General Business Terms (GBT) RBT AG
1. Scope of Application
These General Business Terms ("GBT") apply to all present and future services provided by RBT AG ("Trustee") to its clients. The engagement letter and these GBT shall form the contractual basis for the provision of services by the Trustee to the Client. The parties may make provisions in the engagement letter that deviate from these GBT.
2. Basics of business relationships
The subject matter of the contract shall be the activities agreed in the engagement letter in the individual case and to be performed by the Trustee. The Trustee shall not grant any warranty or guarantee for the occurrence of specific economic events or consequences, even if the Trustee assists the Client in an advisory capacity. For this reason, notwithstanding the provision of certain work results, the Trustee shall not make any binding statements in the form of expectations, forecasts, or recommendations regarding the occurrence of certain results.
Insofar as deadlines are not expressly agreed as binding assurances, they shall be considered as general targets.
Expert opinions, statements, presentations and similar, shall not be binding until they have been legally signed. Interim reports and preliminary deliverables, the draft nature of which is explicitly stated or is evident from the circumstances, may differ significantly from the final outcome and are therefore not binding.
The Trustee may make use of the services of suitable third parties for service provision; these shall also be subject to the obligation of confidentiality pursuant to Section 6.
Subsequently agreed changes to services may result in an adjustment of the fee.
3. Cooperation of the Client
All information and documents required for the proper performance of the services shall be provided by the Client to the Trustee in a timely manner and without being requested to do so. The Trustee may assume that the supplied documents and information are correct and complete.
The Trustee shall not check the accuracy and legality of provided documents and information.
4. Digital information exchange
The parties may use electronic solutions (e-mail, communication platform, cloud services and similar) for the performance of their services as well as for communication. Data may be intercepted, destroyed, tampered with, or otherwise adversely affected during electronic transmission and storage and may be lost for other reasons and arrive delayed or incomplete. Each party shall therefore undertake, on its own responsibility, to provide adequate precautions to ensure error-free transmission, receipt, and storage as well as to detect elements that are defective in terms of content or technology.
The Trustee shall take adequate precautions to ensure that its data processing systems and the Client data are located in Switzerland or a secure third country and that the data are adequately protected against loss and theft. The Trustee is free to source appropriate services from professional third-party providers.
The Trustee may make third-party software available to the Client. The conditions are based exclusively on the information provided by the software provider. However, the Trustee shall ensure that the software is maintained and updated as specified by the Vendor. The Client acknowledges that the Third-Party Provider may have access to its data in the course of maintenance.
The Trustee may charge a user fee or pass on third-party fees for its IT services.
If the Trustee transmits data on the Client´s behalf to third parties or authorities via electronic portals or in a similar manner, the Client shall remain responsible for the content of such data.
In all these applications, the Trustee is responsible for the diligent performance of its obligations and compliance with Swiss legal requirements. However, it cannot assume any responsibility for the absolute protection of data and data transmission.
5. Property rights and rights of use
All copyrights and rights of use to all documents, products or other work results produced by the Trustee, as well as the know-how developed or used in the process, shall remain with the Trustee. The Trustee shall grant the Client in each case a non-exclusive and non-transferable right of use for an unlimited period of time for the Client's own exclusive use of the documents, products and other work results provided to it, including the respective associated know-how.
The transfer of documents, products and other work results or parts thereof, as well as individual professional statements by the Client to third parties is only permitted with the prior express written consent of the Trustee or if the right to transfer arises from the circumstances.
The Client may only use the documents provided to it by the Trustee, in particular the binding report, in an unchanged condition or pass them on, if it is authorised to do so. The same applies to products and other work results, insofar as their purpose does not consist of 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.
The Trustee is obliged to maintain confidentiality regarding all confidential information of which it gains knowledge in the course of the Client relationship.
An exception to this is the disclosure of confidential information in the event of the existence of an authorisation by the Client for the necessary protection of legitimate interests of the Trustee, insofar as the respective third parties are subject to an equivalent obligation of confidentiality, as well as upon court or official order. The obligation to maintain confidentiality shall continue to exist beyond the termination of the contractual relationship. This obligation shall not prevent the Trustee from performing the same or similar contracts for other Clients.
7. Fees, expenses, and terms of payment
The fee is determined in the engagement letter. Unless expressly agreed otherwise, the fee shall be based on the applicable hourly rates of the Trustee and the actual time spent. Cost estimates are based on the estimation of the work that will necessarily be required in the future within the scope of the task and presuppose the execution of the Client's obligation to cooperate. The data provided by the Client represents the starting point for such estimates. Consequently, such cost estimates are not binding for the final calculation of the fee. Cost estimates and other statements of fees or expenses are exclusive of value-added tax.
Any subsequent changes to the content of the service that may be necessary or requested by the Client will result in an appropriate adjustment of the fee. The Trustee may request reasonable advances on fees or expenses and may issue interim invoices for work performed and expenses incurred. It may make the performance of further activities dependent on the full payment of the amounts claimed.
Fee invoices and statements of expenses are due for payment after expiry of the payment deadline on the fee invoice.
The Trustee shall be responsible for the diligent performance of the mandate in compliance with the standards of the profession.
The Trustee shall be liable for damages arising from its services to the extent prescribed by law, namely in the event of unlawful intent or gross negligence. For the negligent breach of its obligation, the liability is limited, as far as legally permissible, to a maximum of twice the annual fee for the respective contract.
If the Client's conduct is partly responsible for the damage incurred, the Trustee shall be exempt from liability. In particular, incomplete, contradictory, or delayed information and documents, as well as information or documents that have not been passed on, shall be deemed to be jointly responsible conduct.
9. Warranty of the Trustee
If the production of work has been agreed within the meaning of Art. 363 CO, the Client shall be entitled to have any defects remedied by the Trustee. If the rectification of defects fails, the Client may either demand a reduction in the price or withdraw from the contract. Insofar as claims for damages exist beyond this extent, the limitation of liability pursuant to section 8 shall apply.
10. Termination of the contract and its consequences
The contract may be terminated by either party at any time in writing with immediate effect or with effect from the expiry of a specified date.
In the event of termination, the services rendered up to the time of termination of the contract shall be remunerated by the Client. The services rendered shall be paid for by the Client on the basis of the effective time spent and the applicable fee rates, plus the expenses incurred.
If a termination is untimely, the terminating party undertakes to compensate the other party for the damage it suffers as a result of the untimely termination of the contractual relationship.
In the event of termination as a result of a party's conduct in breach of the contract, the party terminating the contract shall compensate the party terminating the contract for the loss it incurs as a result of the termination.
11. Documents and data
Upon termination of the contractual relationship, the Trustee shall make available to the Client its documents and data in a form to be agreed. The corresponding services of the Trustee are subject to a fee. The Trustee shall be entitled, but not obliged, to retain copies of the Client's documents and data for the purpose of documenting its services rendered.
The Client shall be responsible for the storage of the documents and data, as well as for compliance with the legal regulations. The Trustee shall ensure that it retains its records and data for a period of ten years.
These GBT may be amended by the Trustee at any time. If the Client does not reject the new GBT within a period of 60 days following notification, they shall be deemed to have been approved.
The engagement letter, as well as these GBT, are subject to Swiss law.
For all disputes arising therefrom, the parties agree that the exclusive place of jurisdiction shall be the registered office of the Trustee.
The place of performance is St. Moritz.
Version 14 July 2023