Last Update 02.09.2018
1. Scope of validity
The following General Business Terms and Conditions apply to contracts between Chenevieres Consulting SA (hereinafter the “Agent”, Consultant” or “CCSA”) and the Principle (hereinafter the “Principle” or “Client”), unless, in an individual case the law requires a mandatory way of handling else, or unless the Contracting Parties have expressly agreed on something else in writing.
CCSA is primarily a consulting firm and service provider for businesses and SMEs. Consequently, the present terms and conditions are understood as the basis of the business relationship between business to business (B2B) and explicitly not for consumers, who get in touch with us through a variety of distribution channels – especially through our websites (https://firstadvisor.ch or https://firstadvisor.net). By using our websites and subsequent contact, our terms and conditions are automatically accepted.
2. General content of a contract
2.1 The subject matter of the contract is the activities agreed in the individual case, to be carried out by the consultant, but not the guarantee of the occurrence of certain economic, legal, tax or other consequences. Therefore, notwithstanding the provision of certain work results, the consultant will not make any statements in the form of expectations, forecasts or recommendations in the sense of a guarantee regarding the occurrence of such circumstances or actual success. Submitted work results are intended as an update of the progress of the work conducted only and are subject to a constant change in the legal and tax circumstances.
2.2 Time frame announcements are regarded as general targets unless they are expressly agreed as binding deadlines.
2.3 Appraisals, valuations, statements, presentations and the like are only binding upon their legally valid signing. For other work results, the liability must be recorded in the same way in a corresponding letter of completion. Interim and preliminary results, the nature of which is expressly stated or deriving from the circumstances, may differ materially from a final result and are therefore not binding. Internal appraisals and valuations are only for the preparation of specifically targeted work order and will not be made available to the client. However, the client has the right to demand a copy of the expert opinion or valuation that can be used for business transactions. The consultant then calculates the standard fee for corresponding work, taking into account any fees already paid for internal work.
2.4 For the purpose of successful handling of the contractually agreed services, the consultant may assign suitable third parties from affiliated companies as well as external parties without consulting the client, provided this has no effect on the previously agreed fee. Therefore, the CCSA will separately disclose third-party costs in any offers.
However, if commissioning of third parties is necessary and will result in expanding the range of services of the contractual agreement, the commissioning will only take place after consultation with the client and at his expense.
2.5 Subsequent changes to the service content are subject to an appropriate adjustment of the agreed fee.
3. Participation of the customers
Customers or clients have to provide CCSA with all relevant information and documents necessary for a proper performance of the services in good time without special request. The consultant may assume that the documents and information provided and any instructions given are correct and complete.
A failure to cooperate does not lead to the cancellation of an order. On the contrary, if the order continues to be disrupted (non-payment of bills and out-of-pocket expenses, refusal of information or documents), CCSA may bill the full documented order volume after a one-off deadline of 5 working days. Due to time delay resulting in additional costs the client has to take over.
4. Exchange of Information
4.1 The Contracting Parties undertake to maintain secrecy with regard to all confidential information obtained by them on the occasion of or in connection with the receipt or performance of services in the course of the performance of the contractual relationship. Confidential all data on facts, methods, and knowledge to apply, which are not generally known or not publicly available at least in their concrete application in the context of the execution of the contract. Excluded from this is the disclosure of confidential information necessary to safeguard justified own interests, as far as the respective third parties are subject to an equivalent obligation of secrecy.
The obligation of confidentiality continues beyond the termination of the contractual relationship. The above obligation does not prevent the contractor from executing similar or similar orders for other clients while maintaining confidentiality.
4.2 The Parties may use their communications in the context of the contractual relationship of electronic media such as telephone, fax, e-mail or other communications services. However, the parties are aware that the electronic transmission of data may be intercepted, destroyed, manipulated or otherwise adversely affected, as well as being lost, late or incomplete for other reasons. It is, therefore, the responsibility of each party to take reasonable precautions to ensure error-free transmission or acceptance as well as the detection of content- or technically-defective elements.
4.3 The consultant may have the information coming to her knowledge, in particular also the personal data of the customers, processed by EDP or processed by third parties. This also makes the information accessible to people who perform system support and control functions as part of the processing process. The contractor will ensure that the relevant persons are also under the obligation to maintain confidentiality.
4.4. The obligation to maintain secrecy shall cease to apply at the time of request for the provision of information by authorities in Germany and abroad as well as in court proceedings, provided that the information obtained serves to prove and prove evidence.
5. Protection of trademarks and usage rights
5.1 All protection and trademark rights such as intellectual property rights and license rights to the documents, products or other work results produced by the contractor during the execution of the contract, as well as the know-how developed or used therein, shall be deemed to exist irrespective of cooperation between the contractor and the client Client only to the Contractor, unless there were written individual agreements on individual issues.
5.2 However, the consultant grants the client a non-exclusive and non-transferrable right of use for the permanent exclusive use of his / her own documents, products and other work results, including their respective know-how.
5.3 The forwarding of documents, products, and other work results or parts thereof as well as individual technical statements to third parties by the client is only permitted with the express wrote consent of the contractor. Infringements shall, upon notice, without further evidence of actual damage, result in a lump-sum compensation amounting to 50% of the net fee agreed or invoiced with the client.
5.4 The client fails to change the documents provided to him by the contractor, in particular, the binding reporting. The same applies to products and other work results, as far as their purpose is not just further processing by the client.
5.5 A 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 agreement of both parties.
6. Fees and expenses
6.1 Fees as well as their due and payability i.d.R. agreed in individual mandate contracts after consultation with the customer. These individual agreements take precedence over the general terms and conditions.
6.2 In the absence of an express contractual stipulation, the fee of the contractor in case of doubt in the case of tax matters on the basis of the fee recommendation of the Swiss Trustee Chamber, to determine in legal matters based on the Zurich attorney tariff, unless the agreed hourly rates arise from pre-contractual communication.
Fee rate for corresponding work.
6.3 In addition to the fee claim, the contractor is entitled to reimbursement of expenses incurred and, if applicable, third-party fees, provided that the work exceeds the previously contractually agreed performance content – see 2.4 paragraph 2.
If the contractor uses the services of third parties to provide the services required by the client, the customer undertakes, on request, to settle the claims for compensation and incurred expenses of these third parties directly and indemnify the contractor from any obligations entered into.
6.4 Estimates are based on estimates of the amount of work necessarily required and are prepared on the basis of the data provided by the client. Therefore, they are not binding for the final calculation of the fee. Quotations and other details of fees or expenses are exclusive of any possibly to be calculated and payable VAT. This can be requested later than 5 years after the date of the invoice, if there is a dispute with the responsible tax authorities about the possible payability of VAT.
6.5 The Contractor may demand reasonable advances on fees and expenses as well as individual or regular interim invoices for already performed activities and expenses. In the case of an advance payment or submission of an interim invoice, it may make the performance of further activities contingent upon the full payment of the claimed amounts.6.6 Fees and billing of expenses shall be paid within 10 days to the account specified by the Contractor Unless it was previously agreed in writing an extension of the payment date. After expiry of the term of payment, the client is automatically in default without further reminder.
6.7 In the event of default of payment of the client or principal, the contractor is – as far as legally permissible – exempted from the performance of other activities for the duration of default. In such a case, a “non-performance” of services can not lead to a delay in performance and thus to termination of the contractual relationship.
The contractor is liable for an intentional or grossly negligent breach of its obligations. For the grossly negligent breach of its obligations, the liability is limited, as far as legally permissible, to a maximum of three times the fee for the order concerned.
If the production of a work has been agreed within the meaning of Art. 363 OR, the client is entitled to the rectification of any defects by the contractor. If the rectification fails, the client may demand a reduction or withdrawal from the contract. Insofar as claims for damages also exist, item 7 applies.
9. Termination of the contract and its consequences
9.1 A contract may be terminated by both parties at any time in writing with two weeks’ notice at the end of the month or the expiration of a certain date – if contractually agreed – but the minimum contract period for the assumption of tax mandates is a full 6 months; full takeover of company domiciles and services for a full 12 months. This serves to cover the incurred start-up costs.
9.2 In the event of the ordinary termination of the contract, the client must pay for the services rendered up to the time the contract is terminated on the basis of the effective hourly costs and the applicable hourly rates plus the expenses incurred. In accordance with the client’s performance commitments made to third parties are compensated and thus to indemnify the contractor.
9.3 If the ordinary cancellation is made at an inopportune time, the terminating party is obligated to compensate the other party for the damage resulting from the termination – as far as legally permissible – without additional proof of actual damage at a flat rate of 30% of the amount agreed with the client or cleared net royalties. An already incurred fee claim on the basis of the effective hourly expenses and the applicable hourly rates plus the incurred expenses remains unaffected.
9.4 In the event of an extraordinary termination due to the breach of contract by a contracting party, the latter shall indemnify the party giving notice as a result of the termination – to the extent permitted by law – without further proof of actual damage to a lump sum of 30% of the amount agreed with the client or cleared net royalties. An already incurred fee claim on the basis of the effective hourly expenses and the applicable hourly rates plus the incurred expenses remains unaffected.
10. Final provisions
10.1 Should one of the above provisions be or become ineffective or objectively not executable, this shall not affect the validity of the remaining provisions. The Parties agree to replace this ineffective or unenforceable provision with a clause that is close to, and broadly in line with, the original intended provision.
10.2 The persons signing to the present contract on behalf and in favor of the contracting parties declare that they are entitled to make declarations of intention and to undertake obligations on their behalf.
11.1 These terms and conditions (GTC) are subject to Swiss law.
The court having jurisdiction over the place of establishment of the consultant without exception is responsible for all disputes arising from a contract, unless another court has primary jurisdiction due to mandatory statutory provisions.
Last version of the Terms and Conditions: 02.09.2018.