These General Terms and Conditions ("GTC") govern the contractual relationship between HR Campus AG ("Provider") and the client ("Client") in connection with consulting, support and other services (hereinafter "Services") of the Provider. The contractual relationship between the Provider and the Client is based on a bid from the Provider (the "Bid"), which was accepted by the Client. These GTC constitute a component of that Bid. The acceptance of the Bid is expressed by the signing of the Bid, whereupon the object of the Bid becomes a valid contract between the Provider and the Client. If, in exceptional cases, a written agreement (the "Agreement") should take the place of the signed Bid, then the Bid becomes a part of this Agreement and the Agreement prevails over the Bid, unless the Agreement explicitly expresses otherwise. Hereinafter the Bid, any Agreement and these GTC are referred to as the "Contract". Moreover, these GTC are also applicable to the pre-contractual relationship between the Provider and the Client, to the extent pursuant to these GTC.
The object of these GTC are all of the Provider's Services which the Provider provides under the Contract, in particular the creation of concepts, analyses and specifications, process consulting, the parametrization of standard software distributed by the Provider (hereinafter "Software"), the setting up of interfaces, training and support in data transfer.
3.1. The service obligations of the Provider result exhaustively from the Bid or Agreement. There are no service obligations of the Provider exceeding this.
3.2. Unless the Bid or Agreement expressly provide for the delivery of an outcome from the work, the Provider owes only the careful execution of the acts in question, not an outcome.
4.1. The customer has to pay the remuneration stipulated in the Bid or Agreement.
4.2. Unless the Bid or Agreement provides otherwise, there will be monthly at-cost charges at the Provider's standard rates.
4.3. If a fixed price or cost ceiling were agreed in the Bid or Agreement, the Provider has the right to demand partial payments or advances. The amount and due date result from the Bid or Agreement.
4.4. If the actual charges exceed the agreed fixed price or the agreed cost ceiling, and this is at least partly due to incomplete or inaccurate information provided by the Client, or Client's improper involvement, or other extraordinary circumstance which could not have been foreseen, or which have been excluded according to the Parties' presumed circumstances (e.g. leaving/absences of project relevant staff with required authority to decide and/or know-how), after giving the Client a warning, the Provider has the right to increase the price in accordance with the additional charges resulting from Client's behaviour or the extraordinary circumstances. The causal connection between improper involvement of the Client and/or the extraordinary circumstances, on one side, and the additional charges, on the other side, is presumed.
4.5. Expenses will be added to the invoice according to actual costs unless the Bid or Agreement provides otherwise.
4.6. All prices are exclusive of statutory VAT. The remuneration is to be paid by the due date stated on the invoice. Within the payment period, the Client may raise justified objections to the bill in writing. After the due date, the invoice is taken to be accepted without reservation. If the Client does not meet its payment obligation within the payment period, it automatically goes into arrears at the end of this period and has to pay default interest of 5% per annum. The Provider has the right to charge a handling fee per reminder of at least CHF 30 on account. Further charges may be applied. If the payment is not made by the end of the payment period, the Provider has the further right to suspend any services until the correct payment is made. Any resulting additional expenses shall be borne by the Client.
All bank charges (especially fees for foreign transfers) are at the expense of the Customer.
5.1. The Client has the obligation to undertake any act of cooperation that from the perspective of the Provider is necessary or desirable for the fulfilment of the Contract. In particular, the Client has to provide all necessary information, data and documents within a reasonable period of time. The Client shall further ensure that the Provider has available all the necessary data, documents and personnel for it to be possible to deliver the contractual services at the agreed time.
5.2. The Client shall nominate an authorized representative and a deputy of the same to engage in binding decisions and instructions (vested with authority to decide and know-how).
5.3. The Client shall check the Services of the Provider for defects and usability before it is used productively.
5.4. Additional costs and disadvantages arising from infringement of these obligations shall be charged to the Client. Any obligation to pay compensation arises only after the Provider has sent a warning to the Client. Any liability of the Provider for damages resulting from a breach of duty to cooperate is precluded in entirety. Should the Client violate this duty to cooperate, the Provider shall no longer be bound by representations of a temporal nature.
6.1. The Provider is entitled to present work results to the Client for acceptance.
6.2. The Client will check the work results immediately after notification of readiness for acceptance by the Provider.
6.3. The acceptance period is 4 weeks and begins with the notification of readiness for acceptance. If during this period no major defects are alleged, the service involved shall be taken to have been accepted. The same applies as soon as the work result is used in productive operations.
6.4. Major defects include faults that make it impossible to make use of the work result involved or make their use only possible with significant restrictions.
6.5. All other faults are considered not significant in terms of acceptance and do not justify a refusal of acceptance.
6.6. In the case of a justified refusal of acceptance the Provider shall address the major defects and again subject the service for acceptance, whereupon a new acceptance period begins.
6.7. The obligation of the Provider to correct defects under warranty for work results, where a warranty is provided in the Contract, is unaffected by acceptance.
7.1. With regard to the services provided by the Provider, the Provider shall give a warranty that these are undertaken with industry-standard care.
7.2. Any other warranty from the Provider is precluded.
8.1. With regard to work results, the Provider shall give a warranty that the work results correspond to the description in the Bid or Agreement.
8.2. Defects in work results shall only be considered defects under this Contract if they were present at the time of delivery or acceptance of the work results. The burden of proof that the defect already existed at that time shall be borne by the Client.
8.3. The Client must report the defect immediately on it becoming known in a comprehensible form in writing. A prerequisite for correcting the fault is the reproducibility of the fault.
8.4. The Provider disclaims all warranties, if a defect is not alleged immediately in writing, if a defect results from faulty or incomplete information or insufficient involvement of the Client, or if the work result from the Provider has been altered by the Client or third parties.
8.5. Support and troubleshooting for problems by the Provider does not constitute acknowledgement of the existence of a defect.
8.6. If the Provider provides services in the context of troubleshooting or repair, even though not obligated to do so, the Provider may require payment pursuant to the price list set down in the Bid or Agreement. Any obligation to pay compensation arises only from the time of the Client being informed by the Provider of the execution of such acts despite the absence of such an obligation.
8.7. The warranty period shall be twelve (12) months beginning with the Acceptance. In the event that acceptance is unjustly refused by the Client, the warranty begins with the provision for acceptance by the Provider.
8.8. The Provider will eliminate defects reported by the Client in writing through improvement. Any additional warranty rights of the Client, especially replacement, are hereby excluded.
8.9. Any other warranty from the Provider is precluded.
9.1. Provider shall be liable only for damages caused intentionally or by gross negligence. The Provider is liable only for direct damages. The Provider's liability for indirect or consequential damages such as loss of good will or business profits, unrealized savings, business interruptions, or claims of third parties are excluded completely, to the extent permitted by law.
9.2. The total of the Provider's liability is limited to the amount of the compensation agreed upon with the customer, if there is a continuing obligation the compensation for one contract year, in either case however, up to a maximum of CHF 100,000 in total.
10.1. Software, concepts or other work made available to the Client by the Provider as part of contract negotiations are the exclusive intellectual property of the provider. They may not be reproduced or disclosed to third parties. If no contract is concluded, they must be returned or deleted and may not be used.
10.2. Unless the Contract expressly provides otherwise, all intellectual property rights remain solely with the Provider for all software and software modifications, documentation, concepts, methods and results created or entrusted in the context of the initiation or fulfilment of the contract, as well as all other documentation and results created for the contract. The same applies also in the case that these results are the product of the Client's cooperation or specifications.
10.3. The Client receives the perpetual, non-exclusive right to use these work results for its own internal business purposes. The Client has no right to pass the work results to third parties in any form.
11.1. The Provider warrants that all facts that become known to it in connection with the activities for the Client, in particular information concerning operational and business secrets, and any information about the Client's Clients, will be handled confidentially, that is to say, exclusively for providing the agreed services, and that no information will be disclosed to third parties.
11.2. Similarly, the Client agrees that all business, technical and scientific expertise acquired from the Provider in connection with the overall execution of the contract (including technical details related to the Provider-supplied software) will be handled confidentially and only made available to third parties with the express consent of the Provider.
11.3. The confidentiality requirement does not apply if the information in question:
can be proven to have been known to the informed party prior to its disclosure, or
was publicly known and generally available prior to disclosure, or becomes publicly known or generally available after disclosure through no wrongful act or collusion of the party to the contract, or
essentially corresponds to information that was disclosed or made accessible to the informed party any time by a third party.
11.4. The confidentiality obligation shall continue to apply after the expiry of the Contract.
11.5. The Provider warrants that the statutory data protection regulations are observed.
11.6. The Client guarantees in turn compliance with the legal requirements regarding the processing of personal data in order to enable the Provider to provide its services without breaching data protection laws.
11.7. The Provider has the right to cite the Customer as a reference on its website and in its other communications.
12.1. The Provider is entitled to call on third parties for the fulfilment of services.
12.2. The Provider shall be liable for the behaviour of the called on third parties (subcontractors) as it shall be for its own behaviour.
13.1. The Contract shall enter into force with the signing of the Bid or Agreement.
13.2. The duration of the Contract results from the Bid or Agreement. Unless the Contract or the Bid provides otherwise, the contract ends with the complete fulfilment by both parties.
13.3. This Contract may only be terminated if a continuing obligation applies and termination is expressly provided in the Bid or Agreement. The termination arrangements arise in this case from the Bid or Agreement.
14.1. The Contract replaces agreements, correspondence, statements or negotiations concerning the object of the contract in entirety, unless indicated in writing in the Bid or Agreement. This also applies to offers, specifications and tenders.
14.2. Changes and amendments to the Contract must be in writing. Electronic signatures (such as DocuSign) are equivalent to the written-form and thus formally valid. This also applies in particular for the amendment of the written-form requirement. Ancillary verbal agreements are not valid.
14.3. Terminations (if provided), warnings and deadline schedules from the Client must also be in writing to be effective.
14.4. The Provider reserves the right to amend these GTC at any time. Any such amendment shall be communicated to the Client in an appropriate manner and applies as approved without a written objection within one month after announcement, but in any case on amendment, extension or conclusion of an agreement between the Client and the Provider.
14.5. Should one or more provisions be or become invalid or void, the validity of the remaining provisions shall be unaffected. The invalid or void provisions shall be interpreted or replaced such that they comply as closely as possible with the intended purpose of the agreement. The same applies in the case of an omission.
14.6. The Contract is governed exclusively by Swiss substantive law, to the exclusion of the Vienna Convention (United Nations Convention on Contracts for the International Sale of Goods (CISG)). The exclusive place of jurisdiction for all disputes arising out of or in connection with the Contract is Zurich (Zurich 1).
Version, January 2020