall, even if not at fault, bear or reimburse all costs associated with the repair or replacement (inspection, disassembly, reassembly, transport, etc.).
10.7. Goods or parts thereof which are the subject of a complaint shall remain at the disposal of the Purchaser until they have been replaced free of defects or until the rescission of the contract has been completed and may continue to be used by the Purchaser during this period.

11. Recall and Replacement Actions

11.1. If the Purchaser intends, at its discretion, to recall products which may contain defective Goods or to replace them preventively at its customers, it shall inform the Supplier as soon as possible, provided there is no immediate danger.
11.2. The Supplier shall bear the costs of the recall or replacement action and the associated consequential costs.

12. Product Liability and Recall Insurance

12.1. The Supplier shall take out liability insurance to cover its liability for personal injury and property damage as well as consequential financial loss in the minimum amount of the equivalent of EUR 5.0 million per claim. The cover for other damages, such as, in particular, removal and installation costs on the one hand and recall costs on the other hand, must each amount to at least the equivalent of EUR 1.0 million per claim. The cover in question shall be valid for at least 5 years after the respective delivery to the Purchaser.
12.2. The Supplier hereby assigns all claims against the insurer to the Purchaser. The Purchaser hereby accepts the assignment.
12.3. At the request of the Purchaser, the Supplier shall submit a corresponding insurance certificate.

13. Quality Audits

13.1. The Purchaser may, after a notice of at least ten working days, and during normal business hours, audit the manufacturing process of Goods to be manufactured according to the Purchaser’s specifications at the Supplier’s plant. The Supplier shall use its best endeavors to facilitate such audits also at the works of its sub-suppliers or subcontractors.
13.2. Audits make part of the standard Supplier Evaluation and Maintenance process thus are to be considered free of charge from the Supplier.
13.3. The parties shall take appropriate measures to protect business secrets of the Supplier and its subcontractors or sub-suppliers

14. Infringement of Third-Party Property Rights

14.1. The Supplier shall indemnify the Purchaser against all costs, damages, claims of third parties which the Purchaser may incur due to alleged infringements of industrial property rights.
The Supplier shall not be liable to the extent the infringement of industrial property rights is caused by the fact that the Goods were manufactured according to instructions and specifications of the Purchaser and the Supplier did not have to become aware of the possible infringement when exercising due diligence.
14.2. The Parties shall inform each other without undue delay of any actual or alleged infringement of third- party rights of which they become aware. The Supplier shall assist the Purchaser in investigating, defending or dealing with any such claim, including providing the Purchaser with all documents necessary to defend the claim.
14.3. If the Purchaser chooses its own legal counsel, the Supplier’s indemnity shall also extend to the reasonable costs and fees associated with the representation. If the Purchaser does not choose its own legal counsel, the Supplier shall be solely responsible for defending the claims concerned.
14.4. In the event of a claim for infringement of third-party rights notified to the Supplier, the Supplier shall take the necessary steps to secure for the Purchaser a source of supply of the Goods which does not infringe third party rights, which may include obtaining the necessary licenses, redesigning the Goods or taking such other steps the Supplier considers necessary to ensure that a product which does not infringe third party rights is supplied to the Purchaser.

15. Ownership of Documents, Moulds and Software, Escrow of Source Code, etc.

15.1. Documents, such as drawings, software and all means of production, such as tools, samples, moulds and the like, which the Purchaser makes available to the Supplier or which the Supplier procures or manufactures at the Purchaser’s expense, shall remain or become the property of the Purchaser as soon as they are procured or manufactured. The Purchaser shall hold all rights thereto. If they are no longer used for the execution of the Purchaser’s Orders, they shall, at the Purchaser’s option, either be returned to the Purchaser free of charge or be disposed of, such disposal to be confirmed in writing by the Supplier.
15.2. They may not be reproduced, sold, pledged, assigned as security, sold or otherwise encumbered, made accessible to third parties or used to manufacture products for third parties.
15.3. Test infrastructure, tools, samples and moulds etc. shall be properly stored, labelled, insured against theft and natural hazards and maintained by the Supplier. The Supplier waives all legal retention rights.
15.4. Unless otherwise agreed, the Supplier shall, upon the Purchaser’s request and after the performance of the relevant Contract, return to the Purchaser all documents, software or means of production which are the property of the Purchaser and all copies made thereof, or, in the case of documents or software, shall notify the Purchaser of their destruction or confirm deletion. The Supplier shall have the right to retain a copy of the documents or software received for compliance with the statutory archiving provisions, provided that such copies are treated as secret documents. Any other use and/or any disclosure to third parties shall not be permitted, unless by formal agreement of the Purchaser.
15.5. The Purchaser shall be entitled to use the software forming part of the scope of delivery, including its documentation, to the extent necessary for the use of the Goods or for any other purpose provided for in the Contract, and the Purchaser may make back-up copies of the software supplied by the Supplier.
15.6. At the request of the Purchaser, the Purchaser and the Supplier shall conclude a source code escrow agreement. The Purchaser shall submit a contract template for this purpose.

16. Subsequent Supplies of Goods and Spare Parts

16.1. The Supplier undertakes to resupply the Purchaser – on the basis of individual Orders, on competitive terms and conditions and for a period of at least twenty (20) years after delivery of the Goods – with identical Goods and/or spare parts required therefor.
16.2. If, after the expiry of the aforementioned period of twenty (20) years, the Supplier intends to discontinue the manufacture of the Goods or spare parts in question the Supplier shall notify the Purchaser without undue delay and in any event not later than six (6) months before the cessation of production. The Purchaser shall be entitled to place a final order for the supply of the Goods or spare parts at market conditions within one month of receipt of such notification.
16.3. The Purchaser shall be entitled to procure spare parts for the Goods which are not protected by the Supplier’s proprietary rights, also directly from the Supplier’s sub-suppliers or third parties.
16.4. The Supplier shall endeavor to oblige its suppliers and sub-suppliers accordingly.

17. Proofs of Origin

17.1. The Supplier shall provide correct proofs of origin for the Goods in good time.
17.2. He shall be liable for all damages and costs incurred by the Purchaser due to non-compliance with the above obligation.

18. Confidentiality, Reference to the Business relationship with the Purchaser

18.1. The parties shall not disclose to third parties any confidential information of which they have become aware in the course of the business relationship with the other party, in particular technical information, plans, trade secrets and Order details, such as quantities, technical specifications, business agreements, etc., as well as any knowledge gained therefrom, and shall use such information exclusively for the execution of an order/contract.
18.2. The Supplier shall ensure that any sub- suppliers or subcontractors to whom confidential information is disclosed for the purpose of performing the sub-supply or sub-subcontract agree to be bound by these Conditions.
18.3. The Supplier may not publish the fact that it has concluded a contract with the Purchaser or use the Purchaser’s Order for advertising purposes without the Purchaser’s prior consent.
18.4. Each party acknowledges that the breach of the aforementioned obligations, will cause irreparable damage and hereby agrees that the other party shall be entitled to seek injunctive relief, as well as such further relief as may be granted by a court of competent jurisdiction.

19. Protection of Personal Data

19.1. In the context of their contractual relationship the parties may exchange personal data such as names, telephone numbers, email addresses and other personal data. In this case, both parties shall use such personal data in accordance with applicable personal data protection laws, in particular, where applicable, the requirements of the European General Data Protection Regulation of 4 May 2016 (EU 2016/679; “GDPR”) and ensure that no unauthorized third parties have access to such personal data without the consent of the data subjects or for any other legal reason.
19.2. The parties shall treat personal data of the other party as strictly confidential and process such data exclusively for contractual purposes. The party processing personal data shall be responsible for the lawfulness of its processing as well as for safeguarding the rights of the data subjects.

20. Compliance with Legal Requirements

20.1. Unless otherwise specified in a Purchase Order, the Supplier warrants compliance with the quality standards ISO 9001, ISO 14001 and ISO 45001 (OHSAS 18001). Furthermore, he guarantees that the Goods comply with the legal provisions and standards of the country of destination specified in the Order.
20.2. The Supplier agrees to comply with the “Conflict Minerals” provisions of the Dodd-Frank Act and the Electronics Industry Citizenship Coalition (EICC) Code of Conduct.
20.3. This also applies to compliance with all laws, regulations and standards relating to environmental protection and Regulation (EC) No 1907/2006 (REACH) and Directives 2011/65/EU and 2017/2102/EU (RoHS) respectively.

21. Data Security

21.1. The Supplier shall take appropriate measures to secure data and to protect its IT systems against programs with damaging functions (viruses, worms, Trojans, etc.) in order to adequately protect information received from the Purchaser and the results produced for the Purchaser against loss, modification, transfer or access by unauthorized third parties.
21.2. Where Supplier has access to, collects, stores or otherwise processes data from or on behalf of the Purchaser (e.g. including, as the case may, data from the Purchaser’s customers, resellers, or users) in connection with its provision of the supplies (“Data”), including any data that may be generated by the supply itself, Supplier shall at a minimum:
21.2.1. Only access, collect, store or otherwise process Data for the sole purpose of fulfilling Supplier’s obligations under the Order, or as otherwise expressly permitted by the Supplier in writing;
21.2.2. Maintain reasonable and appropriate administrative, technical and organizational measures and safeguards to preserve and protect the security, integrity and confidentiality of the Data, aligned with applicable industry standards such as ISO / IEC 27001 or IEC 62443;
21.2.3. Should the Goods contain any software, firmware or chipsets; the development and productions of such shall demonstrably aligned with good industry practices and standards such as ISO/IEC 27001 available on http://www.iso.org or IEC 62443 available on https://www.isa.org ;
21.2.4. Comply with any other privacy or security policies or procedures that the Purchaser may provide or make available from time to time to the Supplier as the context requires;
21.2.5. Any infrastructure, systems, services, products or platforms used by Supplier to access, collect, store, or otherwise process Data, including data gathered from third parties on behalf of the Purchaser, shall be developed, maintained, and operated in accordance with industry-recognized security requirements and Secure Development Lifecycle practices, including but not limited to, secure application development, vulnerability management, and compliance with applicable regulations and requirements.
21.3. Supplier shall maintain a reasonable and industry appropriate business continuity plan to ensure its provision of the Goods, taking into account data and cybersecurity risks included in its comprehensive risk analyses, contingency plan and solutions for its continuous delivery and operations.
21.3.1. In the event Supplier detects a confirmed or reasonably suspected misuse, compromise, or unauthorized access, destruction, loss, alteration, acquisition or disclosure of any Data, security breach or suspected vulnerability, whether in Suppliers’ IT systems or network, or in relation to the Supplier (“Security Incident”), the Supplier shall notify the Purchaser within two (2) working days
21.3.2. Take prompt steps to investigate, contain, and remediate any Security Incident and cooperate with the Purchaser in any subsequent investigation and response in connection with the Supplier’s IT systems or networks, or in relation to the Goods, and evidence demonstrating the completion of those activities. Unless otherwise specified hereto, each party will bear its own cost in relation to its performance and action contemplated as determined herein.
21.4. In addition to the above and in case the performance of the Order necessitates specific or enhanced protection measures for Data, the Parties will enter into a specific and appropriate addendum considering the level of cybersecurity required by the circumstances as reasonably determined by the Purchaser.

22. Corporate Social Responsibility

22.1. The Supplier shall comply with the laws of the jurisdiction(s) applicable in the performance of the Contract and undertakes to follow the principles and guidance of the ISO 26000 “Guidance on Social Responsibility”. In particular, he shall not actively or passively, directly or indirectly, engage in any form of corruption or use of child labor or otherwise violate fundamental human rights of employees in any way.
22.2. In addition, the Supplier shall assume responsibility for the health and safety of his employees; he shall act in accordance with applicable environmental laws and shall make every effort to impose these obligations on its subcontractors and suppliers. Details can be found in the Code of Conduct of the Sécheron Hasler Group on the website of the Purchaser, or HaslerRail.
22.3. In addition to the other rights and remedies to which it is entitled, the Purchaser may terminate the relevant Contract if the Supplier breaches these obligations. However, the Purchaser’s right to terminate the Contract shall be subject to the Supplier’s failure to remedy the breach within a reasonable grace period granted by the Purchaser.

23. Termination for Convenience

23.1. The Purchaser is entitled to withdraw from the contract at any time at his own discretion against payment of the proven costs incurred by the Supplier.

24. Final Provisions

24.1. Without the prior written consent of the Purchaser, the Supplier may not assign or transfer the rights and obligations under a supply or service contract, in whole or in part, to any third party.
24.2. If any provision of these General Terms and Conditions of Purchase is found to be invalid or unenforceable by a court or authority of competent jurisdiction, such provision shall be deemed invalid and the remaining provisions shall continue in full force and effect. The parties shall replace the invalid or unenforceable provision, if necessary, with a valid and enforceable provision with a similar economic purpose, provided that the content of these terms and conditions is not substantially changed. The same applies in the event that there are gaps.
24.3. No delay or omission by the Purchaser in exercising any right or remedy available to the Purchaser shall operate as a waiver of such rights.
24.4. Any communication transmitted electronically (e.g. on EDI, cXML, e-mail) shall also be deemed to be “in writing”.

25. Place of Performance, Applicable Law, Place of Jurisdiction

25.1. Unless otherwise agreed, the place of performance for delivery and payment shall be the Purchaser’s place of business.
25.2. Cross-border contracts with the Purchaser shall be governed by the UN Convention on Contracts for the International Sale of Goods (CISG) and, for legal issues not covered by the CISG, by the substantive law of the Purchaser’s place of business.
25.3. The exclusive place of jurisdiction for all actions arising out of or in connection with an Order or any other contract between the parties shall be the place of business of the Purchaser, provided that the Purchaser shall also be entitled to bring an action before any other court having jurisdiction over the subject matter of the dispute. In such case the respective court shall apply the substantive law being in force at the place of venue.
 
Valid from 1. January 2023

HaslerRail AG
Freiburgstrasse 251
3018 Bern
Switzerland
www.haslerrail.com
info@haslerrail.com
Phone +41 (0)31 990 71 11
Fax +41 (0)31 990 72 22