MyGuide Terms and Conditions of Sale

1. Scope of Application

   These Standard Terms and Conditions are exclusively applicable for all sales and deliveries of MyGuide (incl. consultancy services). Any standard terms and conditions of procurement of Purchaser are explicitly excluded. These Standard Terms and Conditions will govern all sales and deliveries by MyGuide even if not referred to in any individual Purchase order.

2. Offers and Purchase Orders

   • 2.1 Offers submitted by MyGuide (incl. descriptions, drawings or illustrations of Products, price lists, printed matter, catalogues or discs) are non-binding invitations to offer unless stated otherwise by MyGuide to Purchaser in writing. Purchase orders shall only be binding on MyGuide after MyGuide’s written confirmation of Purchaser’s order or upon delivery of Products to Purchaser. MyGuide shall confirm Purchaser’s order within 30 days, for custom-built Products within 60 days respectively.
   • 2.2 If Purchaser orders Products electronically, MyGuide shall confirm receipt of the order immediately. Unless otherwise stated, such confirmation of receipt does not constitute a confirmation of Purchaser’s order.
   • 2.3 MyGuide reserves the right to alter the construction, the form and/or the color of the ordered Products if the Products do not undergo any functional change and if it is reasonable to expect that Purchaser accepts or agrees to the alterations. MyGuide may make any alterations for the purpose of technical improvements.
   • 2.4 For the sale and delivery of Products as defined in the Purchase order the Purchase order and these Standard Terms and Conditions of Sale shall constitute the full legal relationship between MyGuide and Purchaser.

   In case of conflict of any provisions of the Purchase order and these Standard Terms and Conditions of Sale the provisions of these Standard Terms and Conditions of Sale shall prevail, except if expressly stated otherwise in the Purchase order, specifically referring to this section 2.4.

3. Prices and Payment

   • 3.1 Unless otherwise agreed in writing, all payments are to be in EUR to one of the bank accounts stated on the invoice.
   • 3.2 All prices are net ex works (EXW), place of storage (INCOTERMS 2000 or any current version thereof). All additional charges, such as packaging, inspection, carriage, insurance, certificate of origin, import or export taxes shall be borne by Purchaser. Furthermore, the prices do not include installation, commissioning or assembly costs.
   • 3.3 MyGuide shall be entitled to alter prices if delivery is due more than four months after the Purchase order. [In the event of a price increase, Purchaser is entitled to withdraw from the Purchase order within 14 days after receiving notification of the price increase.]
   • 3.4 For orders below EUR 250 an additional charge of EUR 20 will be made.
   • 3.5 Payment is due upon delivery of the Products.
   • 3.6 Purchaser agrees to pay interest on any balance still unpaid 14 days after the delivery at a rate of 8% above the main refinancing operations minimum bid rate of the European Central Bank starting on the day the balance becomes due. No reminder is necessary. The compensation of further damages shall remain reserved.
   • 3.7 MyGuide reserves the right to demand advance payments or cash on delivery (C.O.D.) with all costs of collection charged to Purchaser.
   • 3.8 Purchaser is not entitled to set off any claims against MyGuide’s claims nor to claim a right of retention.
   • 3.9 If Purchaser is in default or if its financial situation worsens so that payments are regarded by MyGuide at risk, MyGuide is entitled to postpone its performance until Purchaser’s performance is secured or MyGuide may cancel its acceptance of the Purchase order.

4. Delivery

   • 4.1 Unless otherwise agreed in writing, sales are EXW, place of storage (INCOTERMS 2000 or any current version thereof). MyGuide may deliver Products in one or more consignments and invoice each consignment separately. MyGuide reserves the right to ship Products in advance of the agreed shipping date. Unless otherwise agreed in writing, delivery time (period/date) is not of the essence.
   • 4.2 Purchaser shall inspect the Products delivered hereunder immediately upon delivery. If Purchaser fails to notify MyGuide of any defect of the Products at the latest within 14 days after delivery, the Products shall be deemed accepted as far as any defects are concerned. Hidden defects shall be regarded as having been accepted, if they are not reported to the MyGuide immediately upon discovery, at the latest within 12 months from the date of delivery.
   • 4.3 My Guide is entitled to defer delivery if Purchaser is in default with the performance of his contractual obligations, and in particular, if Purchaser fails to observe the terms of payment.
   • 4.4 The delivery time shall be reasonably extended if MyGuide does not receive from Purchaser the information required for delivery in time.
   • 4.5 If the delivery time is extended due to MyGuide’s fault, and if MyGuide also fails to effect delivery after being granted a reasonable extension by Purchaser, Purchaser is only entitled to withdraw from the Purchase order and demand reimbursement of advance payments. Further claims for damages are excluded.
   • 4.6 lf Purchaser postpones dispatch or delivery, Purchaser may be charged warehousing charges for each month or part of a month in the amount of 0.5% of the net price of the Purchase order with a maximum of 5% altogether. MyGuide may claim the real warehousing costs.

5. Force Majeure

   Unforeseeable stoppages, delivery delays or delivery shortfalls caused by MyGuide’s suppliers, shortages in personnel, energy and raw materials, strikes, lockouts, difficulties in transportation procurement, traffic disturbances, official instruments or order, and all cases of force majeure, shall release MyGuide from its delivery obligation for the entire duration of this disturbance, and to the extent of the respective effect. If delivery of the Products is delayed for more than three months, each party is entitled, upon exclusion of all further claims, to withdraw from the Purchase order in respect of the quantity of Products affected by the disturbance. Further claims for damages are excluded.

6. Risk Transfer and Shipment

   • 6.1 The benefit and the risk of the Products shall pass to Purchaser upon delivery, notwithstanding installation is provided by or under supervision of MyGuide.
   • 6.2 Unless Purchaser gives specific instructions, MyGuide will: (a) select the most economical method and route of shipment, and (b) forward shipment collect or will ship prepaid and invoice the Purchaser for transportation charges depending upon the most efficient method for each shipment. For the avoidance of doubt, delivery shall nevertheless be made EXW. [Unless otherwise advised, MyGuide may insure the full value of the Products or declare full value thereof to the transportation company at the time of delivery and all insurance costs shall be for Purchasers account.]
   • 6.3 Notwithstanding any defect or nonconformity, or any other matter, risk of loss or damage shall remain at Purchaser’s risk until the Products are returned at Purchaser’s expenses to such place as MyGuide may designate in writing (see section 7.2).

7. Warranty: General

   • 7.1 MyGuide only warrants that the Product is in line with the respective Product specification issued by MyGuide. A Product is considered defective if it does not meet the Product specifications issued by MyGuide. The foregoing warranty is in lieu of all other warranties, express or implied, and any implied warranty arising from course of performance, course of dealing or usage of trade all of which other warranties are hereby expressly disclaimed.
   • 7.2 MyGuide may repair or replace in its sole discretion any Product delivered hereunder which become defective or fail to meet the applicable Product specifications during the warranty period (12 months) due to bad workmanship, faulty design or faulty material, dependent on: (a) MyGuide is notified in writing by Purchaser within 14 days after delivery or immediately upon discovery of any hidden defect or failure to meet the Product specification; (b) the defective Products are returned to MyGuide suitably packaged, insurance and transportation charges paid by Purchaser; (c) the defective Products are received by MyGuide for adjustment no later than four weeks following the last day of the warranty period and (d) MyGuide’s examination of such Products shall disclose to its satisfaction that such defects or failures have not been caused by misuse, abuse, neglect, improper installation or application, repair, alteration, accident or negligence in use, storage, transportation or handling. In the event that any one or more of the foregoing conditions are not satisfied, MyGuide shall have no liability whatsoever. Any repair or alterations of the Products shipped hereunder must be authorized in writing by MyGuide to prevent voiding Purchaser’s warranty. Repair of defective Products free of charge to Purchaser shall be the only remedy available to Purchaser in case of defective Products.
   • 7.3 Notwithstanding any of the foregoing:
     • - MyGuide makes no warranty for used Products.
     • - If software, interfaces etc. are delivered explicitly as third party products MyGuide makes no warranty regarding such third party products. MyGuide, however, shall assign all warranty claims against such third party to Purchaser.
     • - Purchaser is aware that at the current state of technology it is not possible to preclude defects in lT Products under all application situations. Thus, MyGuide does not give any warranty that a Product will run free of any interruptions or faults.

8. Warranty: Patents

   • 8.1 Purchaser shall indemnify, defend and hold MyGuide harmless from and against any and all liability, damages, expenses, costs or losses resulting from any suit or proceeding brought for infringement of any patent(s), copyright(s), or trademark(s) or for misappropriation or use of any trade secret(s) or for unfair competition arising from compliance by MyGuide with Purchaser’s designs, specifications or instructions. Purchaser shall, if MyGuide demands, make an appropriate advance payment for legal fees.
   • 8.2 With respect to Products manufactured solely to MyGuide’s designs and specifications, MyGuide shall - notwithstanding anything contained in articles 7 and 9 - defend any suit or proceeding brought against Purchaser insofar as such suit or proceeding is based on a claim that any such Product infringes any patent at the place of delivery (cf. article 4). If MyGuide is notified promptly in writing of such suit or proceedings, and is given full and complete authority, information and assistance by Purchaser for such defense, MyGuide shall pay all damages and costs finally awarded against Purchaser, in any such suit or proceeding, but MyGuide shall not be responsible for any settlement thereof made by Purchaser without the written consent of MyGuide. In the event that such Products are held in such suit or proceeding, or in the opinion of MyGuide such Products are likely to become the subject of a claim of infringement of a patent, MyGuide in its sole discretion and at its own expense may either, (a) procure for Purchaser the right to continue using such Products, or (b) modify such Products so that they become non-infringing, or (c) replace such Products with non-infringing Products, or (d) accept the return of such Products, granting Purchaser a refund. If infringement is alleged prior to delivery of the Products, MyGuide may decline to make further shipments without being in breach of any Purchase order. MyGuide shall have no liability to Purchaser under any provision hereof for any patent infringement or claim thereof that is based upon (a) a modification of the Product not made or approved by MyGuide, or (b) use of the Product in combination with goods or other devices not supplied by MyGuide, or (c) use of the Product in other applications than recommended by MyGuide. The sale of Products confers no license of any kind upon Purchaser, by implication or otherwise. The foregoing states the entire liability of MyGuide for infringement of patents by the Products or any part(s) thereof.

9. Limitation of Liability

   As far as permitted by law MyGuide excludes any contractual or statutory liability, including but not limited to, liability for incidental or consequential damages, for loss of profits, loss of sale or any other incidental or consequential damage. This limitation also applies to any contractual and statutory liability with regard to damages, based upon activities or defaults by MyGuide’s statutory representatives, staff and agents as well as to the personal contractual and statutory liability of these persons.

10. Use of Software

    • 10.1 lf the Products delivered include software, Purchaser shall be granted a non-exclusive right to use the software and its documentation for the intended purpose. The delivered software shall be used exclusively together with the Product.
    • 10.2 The Purchaser may copy, revise or translate the software, convert it from the object code to the source code to the extent permitted by law. Unless otherwise agreed in writing, Purchaser shall not remove or alter any notices of MyGuide or the software manufacturer, in particular copyright notices.
    • 10.3 All other rights to the software and the documentation (including its copies), shall remain exclusively with MyGuide or the software manufacturer. Purchaser is not entitled to sub-license the software.
    • 10.4 In addition, the license conditions of the software manufacturer shall apply. Purchaser hereby declares its agreement with these conditions.

11. Data Protection

    • 11.1 Purchaser hereby agrees that MyGuide and its associated companies may store and use Purchaser’s personal data (including name, telephone number and e-mail address) in all countries in which MyGuide and its associated companies are doing business.
    • 11.2 With a view to any sales by MyGuide to Purchaser, said personal data may be processed, used and passed on to sub-contractors, MyGuide’s agents or those of its associated companies for the purposes of joint business activities including communication with Purchaser.
    • 11.3 The personal data obtained will not be forwarded to any other third party.

12. Retention of Ownership

    • 12.1 MyGuide retains the ownership of the Products delivered until the purchase price has been paid in full. Purchaser authorizes MyGuide to enter the retention of ownership in an official register at the Purchasers expense. MyGuide shall also retain the ownership of the Products until all other accounts receivable of MyGuide arising from the business relationship with Purchaser, including those still to arise in the future, have been fully settled. If the value of all security rights to which MyGuide is entitled exceeds the amount of all secured claims by more than 20% MyGuide shall at Purchaser’s request release an appropriate part of said security rights.
    • 12.2 During the period of retention of ownership, Purchaser shall not be permitted to pledge or transfer ownership of Products by way of security, and resale shall only be permitted in the course of normal business and only under the condition that Purchaser receives payment from his customer or reserves its rights in such a way that ownership does not pass to customer until customer has fulfilled his payment obligations. Purchaser hereby assigns to MyGuide its receivables from said resale with all accessory rights in the amount of MyGuide’s accounts receivable against Purchaser. MyGuide hereby accepts said assignment. Subject to revocation, Purchaser shall be entitled to collect the assigned receivables in his name; revocation being admissible only if Purchaser is in default of payment.
    • 12.3 The Products shall always be handled and processed by Purchaser on MyGuide’s behalf. If the Products are combined with objects which are not supplied by MyGuide, MyGuide shall acquire co-ownership of the new object proportional to the value of the Product supplied by MyGuide and the other combined objects. The same shall apply if the Product is mixed with other objects which are not supplied by MyGuide.
    • 12.4 Purchaser undertakes to inform MyGuide without delay of any seizure of the Product by a third party or any damage to or destruction of the Product. Purchaser undertakes to give immediate notice of any change of its address and any change in property of the Products.
    • 12.5 If Purchaser is in breach of any obligations, in particular if in default of any payment due to MyGuide, MyGuide shall, after the unsuccessful expiry of a reasonable performance period, have the right to withdraw from the Purchase order and to call back the Products. Purchaser undertakes to return the Products to MyGuide immediately upon any such notification by MyGuide.
    • 12.6 If maintenance or inspection work is necessary, Purchaser shall carry out such work at regular intervals and at its own expense.
    • 12.7 Purchaser undertakes to treat the Products with care and to insure the Products adequately (value according to price list), at his own expense, against theft, breakage, fire, water and other loss or damage and to deliver to MyGuide without delay appropriate proof of such insurance. If Purchaser should fail to provide such proof, MyGuide shall be entitled to insure the Product at Purchaser’s expense.

13. Miscellaneous

    • 13.1 The invalidity, illegality or unenforceability of any provision of any Purchase order and these Standard Terms and Conditions of Sale between MyGuide and Purchaser shall in no way effect the validity, legality or enforceability of any other provision; and if any provision is held to be unenforceable as a matter of law, the other provisions shall not be affected thereby and shall remain in full force and effect.
    • 13.2 The headings contained in these Standard Terms and Conditions of Sale are for convenience as reference only and shall have no effect on the interpretation or operation hereof.

14. Governing Law and Jurisdiction

    • 14.1 Except for claims based on section 12, the legal relationship between MyGuide and Purchaser shall be subject to and governed by Swiss Law, upon exclusion of its conflict of laws provisions and the United Nations Convention on the Contracts for the International Sale of Goods (CISG; Vienna Convention).
      Claims based on section 12 shall be subject to and governed by the law applicable at Purchaser’s principal office.
    • 14.2 For all disputes arising out of or in connection with this legal relationship exclusive place of jurisdiction shall be Zug, Switzerland. For claims based on section 12, MyGuide reserves the right to initiate legal proceedings at the courts of Purchaser’s principal office.

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