These General Terms and Conditions ("GTC") apply to all current and future services that hs-consult GmbH ("Service Provider") offers to its clients. The order confirmation and these GTC form the contractual basis for the provision of services by the service provider to the client. The parties may make provisions deviating from these GTC in the order confirmation.
The subject matter of the contract shall be the activities agreed in the order confirmation in the individual case and to be carried out by the service provider. The Service Provider cannot provide any warranty or guarantee for the occurrence of certain economic events or consequences, even if it provides the Customer with advice. For this reason, the Service Provider cannot make any binding declarations in the form of expectations, forecasts or recommendations regarding the occurrence of specific results, irrespective of the provision of specific work results. Unless deadlines are expressly agreed as binding assurances, they shall be regarded as general targets.
Expert opinions, statements, presentations and the like shall not be binding until they have been legally signed. Interim reports and preliminary work results, the draft nature of which is expressly stated or results from the circumstances, may deviate considerably from the final result and are therefore not binding. The service provider may use suitable third parties to provide the services; these are also subject to the duty of confidentiality in accordance with clause 6. Subsequently agreed changes to the services may result in an adjustment of the fee.
All information and documents required for the proper provision of the services must be provided to the service provider by the customer in good time and without being requested to do so. The service provider may assume that the documents and information supplied are correct and complete. Documents and information provided shall not be checked by the service provider for correctness and legality.
The parties may use electronic solutions (e-mail, communication platform, cloud services and similar) for the processing of their services and for communication. During electronic transmission and storage, data may be intercepted, destroyed, manipulated or otherwise adversely affected and may be lost for other reasons or arrive late or incomplete. Each party shall therefore be responsible for taking appropriate precautions to ensure error-free transmission, receipt and storage and to identify elements that are defective in terms of content or technology. The service provider shall take reasonable precautions to ensure that the data processing systems and the customer data are located in Switzerland or a secure third country and that the data is adequately protected against loss and theft. The Service Provider is free to procure corresponding services from professional third-party providers. The service provider may make third-party software available to the customer. The conditions are based exclusively on the information provided by the software provider. However, the service provider shall ensure that the software is maintained and updated in accordance with the provider's specifications. The customer acknowledges that the third-party provider may gain access to its data as part of the maintenance. The service provider may charge a usage fee for its IT services or pass on third-party fees. If the service provider transmits data to third parties or authorities on behalf of the customer via electronic portals or in a similar manner, the customer remains responsible for the content of this data. In all these applications, the service provider is responsible for the careful fulfillment of its obligations and compliance with Swiss legal requirements. However, it cannot assume any responsibility for the absolute protection of data and data transmission.
All copyrights and rights of use to all documents, products or other work results created by the service provider as well as the know-how developed or used in the process shall remain with the service provider. The service provider shall grant the customer a non-exclusive and non-transferable right of use for an unlimited period of time for the exclusive personal use of the documents, products and other work results provided to it, including the associated know-how. The transfer of documents, products and other work results or parts thereof as well as individual technical statements by the customer to third parties is only permitted with the prior express written consent of the service provider or if the right to transfer arises from the circumstances. The customer may only use the documents provided to him by the service provider, in particular the binding reports, in their unaltered state or, if he is authorized to do so, pass them on. The same applies to products and other work results, unless their purpose is further processing by the customer. Reference to the existing contractual relationship between the parties, in particular in the context of advertising or as a reference, is only permitted with the mutual consent of both parties.
The service provider is obliged to maintain confidentiality with regard to all confidential information of which it becomes aware in the course of the customer relationship. This does not apply to the disclosure of confidential information if the customer has given authorization for the necessary protection of the service provider's legitimate interests, insofar as the respective third parties are subject to an equivalent obligation to maintain confidentiality, or in response to a court or official order. The obligation to maintain confidentiality shall survive the termination of the contractual relationship. This obligation shall not prevent the service provider from carrying out the same or similar orders for other customers.
The fee shall be set out in the order confirmation. Unless expressly agreed otherwise, the fee shall be based on the Service Provider's applicable hourly rates and the actual time spent. Cost estimates are based on an assessment of the work that will necessarily be required in the future as part of the task and are subject to the customer fulfilling its obligation to cooperate. The starting point for such estimates is the data provided by the customer. Consequently, such cost estimates are not binding for the definitive calculation of the fee. Cost estimates and other details of fees or expenses are exclusive of VAT. Necessary subsequent changes to the content of the service or changes requested by the client shall result in an appropriate adjustment of the fee. The service provider may demand reasonable advances on fees or expenses and issue interim invoices for work performed and expenses incurred. He may make the provision of further services dependent on the full payment of the amounts claimed. Fee invoices and invoices for expenses are due for payment after expiry of the payment deadline on the fee invoice.
The service provider is responsible for the careful fulfillment of the order in compliance with the requirements of the profession. The Service Provider shall be liable for damages arising from its services to the extent prescribed by law, namely in the event of unlawful intent or gross negligence. To the extent permitted by law, liability for negligent breach of its obligations shall be limited to a maximum of twice the annual fee for the order in question. If the Customer's conduct is partly responsible for the damage incurred, the Service Provider shall be exempt from liability. In particular, incomplete, contradictory or delayed information and documents as well as information or documents that have not been passed on shall be deemed to be contributory negligence.
If the production of a work within the meaning of Art. 363 CO has been agreed, the customer shall be entitled to have any defects rectified by the service provider. If the rectification fails, the customer may demand a reduction in price or withdrawal from the contract. Insofar as claims for damages exist beyond this, the limitation of liability pursuant to clause 8 shall apply.
The contract may be terminated by either party at any time in writing and with immediate effect or on the expiry of a specific date. In the event of termination, the services provided up to the time of termination of the contract shall be remunerated by the customer. The services rendered shall be paid by the customer on the basis of the actual time spent and the applicable fee rates plus the expenses incurred. If the contract is terminated at an inopportune time, the terminating party undertakes to compensate the other party for the loss it incurs as a result of the termination of the contractual relationship at an inopportune time. In the event of termination due to a breach of contract by one party, the terminating party shall compensate the terminating party for the damage incurred as a result of the termination.
Upon termination of the contractual relationship, the service provider shall provide the customer with its documents and data in a form to be agreed. The corresponding services of the service provider are subject to a charge. The service provider is entitled, but not obliged, to retain copies of the customer's documents and data for the purpose of documenting the services provided. The customer shall be responsible for the storage of the documents and data and for compliance with the statutory provisions. The service provider shall ensure that it retains its documents and data for a period of ten years.
These GTC may be amended by the Service Provider at any time. If the customer does not reject the new GTC within a period of 60 days after notification, they shall be deemed to have been approved. The order confirmation and these GTC are subject to Swiss law. For all disputes arising therefrom, the parties agree that the exclusive place of jurisdiction shall be the registered office of the service provider. The place of performance is the registered office of the service provider.
