General Terms and Conditions

General terms governing ICT services and contractual relationships.

General Provisions

1. Scope and Validity

These General Terms and Conditions (GTC) govern the conclusion, content, and execution of contracts between the parties “Service Recipient” and “Service Provider,” hereinafter referred to as “Contracting Parties,” for all types of services in the field of information and communication technology (ICT).
These GTC govern contractual services, as well as services based on contract, purchase, and lease law, including but not limited to software licensing, acquisition, maintenance or servicing of hardware and software, support, services for development, customization, implementation, operation of applications, outsourcing, online services, and communication services.
The Service Recipient refers to these GTC in the request for proposal or in the tender documents. By submitting a written offer or, in the absence thereof, at the latest by accepting an order, the Service Provider acknowledges the applicability of these GTC. General terms and conditions or delivery terms of the Service Provider shall not apply, even if referred to in its offer or related documents.
Deviations from these GTC must be expressly marked as such in the request for proposal or in the tender documents or the offer. They must be explicitly mentioned in the contract document to be valid.

2. Contractual Components and Order of Precedence

In the event of discrepancies between the terms of the contractual components, the contract document shall take precedence over the terms of these GTC. These GTC take precedence over the offer, and the offer takes precedence over the specifications. Deviating agreements between the Contracting Parties in the contract document remain reserved.

3. Offer

The offer, including presentations, is provided free of charge.
If the offer deviates from the request for proposal or the tender documents of the Service Recipient, the Service Provider shall expressly point this out.
Unless otherwise specified in the request for proposal or the tender documents, the Service Provider remains bound by the offer for three months from the date of submission.
Until the contract document is signed or the offer is accepted in writing (order) by the Service Recipient, the parties may withdraw from the contract negotiations without financial consequences. However, the binding period of the Service Provider as per clause 3.3 remains reserved.

4. Products and Services, Deliveries

The nature, scope, and characteristics of the products and services are regulated in the contract document, which may refer to additional documents.
The transfer of benefits and risks occurs upon acceptance of the service or delivery by the Service Recipient at the place of performance (clause 22).

5. Execution

The Contracting Parties shall immediately notify each other of any circumstances from their areas that could jeopardize or may jeopardize the proper fulfillment of the contract.
The provision of services is carried out using recognized methods and current standards and in compliance with the instructions issued by the Service Recipient in accordance with the contract.
The Service Provider shall regularly inform the Service Recipient of the progress of the work and obtain the necessary specifications from the Service Recipient in case of uncertainties.

6. Engagement of Subcontractors

The Service Provider may engage subcontractors only with the written approval of the Service Recipient. The Service Recipient may not unreasonably withhold approval, with reasons protected by official secrecy not required to be disclosed. The Service Provider remains responsible to the Service Recipient for the provision of services.

7. Documentation

The Service Provider shall provide the Service Recipient, if a joint review is contractually agreed upon, with the necessary, copyable installation and operating instructions required for the operation in a readable and editable form for the Service Recipient. The Service Recipient may require the delivery of technical maintenance documentation in the request for proposal or tender documents.
Unless otherwise agreed in the contract document, the documentation shall be delivered in the contract language or in English.
For applications affecting accounting or for other reasons requiring audit-proof, the Service Recipient’s auditing bodies must be granted access to the system documentation.
The Service Recipient may copy and use the documentation for contractual purposes.
If the Service Provider is required to remedy defects, it shall update the documentation as necessary without additional cost.

8. Instruction

The service provider undertakes the instruction of the service recipient’s personnel to the agreed extent.
The service provider ensures the instruction agreed upon according to Section 8.1 without any additional cost, even within the scope of warranty.

9. Collaboration of the Service Recipient

The service recipient shall provide the service provider with all necessary requirements from their area for the fulfillment of the contract in due time.
The service recipient grants the service provider the necessary access to their premises and, where agreed, provides the necessary infrastructure for the fulfillment of services.
Any other collaborative actions of the service recipient shall be agreed upon individually in the contract document.

10. Compensation

The service provider renders the services at fixed prices (unit prices, quantity/volume-based, time-dependent prices, lump sums, fixed contract price) or on a time-and-material basis with an upper limit on compensation (cost ceiling). They shall disclose the types of costs and rates in their offer.
If the service provider renders services on a time-and-material basis, they shall submit, along with the invoice, a report signed by the authorized person of the service recipient. The report shall specify the services and the effort of each deployed person per day. If exceeding the cost ceiling becomes apparent, the service provider must inform the service recipient in writing and with justification immediately. The service provider remains bound to the cost ceiling.
The compensation covers all services necessary for the proper fulfillment of the contract. Covered by the compensation are, in particular, installation and documentation costs, instruction costs, expenses, license fees, packaging, transport, and insurance costs, as well as public charges in force at the time of contract signing (e.g., VAT) and the advance recycling fee, which may be listed separately.
Invoicing takes place after the provision or, if contractually agreed, after the acceptance of the invoiced services. Invoices are to be paid within 30 days of receipt. Deviating agreements in the contract document, in particular any payment plan, remain reserved.
If partial payments (advance and interim payments) are agreed upon, the service recipient may demand appropriate security from the service provider (e.g., bank guarantee).
An adjustment of compensation, especially fixed prices, effort rates, and cost ceilings, during the contract term shall only occur if stipulated in the contract document.

11. Service Changes

The service provider informs the service recipient of improvements and developments that suggest a change in services for technical or economic reasons. They also inform the service recipient of the impact of service changes on the existing infrastructure and the readability of data.
Both contract parties can request in writing changes to the agreed services through the responsible persons (see Section 14.2). If cost or schedule impacts are expected, the service changes shall be offered within a timeframe agreed upon by the contract parties. This offer includes an assessment of feasibility, a description of necessary additional services, and the consequences for services, particularly regarding costs and schedules.
It includes a notice on whether the service provision should be partially or fully interrupted until the decision on the change and how such an interruption would affect compensation and schedules. The service provider shall only receive compensation for such offers if expressly agreed upon.
Unless otherwise agreed, the service provider shall continue their work in accordance with the contract during the evaluation of change proposals.
Service changes and any adjustments to compensation, schedules, and other contract points are recorded in writing in an addendum to the contract document before execution. Compensation adjustments are calculated based on the rates at the time of the change agreement. For changes that have no impact on costs, schedules, or quality, the signature of a change protocol by the responsible persons of the service recipient and the service provider suffices.

12. Legal Warranty

The service provider guarantees that their offer and services do not infringe third-party intellectual property rights. The service recipient guarantees that the means provided to the service provider do not infringe third-party intellectual property rights.
The service provider defends claims of third parties for infringement of intellectual property rights at their own cost and risk. The service recipient shall notify the service provider of such claims in writing without delay and, as far as possible under applicable procedural law, transfer the management of any litigation and the taking of appropriate measures for the judicial or extrajudicial resolution of the dispute to the service provider.
Under these conditions, the service provider assumes the court, legal, and other reasonable costs incurred by the service recipient in connection with the dispute and imposed license fees, compensation, and damages, provided that the infringement is not due to the service recipient’s improper use of the service provider’s services.
If a lawsuit is filed for infringement of intellectual property rights or a precautionary measure is applied for, the service provider may, at their own expense, either secure the right for the service recipient to use the services free from any liability for infringement of intellectual property rights or modify or replace the services to meet the contractual requirements equivalently.
If these options are not available, the service provider shall refund the compensation paid for the unusable service, minus a proportionate amount for the already rendered use of the service based on the total term (of the service) or the usual usage (of the product). If the service recipient cannot reasonably use the remaining services unaffected by third-party rights, they may request a refund for all services and terminate the contract altogether.
Furthermore, the service provider’s liability for any damages according to Section 17 remains reserved.

13. Information Security, Confidentiality, and Data Protection

The contracting parties commit to maintaining confidentiality regarding facts and data that are neither obvious nor publicly accessible. This obligation must also be imposed on third parties involved. In case of doubt, facts and data should be treated as confidential. The confidentiality obligations exist prior to contract conclusion and continue after the termination of the contractual relationship or after the fulfillment of the agreed services.
Statutory disclosure and information obligations remain reserved.
The service provider may disclose the fact and essential content of the request for proposal to potential subcontractors but must otherwise treat the request as confidential.
Advertising and publications related to project-specific services require the prior written consent of the contracting party, including the use of the contracting party as a reference.
If a contracting party or a third party involved by them violates the aforementioned confidentiality obligations, the violating party owes the other party a contractual penalty unless they can prove that neither they nor the involved third parties are at fault. This penalty amounts to 10% of the total remuneration per case, but no more than CHF 50,000 per case. Payment of the contractual penalty does not release the violating party from the confidentiality obligations.
Compensation claims based on general liability principles (OR 97 ff.) or clause 17 remain reserved, with the contractual penalty being offset against any compensation owed.
The service provider commits itself and its personnel to comply with the operational, technical, and security-relevant regulations of the contracting party, particularly access guidelines, system access requirements, etc., provided these are communicated in writing to the service provider before the conclusion of the contract or agreed upon thereafter.
Applicable data protection and security regulations, as well as the provisions on official or professional secrecy (Art. 320 and 321 StGB), must be adhered to. In particular, the service provider is obligated to process personal data passed on to or accessible to them from the contracting party only to the extent necessary for the fulfillment of the contract and exclusively for the purposes necessary for fulfilling the contract.
The service provider is obligated to take the technical and organizational measures required to ensure data protection and information security, as required by law, administrative instructions, regulatory orders, and/or the contract, insofar as they relate to the services provided by the service provider. The service provider documents these measures and makes these documents available to the contracting party.
The service provider is obligated to inform the contracting party immediately if they become aware of or suspect that information they are processing for the contracting party has been exposed to unauthorized access, disclosed to unauthorized third parties, lost, or damaged, or has otherwise been processed unlawfully or in violation of the contract.
The service provider must also immediately take the necessary immediate measures to secure the data and prevent or minimize any potential adverse consequences.
The service provider must allow the contracting party to effectively monitor compliance with the requirements relating to data protection and information security that apply to the contracting party according to law, administrative instructions, regulatory orders, and/or the contract (e.g., by providing security audit reports or allowing on-site inspections of the service provider).
The service provider is obligated to cooperate in any regulatory proceedings relating to the services they provide and to provide requested information and documents. If the effort required for the service provider exceeds the normal scope of contractual reporting and accountability, the service provider is entitled to appropriate compensation for their cooperation.
Upon contract termination, the service provider must, unless otherwise stipulated in the contract, transfer or destroy data (including any copies) that they have processed for the contracting party in accordance with the express instructions of the contracting party. The destruction of data must be documented by the service provider, and a copy of the corresponding evidence must be sent to the contracting party without being requested.
The parties may enter into additional or deviating agreements in the contract, including confidentiality agreements or agreements on commissioned data processing.

14. Personnel Deployment

The service provider will only use trustworthy, carefully selected, and well-trained personnel to fulfill the contract, even for ancillary services. Upon request by the contracting party, the service provider will replace individuals within a reasonable period who, in the contracting party’s assessment, do not possess the required expertise or otherwise hinder the fulfillment of the contract.
The contracting parties agree on the project organization and designate the responsible persons within it.
In cases where there is an increased need for protection (e.g., personal data), the contracting party may request that the service provider provides documents related to further checks on the personnel they employ (e.g., criminal record extracts). Details will be regulated in the contract.

15. Delay

The contracting parties are automatically in default if the deadlines defined as triggering default in the contract are not met, while other deadlines require a reminder with the granting of an appropriate grace period.
If the service provider is in default and the services have not been fully delivered even after an appropriate grace period has been set, the contracting party may, at their discretion:
- insist on subsequent performance by the service provider and claim compensation for any damages resulting from the non-contractual performance if the service provider is at fault, or
- for contract work, carry out substitute performance at the expense of the service provider, either by themselves or with the help of a third party, whereby the service provider must hand over to the contracting party any documents and materials (including source code) that were specifically developed for the contracting party or agreed upon for handover (e.g., as part of an escrow agreement), or
- waive subsequent performance of the contract and claim compensation for damages resulting from the non-performance if the service provider is at fault, or
- waive subsequent performance of the contract and terminate the contract retroactively to the time of contract conclusion, reversing the services exchanged up to the point of termination, and if the service provider is at fault, claim compensation for the damages incurred as a result of the contract termination. In the case of long-term contracts, retroactive contract termination is replaced by extraordinary termination of the contract with immediate effect.
If the service provider is in default, they owe a contractual penalty for the deadlines designated in the contract unless they can prove that neither they nor any third parties they have engaged are at fault. This penalty amounts to 1‰ per delay and day, but no more than 10% of the total remuneration for one-off services or the remuneration for 12 months for recurring services.
The contractual penalty is owed even if the services are accepted without reservation or if the contracting party exercises the remedies mentioned in the previous clause. Payment of the contractual penalty does not release the service provider from their other contractual obligations. Compensation claims by the contracting party according to clause 17 remain reserved, and the contractual penalty will be offset against any compensation that may be owed.
If the contracting party is in default of payment, the service provider is not entitled to interrupt and/or withhold their services. However, they are entitled to statutory default interest.

16. Warranty

The service provider guarantees that the products and services provided under the contract have the agreed-upon characteristics, as well as those characteristics that the recipient of the services may, in good faith, expect according to the state of the art at the time of contract conclusion (unless otherwise stated in the contract).
If a defect is present, the recipient of the services may demand free rectification or deduct an amount corresponding to the reduced value from the payment. The service provider shall remedy the defect within a reasonable period and bear all costs incurred.
If the service provider does not rectify the defect as requested, does so late, or unsuccessfully, the recipient of the services may deduct an amount corresponding to the reduced value from the payment. In the case of significant defects, the recipient may proceed in accordance with clause 15.2.
Defects must be reported within 60 days of discovery. Warranty claims expire within one year from delivery or acceptance. After the rectification of reported defects, the time limits for replacement parts start anew. Defects concealed with intent can be claimed within ten years from delivery or acceptance.
Services rendered after the warranty period are chargeable and provided under standard market conditions.
Different warranty arrangements, such as warranty services for third-party products or the agreement of service levels (e.g., operational, response, or rectification times and/or availability in relation to maintenance, support, outsourcing, online, or communication services) and the consequences of non-compliance (e.g., penalties/credits, extraordinary termination), are to be regulated in the contract document or supplementary documents (clause 4.1).

17. Liability

The service provider is liable for damages caused by itself, its assistants, and subcontractors in connection with the contractual relationship unless it proves that neither it nor the assistants/subcontractors are at fault. Unless otherwise agreed in the contract document, liability for slight negligence is limited to CHF 1 million per contract.
Liability for lost profit is excluded to the extent legally permissible.

18. Replacement Deliveries, Maintenance, and Support Availability

The service provider guarantees the delivery of spare parts or replacement products for hardware for at least five years from delivery or acceptance of the initial delivery. A different period must be specified in the contract document.
The service provider offers to maintain and/or support the delivered hardware and software for at least four years after the expiration of the one-year warranty period for the initial delivery. Any necessary maintenance and support services will be contractually agreed upon under standard market conditions as needed by the recipient.

19. Consequences of Contract Termination

The contracting parties shall stipulate in the contract which equipment, data, and documents provided under the contractual relationship must be returned to the other party or destroyed and within what timeframe upon termination of the contract.
Upon contract termination, regardless of the reason, the service provider shall assist the recipient of services, if necessary, and for a reasonable fee, in instructing any new provider, returning or transferring data processed by the service provider for the recipient of services to the recipient or a new provider (in an agreed-upon or commonly used format that is reusable for the recipient), and returning or transferring hardware and software operated by the service provider for the recipient, including the provision of current, electronically editable versions of contractually created documentation by the service provider.

20. Place of Data Processing

Unless otherwise stipulated in the contract, the processing of data that the service provider performs on behalf of the recipient must take place in Switzerland and under Swiss law.

21. Assignment, Transfer, and Pledging

Rights and obligations arising from the contractual relationship may not be assigned, transferred, or pledged to third parties without the prior written consent of the other party. The recipient of the services will only refuse consent to the assignment and pledging of claims by the service provider in justified cases.
The service provider assumes the recipient’s obligations under import certificates upon delivery, provided this is contractually regulated.

22. Place of Performance

The place of performance for the service provider’s services is the location specified in the contract document, or if none is specified, the recipient’s address.

23. Applicable Law and Jurisdiction

Swiss law applies to the contractual relationship unless otherwise stipulated in the contract.
The provisions of the Vienna Sales Convention (United Nations Convention on Contracts for the International Sale of Goods, concluded in Vienna on April 11, 1980) are excluded.
The place of jurisdiction is the recipient’s registered office unless otherwise stipulated in the contract.

Special Provisions

24. Intellectual Property Rights

24.1 Rights to Work Results

The rights to the work results created by the service provider in fulfillment of the contract pass to the recipient upon creation. This includes, in particular, concepts, documents, evaluations, etc., created by the service provider under a contractual relationship. Both parties have the right to use and dispose of non-legally protected ideas, procedures, and methods underlying the work results.
Third-party products and pre-existing rights of the service provider are not affected by this provision unless they are an inseparable part of the created work result. In such cases, the service provider grants the recipient a non-exclusive, transferable right to use the pre-existing rights for its purposes without time limitations. Contractual provisions to the contrary remain reserved.

24.2 Rights to Custom Software

The exclusive rights to custom software created by the service provider specifically for the recipient, including source code, program descriptions, and documentation, whether in written or machine-readable form, pass to the recipient upon creation. Both parties retain the right to use and dispose of non-legally protected ideas, procedures, and methods.
The software documentation (in particular, documented source code with an overview, data, and function model, as well as a functional description) and other documents must be provided to the recipient before acceptance and, upon request, before any partial payments.

24.3 Patent Rights

Patent rights to inventions created during contract performance belong to:
- the recipient of services if the inventions were made by their personnel;
- the provider of services if the inventions were made by their personnel or third parties they engaged;
- both the recipient and the provider of services if the inventions were made jointly by their personnel or third parties engaged by the provider. The parties mutually waive the collection of license fees. Each may transfer their rights to third parties or grant them usage rights without the other party’s consent.

24.4 Rights to Standard Software

Intellectual property rights to the standard software remain with the provider or third parties. If these rights belong to third parties, the provider guarantees that they hold the necessary usage and distribution rights.
The recipient of services acquires a non-exclusive right to use the standard software to the extent agreed upon in the contract.
The right to use the standard software is either granted for an unlimited period or for a specified or indefinite duration (until termination), depending on the agreement. If the usage right is unlimited, it is transferable.
The recipient of services may make copies of the standard software for backup and archival purposes.
During hardware failure, the recipient is entitled to use the standard software on a replacement hardware without additional compensation.
Manufacturer license terms are valid only insofar as they pertain to the rights (including usage rights) of the software, including any consequences of violations, and are explicitly mentioned in the provider’s offer and fully attached thereto. These terms must not conflict with mandatory Swiss law, the tender documents, these general terms and conditions, or other contractual components. This is particularly relevant regarding the application of Swiss law and the agreed jurisdiction (Clause 23).
The recipient is only obligated to accept such manufacturer terms if explicitly required by the provider’s offer and only on the condition that these terms pertain exclusively to the aforementioned contract contents, and the contractual relationship is handled directly between the provider and recipient according to their commercial and legal agreements, without claims from the manufacturer against the recipient.
If the provider’s services include open-source software, they must explicitly inform the recipient in the offer and any subsequent performance changes, specifying the license terms under which the open-source software is provided.

25. Inspection and Acceptance of Deliveries and Services

The provider undertakes to present only ready-for-inspection, fully completed, and tested deliverables, such as complete systems, hardware, software, service work results, concepts, and documents. The recipient may request test protocols.
The parties will agree on the conditions for inspection, which must include, at a minimum: inspection dates, schedule, procedures, criteria (e.g., functionality, availability, performance characteristics), defect qualification, and the recipient’s obligations to cooperate.
The provider will notify the recipient in good time when they are ready for inspection. A protocol will be drawn up and signed by both parties documenting the inspection and its result.
By mutual agreement, partial inspections of partial services are possible. These are subject to the successful inspection of the entire service.
If no defects are found during inspection, it will be deemed successful upon signing the protocol, and in contracts for work, the service will be considered accepted.
If minor defects are found during the inspection, the service is still deemed successfully inspected and accepted in contracts for work unless otherwise stated in the contract. The provider will rectify the identified defects free of charge within a mutually agreed, reasonable period.
Unless otherwise agreed by the parties (Clause 25.2), defects are considered minor if they do not significantly impair the usability or safety of the services inspected.
If there are significant defects, the inspection is deemed unsuccessful. The provider must promptly correct the identified defects and invite the recipient to a new inspection in good time. If significant defects are still found during the second inspection, Clause 15.2 will apply.
Unless otherwise agreed (Clause 25.2), a defect is considered significant if it substantially impairs the use of the services to be accepted.
If the recipient refuses to participate in the inspection, despite the conditions being met (as per Clauses 25.1 and 25.3), after being reminded and given a reasonable extension, the service will be considered successfully inspected and accepted in contracts for work.

26. Purchase of Hardware

Delivery of the purchased item is completed upon signing the delivery note by the designated recipient at the agreed location.
The provider installs the purchased item according to the installation instructions at the agreed location and puts it into operation unless otherwise explicitly agreed in the contract.

27. Maintenance of Hardware

Hardware maintenance includes repairs (fixing malfunctions and errors to restore operability) through part repairs and replacement of defective parts, as well as the installation of technical improvements. Preventive maintenance (to maintain operability) is carried out if indicated by the manufacturer’s factory specifications and the state of the art. Replaced parts become the property of the provider unless prohibited by the recipient’s information security and data protection policies.
In such cases, the original parts remain the property of the recipient at no cost.
In the event of malfunctions, the provider will assist in identifying the cause of the malfunction at the recipient’s request, even if the malfunction occurs due to the interaction of several systems or components. If the provider proves that the malfunction was not caused by the hardware they maintain, these services will be billed separately.

28. Software Maintenance

Software maintenance includes error correction, adaptation, and further development of the programs (new releases). Functional extensions may be subject to additional fees.
In the event of malfunctions, the provider will assist in identifying the cause of the malfunction at the recipient’s request, even if the malfunction occurs due to the interaction of several systems or components. If the provider proves that the malfunction was not caused by the software they maintain or support, these services will be billed separately.
To the extent possible, the provider will also rectify malfunctions attributable to circumstances for which the recipient or third parties are responsible at the recipient’s request and for an agreed-upon fee.
The recipient is not obliged to adopt every new software version. The provider is entitled to discontinue maintenance services for older versions after a reasonable transition period. Unless otherwise agreed, this period is 12 months.

29. Operational, Response, and Troubleshooting Time, Availability

During operating hours, the provider accepts malfunction reports and performs services (e.g., maintenance and support, system monitoring). The response time is the time from the receipt of the malfunction report until the start of troubleshooting. The troubleshooting time is the period from the receipt of the malfunction report until the issue is resolved.
Unless otherwise agreed, the following applies:
- Operating hours: Monday to Friday from 8:00 AM to 5:00 PM (excluding public and local holidays at the place of performance).
- Response time: four hours.
The provider will start troubleshooting within the response time and complete it within any agreed troubleshooting time, according to any malfunction classification agreed upon in the contract, if necessary.
At the recipient’s request, the provider will perform services outside of operating hours for a separate fee.
Service availability will be specified in the contract. If not specified, services provided over a network must be available at least 99.80% per quarter, 24/7. This means that they may be unavailable, including foreseeable maintenance downtimes, for a maximum of 44 hours per quarter. The provider schedules foreseeable maintenance downtimes outside of operating hours and notifies the recipient as early as possible.

30. Information

The provider will notify the recipient as early as possible in advance about any planned changes concerning the service delivery or the discontinuation of services, particularly if the changes will take effect after the next possible termination date.

31. Termination of Fixed-Term Contracts

If a contract (e.g., for maintenance/care, support, outsourcing, online services, communication services) is concluded for an indefinite period, it may be terminated at any time, subject to any agreed minimum contract term. The termination may also apply only to specific parts of the contract, subject to an agreement on the adjustment of the remuneration.
Unless otherwise specified in the contract, the notice period is twelve months for the service provider and three months for the service recipient.
Prepaid remunerations will be refunded pro rata temporis.
Contracts concluded for a fixed or indefinite period may be terminated at any time without notice in the event of a serious breach of contract by the other party. In such cases, the remuneration is calculated pro rata temporis, with one-time payments proportionally based on a 60-month usage period. Claims for damages remain reserved.
If necessary, further modalities of contract termination must be agreed upon.