1.1. These General Terms and Conditions («GTCS») govern the contractual relationship between HR Campus AG («SUPPLIER») and the Customer («CUSTOMER») (each individually «PARTY», together the «PARTIES»). They apply to all services that the CUSTOMER purchases from the SUPPLIER, in particular also follow-up transactions and support services (the «SERVICES»), even if the PARTIES do not refer to the GTCs in individual cases. Agreements between the PARTIES with reference to other GTCs of the SUPPLIER are reserved.
1.2. General terms and conditions of the CUSTOMER do not apply.
1.3. 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.
2.1. Offers from the SUPPLIER (the «OFFER») are valid for 30 days, unless the OFFER specifies a different validity period.
2.2. A Contract between the SUPPLIER and the CUSTOMER (CONTRACT) is concluded as follows:
2.3. The CONTRACT consists of the following components, whereby the following order of priority applies in the event of contradictions:
The subject matter of these GTCs is all SERVICES of the SUPPLIER that the SUPPLIER provides within the framework of the CONTRACT, in particular implementation, project, consulting, support and other services, the creation of concepts, analyses and specifications, process consulting, parameterisation of standard software distributed by the SUPPLIER (hereinafter «SOFTWARE»), the establishment of interfaces, training, as well as support in the transfer of data.
4.1. The SUPPLIER'S performance obligations are conclusively derived from the OFFER or the AGREEMENT. There are no additional performance obligations of the SUPPLIER.
4.2. Insofar as the OFFER or the AGREEMENT does 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.
4.3. With the prior consent of the CUSTOMER, the SUPPLIER has the right to involve third parties to fulfil the CONTRACT.
5.1. 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 the conclusion of the CONTRACT are the exclusive intellectual property of the SUPPLIER («PRE-EXISTING INTELLECTUAL PROPERTY RIGHTS»). They may not be reproduced by the CUSTOMER or made accessible to third Parties. If the 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.
5.2. The SUPPLIER grants the CUSTOMER a free and non-exclusive right to use these PRE-EXISTING INTELLECTUAL PROPERTY RIGHTS for its own internal operational purposes, as long as this is necessary for the contractual and intended use of the SERVICES.
5.3. 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 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.
5.4. The CUSTOMER shall receive the unlimited, free-of-charge and 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.
6.1. The CUSTOMER must pay the remuneration specified in the CONTRACT.
6.2. If the CONTRACT does not provide for any other regulation, the expense will be invoiced to the CUSTOMER monthly at the SUPPLIER’S standard rates.
6.3. If a fixed price or cost ceiling has been agreed in the CONTRACT, the SUPPLIER has the right to demand partial payments or advance payments. The amount and due date are set out in the CONTRACT.
6.4. 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 of relevant decision or knowledge bearers of the CUSTOMER), the SUPPLIER has the right, after warning the CUSTOMER, to increase the fixed price or the cost ceiling according to the additional expenditure caused by the CUSTOMER’S conduct or by the exceptional circumstances.
6.5. Expenses will be invoiced additionally according to effective costs, unless the CONTRACT provides otherwise.
6.6. All prices are exclusive of VAT. The payment deadline is 30 days from the invoice date. Within the payment period, the CUSTOMER can raise justified objections to the invoice in text form (including email). After the expiry of the payment period, the invoice shall be deemed accepted without reservation. If the CUSTOMER fails to comply with its payment obligation within the payment period, it shall be in default without further ado at the end of this period and shall pay default interest of 5% p.a. If the payment is not made without objection to the invoice by the expiry of the payment period, the SUPPLIER shall continue to have the right to discontinue all services until full payment. Additional expenses arising from this shall be borne by the CUSTOMER.
6.7. All bank expenses (in particular fees for foreign transfers) shall be borne by the CUSTOMER.
7.1. The CUSTOMER is obligated to undertake all acts of cooperation which are necessary from the SUPPLIER'S perspective for the fulfilment of the CONTRACT. 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 on time.
7.2. The CUSTOMER shall appoint a representative and his/her deputy authorised to make binding decisions and instructions.
7.3. The CUSTOMER shall review each service of the SUPPLIER with regard to defects and usability before it is used productively.
7.4. 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 any additional costs incurred as a result of the breach of the duty to cooperate. Any obligation to pay compensation shall only arise once the SUPPLIER has issued a warning to the CUSTOMER.
8.1. The CUSTOMER is obligated to check services of the SUPPLIER with the work result to be transferred immediately after delivery or notification of acceptance readiness by the SUPPLIER.
8.2. The acceptance period is four (4) weeks and begins with the notification of readiness for acceptance. The acceptance report must be signed by the CUSTOMER no later than the last day of the acceptance period. If no significant defects are reported during this period, the work results shall be deemed accepted. In addition, the work results shall also be deemed accepted if the CUSTOMER uses the work results in production and does not formally refuse their acceptance.
8.3. Errors that make the use of the affected work product impossible or only allow use with significant restrictions are considered to be material defects.
8.4. All other errors are deemed to be non-substantial with regard to the acceptance of the service and do not entitle the party to refuse acceptance. They will be remedied within the scope of the warranty.
8.5. In the event of a justified refusal of acceptance, the SUPPLIER shall remedy the significant defects by rectification and shall in turn provide the service for acceptance, whereby a new acceptance period shall commence.
9.1. With regard to 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 SERVICES of the SUPPLIER with the work result to be handed over, the SUPPLIER guarantees that the work results correspond to the work description in the CONTRACT.
9.3. Defects in work results are only deemed to be defects within the meaning of this CONTRACT if they were present at the time of handover or acceptance of the work results. The CUSTOMER must provide proof that the defect already existed at this time.
9.4. The CUSTOMER must report the defect immediately after it becomes known in text form (including email). The reproducibility of the error is a prerequisite for error correction.
9.5. The SUPPLIER excludes any warranty if a defect is not immediately reported in text form (including e-mail), 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.
9.6. The problem support and elimination by the SUPPLIER does not constitute recognition of the existence of a defect.
9.7. If the SUPPLIER provides services within the scope of troubleshooting or fault elimination, although it is not obligated to do so, the SUPPLIER may demand remuneration in accordance with the price list laid down in the CONTRACT. Any obligation to pay compensation arises only from the information of the CUSTOMER by the SUPPLIER about the performance of such actions despite the lack of such an obligation.
9.8. 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.
9.9. The SUPPLIER shall remedy defects that have been reported by the CUSTOMER in text form (including email) by improvement (correction of defects). 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 is also liable without limitation for any personal injury.
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 for direct damages is, to the extent permitted by law, limited in total to the remuneration that the Customer has paid to it for the service whose fulfillment by the SUPPLIER caused the damages in accordance with the CONTRACT in the twelve (12) months preceding the damage event, i.e. at most what is owed for a contract year as remuneration and a maximum of CHF 100’000.00.
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 damage 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 the 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 PARTIES are unable to comply with their contractual obligations despite all due diligence due to force majeure such as natural events (such as storm, lightning, fire, earthquake), 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 keep 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 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.
12.5. The CUSTOMER guarantees that the legal requirements with regard to the processing of personal data are met, so that the SUPPLIER can provide its services without violating data protection provisions.
12.6. The SUPPLIER has the right to identify the CUSTOMER on its website with logo and in its other communication as a reference.
13.1. The CONTRACT shall enter into force upon signature of the OFFER or the AGREEMENT or in accordance with Clause 2.2. The duration of the CONTRACT is set out in the CONTRACT. Unless otherwise provided for in the CONTRACT, the CONTRACT shall terminate upon full performance by both PARTIES.
13.2. The CONTRACT can only be terminated if it is a long-term debt relationship, and a termination is expressly provided in the CONTRACT. In this case, the termination terms are derived from the CONTRACT.
13.3. The PARTIES reserve the right to extraordinary termination of the CONTRACT and without observing a notice period in the event of a significant breach of contract by the other PARTY, which includes the default of the CUSTOMER. 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.
13.4. 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.
14.1. 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.
14.2. The CONTRACT replaces agreements, correspondence, declarations or negotiations about the subject matter of the CONTRACT in all parts, unless reference is made in the CONTRACT. This also applies to offers, specifications and tenders.
14.3. Amendments to the CONTRACT and additions to the CONTRACT must be made in writing to be valid (Art. 12 et seq. of the Swiss Code of Obligations [OR]). Electronic signatures (such as DocuSign) are equivalent to the written form and formally valid in this regard. This applies in particular to the amendment of the written form requirement. Verbal side agreements are not valid.
14.4. 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.
14.5. 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.
14.6. 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.
14.7. 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 11.04.1980 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, July 2021