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General Terms and Conditions for the Rental of Valuables Deposits and Premises of Helvetic Secura AG

 

1. Subject of the contract

Helvetic Secura AG (CHE-427.890.702) ("HSAG") shall undertake the storage and safekeeping of art objects and valuables (the "Storage Objects") in valuables deposits and premises especially intended for this purpose in the high-security facilities of HSAG (the "Facilities") in accordance with (i) the following provisions and (ii) a rental agreement signed by the Customer and HSAG (the "Rental Agreement"), against payment of the agreed fee. Valuables deposits are safe deposit boxes or safes of various sizes ("Valuables Deposits"). The Premises are premises and operating environment for the secure storage of the Client's own stored items (the "Premises").

These General Terms and Conditions (the "GTCs") form an integral part of the Rental Agreement signed by both parties and shall apply even if not signed. In the event of any contradictions between the Rental Agreement and these GTCs, the Rental Agreement takes precedence.

Deviating terms and conditions or other terms and conditions of the Customer and/or counter-confirmations of the Customer with reference to the validity of its terms and conditions or other applicable provisions shall not be accepted and shall be ineffective as long as they have not been expressly accepted by HSAG in writing.

These GTCs are drawn up in German and English. In case of ambiguities and contradictions, the German version shall prevail.

 

2. Conclusion of contract

The Rental Agreement comes into effect upon mutual signature. HSAG is free to reject the potential customer without giving reasons. Valuables Deposits and Premises can only be rented by a single Customer (private person or company). Subject to the Rental Agreement and to compliance with the applicable laws, the lessee is entitled to dispose of the contents of the Valuables Deposit or Permises and the stored items alone and without restriction and to authorize third parties to do so. In principle, no contracts are concluded with minors.

 

3. No subletting, no transfer, binding on legal successors

The Customer is not permitted to sublet or re-let the Valuables Deposits. In the case of the Premises, subletting or re-letting by the customer is only permitted with the prior written consent of HSAG. In both cases the Customer is not entitled to transfer or assign the Rental Agreement or individual parts thereof, as well as rights and obligations arising therefrom, to a third party without the prior written consent of HSAG.

Any terms and conditions of the Rental Agreement shall be binding on the parties and their legal successors and assignees.

 

4. Initial recording, information 

Prior to first access to the Facilities, initial registration ("Initial Registration") is carried out of all customers and persons authorized to access the Facilities (in accordance with Clause 9 below). Initial Registration always takes place at the Facilities themselves. The following must be carried out for each Customer or authorized user during Initial Registration:

  • Video and image recording by means of cameras for personal identification;

  • Recording/scanning of the biometric palm print (including palm vein recognition and fingerprint) of the left and right hands;

  • Implementation of personal checks, in particular presentation of a valid passport or identity card, full name and contact information.

HSAG shall not be obliged, but shall be entitled, to verify the information provided in the course of Initial Registration. 

5. Access, access control, storage and retrieval

5.1 Access

After signing the Rental Agreement, carrying out the Initial Registration and paying any security deposits and rental interest the Customer receives a badge/key and/or creates a number combination. The Customer is responsible for the badges/keys and/or number combinations handed over to them. HSAG must be notified immediately in the event that a badge/key and/or number combination is lost. There are no replacement badges/keys and only the respective Customer knows the number combinations. The costs incurred as a result of the loss will be invoiced to the Customer and are to be borne in full by the Customer.

5.2. Access control

Only the Customer and, if applicable, the persons specified by the Customer as authorized to access the premises may access the premises. Non-authorized persons are denied access to the system. Each time a Customer or Authorized Person accesses the system, access control is carried out according to personal identification by means of video and image recording as well as scanning of biometric hand prints (including hand vein recognition and fingerprint). HSAG shall be entitled to keep an access log.

After signing the Rental Agreement, carrying out Initial Registration and paying any security deposits and rental interest the Customer or Authorized Person may enter the premises independently, in compliance with the access regulations issued by HSAG. However, in the event of independent access by the Customer and/or Authorized Person to the facility, HSAG excludes any associated liability to the extent permitted by law. Access is only possible by prior registration according to separate access regulations and during the business hours of HSAG. HSAG reserves the right to deny the Customer access for security reasons. During the period in which Customers are allowed to enter the Facilities alone, Authorized Persons may enter the Facilities either alone or only accompanied by the respective Customer, in accordance with the authorization specified by the respective Customer in the Rental Agreement.

Since only a limited number of people can access the system at the same time, the length of stay for Customers or Authorized Persons is limited in time. The maximum length of stay in the Facilities is 1 hour per access. An extension requires prior notification. In addition, the Customer or person authorized to access the system may enter the system free of charge a maximum of 4 times per calendar year (max. 1 hour each time). Exceeding and extending this time or the number of accesses per year is possible, but will be invoiced separately according to the current price list and hourly rate.

 

5.3 Storage and retrieval

The transport of the stored goods to the plant, the packaging any permissible assembly of the stored goods on the Premises and especially the contents of the stored goods in the Valuables Deposits as well as the Premises are exclusively the responsibility of the Customer. HSAG shall not be informed about the contents of the stored items and shall not draw up lists or confirmations or the like. There is also no obligation on the part of the Customer to provide information or make declarations. A transfer of ownership does not take place through storage. In addition, no effects, stocks and bonds of any kind may be stored.

However, the Customer must observe all applicable laws. Under no circumstances may objects that are dangerous in any form, illegal under Swiss law or unsuitable for safekeeping be stored in the Valuables Deposits or Premises. The Customer shall be liable for any damage (including consequential damage) resulting from a breach of these provisions. In particular, HSAG shall be entitled to extraordinarily terminate the Rental Agreement with immediate effect in case of a violation of these provisions. In this case, rental costs and fees already paid or owed will not be refunded. In addition, HSAG reserves the right to search suspicious objects at each access and, if necessary, to deny access to the Facilities to the Customers and/or Authorized Persons. The Customer is liable for all damages resulting from failure to comply with these obligations, even if they are not at fault.

Complete or partial outsourcing as well as any dismantling of the stored goods in the Premises is also a matter for the Customer. The rental costs shall also be owed if the Customer removes the stored items before expiry of the rental period.

 

6. Term of lease and termination

The Rental Agreement can be concluded either for a definite or for an indefinite period. In any case, the minimum rental period is 1 year. The minimum rental period is calculated from the date of conclusion of the Rental Agreement. If the Rental Agreement has been concluded for a specific period of time, it shall automatically end upon its expiry.

If the Rental Agreement is concluded for an indefinite period of time, it may be terminated with a period of notice of 3 months to the end of a contractual year in the case of Valuables Deposits and with notice of 6 months to a date customary in the locality in the case of Premises. Each contractual year begins with the date of conclusion of the Rental Agreement. Notice of termination must always be given in writing.

The Rental Agreement may also be terminated prematurely in writing by either party for important reasons with immediate effect. An important reason exists in particular if:

  1. the other party breaches a material contractual obligation under this Agreement and fails to remedy such breach within 30 days of receipt of a written notice stating the breach;

  2. the other party's creditworthiness deteriorates significantly and the fulfillment of its obligations under the Rental Agreement (including the GTCs) is jeopardized as a result and no improvement is expected within a reasonable period of time;

  3. the other party becomes insolvent;

  4. bankruptcy or similar proceedings are instituted against a party under any applicable law, whether voluntary or involuntary;

  5. the storage items stored by the Customer have been unlawfully stored or have disturbing properties (pests, radiation, odors, etc.) which severely impair or endanger the other storage items, the plant, persons or the environment.

Upon request, the Customer can also terminate the Rental Agreement at any time, but in this case there will be no refund or partial refund of the rent already paid or a waiver of the rent due until the end of the regular period of notice or until the end of the fixed contract period.

Upon termination of the Rental Agreement, the Customer or their legal successor(s) shall be obliged to:

  1. collect the storage items stored by them at the latest on the day of expiry of the Rental Agreement. If the storage items are not collected in time, the Customer remains obliged to pay the rental costs until the complete collection of their storage items;

  2. to return all badges/keys or number combinations handed out completely and without damage. In the event of loss of the badges/keys or number combinations, HSAG must be informed immediately so that HSAG can replace the lock in good time at the expense of the Customer (according to separate price list); and

  3. the Valuables Deposits and the Premises shall be returned to HSAG in a clean and serviceable condition as at the start of the rental period and, if necessary, dismantled in accordance with the Rental Agreement. Any damage to the Valuables Deposits, to the Premises and/or the Facilities caused by the Customer or the Authorized Persons shall be compensated by HSAG at the Customer's expense.

If the Customer terminates the Rental Agreement but does not fully comply with the obligations set forth in this clause, HSAG shall be entitled to assert the rights pursuant to Clause 8 below (right to refuse access, right of retention, lien and right of exploitation). These rights shall also apply in the event of an extraordinary termination by HSAG pursuant to this Clause 6. In addition, the rental costs shall continue to be owed until the obligations have been fulfilled in full.

Any claims for damages on the part of the Customer for storage items not collected on time are expressly excluded.

 

7. Rental costs, other costs

In the absence of any agreement to the contrary in the Rental Agreement, the rental costs are based on the currently valid rates according to the separate price list and are invoiced annually in advance. Partial months are invoiced in full. All invoices of HSAG fall due within 10 days. 

In addition, the following Customer additional costs, among others, which are not included in the rental costs, are charged to the  according to a separate price list and invoiced monthly: (i) access for Authorized Persons in accordance with Clause 9 below, (ii) electricity costs of the Valuables Deposits and the Premises, in particular the rented security rooms, caused by the Customer or Authorized Person, (iii) alarms in the system triggered intentionally or through gross negligence by the Customer or Authorized Person, (iv) if the Customer or Authorized Person does not appear at all or more than 30 minutes late for the agreed appointment despite prior notification in accordance with Clause 5.2 above, as well as (v) costs incurred due to the loss of the badge/key and/or the combination of numbers in accordance with Clause 5.1 above.

Late payment will result in reminder charges and default interest from the due date of the claim at a rate of 1% per month or part thereof.

 

 

8. Right of refusal of access, right of retention, lien and right of exploitation

As long as not all requirements of HSAG have been met, HSAG shall have the right to deny the Customer and all Authorized Persons registered by the Customer access to the Facilities (pursuant to Clause 9 below).

In the event that the Customer does not comply with the written request for satisfaction of HSAG's claims arising from the contractual relationship within 30 days of the due date, HSAG shall have a right of retention of the stored items in accordance with Art. 485 para. 3 of the Swiss Code of Obligations (OR) as well as Art. 895 ff. of the Swiss Civil Code (ZGB). The stored items shall also be liable to HSAG as a lien for the respective balance from the entire business transactions between HSAG and the Customer. These rights shall also apply in the event of partial collection of the stored items by the Customer.

In addition to the right of retention and lien, HSAG expressly reserves the right, after the unused expiry of a further payment period of 30 days set by HSAG under threat of liquidation, (i) to open the Customer's Valuables Deposits and/or Premises by force in the presence of a notary public and (ii) to privately liquidate the Customer's stored objects without further formalities to cover its expenses and open rental costs (including reminder charges and default interest) by private contract (without taking into account the provisions of the Swiss Insolvency Act (SchKG)) or - at the discretion of HSAG - to have them liquidated within the framework of debt enforcement proceedings - the Customer hereby expressly agrees that the competent authority may conduct a sale by private contract in accordance with Art. 130 para. 1 SchKG. In the context of any debt enforcement proceedings pursuant to the provisions of SchKG, HSAG and the Customer agree that Art. 41 SchKG is not applicable and that HSAG is entitled to initiate regular debt enforcement proceedings without having first realized the lien (waiver of the beneficium excussionis realis).

The Customer remains liable for any uncovered balance. Any unused part of the contents of the Valuables Deposit and/or Premises will be made available to the Customer or deposited in court. In this case, HSAG shall take an inventory of the contents of the Valuables Deposits and /or Premises. All costs incurred within the scope of this clause 8 will be charged to the Customer in full.

The retention and lien claims of HSAG against the Customer and/or third parties shall not be affected by a possible transfer of ownership of the stored items to third parties.

Claims for damages by HSAG due to justified refusal of access or justified non-disclosure of stored items shall be explicitly and completely excluded.

 

9. Authorized access

The Customer may authorize one or more persons to access and/or dispose of the Valuables Deposit and/or the Premises (the "Authorized Person(s)"). The Customer must notify HSAG accordingly (i) at the time of conclusion of the Rental Agreement in the Rental Agreement or (ii) subsequently in writing by supplementing the Rental Agreement (Clause 6 of the Rental Agreement). However, the Authorized Persons must undergo an Initial Registration in the same way as the Customers in accordance with Clause 4 above and the same access and security regulations apply to them as to the Customers. In particular, HSAG shall have the right to refuse access to Authorized Persons for security reasons. One Authorized Person is recorded free of charge. For each additional person, costs are incurred for the Customer, according to a separate price list.

In accordance with the information in the Rental Agreement and subject to the provisions of these GTCs, the Authorized Persons shall be entitled to receive the key/badge and/or numerical codes upon delivery by HSAG, to access the Facilities and to dispose of the contents of the Valuables Deposits and/or the Premises. These authorizations remain effective beyond the time of death or the occurrence of the incapacity of the Customer to act. This until (i) the written revocation by the Customer themselves, (ii) by the executor or the Customer's heirs or (iii) an express court order. However, the Customer may revoke the power of attorney or access authorization at any time by written notification to HSAG. The revocation shall be binding and legally effective for HSAG as soon as HSAG has confirmed the receipt of the revocation to the Customer in writing.

The transfer of rights to Authorized Persons is the sole responsibility of the Customer. HSAG expressly and completely rejects any liability that might result from this, regardless of the legal title.

 

10. Obligations of the Customer

10.1. Storage of the stored goods

The Customer or the Authorized Persons must properly lock up the stored items in the Valuables Deposit and/or the Premises. The Customer shall be liable for any damage caused by failure to comply with this obligation to lock up properly. HSAG shall not be obliged to verify the proper storage of the stored items by the Customer or an Authorized Person after the Customer or an Authorized Person has entered the Valuables Deposit and/or the Premises.

10.2. Insurance

Insurance for the stored goods is the sole responsibility of the Customer. HSAG assumes no responsibility or liability for this. The Customer must take out insurance in their own name, with the insurance company of their choice (in particular for the risks of burglary/robbery, fire/elementary and water) for the amount of the insurance cover chosen by the Customer. Losses arising from uninsured risks and losses arising from underinsurance (e.g. due to insufficient insurance cover) shall be borne by the Customer.

 

11. Liability

HSAG shall exercise the diligence of a prudent businessman for securing the items stored. HSAG shall only be liable for damages that should demonstrably result from the grossly negligent or intentional violation of this duty of care. Any further liability of HSAG, in particular for damage caused by atmospheric influences such as temperature changes, humidity, air dryness, heat, cold and the like, by force majeure (natural events, earthquakes, war, terrorist acts, governmental measures etc.) or accidents such as fires, pipe bursts etc. for which HSAG is not at fault, shall be expressly excluded. This limitation of liability applies to claims under any legal title.

In particular, HSAG shall not be liable for damages (the following list is not exhaustive):

  • which have arisen due to the improper leaving of the Valuables Deposit and/or the Premises by the Customer or an Authorized Person;

  • which have arisen in the course of the Customer's or an Authorized Person's access to the Valuables Deposit, the Premises or during access to the Facilities;

  • which arose as a result of the theft of the stored items deposited in the Valuables Deposits and/or the Premises, regardless of whether the conditions for access authorization were met or not;

  • if they are the result of incorrect information provided by the Customer;

  • insofar as they concern indirect damage, consequential damage, damage caused by delay, loss of profit, claims for reduction in value or contractual penalties;

  • which arise from the fact that the Customer or the Authorized Persons cannot be granted access temporarily for technical reasons.

Conversely, however, the Customer shall be liable for all damages incurred by HSAG or third parties due to the stored items.

 

12. Change of address, death of the Customer, dormancy

Unless otherwise expressly agreed in writing, notifications from HSAG to the Customer or from the Customer to HSAG shall be made in writing by post or email in accordance with the information provided by the Customer in the Rental Agreement. The Customer undertakes to notify HSAG immediately in writing of any change of address or changes in their contact details.

The Customer undertakes to take all necessary precautions to avoid dormancy. In the event of the death of a Customer, HSAG shall only deliver the goods stored by the Customer to the entirety of all its heirs directly or to third parties jointly designated by them or otherwise dispose of them upon presentation of a legally valid certificate of inheritance issued by the authorities responsible for the settlement of the estate. All documents in foreign languages must be submitted to HSAG upon request with a notarized German translation.

In the event of the death or dormancy of the Customer, HSAG shall also be entitled to charge the rental costs to the Customer or its heirs until the legal situation is fully clarified. In addition, HSAG shall in this case be entitled to assert the rights pursuant to Clause 8 above (right to refuse admission, right of retention, lien and right of exploitation) after 60 days have elapsed since HSAG became aware of the situation or since the end of the rental relationship (whichever comes first).

 

13. Data protection provisions

In the course of providing the services, HSAG processes personal data of the Customers as well as of Authorized Persons and, if applicable, of third parties. This includes, among other things, processing and saving the personal data mentioned in the Rental Agreement and in Clause 4 above. For further information on data protection, please refer to the data protection statement (data processing by Helvetic Secura AG in the context of the rental of Valuables Deposits and Premises) of HSAG.

 

14. Nullity, enforceability

Should individual provisions of the Rental Agreement (including the GTCs) be invalid or unenforceable, this shall not affect the validity of the remaining provisions. In this case, the invalid or unenforceable provisions shall be replaced by provisions which come closest to the economic purpose of the invalid or unenforceable provisions. The same shall also apply in the event of a contractual loophole.

 

15. Prohibition of offsetting

The Customer shall not be entitled to set off claims of HSAG with possible counterclaims.

 

16. Changes, additions, amendments to the GTCs

All changes or additions to the Rental Agreement must be made in writing to be valid. This shall also apply to any change to this written form requirement.

HSAG reserves the right to amend the GTCs at any time. The Customer will be notified of the changes to the GTCs in writing or by other suitable means and shall be deemed to have accepted them without written objection within a period of one month.

 

 

17. Applicable law, place of jurisdiction

All legal relations of the Customer with HSAG shall be governed by Swiss substantive law.

The ordinary courts in Ittigen, Switzerland, have exclusive jurisdiction for all proceedings.

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Version: February 25, 2022

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