Status: 24.05.2022

Batterylog GmbH (hereinafter "Batterylog") based in Bern is a development service provider and provider of software solutions in the fields of energy and energy storage. These General Terms and Conditions (GTC) determine the rights and obligations of Batterylog and its customers (hereinafter the “customers” or the individual “customer”, together the “parties”) for the provision of services and cooperation (hereinafter the “orders”).

Batterylog provides all services exclusively on the basis of these GTC, provided that there are no deviations from these GTC that have been confirmed in writing by Batterylog. General terms and conditions and other general contractual conditions of customers do not apply.

1. Services

1.1.

Batterylog provides its services in accordance with the order confirmations from individual customers as well as in accordance with written individual contracts and other contracts with individual customers (hereinafter the "order confirmations" or individually the "order confirmation"). The services to be provided must be sufficiently specified by the customer. Any deficiencies or incompleteness in relation to the specification of the services to be provided must be reported by the customer before the order is placed. Defects and incompleteness, which are only reported after the order has been placed, are at the expense of the customer.

1.2.

For the provision of services and their confirmation by Batterylog, the customers must first describe their needs to Batterylog. Based on this description, Batterylog creates a non-binding cost estimate including - if possible and reasonable - rough scheduling or milestone planning, on the basis of which the order is placed. Any changes and additions after the order has been placed are considered new orders. Batterylog reserves the right to make simple changes and additions that have no impact on remuneration or scheduling or milestone planning and/or are unlikely to have any significant impact on the results of service provision.

1.3.

Batterylog can insist on an express order confirmation from the customer for the provision of its services. Batterylog is only obliged to provide the service after its own confirmation of the order. Works in the service delivery. Batterylog works with its customers and, if possible and reasonable, with partners of the customers in the common interest. The parties coordinate the provision of services by Batterylog in mutual consultation.

1.4.

Batterylog provides its services with sufficiently qualified specialists and with the necessary care in the interests of the customers. Batterylog is entitled to call in third parties to provide services on its own responsibility or to have services provided by third parties. The customer is responsible for using the results of the service provision.

1.5.

Customers are obliged to cooperate in the provision of services in accordance with Batterylog specifications. In particular, customers must make the required infrastructure, including any hardware and software environment and any required, sufficiently qualified specialist staff available in good time, unless otherwise agreed. Customers must, if reasonable, support Batterylog in the entire provision of services, in particular in the analysis and elimination of errors, and - at the latest upon request - provide all information that Batterylog needs for the provision of services. Customers are responsible for any data backup themselves.

1.6.

Unless otherwise agreed, the service is provided for an indefinite period. In the event of premature termination or termination at an inopportune time, Batterylog can charge the customer for the remuneration for services that have already been provided or are still to be provided but are already planned.

2. Scheduling

The provision of services by Batterylog takes place in particular in accordance with any agreed schedule or milestone planning. If Batterylog cannot meet a deadline or a milestone due to circumstances for which it is responsible, it will take appropriate measures to ensure that the deadline or milestone can be met within a reasonable period of time. If Batterylog is unable to meet a deadline or milestone due to circumstances for which it is not responsible or for reasons for which the customer is not responsible, the scheduling or milestone planning must be adjusted to the changed circumstances as far as necessary and possible.

3. Acceptance and Control

3.1.

After completion of the service provision by Batterylog - or in the case of phased service provision after the completion of each individual phase - Batterylog requests the customer to carry out an acceptance test. Each provision of services is subject to an acceptance test. In the case of phased service provision, each individual phase is subject to a corresponding acceptance test.

3.2.

The subject of the acceptance test are the services to be provided by Batterylog according to the order confirmation. The purpose of the acceptance test is for the customer to check whether the services to be provided by Batterylog have been provided in accordance with the order confirmation and whether there are any defects in this regard. At the request of the customer, Batterylog takes over the acceptance test or participates in the acceptance test - in each case at the expense of the customer. The acceptance test will be completed regardless of any defects. The customer creates a sufficiently specified acceptance report for the attention of Batterylog.

3.3.

The acceptance test is considered to have been successfully completed if no significant defects are found. Insignificant defects do not prevent successful acceptance.

3.4.

The acceptance test is deemed to have been completed successfully and without any defects found if the customer uses the results of the service provision productively in whole or in part. The acceptance test is still considered to have been completed successfully and without any defects found if it is not completed within 7 days of the customer requesting the acceptance test, including the creation of the acceptance report for the attention of Batterylog.

3.5.

Deviations from the services to be provided according to the order confirmation that significantly impair or make impossible the intended use of the results of the service provision by the customer are considered to be significant defects. All deviations from the agreed requirements according to the order confirmation that do not constitute significant defects are considered insignificant defects.

3.6.

Insignificant defects must be eliminated by Batterylog at its own expense. Batterylog has to rectify significant defects at its own expense. The parties agree on the basis of the acceptance protocol which defects must be eliminated or rectified within which period. In the case of significant defects, after the repairs have been carried out, a new acceptance test will take place with regard to the repaired defects.

4. Software as a service SAAS

4.1.

Batterylog ensures that the SaaS software meets the contractually agreed specifications for the duration of the contract. In the case of defects, which are reported in detail by the customer as soon as they are discovered, Batterylog will take the necessary measures to remedy the defect within a period that is reasonable under the circumstances.

4.2.

Batterylog cannot guarantee that the SaaS software and its server platform are error-free, nor that they can be used without interruption. In particular, Batterylog is entitled to suspend access for urgent maintenance work outside of the agreed maintenance window. The flawless operation of the SaaS software in connection with third-party software is not guaranteed. In the event of changes not made by Batterylog, incorrect operation or incorrect data by the customer, the warranty automatically expires.

4.3.

The right of use exclusively includes the right to use the SaaS software for the customer's own purposes to the specified extent. Under no circumstances may it be used in an illegal manner or for illegal purposes (including infringement of property rights of third parties or use of unlawfully obtained or processed data). The customer shall indemnify Batterylog against all costs, expenses and liability arising from such illegal use. Batterylog is entitled to delete unlawful data without further ado.

4.4.

The contracting parties are aware that the conclusion and fulfillment of this contract can lead to the processing of personal data about the contracting parties, their employees, subcontractors, etc. In such cases, the disclosing party will take appropriate organizational, technical and contractual precautions to ensure data protection.

4.5.

Batterylog is entitled to have all or individual services to which it is obliged under this contract provided by subcontractors. The customer can request information about the subcontractors used to provide the cloud service and their function at any time. Batterylog is responsible for actions or omissions of its subcontractors as for its own actions or omissions.

5. Compensation

5.1.

Batterylog charges its customers the agreed remuneration for their service provision. Unless otherwise agreed, the remuneration to be paid is determined by the actual time spent by Batterylog. The remuneration will be charged to the customer plus any statutory value added tax and other duties and taxes. Batterylog expenses can be charged in addition to the remuneration.

5.2.

Unless otherwise agreed, Batterylog invoices services rendered and/or to be rendered on a monthly basis. The parties can agree on a monthly minimum fee, to which services rendered in the month in question will be credited. Remaining credit within the scope of such a flat rate cannot be paid out, accumulated or transferred to another month. Unless otherwise agreed, Batterylog can also charge for services that exceed an agreed monthly minimum fee.

5.3.

Batterylog can make the provision of services dependent on advance payments for services still to be provided or payments for services already provided. Advances on costs do not earn interest for the customer. Any negative interest is charged to the customer. The offsetting of claims between Batterylog and customers is limited to mutually recognized claims in writing or those determined by a court.

5.4.

Unless otherwise agreed, Batterylog invoices are due by customers within 21 days of the invoice date. Invoices for advance payments are due immediately. When the payment is due, the customers are in arrears without a reminder and Batterylog can stop providing the service until the remuneration has been paid in full. Batterylog can charge its customers default interest of 5 percent per year as well as cost-covering collection fees or assign the relevant claims to third parties for collection purposes.

6. Liability and Warranty

6.1.

Batterylog's liability for direct damage resulting from the provision of services in accordance with these General Terms and Conditions is limited to gross negligence and intent, provided no further liability arises from mandatory statutory provisions. Liability in this context is limited to the net remuneration for the relevant service provision, but no more than CHF 50,000.00 per customer and year, as well as actual and proven damage.

6.2.

Any further liability of Batterylog for direct, indirect or consequential damage is excluded, provided that no liability arises from mandatory statutory provisions. Any guarantee by Batterylog is excluded, unless a guarantee results from mandatory statutory provisions.

6.3.

The exclusion of liability and warranty applies in particular to errors, faults and other defects that are due to force majeure, improper use, unilateral changes to the operating environment, unsuitable system requirements, environmental conditions at the site, faults in the power supply or intervention by third parties.

6.4.

If Batterylog performs poorly, the customer must set a reasonable grace period for rectification. If the rectification fails even after several attempts and if the rectification affects significant defects that do not allow the customer to use the results of the service provision in a reasonable manner, the customer can withdraw from the order and claim damages for defective service, provided that the corresponding damage by Batterylog was caused by gross negligence or willful misconduct was caused. The limitations of liability according to Section 5.1 et seq. above apply to such compensation. The customer cannot assert any further claims arising from defective performance and reimbursement of payments already made is excluded.

7. Exploitation of results of service provision

7.1.

Unless otherwise agreed, the results of the service provision by Batterylog according to the order confirmation are transferred to the customer for their own use after full payment and successful acceptance testing for the entire service provision in the form of non-exclusive, spatially and temporally unrestricted rights of use. Any open source components remain reserved.

7.2.

Any design, trademark, patent, copyright and other intellectual property rights remain fully with Batterylog or the respective rights holders. The exploitation of the results of the service provision by customers takes place exclusively within the framework of usage rights.

7.3.

Batterylog is entitled to use empirical knowledge and other internal results and findings, including source code, from the provision of services for an individual customer for the provision of services for other customers.

8. Confidentiality

8.1.

The parties treat all information and facts of the other party confidentially that are neither obvious nor generally accessible. In case of doubt, information and facts are to be treated confidentially. This confidentiality obligation also exists before and after the contract. The disclosure of confidential information and facts within one's own company or group of companies as well as to third parties for the fulfillment of the order expressly does not constitute a violation of this confidentiality obligation, provided that compliance with this confidentiality obligation is guaranteed in this context.

8.2.

The parties treat the content of all orders, in particular the agreed remuneration, confidentially.

8.3.

In particular, Batterylog is subject to Swiss data protection law, within the framework of which any personal data is processed by Batterylog. Customers are obliged to expressly inform Batterylog of special data protection and confidentiality regulations as well as any applicable foreign data protection law.

9. Non-solicitation agreement

The employment relationship of Batterylog employees is not affected by any assignments directly to customers. The customer undertakes not to poach or attempt to poach any employees of Batterylog directly or indirectly during the performance of the service by Batterylog and for a further two years. The customer undertakes to pay Batterylog a contractual penalty of CHF 100,000.00 for each individual case of infringement, subject to any claims for damages.

10. Final Provisions

10.1.

Customers may only assign or transfer rights from these GTC and/or orders to third parties with the prior written consent of Batterylog.

10.2.

Batterylog is entitled to change these terms and conditions without giving reasons. Customers will be informed in an appropriate manner about changes to these General Terms and Conditions. Customers who do not agree to any changes to these General Terms and Conditions can terminate the contract prematurely.

10.3.

Forms of transmission that enable proof by text are equivalent to the written form.

10.4.

These General Terms and Conditions are exclusively subject to Swiss law to the exclusion of the UN sales law with the exclusive place of jurisdiction in Bern, provided that no other applicable law and/or no other place of jurisdiction results from mandatory statutory provisions.