General Terms and Conditions

Last modification: May 09, 2023

1. Approval of the General Terms and Conditions of Sale

The present General Terms and Conditions of Sale (hereinafter “GTCS”), together with the particular conditions applicable to any order (hereinafter “Particular Conditions”), set out the conditions by which K2 Photonics AG sells its goods and related services to the customer. The Particular Conditions prevail when they modify or complement any disposition of the GTCS. The application of professional practices is expressly excluded when the said professional practices do not conform to the GTCS and Particular Conditions. Unless all parties agree otherwise, any terms and conditions included in the general purchasing conditions, order forms or any other documents coming from the customer are not applicable to the sale of K2 Photonics AG goods and related services.

2. Contract of Sale

2.1. Only orders confirmed in writing by K2 Photonics AG will be deemed definitely agreed. The confirmation will be formalized on the issue of an order acknowledgment.

2.2. Whenever a quotation is provided by K2 Photonics AG, the commitment of K2 Photonics AG to honor that offer, as well as any Particular Conditions that would modify or supplement the GTCS, may only be deemed valid once the order has been placed by the customer and confirmed in writing by K2 Photonics AG, as set forth in article 2.1 above.

2.3. In case of contradiction between quotation, order and order acknowledgement, the later alone shall prevail.

2.4. Unless otherwise stated, the terms set out in any quotation issued by K2 Photonics AG shall be valid for a period of thirty (30) calendar days from the date of the quotation.

3. Price of the goods sold and related services

3.1 All prices are stated before any tax and duty and are detailed in the Particular Conditions of sales, which are most of the time materialized by a quotation. The goods and any related services are charged based on these prices and in line with the quantities and any related services mentioned in the order acknowledgment. Any taxes, charges or duties payable under Swiss or any foreign law (import or transit country, etc) shall be borne by the customer. Unless otherwise stated, the packaging, transportation, insurance and other costs shall always be borne by the customer.

3.2 Prices are established according the current economic and fiscal conditions. Would those conditions change (currency rate, custom fees…) between the moment of the price setting and the one of the invoice, the prices would be modified accordingly.

4. Intellectual property rights

4.1. The customer shall take all necessary measures in order to:

• Ensure that any person or entity under its authority (including the customer’s staff, partners, joint contractors, subcontractors, etc) will protect the intellectual property rights (patents, drawings, designs, etc) belonging to K2 Photonics AG or to any person or entity involved in the design or manufacturing of the sold goods;
• Securely handle any “industrial secret” attached to technical documents, studies, information or know-how which the customer or any other person or entity under its authority would have access to;

4.2. All studies, schemes, drawings and any other documents provided or sent by K2 Photonics AG shall remain the property of K2 Photonics AG and they may not be disclosed to any third party by the customer for any reason whatsoever without the prior written consent of an authorized representative of K2 Photonics AG. This, however, does not concern the user manual and acceptance reports delivered to the customer along with the sold goods and related services which, even if under copyright of K2 Photonics AG, shall be treated as the said goods themselves.

5. Terms of payment

5.1 Terms of payment are set by the contract.

Unless otherwise stated, the price shall be paid by the customer:

• On the basis of an advance payment which is detailed in the Particular Conditions. An invoice is issued by K2 Photonics AG along with the order acknowledgment, immediately due at reception;
• On the basis of the invoice(s) issued K2 Photonics AG after delivery of goods or performance of services, payable by bank transfer at maturity as stated on the invoice(s). Unless otherwise stated the payment terms is 30 days.

5.2 Sanctions and penalties applicable in case of non-payment or late payment

Any late payment or non-payment on any agreed maturity date shall imply by rights, the day after the stipulated payment term, the application of late payment penalties, without prior notice, calculated on all payable sums, using the refinancing rate of the Swiss National Bank increased by ten (10) percentage points, and applying a lump sum compensation for payment recovery costs, amounting to eighty (80) Swiss francs per invoice. When the payment recovery costs supported effectively are greater than the lump sum compensation, the seller may also claim, by rights and as justified, an indemnity for the extra costs. In case of late or non-payment on the due date, including for any agreed installment, K2 Photonics AG has the right to suspend execution of the sale by rights without prior notice and without altering any other right or action in resolution and/or damages. In case of non-payment when due, the sale can also be terminated by rights upon seller’s decision without prior formal demand, and the seller may also ask as an emergency procedure that the goods be returned, without prejudice to any other claims for damages. K2 Photonics AG may also decide to cancel by rights and without prior notice confirmed orders in process and any prior orders, whether already delivered or in the delivery process, and for which payment is due.

6. Delivery and transportation of the goods sold

6.1. Conditions

Unless otherwise specified, the goods shall be deemed delivered to the customer at the K2 Photonics AG warehouses (EXW conditions, Incoterms 2010 ICC). The goods are delivered to the customer, or to a forwarder or to a carrier appointed by K2 Photonics AG.

6.2. Delivery time

Deliveries shall be made according to the availability of goods. The planned lead times shall be stated in K2 Photonics AG’s order acknowledgment and shall always be conditional to the dispositions of article 8 below and shall always be construed, unless otherwise stated, as when the goods sold will become available as stated in article 6.1 above. Upon K2 Photonics AG’s sole discretion, the planned lead times shall be determined based on the full payment of any agreed advance payment. Delays with respect to the planned lead times shall not give rise to any damages indemnification, countercharge, price reduction or cancellation of orders whether confirmed or in process. Whenever possible, K2 Photonics AG will inform the customer as soon as it will appear that the last communicated planned delivery date will not be fulfilled and will provide a new planned delivery date simultaneously. K2 Photonics AG may make partial or total deliveries.

6.3. Transportation costs and risks

Unless otherwise agreed, the customer shall bear all costs and risks associated with the transportation of the goods sold, and any other related expenses incurred, if any (EXW conditions, K2 Photonics AG warehouses, Incoterms 2010 ICC).

6.4. Different particular conditions

Whenever the Particular Conditions stipulate delivery and transport conditions different from the ones exposed here above, they would be defined according to Incoterms 2010 of the ICC. Any planned lead time or delivery date shall be construed as per the obligations of delivery and transport under the responsibility of K2 Photonics AG with regard to the contractual Incoterms, but will always be conditional to the content of article 8 below. In case of contradiction between the Incoterms stipulated in the order acknowledgment and the one stipulated in any invoice issued by K2 Photonics AG for this order, the later only shall prevail.

7. Retention of title to the goods sold

K2 Photonics AG shall keep full title to the goods sold until the price has been fully paid, including the principal, and any applicable interests, penalties and indemnities. For the purpose of this clause, the remittance of an instrument giving rise to an obligation to pay (bill of exchange, or any other mode of payment) shall not be held as effective payment until full collection of the due amount. Any failure to pay any amounts payable on due date shall entitle K2 Photonics AG to claim for the goods. In case of a seizure, or in case of a third party procedure, before full payment of the due amounts, the customer shall notify K2 Photonics AG immediately and shall inform the said third party of the retention of title by K2 Photonics AG. The above provisions shall not make obstacle to the transfer to the customer, upon delivery, of the risks of loss and damage to the goods sold, and the risks of damage that the goods may cause.

8. Export and import licenses for the goods sold

Whenever an export, import or transfer license is required for the goods that are ordered, K2 Photonics AG is committed to deliver the said goods are bound to any Particular Conditions for the order only once all the licenses required have been received. To that extent, K2 Photonics AG reserves the right to issue a first order acknowledgment conditional to the reception of the said licenses. In this case, a second non-conditional order acknowledgment shall be issued once the said licenses would have been received, confirming the planned delivery date. In case of export control from the country of origin, the customer is bound to conform to any obligations stated by the Swiss authorities and to any declarations on his behalf, particularly as related to the final utilization of the sold goods or to the commitment to non re-exportation without prior authorization. The denial of any license by the competent authorities will automatically result in the cancellation of the concerned order, in whole or in part, without K2 Photonics AG being considered liable in any manner whatsoever for any claim for damages or compensation.

Re-export of the goods sold, including the related documents, by the customer must be carried out in compliance with Switzerland, with goods country of origin and with all contracting parties countries regulation. Re-export of the goods sold may also be bound to the regulation of the countries where they are exported from or to. The customer will be responsible to comply with all current regulations, controls, laws and commits to know and apply the legislation in force, and to obtain all necessary license to re-export the goods.

9. K2 Photonics AG’s contractual warranty

9.1. Terms of the contractual warranty

The goods sold are guaranteed against any such operating defects as may result from defective material, workmanship, design or assembly, as set out below. Unless otherwise specified the contractual warranty period is twelve (12) months from the date of delivery of the goods, meaning that any operating defect must be detected during the period of twelve (12) months following delivery, and during normal use and for the intended purpose of the goods. The contractual warranty is definitely void whenever a good sold is opened by the customer or any third party without preliminary written consent from K2 Photonics AG. Warranty is also excluded in the following cases:

• the installation of the prescribed goods stipulated, if necessary, by the Particular Conditions, is not carried out by K2 Photonics AG or by a third party with prior agreement with K2 Photonics AG;
• the training for the use of the prescribed goods stipulated, if necessary, by the Particular Conditions is not carried out by K2 Photonics AG or by a third party with prior agreement with K2 Photonics AG;
• the component utilized, or the defective design of the goods is attributable to specific requirements of the customer without endorsement by K2 Photonics AG;
• the operating defect is caused by an intervention on the product or as a result of a modification that was performed without K2 Photonics AG’s prior consent;
• the operating defect was caused by abnormal use and/or use without complying with the intended function of the goods;
• the failure was caused by normal deterioration (wear and tear) of the product, or by negligence or by improper care on the part of the customer;
• the failure was caused by force majeure.

9.2. Enforcement of the contractual warranty

As soon as the customer is aware of any operating defect, the customer shall contact, by any means, K2 Photonics AG to initiate a warranty claim. As part of the warranty, K2 Photonics AG shall decide whether to repair or replace the goods and/or any parts recognized as defective by his own technical department, at no extra costs. This warranty shall cover the labor costs of the following operations: dismantle and reassembly of the goods themselves at K2 Photonics AG’s plant or on site. The replacement of parts shall not cause the warranty period mentioned in article 9.1 above to be extended, to the exception of the said replaced or repaired parts for which a three (3) month warranty period is granted from shipment to the customer of the replaced or repaired good.

9.3. Transportation costs and risks

Any return of goods under warranty shall be previously agreed upon in writing by K2 Photonics AG, all costs and risks to return the goods to the location stipulated by K2 Photonics AG being borne by the customer. All costs and risks for the return of the goods to the customer, to the location stipulated by the customer, shall be borne by K2 Photonics AG.

9.4. Limitation of the contractual warranty

It is expressly agreed upon between the parties that K2 Photonics AG’s liability in case of an operating defect on the goods shall be limited to the above provisions, and in case of damage, to the right of payment of an indemnity in an amount not greater than the selling price of the concerned goods.

10. Return of the goods sold

Without prejudice for any claims against the forwarder or carrier, all claims against visible defects on or non-conformity of the goods delivered must be notified in writing not later than seven (7) calendar days after delivery. The customer shall provide K2 Photonics AG with all evidence in proof of the defects detected. The customer shall fully allow K2 Photonics AG to remedy such defects and shall refrain from intervening on its own or having any third party intervene. Any return of goods shall be agreed upon by written consent from K2 Photonics AG, and all costs and risks associated with the return of the goods shall be borne by the customer. Should any apparent defect or non-conformity be observed on the goods delivered and duly ascertained by K2 Photonics AG, the customer may request to have the goods replaced at no extra cost, or reimbursed, as well as the reimbursement of the return costs, without any other indemnification. In the absence of any adverse notification by the end of the above mentioned seven (7) days period, the customer is considered as having accepted the goods delivered with no reserve.

11. Automatic cancellation

Should the customer fail to fulfil one of his obligations, the order may be cancelled by rights, at K2 Photonics AG’s request, without prejudice to any damages indemnification that may be claimed against the customer in default. Notwithstanding provisions of article 5.2 above, cancellation shall take effect automatically fifteen (15) days after a formal notice has been sent by K2 Photonics AG to the customer.

12. Cancellation of a clause

Should any disposition of these GTCS be or become cancelled or made void, such cancellation or void shall not modify the other provisions herein or the validity of the GTCS as a whole.

13. Corruption Prevention Policy

K2 Photonics AG, has established a Corruption Prevention Policy: no incentive or reward to a K2 Photonics AG employee for the award of a contract or an order is tolerated. All K2 Photonics AG employees and staff shall commit to the strict compliance with the law in the business with third parties.

14. Settlement of disputes

The sales contract and the present GTCS are written according to Swiss law, excluding, when appropriate, the 11th April 1980 United Nations convention on international sales of goods. Any dispute arising in connection with a sale that cannot be settled by amicable agreement within one month from notification of the difference by the more punctual party, shall be finally settled by the competent courts having sole jurisdiction in Zurich, Switzerland.