1.1. These General Terms and Conditions («GTCs») govern the contractual relationship between HR Campus AG («Supplier») and the Customer («Customer») in connection with SaaS services, implementation and project services as well as other consulting, support and other services of the Supplier (hereinafter referred to as «Services»). The contractual relationship between the Supplier and the Customer shall be set forth in a framework agreement (the «Agreement») and the appendices to the relevant Agreement; these GTCs shall form an appendix to the Agreement. In the following, the Agreement and the associated appendices are referred to as the «Contract». Any reference to an «Appendix/Appendixes» is a reference to an appendix to the Agreement.
1.2. A signed offer shall form part of the Contract, whereby the Contract shall take precedence over the offer, unless the Contract expressly states otherwise.
1.3. Insofar as the agreement and/or appendix contain no regulation or no deviating regulation, the GTCs shall apply to the entire contractual relationship and the pre-contractual relationship of the parties.
1.4. The definition «Customer» includes, insofar as they actually use Services of the Supplier, the companies affiliated with the Customer. An affiliated company within the meaning of the Contract is any company that directly or indirectly (i) controls the Customer, (ii) is controlled by the Customer and/or (iii) by the same superordinate company as the Customer. In this context, a company is deemed to be «controlled» if at least 50% of its shares are directly or indirectly held by the controlling company or the latter has the right to directly or indirectly select a majority of the management or administrative bodies. This addition to the definition «Customer» applies to the entire Contract.
1.5. Subject to an unreported overuse or other unauthorized use, the appendices show in particular which affiliated companies of the Customer use the services of the Supplier.
2. Services of the Supplier
2.1. The service obligations of the Supplier are conclusively defined in the Contract. There are no further performance obligations of the Supplier.
2.2. Insofar as the Agreement or appendices do not expressly provide for the delivery of a work result, the Supplier shall not owe any work result. The Supplier is solely obligated to undertake careful work.
2.3. The Supplier has the right to involve third parties to fulfil the Contract.
3.1. Cloud Service and Cloud Provider
In order to provide the Customer with IT infrastructure such as computing capacity, data storage, network capacity or even finished software («Software») via an Internet connection without these being installed on the Customer's local computer (total «Cloud Services»), the Supplier will involve specialized suppliers of Cloud Services («Cloud Providers»). The Supplier cannot directly influence the business activity of the Cloud Provider. The following explanations (cf. in particular and in the non-conclusive listing in Clause 3.2, 4 and 9) relating to Cloud services also apply to the software contained therein.
3.2. Right of Use
If the Contract provides for the granting of a right of use to Cloud services by the Supplier, the Supplier shall grant the Customer a non-exclusive, non-transferable right to use the Cloud services limited to the duration of the Contract and to the contractual territory of Switzerland and the Principality of Liechtenstein.
The granted right of use includes exclusively the proper, appropriate and legal use of the Cloud services within the meaning of the Contract within the framework of the Customer's business operations. Subject to mandatory legal exceptions, the Customer is not permitted to copy, decompile, process, pass on, or create programs derived from Cloud services or their components in order to operate a data centre, or to make the Cloud services or parts thereof available to third parties. The Customer may not use any software that changes, expands or jeopardizes the functioning of the Cloud services. Furthermore, the Customer is prohibited from providing third parties with access to the Cloud services or parts thereof. When using the Cloud services, the Customer must comply with the applicable laws (including export laws and regulations of the USA and the EU). In particular, the storage or processing of data by means of Cloud services is prohibited if the data:
3.3. Updates, Versioning, Adaptations
Supplier or Cloud Provider will install patches, updates and new releases within the same major release of the Software within a reasonable period of time after their publication by the manufacturer of the Software on the systems relevant to the Customer. The Supplier or Cloud Provider is not obligated to make any adjustments to the Software or Cloud Services or to commission them from the manufacturer or from third parties.
4.1. All intellectual property rights to the Cloud services and the associated documentation (e.g. user documentation) remain with the Supplier or the corresponding rights holders.
4.2. The Supplier has the right to use the ideas, concepts and procedures relating to information processing and IT services that it develops in the performance of its services under this Contract alone or together with the personnel of the Customer in the performance of services of a similar nature for other customers.
4.3. The Customer grants the Cloud Provider a temporally and spatially unlimited, non-exclusive, irrevocable and free right of use to all comments or suggestions communicated to the Cloud Provider in connection with the access to and use of the Cloud Service so that these may be implemented in the Cloud Service services.
4.4. Software, software adaptations, concepts, know-how, information, data, files, documents that are made available to the Customer by the Supplier within the framework of Contract negotiations or in connection with the execution of the Contract and which already exist at the time of conclusion of the Contract are the exclusive intellectual property of the Supplier. They may not be reproduced by the Customer or made accessible to third parties. If a Contract is not concluded, it must be returned or irretrievably deleted by the Customer, depending on the instructions of the Supplier, and may no longer be used.
4.5. Unless the Contract expressly provides otherwise, all intellectual property rights to all software and software adaptations, documentation, concepts, methods, work results and all other documents and results created or handed over within the framework of the Contract remain exclusively with the Supplier. This shall also apply if these results have arisen as a result of the cooperation or specification of the Customer.
4.6. The Customer receives the unlimited, non-exclusive right to use these work results for its own internal business purposes. The Customer has no right to pass on the work results in any form to third parties.
5.1. Calculation of Remuneration
The remuneration owed by the Customer for the services of the Supplier is specified in the Agreement and the Appendices. The prices listed there are exclusive of VAT.
Price adjustments remain reserved with effect for each renewal period. The absence of a price increase shall not be deemed a waiver of such.
If the actual expenditure is greater than the agreed fixed price or the agreed cost ceiling if applicable, and if this is at least partially due to incomplete or incorrect information by the Customer, improper cooperation of the Customer or other extraordinary circumstances that could not be foreseen, or that were excluded according to the conditions assumed by the Parties (e.g. departure/absence or absence of relevant decision or knowledge bearers of the Customer), the Supplier has, after warning or informing the Customer, the right to change the price according to the additional expenditure caused by the Customer’s behavior or by the extraordinary circumstance. The causal connection between improper cooperation of the Customer and/or extraordinary circumstance and additional expenses incurred are presumed.
5.2. Billing, Payment Terms, Delay
If none of the appendices provide for a different regulation, the remuneration will be invoiced to the Customer on a monthly basis.
The remuneration shall be paid by the due date stated on the invoice. The payment deadline is 30 days from the invoice date. Within the payment period, the Customer can raise objections to the invoice in text form (including e-mail). After expiry of the payment period, the invoice is deemed accepted without reservation. After expiry of the payment period, the Customer is in default of payment and must pay default interest of 5% p.a. In the event of default by the Customer, the Supplier shall also have the right to suspend its services for the time being and block access to the Software after a final ten-day period has been granted in writing. Additional expenses arising from this shall be borne by the Customer.
All bank expenses (in particular fees for foreign transfers) shall be borne by the Customer.
5.3. Regulatory Customer Needs (Controlling, Reporting, Audits)
Reports (e.g. ISAE 3402), security or compliance confirmations and the like shall be provided by the Supplier at the request of the Customer, if such exist or are available or can be provided by third parties engaged by the Supplier, within a reasonable period of time at the expense of the Customer.
6.1. The Customer has informed himself about the essential functional scope of the Cloud services before conclusion of the Contract. The risk that the Cloud services do not meet the wishes and needs of the Customer is borne exclusively by the Customer. Technical requirements and possible applications are communicated upon request.
6.2. The Customer shall ensure the necessary infrastructure and work environment of the users pursuant to the specifications of the Supplier, e.g. provision of sufficient Internet bandwidth.
6.3. Inspection and reporting obligation in case of problems
The Customer shall review each service and delivery of the Supplier in relation to defects and usability before it is used productively.
The Customer shall report problems and defects (in particular the Cloud services) directly and in text form (including e-mail).
6.4. Customer’s Duties of Cooperation
The cooperation obligations of the Customer are defined in the Contract. In addition, the Customer is obligated to carry out all actions that are necessary for the fulfilment of the Contract from the perspective of the Supplier. In particular, the Customer shall ensure that the Supplier has all necessary information, data, documents and personnel available in a timely manner or within a reasonable period of time in order to enable the Supplier to fulfil its contractual services and obligations in a timely manner.
The Customer shall appoint a representative and his/her deputy authorised to make binding decisions and instructions.
If the Customer violates its obligations to cooperate, any obligation on the part of the Supplier to comply with promised deadlines and assured availabilities shall expire. Any liability of the Supplier for damages resulting from a breach of the Customer’s cooperation obligations is excluded in total. The Customer must pay for any additional costs incurred due to the breach of cooperation obligations. Any obligation to pay compensation shall only arise once the Supplier has issued a warning to the Customer.
6.5. Proper Use / Reporting Obligation in Case of Overuse and Increase of the Licenced Scope of Use
The Customer must comply with the right of use pursuant to Clause 3.2 of these GTCs.
The Customer is obligated to immediately report any actual use that exceeds the agreed licenced scope of use. In addition, Suppliers and Cloud Providers are entitled to check the contractual conformity of the use of the services, in particular the compliance with the agreed parameters of the assessment basis. If the Supplier, Cloud Provider or the Customer determines such overuse of the agreed parameters of the assessment basis, the Customer is obligated to pay an additional fee from the point at which the overuse exists.
In the event of an increase in the agreed licenced scope of use, the Customer is also obliged to pay an additional fee.
6.6. Consequences of Overuse or Increase in the Licenced Scope of Use
As a result, the Customer will receive a current overview of the newly licenced scope of use as well as the licence fees, which will become part of the Contract without the Customer’s signature. An overuse not reported within an appropriate period of time or refusal to pay the licence fees newly incurred due to the overuse or the increase may result in complete or partial restriction of access to the Cloud services.
6.7. Access Protection
Access to the Cloud services is protected by password. The Customer shall bear the sole responsibility for the quality of the passwords and the adequate confidentiality of these passwords.
Unless otherwise expressly agreed, the services of the Supplier must be provided in its own premises or at the operating location of the Cloud services (server location).
The Customer is obligated to provide services of the Supplier with the work result to be handed over immediately after delivery or notification of acceptance readiness by the Supplier. The acceptance procedure is based on the applicable provisions of the Contract. If nothing has been stipulated in the Contract and if the Customer does not complain of any significant defects (i.e. defects that make the use of the work result in question impossible or that allow use only with significant restrictions) within the acceptance period, the work results shall be deemed accepted, provided that the Supplier has reminded the Customer once in text form (including email) to carry out the acceptance procedure. In addition, the work results shall also be deemed accepted if the Customer has used the work results in production for more than two months and does not formally refuse their acceptance.
9.1. With regard to the services of the Supplier without the work result to be handed over, the Supplier guarantees that these will be carried out with the care customary in the industry.
9.2. With regard to the functionality of the Cloud Services, the Supplier guarantees the functionality in accordance with the product documentation published by the Cloud Provider. Any further warranty is excluded; in particular, the Supplier does not guarantee freedom from errors and/or malfunctions of the Cloud services.
9.3. The availability and performance of the Cloud services as well as the response and on-call times of the Supplier with regard to malfunctions are set out in the appendices. In this context, the Supplier shall only guarantee compliance with the assurances set out in the appendices.
9.4. In any case, defects must be reported in text form (including e-mail) immediately after they have been determined so that they can be reported to the Cloud Provider in a timely manner.
9.5. Any warranty and liability of the Supplier are excluded for any free versions provided.
9.6. In the case of usage that infringes Clause 3.2, any warranty of the Supplier is excluded.
9.7. With regard to the services of the Supplier with the work result to be handed over, the Supplier guarantees that the work results correspond to the description according to the Contract.
9.8. Defects in work results are only deemed to be defects within the meaning of the Contract if they were present at the time of handover or acceptance of the work results. The Customer is responsible for proving that the defect already exists at this time.
9.9. The Customer must report the defect immediately after it becomes known in a comprehensible form in text form (including e-mail). The reproducibility of the error is a prerequisite for error correction.
9.10. The Supplier excludes any warranty if a defect is not immediately reported in text form (including email), if a defect results from faulty or incomplete information or faulty cooperation of the Customer, or if the work result of the Supplier has been changed by the Customer or third parties.
9.11. The problem support and elimination by the Supplier does not constitute recognition of the existence of a defect.
If the Supplier provides services within the scope of troubleshooting or error elimination, although it is not obligated to do so, the Supplier can demand remuneration in accordance with the conditions agreed in the Contract. Any obligation to pay compensation for services mentioned at the outset shall not arise until after notification in text form (including e-mail) by the Supplier to the Client despite the absence of such an obligation.
9.12. The warranty period is twelve (12) months starting with acceptance. In the event that the acceptance by the Customer is unjustifiably refused or omitted, the warranty obligation begins after delivery or upon provision for acceptance by the Supplier.
9.13. The Supplier shall remedy any defects reported by the Customer in text form (including e-mail) by improvement. If the supplementary performance fails twice, the Customer can continue to demand supplementary performance or instead demand an appropriate reduction. Any further warranty rights of the Customer, in particular replacement delivery, are hereby excluded.
10.1. The Supplier shall be liable without limitation for damages caused intentionally or through gross negligence by the Supplier. The Supplier shall also be liable without limitation for any personal injury if it was caused intentionally or negligently by the Supplier.
10.2. In addition, the Supplier shall be liable exclusively for direct damages that have been demonstrably incurred by the Customer in connection with the contractually agreed performance if it does not prove that it is not at fault.
10.3. The liability of the Supplier is, to the extent permitted by law, limited in total to the remuneration that the Customer has paid to it for the service whose fulfilment by the Supplier caused the damages in accordance with the Contract in the twelve (12) months preceding the damage event in relation to recurring fees, i.e. at most what is owed as remuneration for a contract year.
10.4. The liability of the Supplier for pure financial losses, indirect damages or consequential damages such as loss of profit, unrealised savings, the Customer’s own expenses such as additional personnel costs, recourse claims of third parties, default damages, damages from data loss, damages from data damages or costs resulting from the involvement of third parties by the Customer is completely excluded, as far as legally permissible.
10.5. The Supplier is liable for the conduct of the auxiliary persons involved to the same extent as for its own. The Supplier assumes neither responsibility nor liability for the conduct of substitutes.
10.6. Any further liability of the Supplier is excluded.
Neither the SUPPLIER nor the CUSTOMER shall be liable for force majeure. If the SUPPLIER is unable to comply with its contractual obligations despite all due diligence due to force majeure such as natural events (such as storm, lightning, fire, earthquake, etc.), epidemics, pandemics, warlike events, strikes, viral attacks, disruptions to the public transport or communication infrastructure, the fulfilment of the CONTRACT or the deadline for the fulfilment of the CONTRACT shall be postponed in accordance with the event that has occurred. A disruption of the communication infrastructure used by the CUSTOMER is not a case of force majeure; such a disruption has no influence on the CUSTOMER’S obligation to pay the remuneration.
12.1. Each Party undertakes to treat as confidential all information, data, files and documentation which it receives from the other Party in connection with the fulfilment of the Contract and in which there is a confidentiality interest of the other Party, in particular information about trade and business secrets (including the ideas underlying the Supplier's services, know-how [including technical details in connection with software provided by the Supplier], concepts and procedures), as well as any information about customers of the Customer, and to make it accessible to third parties only with the express consent of the other Party.
12.2 The obligation to maintain secrecy does not apply if the information in question:
12.3. The obligation to maintain secrecy shall exist beyond the end of the Contract.
12.4. The Parties must also impose the obligation described in this Clause 12 on their employees or third parties involved by means of suitable measures.
12.5. The Supplier has the right to identify the Customer on its web-site with logo and in its other communication as a reference.
The data managed by the Customer using the Software are the exclusive property of the Customer.
The Customer shall be solely responsible for managing the Customer’s data managed by means of the Software, provided that no appendix expressly provides for a different provision. The responsibility under data protection law in connection with the processing of personal data is the sole responsibility of the Customer.
The protection of the Customer’s data is guaranteed in accordance with the applicable data protection law, and the Supplier and any third parties commissioned by the Supplier will only process the Customer’s data within the framework of the fulfilment of the Contract. The Customer grants the Supplier and any third parties brought in by the Supplier with regard to its data managed by means of the Software a right of storage, copying and processing.
The Customer guarantees for its part that the legal requirements with regard to the processing of personal data are met, so that the Supplier can provide its services as a contract data processor without violating data protection regulations.
The offsetting of reciprocal claims is only permissible insofar as the claim for offsetting is based on a legally binding judgment or has been recognised by the other party in a legally binding manner.
16.1. The Contract shall enter into force upon signing. The duration of the Contract is set out in the Agreement, including appendices. Unless otherwise provided for in the Agreement, the Agreement shall end upon full performance by both Parties.
16.2. The Contract can be terminated if it is a long-term debt relationship, and/or a termination is expressly provided. The termination terms are set out in the Agreement or the Appendices. Both Parties have the right to ordinary termination of the Contract, whereby the terms of this right of termination result from the Agreement.
16.3. The Parties reserve the right to extraordinary termination of the Agreement or individual appendices in the event of a significant breach of contract by the other Party, which includes, among other things, the default of the Customer, and without observing a notice period. However, an extraordinary termination as a result of a breach of contract is only permitted after an unused 30-day recovery period has elapsed. Furthermore, the Parties reserve the right to extraordinary termination without notice in the following cases: (i) liquidation or bankruptcy of the other Party, (ii) filing of a request for moratorium by the other Party, (iii) pledging or seizure of significant assets of the other Party.
The Contract can only be terminated for extraordinary cause in its entirety if the breach of contract affects the Contract as a whole or has an overall effect on the contractual relationships of the Parties.
16.4. Upon termination of the Agreement, the Customer shall return all materials provided to the Customer by the Supplier. Termination shall result in the blocking of the Customer’s access to the Cloud services at the time of termination of the Contract. If the Customer is technically unable to do so itself or the Customer issues the relevant order to the Supplier, the Supplier shall provide the Customer with its data before the block (or as soon as possible after the block in the case of an extraordinary termination) in a suitable form in accordance with the agreement with the Customer. The provision of Customer data to the Customer will be invoiced according to cost. After that, the data will be deleted by the Supplier as well as the Cloud Provider.
The Customer acknowledges and agrees to the circumstance that the Cloud Provider is an intended third-party beneficiary of the Contract and has the right to enforce its provisions directly on the Customer and to provide services directly to the Customer, if and only in the event that the Customer terminates the service provision by the Supplier in an extraordinary manner.
18.1. The Parties are independent of each other. The Contract does not establish any association under company law or any franchising, joint venture, agent relationship or employment contract relationship.
18.2. The Contract replaces agreements, correspondence, declarations or negotiations about the subject matter of the Contract t in all parts, unless expressly referred to in the Contract. This also applies to offers, specifications and tenders.
18.3. Conclusion, Amendments and/or supplements to the Contract and in particular regulations deviating from the GTCs must be made in writing in order to be valid in accordance with the law (Art. 12 et seq. of the Swiss Code of Obligations [OR]). Electronic signatures (e.g. DocuSign) are equivalent to the written form and formally valid in this respect. Exceptions to the written form requirement are expressly stipulated in the GTCs or in the Contract (e.g. Clause 6.6 above). This applies in particular to the amendment of the written form requirement. Verbal side agreements are not valid.
18.4. Terminations (if provided), warnings and the setting of deadlines by the Customer must also be made in text form (including e-mail) in order to be valid.
18.5. The Supplier reserves the right to amend these GTCs at any time. Such notification shall be communicated to the Customer in a suitable manner and shall be deemed approved without written objection within one month of notification, but in any case in the event of supplementation, extension or conclusion of a Contract between the Customer and the Supplier.
18.6. Should individual provisions of the Contract be or become invalid or void, this shall not affect the remaining valid provisions of the Contract or the validity of the Contract as a whole. Instead of the invalid provision, a valid provision shall apply which comes as close as possible to the economic meaning of the invalid provision. The same applies in the event of a loophole.
18.7. The Customer is prohibited from assigning its claims and rights arising from the Contract to third parties.
18.8. The Contract is subject exclusively to substantive Swiss law under exclusion of the Vienna Convention on Contracts for the International Sale of Goods (United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods, CISG) and the Federal Law on International Private Law. The exclusive place of jurisdiction for all disputes arising from or in connection with this Contract is Dübendorf.
Version, January 2023