GTC

General Terms and Conditions for the Provision of Consultancy Services

§1 Contractual bases

1.1 These GTC apply to the provision of consulting services (hereinafter "services") by the Solution Process Experts GmbH and its network partners (hereinafter referred to as "SPE").

1.2 In addition to these GTC, the following Special Terms and Conditions shall apply, depending on the type of delivery or service agreed, and may also apply in parallel: The Special Terms and Conditions for Work Services ("BB Werk") shall apply to the provision of work services.

1.3 These GTC in their current version also apply to all future contracts for the provision of services between SPE and the client, even if not expressly referred to again.

1.4 The type and scope of services as well as deadlines and remuneration are specified in individual contracts with reference to these GTC. The individual contract as well as provisions in other customer-specific contractual documents (e.g. in SPE's offer) take precedence over the GTC and the Special Terms and Conditions in case of contradictions. The client's general terms and conditions do not apply even if SPE provides services without contradicting them.

1.5 SPE's offers are subject to change and non-binding, unless the offer is designated as binding in writing. The client is bound to his declarations on the conclusion of contracts for 4 weeks.

§ 2 Execution of the services

2.1 Unless otherwise agreed, the customer shall be responsible for project organisation and planning (including the coordination of other service providers) as well as for reporting and scheduling. The customer shall bear overall responsibility for the realisation of the project on time and within budget. The client's technical specifications must be confirmed in writing by SPE.

2.2 SPE will provide the agreed services in accordance with the state of the art. SPE performs all services carefully and by professionally qualified employees. SPE is authorised to use employees or subcontractors to provide the services at its own discretion. Regardless of the place of performance, these employees are not subject to the supervision and instructions of the client and do not enter into an employment relationship with the client. If employees are named (e.g. in an individual contract), this is done according to the respective level of knowledge and planning at the time the contract is concluded. Should it become necessary to replace employees, SPE will ensure that they have comparable qualifications. The client may request the replacement of employees for good cause. In this case, the client bears the costs of training a new employee.

2.3 If necessary, SPE will draw up a time and work plan in consultation with the client and update it as required. SPE will inform the client about the status of the work upon request. SPE may prepare minutes of discussions to clarify or change contractual circumstances, in particular the subject matter of the service, the schedule and the remuneration. These become binding on both parties if SPE provides them to the client and the client does not object in writing within one week of receipt, stating the reasons. SPE will inform the client of this effect in each case.

2.4 The contracting parties shall designate a responsible contact person in the individual contract. This contact person is authorised to make and receive the declarations required for the execution of the contract and to make the necessary decisions. The contractual partners shall only replace the contact person for good cause and shall inform each other immediately in the event of a replacement.

§ 3 Changes to services

3.1 If the client wishes to change his requirements/scope of services, SPE will examine the change request and submit a corresponding offer to the client. SPE may refuse to fulfil the client's change request if the change is not feasible or if SPE cannot reasonably be expected to carry it out within the scope of its operational capacity or for other reasons.

3.2 In the absence of other agreements, SPE may demand remuneration for the examination of a change request and for the preparation of a supplementary offer on a time and material basis in accordance with SPE's current price list. Unless otherwise agreed in the Supplementary Agreement, agreed execution periods are extended by the number of calendar days on which the contractual work had to be interrupted due to the change request, as well as by a reasonable restart time.

§ 4 Obligations of the customer to co-operate

4.1 The customer shall provide the cooperation services described in the following paragraphs and in the individual contract as well as any other cooperation services that may be required in a timely, proper and complete manner free of charge as an essential contractual obligation. The customer shall ensure that its employees have the qualifications and experience required for the co-operation services and shall release them from other activities to the extent necessary.

4.2 The client provides employees, complete and consistent information and documents, the necessary IT infrastructure, telecommunication facilities, test cases, test data and a test environment to the required extent, is responsible for their procurement and participates in specifications and tests. The client provides a suitable workstation with a PC with Internet access for SPE employees who provide services on the client's premises. Furthermore, the client shall ensure the necessary access to inspect the site and the premises concerned in a timely manner.

4.3 The client is responsible for the timely provision of current, complete, structured, consistent and correct test and real data, as well as functional interfaces including the detailed description of the client's own and third-party programmes to be integrated. The client shall ensure that all relevant data always reflect the client's actual operational circumstances and shall constantly maintain and update this data (e.g. remove old data) while observing SPE's specifications.

4.4 The client shall create all necessary conditions in his sphere of operation for the proper provision of services. In particular, he shall grant SPE access to his hardware and software to the extent necessary during the entire term of the contract. The client is responsible for the provision and licensing of third-party products (hardware, software, databases, etc.) required for the provision of the contractual services. It is the customer's responsibility to ensure the proper operation and availability of the third-party products, if necessary by means of licence and maintenance agreements with the manufacturers or suppliers of the third-party products during the term of the contract.

4.5 The client shall coordinate third-party services related to SPE's services in such a way that SPE does not experience delays, waiting times and/or additional expenses. If the subject of the individual contract is a data/system migration, the Client shall also ensure that the migration does not infringe the rights of third parties (e.g. to the Client's software to be migrated). If SPE performs services according to the client's specifications or integrates third-party components or the client's own components into its own services or existing systems at the client's request, SPE assumes no responsibility for the technical and legal characteristics of these third-party components or the consequences of implementing the client's specifications.

4.6 The general terms and conditions of the respective manufacturer apply to the hardware and software products delivered in connection with the provision of services by SPE. In any case, the warranty period begins with the installation of the products at the client's premises.

4.7 As part of its duty to prevent loss, the client shall take appropriate emergency precautions (e.g. regular data backups, regular checks of its IT systems) and, in the event of a total failure of its IT systems, shall ensure at least continuous emergency operation at all times by means of an appropriate emergency concept and emergency plans. In the absence of explicit written instructions in individual cases, SPE employees and the subcontractors commissioned by SPE can always assume that all data with which they come into contact is adequately protected against loss.

4.8 Waiting and downtimes as well as additional expenses incurred by SPE due to delayed, non-fulfilment or improper fulfilment of cooperation obligations will be charged to the client on a time and material basis. If the cooperation services to be provided by the client are rendered by SPE as a substitute after the fruitless expiry of a reasonable deadline set for this purpose, in the event of imminent danger also without setting a deadline, the resulting additional expenses shall also be remunerated on a time and material basis. Further claims of SPE remain unaffected.

§ 5 Confidentiality and data protection

5.1 The contracting parties undertake to maintain secrecy about all business and trade secrets of the other party that have been entrusted to them, made accessible to them or otherwise become known to them, as well as about other business relationships and operational facts, to use such confidential information only for the purpose intended in the individual contract and not to disclose it to third parties. The contracting parties shall only provide access to the confidential information to those employees and subcontractors who need to know it for the purposes of the individual contract. The confidentiality obligation shall apply for a period of three years after the termination of the individual contract.

5.2 The obligation to maintain secrecy shall not apply to confidential information which was already known to the recipient beforehand without an obligation to maintain secrecy or which is or becomes generally known without the recipient being responsible for this, or which is lawfully disclosed to the recipient by a third party without an obligation to maintain secrecy or which has demonstrably been developed independently by the recipient.

5.3 The contracting parties undertake to properly store all business items and documents made available to them and to hand them over to the other contracting party at any time upon request. In particular, they shall ensure that unauthorised third parties cannot gain access to them.

5.4 If personal data is processed, SPE will obligate the employees entrusted with this task in writing to maintain data secrecy (Section 5 BDSG) prior to their deployment. SPE is authorised to disclose personal data to subcontractors engaged in accordance with the contract, provided that such disclosure is necessary for the provision of the commissioned service. SPE will oblige the subcontractors to observe data secrecy. If the client provides SPE with access to his personal data, he will ensure that the relevant legal requirements for transmission to and processing by SPE are met.

5.5 If the client agrees to be named as a reference client, SPE may include the client's name in a reference list for its own advertising purposes and in this context also use the client's company logos, trademarks and logos in printed publications and on SPE's website.

§6 Remuneration and terms of payment

6.1 Unless otherwise agreed, services shall be remunerated on a time and material basis at the agreed daily or hourly rates. If no provision is made in the individual contract regarding the amount of remuneration, the current SPE price list at the time of conclusion of the individual contract shall apply.

6.2 The remuneration will be invoiced to the client monthly at the beginning of the month following the provision of the service upon submission of SPE's usual activity reports. Unless otherwise agreed between the contracting parties, the daily rates for remuneration on a time and material basis cover a working time of eight hours. Any additional workload per day will be remunerated on an hourly basis, but at least four hours. A surcharge of 100 % shall be levied for weekend and public holiday work (public holidays at the location of the work assignment) and night work (from 7 p.m. to 7 a.m.).

6.3 The actual costs incurred by the employee for travelling from his place of work to the client's registered office will be charged as travel expenses. SPE is responsible for selecting the means of transport (flight: business class or economy class in Europe, train: 1st class, car: CHF 0.80 / km or CHF 0.90 / km). Accommodation costs are charged at cost, meals are charged at a flat rate in accordance with the applicable maximum tax rates. Travelling time is working time and will be charged to the client at 50 % of the applicable hourly rate.

6.4 All payments are to be made by the customer within 14 calendar days of the invoice date without deduction. All prices are subject to the applicable statutory value added tax.

6.5 If the client is in default of payment, SPE may suspend the contractual services with immediate effect after the fruitless expiry of a two-week grace period until the client has met his payment obligations in full. Further rights of SPE due to the client's default of payment remain unaffected. The client is only entitled to set-off and to exercise rights of retention if his counterclaim is undisputed or has been recognised by declaratory judgement.

§7 Liability

7.1 SPE shall pay compensation for property damage and financial loss as well as for futile expenses, irrespective of the legal grounds, only to the following extent:

• in the event of intent and gross negligence as well as the assumption of a guarantee for all cases of damage occurring during the term of the contract up to the total amount of the order value of the individual contract.
• in all other cases only in the event of a breach of an essential contractual obligation, without which the achievement of the purpose of the contract would be jeopardised and on the fulfilment of which the customer may therefore regularly rely (so-called cardinal obligation), namely to compensation for typical and foreseeable damage, but limited in amount to the respective order value of the individual contract concerned up to CHF 250,000 (as a maximum upper limit).

7.2 SPE is liable for the recovery of data within the limits of § 7.1 only to the extent that the client has ensured that the data can be reproduced at any time with reasonable effort from stocks held in machine-readable form.

7.3 The above limitations of liability also apply in favour of SPE's legal representatives, vicarious agents and employees.

7.4 Liability for damages arising from injury to life, limb or health and under the Product Liability Act shall remain unaffected by the above provisions.

7.5 Insofar as claims for damages exist against SPE, its employees and/or vicarious agents, these shall become time-barred within one year after completion of the order. The statutory limitation period for claims against SPE due to intentional or grossly negligent breaches of duty and fraudulent intent remains unaffected.

§8 Rights of use

8.1 Unless otherwise agreed, the client receives the non-exclusive, irrevocable, temporally and geographically unrestricted right to use protectable deliveries and services that SPE provides to the client for the client's own business purposes agreed or assumed by both parties, subject to the condition precedent of full payment of the agreed remuneration.

§9 Non-solicitation clause

9.1 During the term of the individual contract and for a period of 12 months after its termination, the contracting parties undertake not to entice away any employees of the other contracting party (or its subcontractors) involved in the provision of services and to recruit them for themselves or for another company in which they have a significant shareholding or to employ them in any other way. Poaching is presumed to have taken place if the recruitment of the employee is not demonstrably attributable to a public job advertisement.

9.2 For each case of culpable infringement, a contractual penalty of 25% of the last gross annual salary of the headhunted employee shall be due. Further claims of the contractual partners remain unaffected. Any contractual penalty paid shall be offset against the claim for damages.

§10 Contract term and cancellation

10.1 In the case of continuing obligations without a fixed contract end date, either contracting party may terminate the contract with a notice period of two months to the end of the month, unless otherwise agreed in the individual contract.

10.2 The right of both contracting parties to terminate the contract for good cause remains unaffected.

10.3 Any cancellation must be in writing to be effective.

§11 Final provisions

11.1 Any assignment or transfer of contractual rights and obligations by the client to third parties - including affiliated companies of the client - requires the prior written consent of SPE.

11.2 All amendments and additions to the contract must be made in writing to be effective (fax is sufficient, e-mail is not). The written form requirement itself can only be cancelled in writing.

11.3 Swiss law shall apply exclusively, to the exclusion of the provisions on private international law (IPRG) and the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG). The place of jurisdiction for all disputes arising in connection with the contract is the court responsible for SPE's registered office. SPE has the right to take legal action in any other national or international court with jurisdiction.

11.4 Should individual provisions of these GTC or the individual contract be or become invalid, or should the contract contain a loophole, this shall not affect the validity of the remaining provisions. The invalid or missing provision shall be replaced by a valid provision that comes as close as possible to the economic intentions of the contracting parties at the time the contract was concluded.

Status: 01.01.2024