General Terms and Conditions of Business (GTC) of
Buchhaltungs und Revisions AG und Contrast Revision AG
These General Terms and Conditions of Business (“GTC”) shall apply to all current and future services provided by Buchhaltungs und Revisions AG and CONTRAST Revision AG (BRAG/CONTRAST) to its Clients, unless required otherwise by law under the specific individual circumstances (in particular in relation to auditing activities prescribed by law) or unless agreed otherwise by the parties in writing.
2. Basis for the business relationship
The contractual object shall be the activities to be carried out by BRAG/CONTRAST in the individual circumstances as agreed to in the order confirmation. BRAG/CONTRAST cannot offer any warranty or guarantee as to the occurrence of particular economic events or consequences, even if BRAG/CONTRAST has assisted the Client with advice. For this reason, irrespective of the provision of particular results of work, BRAG/CONTRAST is unable to issue any binding declarations in the form of expectations, prognoses or recommendations in relation to the occurrence of particular events.
Any time limits indicated shall constitute general targets, unless they have been expressly agreed to as binding assurances.
Expert appraisals, statements of opinion, presentations and similar documents shall only become binding after they have been signed with legal effect. Interim reports and preliminary results of work that have been expressly designated as drafts, or that are clearly apparent as such from the circumstances, may differ significantly from the final result and are therefore not binding.
BRAG/CONTRAST may avail itself of suitable third parties in order to provide its services, which shall also be subject to the duty of confidentiality provided for in clause 6.
Any changes to the services subsequently agreed upon may entail a reasonable adjustment of the fee.
3. Cooperation by the Client
All information and documentation required for the proper provision of the services shall be furnished by the Client to BRAG/CONTRAST unsolicited and in good time. BRAG/CONTRAST shall be entitled to presume that the documentation and information provided is accurate and complete.
The documentation and information provided shall not be examined by BRAG/CONTRAST in order to establish whether it is accurate and compliant with the law.
4. Digital exchange of information
The parties may use electronic solutions (email, communication platform, cloud services etc.) in order to provide their services and for the purposes of communication. Any data transmitted or stored electronically are liable to be intercepted, destroyed, manipulated or otherwise adversely influenced or may for other reasons be lost or received late or incomplete. Each party shall therefore take reasonable precautions under its own responsibility in order to ensure error-free transmission, receipt and storage and in order to identify any aspects that are substantively or technically deficient.
BRAG/CONTRAST shall take reasonable precautions in order to ensure that its data processing systems and the Client’s data are situated in Switzerland or in a secure third country and that the data are reasonably protected against loss or theft. BRAG/CONTRAST shall be entitled to obtain appropriate services from professional third party service providers.
BRAG/CONTRAST may provide the Client with third party software. The applicable terms and conditions shall be determined exclusively by the software provider. BRAG/CONTRAST shall however ensure that the software is maintained and updated in accordance with the requirements of the provider. The Client acknowledges that the third party provider may gain access to its data in relation to maintenance work.
BRAG/CONTRAST may charge a usage fee for its IT services or pass on any third party fees.
If BRAG/CONTRAST transmits any data on behalf of the Client to a third party or to the authorities through electronic portals or using similar means, the Client shall remain responsible for the content of these data.
In relation to all such applications, BRAG/CONTRAST warrants the diligent fulfilment of its obligations and that it will comply with Swiss statutory requirements. However, BRAG/CONTRAST declines any responsibility for ensuring absolute protection for data and for data transmission.
5. Industrial property rights and usage rights
All copyright and rights of usage over all documents, products or other results of work created by BRAG/CONTRAST along with the know-how developed or used in relation to such work shall remain with BRAG/CONTRAST.
BRAG/CONTRAST shall grant the Client a temporally unlimited, non-exclusive and non-transferable right of usage, to be exercised exclusively for its own purposes, over the documents, products or other results of work provided to it, including the relevant associated know-how.
Documents, products and other results of work, or any part thereof, along with individual technical statements, may only be disclosed by the Client to a third party with the express, prior written approval of BRAG/CONTRAST, or if a right of disclosure has arisen under the circumstances.
The client may only use or, if authorised to do so, disclose the documents provided to it by BRAG/CONTRAST, including in particular binding reports, in unamended form. The same shall apply in relation to products and other results of work, unless they are intended for subsequent processing by the Client.
Any reference to the contractual relationship in existence between the parties, in particular within the ambit of advertising or as a reference, shall only be permitted with the mutual agreement of both parties.
BRAG/CONTRAST shall be obliged to treat in confidence any confidential information that may come to its attention within the context of its relationship with the Client.
This shall not apply to any disclosure of confidential information that has been approved by the Client where necessary in order to uphold the legitimate interests of BRAG/CONTRAST, provided that the third party concerned is subject to an equivalent duty of confidentiality, or that occurs pursuant to a court or administrative order. The duty of confidentiality shall continue to apply after termination of the contractual relationship. This duty shall not prevent BRAG/CONTRAST from providing identical or similar services to other clients.
7. Fee, expenses and payment terms
Unless expressly agreed otherwise, BRAG/CONTRAST shall base its fees on the applicable hourly rates, determined according functional level and the degree of complexity, as well as the number of hours actually worked. The applicable hourly rates shall be regularly checked by BRAG/CONTRAST in order to ensure that they are consistent with the professional experience and training of employees and may be subject to periodical adjustments.
Unless expressly agreed otherwise, expenses and other outlays are not included in the fee and shall be invoiced to the Client at cost, or according to standard industry rates. If BRAG/CONTRAST avails itself of any third parties (e.g. lawyers) in order to provide its services, the Client undertakes, upon request, to settle the fees and any expenses due directly with these third parties, and to hold BRAG/CONTRAST harmless in respect of any obligations taken on.
Cost estimates shall be based on an assessment of the work that will be necessary in future in relation to the relevant task, and shall be conditional upon fulfilment by the Client of its duty to cooperate. Such estimates shall be based on the data provided by the Client. Accordingly, any such cost estimates shall not be binding for the definitive calculation of the fee. Cost estimates and any other fees or expenses indicated do not include value added tax.
Any subsequent changes to the services that are necessary or that are requested by the Client shall result in a reasonable adjustment of the fee. BRAG/CONTRAST may charge reasonable advance payments of fees or expenses and issue interim invoices for work carried out or expenses incurred. BRAG/CONTRAST may render the conduct of further work conditional upon the settlement in full of any amounts claimed.
Fee invoices and expenses claims shall be payable upon expiry of the payment term indicated in the fee invoice, as a general rule within 30 days.
BRAG/CONTRAST warrants the diligent performance of work in accordance with prevailing professional standards.
BRAG/CONTRAST shall bear liability for any losses incurred as a result of its services as prescribed by law, specifically in the event of wilful misconduct or gross negligence. Unless required otherwise by law, liability for any negligent breach of its obligations shall be limited to two times the annual fee for the work in question.
If the Client is jointly responsible for the loss owing to its own actions, BRAG/CONTRAST shall be released from any liability. In particular the provision of incomplete, contradictory or late information and documentation or the failure to pass on information and documentation shall be deemed to establish joint responsibility.
9. Warranty of BRAG/CONTRAST
If the completion of work within the meaning of Article 363 of the Swiss Code of Obligations [OR] has been agreed to, the Client shall be entitled to obtain the rectification of any defects by BRAG/CONTRAST. In the event that rectification is unsuccessful, the Client may claim a reduction in the price or withdrawal from the Contract. If any damages claims are available in addition, the disclaimer set forth in clause 8 shall apply.
10. Termination of the Contract and consequences
The Contract may be terminated ordinarily at any time in writing, either with immediate effect or from a specific date.
In the event of termination, the services provided up until termination of the Contract shall be remunerated by the Client. The services provided shall be paid for by the Client according to the number of hours actually worked at the relevant applicable hourly rates, in addition to any expenses incurred.
In the event of termination at an inopportune time, the terminating party undertakes to make good to the other party any losses arising for it as a result of the termination of the contractual relationship at an inopportune time.
In the event of termination as a result of a breach of contract by one of the parties, it shall make good to the terminating party any losses arising for it as a result of termination.
11. Documentation and data
Upon termination of the contractual relationship, BRAG/CONTRAST shall furnish the Client with its documentation and data in such a form as may be agreed upon. Any related services of BRAG/CONTRAST shall be chargeable.
In order to document its services provided, BRAG/CONTRAST shall be entitled but not obliged to retain copies of the Client’s documentation and data.
The Client shall be responsible for storing documentation and data and for compliance with statutory requirements. BRAG/CONTRAST shall ensure that it retains its own documentation and data and a period of ten years.
12. General provisions
These GTC may be amended by BRAG/CONTRAST at any time. Unless the client objects to the new GTC within a period of 60 days after notification, they shall be deemed to have been approved.
These GTC along with any other order confirmations shall be governed by Swiss law.
The parties agree that the courts of Zug shall have exclusive jurisdiction over any disputes arising in relation to these GTC, unless any other courts have exclusive jurisdiction according to mandatory statutory requirements.
Zug, November 2018