TERMS OF BUSINESS
1. Purpose and applicability
These general terms of business (“GTB”) are applicable to all our engagements.
We deliver under our engagements with the observance of the applicable professional rules and regulations and national and international laws and regulations.
2. Inception of the engagement
The engagement takes effect as soon as we have received the written agreement regarding the engagement duly signed by our customer, except for the cases where Par. 2.3 applies.
Customers shall provide all information and data at our first request, which we need to comply with our obligations under the Swiss Code of Obligations (“SCO”), including but not limited to those regarding the prevention of money laundering and terrorism financing. We reserve the right to assess whether the customer identification and verification is in compliance with the SCO.
In case of not receiving the duly signed agreement on the engagement, it is deemed to be established under these GTB as of the date of us started to deliver our services at our customer’s request.
3. Delivery under the engagement
We provide all our services to the best of our knowledge and ability, and in accordance with professional standards. We are bound by the ‘best-efforts’ obligation in relation to the (intended) services.
We determine the way the engagement will be delivered and by whom.
We may provide, and charge our customers for, any additional services if the need for such services arises by virtue of any national or international legislation or regulations, including professional rules and regulations applicable to the engagement.
Information provided to us by our customers is returned, at their request, after completion of the engagement. We keep our own (electronic) working files on the engagement, containing copies of relevant documents, which shall remain our property.
Our administration (including e-mails and digital scans of engagement letters, for example) serves as full evidence for our customers, except where they provide evidence to the contrary.
When providing our services under an engagement, we shall not be deemed to have access to information originating from any other engagements that have been or are being delivered for the same customer.
4. Customer obligations
If an engagement requires the cooperation of our customer, it shall provide us with the relevant information and data for the adequate and timely delivery under the engagement, in a proper form and timely manner necessary to provide our services.
Customers shall inform us as soon as practicable on the corporate (legal) and governance (control) structure of the group they belong to (if applicable), and on any changes therein, as well as on other financial and other alliances in which they participate in, or belong to, such as any other facts and circumstances that might be relevant to the delivery under the engagement to enable us to provide our services as an independent adviser.
Customers shall bear the responsibility for determining the scope of work under the engagements, such as for making decisions based or partially based on, or in connection with our services.
We deliver under the engagement based on the information and data received from our customers, including any meetings with them, or at their request, with third parties. Customers shall undertake to ensure that the information and data provided is correct and complete.
Customers shall take the risk stemming from the delays in, failure or inappropriateness of the provision of the requested information, data, facilities or staff necessary to deliver our services under the engagement, such as the cost, damage or loss as consequences thereof.
In the case of an engagement under which we are requested to deliver at the premises of the customer, it shall ensure the provision of such office space and means of electronic communication that we consider necessary or useful for performing under the engagement and that comply with all statutory and other requirements.
5. Confidentiality and data protection
Customers shall agree that we may use (confidential) information and personal data provided by or on behalf of our customers – provided that it is anonymous, and that identity cannot be derived from it – within the framework of, amongst other things, compiling and maintaining best practices, statistics, research purposes and/or benchmarking.
For the purposes described in this Art. 5, we may transmit personal information to countries outside of the European Economic Area (EEA) if the recipient is deemed to offer a sufficient level of protection compared to those under Swiss law.
We take appropriate measures in order to protect the confidential information and personal information and shall inform any third parties and employees that we engage of the confidential nature of the information.
We process personal information in accordance with the applicable national or international laws and regulations, including professional rules and regulations, in the field of protection of personal information.
Except where any national or international law or regulation, including professional rules and regulations, require our customers to disclose information, or except where we have given our prior written consent, our customers shall not disclose, or provide to third parties, any information concerning the engagement, the content of reports, opinions or any other written or oral statements issued by us.
The parties shall impose their obligations under this Art. 5. on any third parties that they engage.
We reserve the right to mention the name of our customers and sketch a broad outline of the services provided to potential and existing customers as an illustration of our experience.
6. intellectual property
We reserve all intellectual property rights in relation to products of the intellect that we use or have used and/or develop or have developed within the framework of the execution of the engagement in respect of which we hold or can exercise copyrights or other intellectual property rights.
Customers are explicitly prohibited from reproducing, publishing or using for commercial purposes, whether alone or involving third parties, those products, including computer programs, systems designs, working methods, opinions, contracts and model contracts, brands and logos and our other products of the intellect. These products may not be reproduced and/or published and/or used for commercial purposes without our prior written consent.
Customers have the right to reproduce the written documents for their own internal use insofar as this is in line with the purpose of the engagement.
Provisions of Par. 6.2. and 6.3. shall apply mutatis mutandis in the case of the early termination of the engagement.
7. Fees and payments
Our fee shall be exclusive of our out-of-pocket expenses, exclusive of any fees charged by third parties engaged by us and exclusive of any turnover tax and other levies that are or may be imposed by government authorities. We shall recharge the costs of any such out-of-pocket expenses, third-party fees, taxes and levies to our customers.
If any pricing factors, such as salaries and/or rates, are subject to change between the inception date and completion date of the engagement, we shall have the right to adjust the previously agreed fee accordingly.
Payment of our fee is due, without any deduction, discount or debt settlement, within 15 days of the invoice date. Payments, denominated in the currency indicated in the invoice, shall be remitted to a bank account designated by us.
Complaints about or objections to any amounts charged shall not suspend the obligation to pay.
All judicial and extrajudicial (collection) costs that we incur in connection with the failure of our customers to comply with their (payment) obligations shall be for their account.
If we believe that the financial position and/or payment performance of our customer justifies such action, we reserve the right to demand that it immediately furnishes security or additional security in a form to be determined by us and/or make an advance payment. If it fails to furnish the requested security or make the requested advance payment, we have the right, without prejudice to our other rights, to immediately suspend any further delivery under the engagement, and all amounts this customer owes us, for whatever reason, shall become immediately due and payable.
In the event of a jointly commissioned engagement, all customers are jointly and severally liable for payment of the full fee charged insofar as the services were provided for the customers jointly.
We shall be notified in writing and within 60 days of the date of dispatch of documents or information in respect of which our customers are filing a complaint, subject to the risk of forfeiture, of any complaints relating to the services provided and/or the invoice amount or, if the customer proves that it could not have reasonably discovered that defect, error or shortcoming earlier, within 60 days of the discovery of the defect, error or shortcoming.
Complaints as referred to in the first paragraph shall not suspend the obligation of the customer to pay. Under no circumstance shall it be entitled, by virtue of a complaint in respect of a certain service, to defer or refuse payment for other services provided by us to which the complaint does not relate to.
If customers filed a legitimate and timely complaint, it shall have the choice between us adjusting the fee charged, having the rejected service rectified or redone free of charge, or terminating the engagement (or remaining services) in exchange for a refund proportionate to the fee already paid.
9. Delivery period
If customers are required to make an advance payment or to make information and/or materials available that is/are required for execution of the engagement, the term for completing the services will not start until we have received the payment in full or until all information and/or data have been made available to us respectively.
The due dates for completion of the services shall be regarded as strict deadlines only if this has been agreed in writing in advance.
Unless execution of the engagement proves to be permanently impossible, the customers shall not terminate the engagement because of us failing to meet a deadline, unless we do not deliver under the engagement, either partially or in full, within a reasonable period of which we have been notified in writing after expiry of the agreed delivery period.
10. Early termination of the engagement
Either party has the right to terminate the engagement in writing, with due observance of a reasonable notice period.
Either party is entitled to terminate the engagement, either partially or in full, in writing and with immediate effect, without notice of default or judicial intervention being required, if the other party has been granted a provisional or final suspension of payment, or has been declared insolvent or bankrupt, or if its business is or shall be wound up or discontinued.
In the case of an early termination initiated by the customer, we shall be entitled to compensation for services already provided and for any costs that we reasonably must incur as a result of the early termination of the engagement (including costs relating to subcontracting), unless the termination was motivated by facts and circumstances that can be attributed to us.
In the case of an early termination initiated by us, the customer is entitled to our assistance in transferring work to third parties, unless the termination was motivated by facts and circumstances that can be attributed to it.
We shall provide our services to the best of our ability and exercise the due care that may be expected of us. If errors occur as a result of the provision of incorrect or incomplete information to us by the customer or a third party, we shall not be liable for any resulting and consequential damage. Our total liability towards the customer for any errors that would have been prevented, is limited to a maximum of the fee paid and/or owed by that customer for the specific services provided under the engagement from which the errors resulted.
If the Engagement is carried out for more than one (legal) entity/person, the limitation of liability with respect to the engagement shall apply to all these (legal) entities/persons jointly. In the event of liability, it is up to this group of (legal) entities/persons to share the maximum amount of damages awarded among themselves.
Customers shall indemnify us and hold us harmless against any claims by third parties that may arise as a result of any failure on their part to comply or to comply properly with any obligation arising from the engagement and/or this GTB, unless the customers demonstrate that the losses do not relate to imputable acts or omissions on their part, or were caused by an intentional act or wilful recklessness on our part, and unless any mandatory national or international law or regulation, including professional rules or regulations, dictate otherwise.. This indemnification shall apply also in respect of any shareholders, directors of shareholders, managing directors or employees of us or third parties, whom we engage for the performance of the engagement, who shall accordingly be able to invoke this indemnification directly.
Customers shall exercise any rights of action or recourse exclusively against us.
We shall not be held liable for any consequential, indirect or punitive damage and/or loss of profit.
We reserve the right to engage any third party when performing the engagement. The engagement shall be executed under our exclusive responsibility.
We are entitled to compensation of damage, loss and costs resulting from any violation of this provision.
Rights of action and other powers of whatever nature of the customers with respect to us arising from the engagement in any way, shall lapse after one year from the date on which the damage or loss for which we are held liable first manifested itself and in any event after five years from the date on which the event causing the damage or loss occurred.
12. Contract takeover
Unless we give our written consent, customers shall not be permitted to assign the engagement, or any obligation laid down in it to third parties. We shall be entitled to attach conditions to our consent, which shall not be unreasonably withheld. Customers shall undertake in any case to impose on the third party all relevant payment and other obligations laid down in the engagement and this GTB. In addition to the third party, the customer shall continue to be jointly and severally liable for the obligations laid down in the engagement and this GTB.
13. Electronic communication
Parties may communicate with each other via electronic means of communication. The parties recognise the risks associated with the use of electronic communications, including but not limited to distortion, delays, interception, manipulation and viruses. Parties hereby declare that they shall not hold each other liable for any damage or loss incurred by either of them as a result of the use of electronic communications. This also applies to the use of electronic communications – irrespective of the form – between us and third parties, including but not limited to Swiss and other authorities. The parties shall do or omit all that can reasonably be expected of them to avoid such risks.
14. Waiver of rights
Our rights and powers under the engagement shall not be affected or limited by our failure to directly enforce any rights or powers. Notice to waive any right or power laid down in or ensuing from any provision or condition of the engagement must be given in writing.
If and to the extent that any provision of the engagement cannot be invoked in all reasonableness and fairness, or by virtue of its unreasonably onerous nature, the provision in question shall in any event be accorded a meaning corresponding as closely as possible to its original purport and tenor so that this provision can nevertheless be invoked.
16. Continued effect
The provisions of the engagement, which are intended, either expressly or tacitly, to remain in effect even after termination of the engagement, shall have continued effect after the engagement has been terminated and shall continue to bind the parties.
17. Contradictory clauses/precedence
If this GTB and the written engagement contain conflicting conditions, the conditions of the written engagement shall prevail. Deviation from this GTB can be agreed only in a written agreement in which we undertake to provide services to you.
18. Recruitment ban
During the execution of the engagement and within one year of termination of the engagement, neither party shall employ persons who are or were involved in executing the engagement on behalf of the other party or conduct negotiations with such persons about employment, other than in consultation with the other party. If, despite the above ban, a party decides to employ one or more persons who were involved in executing the engagement on behalf of the other party, the first party undertakes to pay to the other party at least the recruitment costs that the latter incurs in recruiting one or more replacement workers.
19. Applicable law and jurisdiction
All engagements contracted between the parties and the negotiations of these engagements shall be governed by the laws of Switzerland.
Any disputes between the parties relating to engagements contracted between them shall in the first instance be referred to the competent Court in Zug, Switzerland.
Zug, 15 September 2018.