1 Scope
These general terms and conditions (GTC) are an integral part of the agreement concluded between the client and Rödl & Partner AG, Zurich (Rödl & Partner) (Agreement). The current and binding version of the GTC is published on the internet at www.roedl.com/agb-schweiz.
Provisions deviating from the GTC or conflicting general terms and conditions of the client are only valid if they have been expressly accepted by Rödl & Partner in writing.
2 Conclusion of contract
The order is deemed to be concluded when Rödl & Partner receives the order confirmation countersigned by the client or when the client accepts an offer from Rödl & Partner in writing.
3 Services
The content and scope of a specific order are recorded in writing. Rödl & Partner provides the services with the necessary care and in accordance with the applicable laws, ordinances and any applicable professional rules. Success in terms of certain economic or other consequences is not owed.
Expert opinions, reports, statements, presentations and other work results are only binding with their legally valid signature by Rödl & Partner or with a corresponding cover letter. Interim reports and preliminary work results, the draft character of which is expressly stated or arises from the circumstances, are non-binding and may differ significantly from the final result.
Unless expressly agreed as an assurance, deadlines are considered non-binding targets.
Subject to deviating provisions in the order, Rödl & Partner must only examine facts under Swiss law and/or base them on the execution of the order. Rödl & Partner is only obliged to lodge legal remedies and legal aid for the client if Rödl & Partner has been expressly authorized to do so.
4 Client’s cooperation
The client undertakes to take all necessary actions and submit declarations so that Rödl & Partner can fulfill its order properly and in a timely manner. In particular, the client must provide Rödl & Partner with all documents required for the execution of the order completely and in good time without being requested to do so, and inform Rödl & Partner in good time about all business transactions, processes and circumstances that could be essential for the proper fulfillment of the order.
It is the sole responsibility of the client to ensure that the documents and information provided, as well as the instructions given, are correct and complete, which is why Rödl & Partner may assume that the facts, figures, inventories and lists transmitted by the client are correct and complete when fulfilling its order.
Any additional expenses incurred by Rödl & Partner resulting from incomplete, incorrect and/or late submission of documents or information shall be borne by the client, even if a binding cost ceiling has been agreed.
5 Storage of documents
The client agrees that Rödl & Partner may store transmitted data, documents and information, including those of a personal nature, for the duration of the order until the expiry of the statutory retention obligations on data carriers (servers, computers, CD-ROMs, etc.), which may also be located abroad.
Documents that have been made available to Rödl & Partner will be destroyed after the statutory retention periods have expired, unless the client explicitly requests their return.
6 Information exchange and confidentiality
The client, being aware of the risks of e-mail traffic (e.g. data loss during transmission, third parties becoming aware of the content of unencrypted e-mail correspondence), agrees that information may be exchanged and confidential data transmitted between the client and Rödl & Partner by unencrypted e-mail. Each party is responsible for taking appropriate precautions to ensure error-free transmission or receipt and to detect elements that are defective in terms of content or technology.
Rödl & Partner and its employees shall maintain confidentiality during and after the assignment regarding all business and trade secrets as well as other confidential information of the client. All information that is not generally known or publicly accessible is considered confidential.
The disclosure of confidential information to third parties is excluded from the obligation of confidentiality (i) to the extent necessary to protect the legitimate interests of Rödl & Partner, provided that such third parties are subject to an equivalent obligation of confidentiality, or (ii) due to a legal obligation or an official or court order. Furthermore, Rödl & Partner is entitled, if this is necessary for the fulfillment of the order, to exchange confidential information among partners and employees regardless of their affiliation to the various divisions (lawyers, tax advisors or other advisors) and to disclose it to foreign companies of the Rödl & Partner Group and cooperation partners, including Barbier Habegger Rödl Rechtsanwälte AG, Winterthur.
The above obligations do not prevent Rödl & Partner from executing the same or similar orders for other clients while maintaining confidentiality.
7 Property and usage rights
All information, reports and expert opinions provided by Rödl & Partner are intended exclusively for the client and may be subject to copyright protection.
The transfer of work results of any kind as well as technical statements to third parties is only permitted with the written consent of Rödl & Partner and only against the issuance of corresponding release or reliance letters, in which explicit reference is made to the limitation of liability or the exclusion of liability of Rödl & Partner. Depending on the type and scope of the planned transfer, it must be discussed to what extent special agreements on professional liability are to be made within the scope of a due diligence. The restrictions on transfer do not apply to the client’s bodies, shareholders and/or subsidiaries.
The client is not permitted to modify binding reports from Rödl & Partner or other work results, unless their purpose is precisely further processing by the client.
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 consent of both parties.
8 Fees
Unless otherwise agreed, fees are charged according to time spent at the applicable hourly rates of Rödl & Partner employees. Billing is done with minimum units of 10 minutes. Travel times are charged at half the applicable hourly rate.
If the parties have agreed on a lump-sum fee in writing, this only applies to the services that explicitly fall under the lump-sum fee. Additional services are charged according to time spent.
In addition to the fee, Rödl & Partner is entitled to reimbursement of expenses incurred (travel expenses, meals, etc.). In addition, administrative expenses (such as postage, telephone, material, IT and license costs, etc.) are charged at an administrative fee of 5% of the fee. If Rödl & Partner commissions third parties to provide services after consultation with the client, the client undertakes, at Rödl & Partner’s request, to pay for these services directly and to indemnify Rödl & Partner against the obligations entered into.
Cost and fee estimates submitted by Rödl & Partner are merely estimates and do not constitute an agreed lump-sum fee. The cost and fee estimates are always based on the assumptions made and known at the time they are submitted. If unforeseen circumstances arise that lead to higher costs, Rödl & Partner will inform the client of this as soon as possible.
Should Rödl & Partner, in consultation with the client, carry out investigations that go beyond the agreed scope of services, or should it become apparent in the course of providing the services that further services are necessary to a significant extent, or should conditions of the agreed scope of services no longer be met in whole or in part, the client and Rödl & Partner will agree on a new determination of the fee.
9 Terms of payment
All fees and cost estimates are exclusive of value added tax.
Invoicing is generally carried out monthly. Rödl & Partner may demand reasonable advance payments on fees and expenses and issue interim invoices periodically for activities and expenses already incurred.
In the event of a request for an advance payment, the submission of an interim invoice or in the event of late payment, Rödl & Partner may postpone or discontinue the provision of its activities until the payment owed has been settled.
Invoices from Rödl & Partner are payable within 14 days of the invoice date by bank transfer. In the absence of notification to the contrary from the client, an invoice is deemed to have been accepted without objection within 10 days of delivery.
If the client is in default with his payments, reminders will be issued subject to a charge and default interest of 5% will be charged from the due date.
10 Liability
Rödl & Partner is liable to the client in the event of intentional or grossly negligent breach of its duties of care and other contractual obligations.
Any further liability, regardless of the title under which it is asserted, is excluded. In particular, but not exclusively, liability is excluded (i) for statements made by Rödl & Partner in the form of expectations, forecasts or recommendations regarding the occurrence of certain circumstances, (ii) for any claims by third parties due to the transfer of work results of any kind that have been passed on to third parties by the client without the consent of Rödl & Partner, and (iii) for the correctness and completeness of the documents and information provided by the client.
Complaints arising from the contract must be reported in writing immediately and Rödl & Partner must be given the opportunity to rectify the situation.
The liability of Rödl & Partner is limited to CHF 5,000,000, to the extent permitted by law. All limitations of liability also apply to all persons to whom Rödl & Partner has permissibly transferred the handling of business.
11 Termination of the order and its consequences
The order can be terminated in writing by either party at any time without observing a notice period, unless otherwise agreed in writing. This does not apply to mandatory audits and other statutory audits by auditors. If the termination occurs at an inopportune time, the terminating party is obliged to compensate the other party for the resulting damage.
Rödl & Partner is entitled to terminate the order with immediate effect and even at an inopportune time, in particular in the event of impending insolvency, over-indebtedness or repeated default in payment by the client, without Rödl & Partner becoming liable for damages as a result.
In the event of termination, the client must pay for the services provided by Rödl & Partner up to the time of termination on the basis of the actual time spent and the applicable hourly rates. In the case of an agreed lump-sum fee, this is owed pro rata for the services already rendered. Claims for damages due to termination at an inopportune time remain reserved.
12 Severability clause
Should provisions of these GTC be declared invalid, the other provisions of the GTC shall remain unaffected. The invalid provisions shall be replaced by lawful provisions that are as economically equivalent as possible.
13 Applicable law and place of jurisdiction
The order between the client and Rödl & Partner and these GTC are subject to Swiss law, to the exclusion of the provisions of the IPRG. The place of performance for the services thus determined for both parties is Zurich (Switzerland). The courts of the Canton of Zurich have exclusive jurisdiction over all disputes arising from the order or the GTC, unless another court has exclusive jurisdiction due to mandatory statutory provisions.