General Terms and Conditions

1. Scope and Contractual Basis

1.1 These General Terms and Conditions (“GTC”) govern the conclusion, content and performance of all contracts between Sulzer Consulting GmbH, Bleichimattweg 2, 6300 Zug, Switzerland (“Sulzer Consulting”) and its clients (“Client”) for services in the field of information technology. These include in particular IT consulting, on-site and remote IT support, managed services (e.g. monitoring, endpoint protection, maintenance), software development and maintenance, project services, the procurement and administration of licenses and cloud services, and the supply of hardware (“Services”).

1.2 The GTC apply to all quotations, orders and contracts, even where they are not expressly referred to in an individual case. By placing an order, accepting a quotation or accepting a Service, the Client acknowledges these GTC. General terms and conditions or purchasing conditions of the Client do not apply unless Sulzer Consulting has expressly accepted them in writing.

1.3 In the event of conflict, the contractual documents apply in the following order of precedence: (a) the individual contract signed by both parties, including its annexes (e.g. service description, service level agreement); (b) the accepted quotation or the order confirmation; (c) these GTC. For third-party products and services, the terms of the respective manufacturer or provider apply in addition (clause 7).

1.4 Separately concluded agreements, in particular non-disclosure agreements and agreements on the processing of personal data on behalf of the Client, remain reserved and take precedence over these GTC within their respective scope.

1.5 The version of the GTC in force at the time the contract is concluded is authoritative. The current version is available on the Sulzer Consulting website (sulzer.it).

2. Quotations and Conclusion of Contract

2.1 Quotations from Sulzer Consulting are valid for 30 days from the date of the quotation unless stated otherwise. Prices for third-party products and services (hardware, licenses, cloud services) are subject to change until the order is placed with the manufacturer or distributor.

2.2 The contract is concluded when the Client signs or accepts the quotation in writing (including by email or electronic signature), when Sulzer Consulting issues an order confirmation or, for orders without a quotation, when Sulzer Consulting begins performing the Services at the Client’s request.

2.3 Orders may also be placed orally, by telephone, by email or via the ticketing system. Sulzer Consulting may assume that requests made by the Client’s employees within the scope of their usual function are authorized by the Client. The Client may notify Sulzer Consulting in writing which persons are entitled to represent it and to place orders; from that notification onwards, only those persons are so entitled.

2.4 Effort estimates in quotations are non-binding indications unless expressly designated as a fixed price or a cost ceiling.

2.5 Sulzer Consulting may request a reasonable advance payment or security from new clients, for larger orders and for hardware and licenses it must procure in advance.

3. Performance of Services

3.1 The nature and scope of the Services are set out in the quotation, the order confirmation or the individual contract. Sulzer Consulting performs the Services professionally, using recognized methods and the state of the art, with due care, and documents the Services performed to a reasonable extent.

3.2 Unless a specific work result (deliverable) or a service level has been expressly agreed, Sulzer Consulting owes diligent performance within the meaning of the law on mandates (Auftragsrecht), not a specific result. Consulting services are recommendations; the decision on their implementation rests with the Client.

3.3 Unless otherwise agreed, business hours are Monday through Friday from 09:00 to 17:00, excluding the statutory public holidays in the Canton of Zug. Outside business hours, Sulzer Consulting performs Services subject to availability; the surcharges under clause 5.3 apply.

3.4 Response and recovery times as well as availability levels are binding only if agreed in writing in a service level agreement. In the absence of such an agreement, Sulzer Consulting responds to requests and incidents on a best-effort basis within business hours and according to urgency.

3.5 Sulzer Consulting may use remote maintenance, monitoring, endpoint protection and management tools to perform the Services and may install and operate them on the Client’s systems. The Client consents to their installation and to the associated collection of technical data (e.g. device, event and connection data) to the extent required for operation, support and security. These tools are removed or deactivated upon termination of the contract.

3.6 Sulzer Consulting announces planned maintenance work that may cause interruptions in advance and carries it out outside the Client’s business hours where possible. Urgent security updates and measures to avert acute threats may be carried out without prior notice; the Client is informed without delay.

3.7 In cases of imminent danger, in particular ongoing or imminent security incidents, Sulzer Consulting may take the immediate measures required to avert damage (e.g. isolating devices, blocking accounts, disconnecting connections) without the Client’s prior consent and may invoice the effort involved. Sulzer Consulting informs the Client as soon as possible.

3.8 Sulzer Consulting determines the persons deployed and may engage subcontractors and other auxiliary persons to perform the Services. It selects them with care and binds them to confidentiality. Sulzer Consulting may also work for other clients, including competitors of the Client.

3.9 Sulzer Consulting may replace the tools, procedures and third-party products used to perform the Services with equivalent ones, provided the agreed purpose of the Services is maintained. Material changes are communicated to the Client in advance.

3.10 Dates are non-binding target dates unless expressly designated as binding in writing. They are extended appropriately if the Client fails to meet its duties to cooperate in time, requests changes, or if third parties (e.g. manufacturers, suppliers, telecommunications providers) fail to deliver on time.

3.11 Changes to the agreed scope of Services (change requests) must be agreed in writing. Sulzer Consulting informs the Client of the effects on costs and dates; additional effort is invoiced on a time-and-materials basis. Until agreement is reached, Sulzer Consulting continues the work unchanged.

4. Duties of the Client to Cooperate

4.1 The Client provides Sulzer Consulting in good time and free of charge with all information, documents, access and resources required to perform the Services. This includes in particular access to premises, systems and data on site and remotely (e.g. VPN, remote desktop), the necessary permissions and administrator accounts, and a technically competent contact person.

4.2 The Client is responsible for the regular and complete backup of its data and systems, unless Sulzer Consulting has expressly assumed data backup as a Service. Before interventions in systems (e.g. migrations, updates, configuration changes), the Client ensures that a current and restorable backup is available.

4.3 The Client is responsible for the lawfulness of its data, content and instructions and for the proper licensing of software it has procured itself.

4.4 The Client implements reasonable security measures within its area of responsibility (e.g. strong passwords, multi-factor authentication, timely installation of updates, staff awareness) and follows the security recommendations of Sulzer Consulting. If the Client rejects or delays security, maintenance or update measures recommended by Sulzer Consulting, it bears the resulting risks and consequences itself.

4.5 The Client reports incidents and service requests via the agreed channels (e.g. helpdesk, ticketing system, email) with a comprehensible description and supports Sulzer Consulting, to the extent reasonable, in the analysis and resolution.

4.6 If the Client fails to fulfill its duties to cooperate, or does not do so in time or in the agreed manner, it bears the resulting consequences (e.g. delays, waiting times, additional effort, increased risks). Sulzer Consulting may invoice the additional effort caused thereby on a time-and-materials basis.

5. Prices and Charging

5.1 The prices and rates agreed in the quotation, the order confirmation or the individual contract apply; otherwise, the Sulzer Consulting price list valid at the time the Services are performed applies. All prices are in Swiss francs and exclusive of statutory value added tax.

5.2 Services on a time-and-materials basis are invoiced according to the actual time spent. Time is recorded in units of 15 minutes. Unless otherwise agreed, a minimum charge of 30 minutes applies per remote intervention and 60 minutes per on-site intervention. Travel time, call-out and expenses (e.g. travel costs, accommodation, materials, shipping) are invoiced in addition, either as a flat rate or on a time-and-materials basis, as stated in the quotation.

5.3 For interventions outside business hours (clause 3.3), on weekends and on public holidays, the surcharges stated in the quotation or price list apply. These surcharges apply only to unplanned incidents requiring immediate action or to interventions expressly requested by the Client for these times. Maintenance work that Sulzer Consulting itself schedules outside business hours for operational reasons is invoiced at the standard rate.

5.4 An agreed cost ceiling limits the effort that may be invoiced without the Client’s consent. It constitutes neither a fixed price nor an assurance that the Service can be completed within the cost ceiling. If the ceiling is likely to be exceeded, Sulzer Consulting informs the Client in advance and obtains its consent.

5.5 For fixed prices, the Service is remunerated in accordance with the agreed description. Additional services, changes (clause 3.11) and additional effort resulting from a lack of cooperation or from incomplete or incorrect information provided by the Client are invoiced on a time-and-materials basis.

5.6 Recurring Services (e.g. managed services, monitoring, licenses, hosting) are invoiced monthly in advance unless otherwise agreed. Usage-based Services and licenses (e.g. per device or user) are invoiced according to the actual quantity; changes in quantity take effect from the following billing period.

5.7 Sulzer Consulting may adjust the prices for recurring Services with two months’ notice to the end of a month. In this case, the Client may terminate the affected Service as of the date on which the adjustment takes effect. Sulzer Consulting may pass on price changes by manufacturers and providers as well as exchange rate changes for third-party products and services; these apply from the date on which they take effect for Sulzer Consulting.

6. Invoicing and Payment

6.1 Services on a time-and-materials basis are invoiced monthly, one-off services and deliveries upon performance or delivery, and projects according to the agreed payment schedule. Sulzer Consulting provides the Client with a report of the Services invoiced together with the invoice or upon request.

6.2 Objections to invoices or reports must be notified in writing, with reasons, within 30 days of the invoice date; otherwise the invoice is deemed accepted. Undisputed parts of the invoice must be paid within the payment period.

6.3 Invoices are payable within 30 days of the invoice date without deduction. Upon expiry of the payment period, the Client is in default without a reminder being required. Default interest of 5% per annum is owed; reminder and collection costs are borne by the Client.

6.4 In the event of default in payment, Sulzer Consulting may, after a written reminder and a grace period of 10 days, suspend or withhold its Services in whole or in part, block access to services it operates and refrain from renewing licenses until the outstanding amounts have been settled. Contractual deadlines and dates are extended accordingly; the remuneration remains due. Sulzer Consulting is not liable for the consequences of such a suspension.

6.5 The Client may set off claims of Sulzer Consulting only against counterclaims that are undisputed or have been established by a final court decision.

7. Third-Party Products and Services

7.1 Sulzer Consulting procures and administers licenses, subscriptions, cloud services, security services and hardware from manufacturers and providers on behalf of the Client (“Third-Party Products”). The license, usage and service terms of the respective manufacturer or provider apply to the use of Third-Party Products, and the Client accepts them by placing the order. Sulzer Consulting provides these terms upon request.

7.2 Terms, minimum quantities, notice periods and price changes of the manufacturer or provider also apply between Sulzer Consulting and the Client. Licenses and subscriptions cannot be revoked once ordered. In the event of early termination, the remuneration remains owed until the end of the term entered into with the manufacturer or provider (e.g. annual commitment); prepaid amounts are not refunded.

7.3 Sulzer Consulting’s warranty and liability for Third-Party Products are limited to the guarantee and warranty commitments of the manufacturer or provider. Sulzer Consulting supports the Client in asserting such claims and, upon request, assigns its own claims against the manufacturer or provider to the Client where possible. Sulzer Consulting is not liable for the availability, functionality, security, data location, modification or discontinuation of third-party services (e.g. cloud, hosting, telecommunications and security services); the commitments of the respective provider are authoritative. Sulzer Consulting’s duty of care in the selection, set-up and advice within the scope of its own Services remains reserved.

7.4 Third-party security services (e.g. endpoint protection, managed detection and response, management of administrator privileges) are provided by the respective provider and administered by Sulzer Consulting. They reduce risks but do not guarantee that all attacks are detected or prevented.

7.5 Hardware: delivery dates are non-binding unless designated as binding in writing. Benefit and risk pass to the Client upon handover to the Client or to the carrier. Delivered hardware remains the property of Sulzer Consulting until paid in full; the Client authorises Sulzer Consulting to have the retention of title entered in the register. The Client inspects the delivery without delay and notifies defects in writing within 5 business days; hidden defects must be notified immediately upon discovery. The manufacturer’s warranty applies; Sulzer Consulting provides no warranty beyond it.

7.6 For services that the Client obtains directly from a provider or administers itself (e.g. its own cloud tenants, accounts or domains), Sulzer Consulting is responsible only to the extent that it configures or manages them on the Client’s behalf.

8. Projects, Software Development and Acceptance

8.1 Projects and development services are performed on the basis of a quotation, a specification or an agreed task description. Where an agile approach is used, scope and priorities are defined jointly on an ongoing basis and the Services are invoiced on a time-and-materials basis unless otherwise agreed.

8.2 Where a work result is to be delivered, Sulzer Consulting notifies its completion. The Client examines the work result within 10 business days and reports any defects found in writing and in a comprehensible manner. The work result is deemed accepted if the Client does not report any material defects within this period, if it uses the work result productively, or if it pays for it without reservation.

8.3 Defects are material if they significantly impair the agreed use. Sulzer Consulting remedies reported material defects within a reasonable period and makes the work result available for re-examination. Immaterial defects do not prevent acceptance; they are remedied under the warranty.

8.4 Partial acceptances are permitted. They are subject to the proviso that the overall Service functions as a whole.

9. Warranty

9.1 Sulzer Consulting warrants that its Services conform to the agreed description and are performed with due care. For Services on a time-and-materials basis (in particular consulting, support and maintenance), Sulzer Consulting warrants diligent performance but not a specific result, a specific availability or the freedom from errors of the systems it supports.

9.2 For work deliverables (e.g. custom software, configurations, installations), the warranty period is six months from acceptance. Defects must be notified in writing and in a comprehensible manner within 30 days of acceptance, and hidden defects within 10 days of their discovery; otherwise the Service is deemed approved with respect to the defect concerned.

9.3 For defects notified in time, Sulzer Consulting is entitled, at its option, to rectify the defect within a reasonable period or to grant a reasonable price reduction. Further warranty claims, in particular rescission of the contract and substitute performance by the Client or third parties at the expense of Sulzer Consulting, are excluded. Claims for damages are governed exclusively by clause 13.

9.4 No warranty applies to defects or malfunctions attributable to (a) Third-Party Products (clause 7) or changes to them by the manufacturer (e.g. updates, end-of-life); (b) interventions, modifications or extensions by the Client or third parties; (c) improper use, operating errors or failure to follow instructions and recommendations; (d) missing or late cooperation by the Client, in particular failure to back up data; (e) changes to the system environment (e.g. new operating system or software versions) after acceptance; (f) undocumented or non-reproducible defects. The analysis and resolution of such malfunctions is invoiced on a time-and-materials basis.

9.5 IT security: Sulzer Consulting implements security measures in accordance with the state of the art and to the agreed extent. There is no such thing as absolute security; security incidents, malware, attacks and data loss cannot be ruled out despite careful measures. Sulzer Consulting therefore warrants neither uninterrupted security or availability nor that all attacks are detected or prevented. The remaining residual risk is borne by the Client; clause 13 remains reserved.

10. Rights to Work Results

10.1 Each party remains the owner of the rights to the data, software, documents and know-how it contributes to the collaboration. The Client’s data and content remain its property.

10.2 The copyright and other intellectual property rights in work results created by Sulzer Consulting in the course of performing the Services (e.g. software, scripts, configurations, concepts, documentation) remain with Sulzer Consulting or the entitled third parties. Upon full payment, the Client receives the non-exclusive, perpetual and irrevocable right to use the work results created for it for its own purposes, to adapt them and to have them maintained by third parties. Disclosure to third parties for other purposes and resale require the written consent of Sulzer Consulting. A transfer of the exclusive rights to custom software requires an express written agreement.

10.3 Sulzer Consulting may continue to use its know-how, methods, tools, libraries and reusable components freely and may provide similar services to other clients, provided that no confidential information of the Client is disclosed in doing so.

10.4 Source code is delivered only if so agreed. The respective open-source licenses apply to any open-source components used.

10.5 Sulzer Consulting warrants that, to the best of its knowledge, its own work results do not infringe the rights of third parties. The Client indemnifies Sulzer Consulting against third-party claims based on content, data or specifications provided by the Client.

11. Confidentiality

11.1 The parties treat all information of the other party that is neither public nor generally accessible as confidential; this includes in particular business secrets, access credentials, system configurations, customer data, prices and quotations. They use this information exclusively to perform the contract and disclose it only to employees and auxiliary persons who need it to perform the contract and who are themselves bound to confidentiality.

11.2 The confidentiality obligation does not apply to information that (a) is or becomes publicly known through no fault of the receiving party; (b) was demonstrably already known to the receiving party beforehand; (c) was lawfully obtained from third parties without a confidentiality obligation; or (d) must be disclosed by law or by order of an authority, in which case the disclosing party informs the other party in advance to the extent permitted.

11.3 The confidentiality obligations continue to apply after termination of the contract. More extensive obligations under a separate non-disclosure agreement remain reserved.

11.4 The Client agrees that communication with Sulzer Consulting may take place via unencrypted channels (e.g. email, telephone, messaging services) and acknowledges the associated risks. Encrypted channels are agreed at the Client’s request.

12. Data Protection

12.1 The parties comply with the applicable data protection law, in particular the Swiss Federal Act on Data Protection (FADP). The Client is responsible for the lawfulness of the processing of personal data within its area of responsibility and for informing the data subjects.

12.2 Where Sulzer Consulting processes personal data on behalf of and on the instructions of the Client, the parties conclude a separate data processing agreement governing the details of the processing, the technical and organizational measures and the engagement of sub-processors. Mere access to personal data in the course of support, maintenance and consulting services does not constitute processing on behalf of the Client; such access is subject to the confidentiality obligations under clause 11.

12.3 Sulzer Consulting may use third-party services (e.g. cloud, hosting, security and collaboration services) to perform the Services, including data processing abroad, provided that adequate data protection in accordance with the statutory requirements is ensured. A list of the providers used is available from Sulzer Consulting.

12.4 Sulzer Consulting processes the Client’s contact and contract data for contract administration, invoicing and client support. Further information is provided in the privacy policy on the Sulzer Consulting website.

13. Liability

13.1 Sulzer Consulting is liable for damage that it demonstrably causes to the Client through intent or gross negligence.

13.2 Any further liability of Sulzer Consulting, in particular liability for slight negligence, is excluded to the extent permitted by law. Where a complete exclusion is not permitted, liability per damaging event and in aggregate per contract year is limited to the remuneration paid by the Client for the affected Service in the twelve months preceding the damaging event, or, for one-off orders, to the value of the affected order.

13.3 To the extent permitted by law, liability for indirect and consequential damage is excluded in any event, in particular for loss of profit, savings not achieved, business interruption, loss of use, loss of data and data recovery costs, reputational damage and third-party claims.

13.4 In particular, Sulzer Consulting is not liable for damage attributable to (a) malfunctions, failures, security vulnerabilities or changes to Third-Party Products and third-party services (clause 7); (b) acts or omissions of the Client or of third parties attributable to it, in particular breaches of duties to cooperate, missing backups or rejected security recommendations (clause 4); (c) security incidents, attacks or malware, unless Sulzer Consulting has breached its contractual obligations intentionally or through gross negligence; (d) the suspension of Services due to default in payment (clause 6.4) or force majeure (clause 14).

13.5 Sulzer Consulting is liable for auxiliary persons and engaged third parties only to the extent that it can be accused of intent or gross negligence in their selection, instruction or supervision (Art. 101 para. 2 Swiss Code of Obligations).

13.6 The Client is liable to Sulzer Consulting for damage arising from the breach of its contractual obligations and indemnifies Sulzer Consulting against third-party claims based on the Client’s data, content, instructions or use of the Services.

13.7 The limitations of liability do not apply to personal injury or in other cases in which a limitation is not permitted under mandatory law.

14. Force Majeure

14.1 Neither party is liable for the non-performance or delayed performance of its obligations (with the exception of payment obligations) to the extent that this is attributable to events beyond its control, in particular natural events, epidemics, war, terrorism, riots, strikes, government measures, failures of power, telecommunications or internet connections, large-scale disruptions of or attacks on third-party infrastructures, and failures of suppliers and providers.

14.2 The affected party informs the other party without delay and endeavors to limit the effects. Deadlines are extended by the duration of the impediment. If an event of force majeure lasts longer than 60 days, either party may terminate the affected Services in writing with immediate effect; Services performed up to that point remain payable.

15. Term and Termination

15.1 One-off orders and projects end upon performance of the agreed Services.

15.2 Recurring Services are agreed for an indefinite period and may be terminated by either party in writing with 30 days’ notice to the end of a month, unless otherwise agreed. Agreed minimum terms as well as terms and notice periods of Third-Party Products (clause 7.2), which remain payable irrespective of termination, are reserved.

15.3 Either party may terminate the contract in writing with immediate effect for cause. Cause exists for Sulzer Consulting in particular if the Client (a) is in default of payment despite a written reminder and grace period; (b) breaches material contractual obligations despite a warning; (c) uses the Services for unlawful purposes or violates license terms; (d) repeatedly refuses measures that are strictly necessary for the secure performance of the Services; (e) becomes insolvent, bankruptcy proceedings are opened against it or it is granted a debt restructuring moratorium.

15.4 To the extent that the law on mandates mandatorily applies to Services and the contract may be revoked at any time (Art. 404 Swiss Code of Obligations), the revoking party shall pay for the Services performed and the effort incurred up to the revocation; if the revocation occurs at an inopportune time, the resulting damage shall be compensated.

15.5 Upon termination of the contract, Sulzer Consulting supports the Client, upon request, in the handover to a new IT provider (e.g. documentation, handover of access credentials, knowledge transfer, data export). These services are invoiced on a time-and-materials basis. Sulzer Consulting returns the data, documents and access credentials belonging to the Client, removes or deactivates its tools on the Client’s systems and deletes the Client’s data 30 days after termination of the contract, unless a statutory retention obligation applies. The Client is responsible for exporting its data from services operated by Sulzer Consulting before termination or for requesting their handover.

15.6 The remuneration for Services performed up to termination remains due. Third-Party Products pre-financed by Sulzer Consulting must be paid for until the end of their term (clause 7.2).

16. Non-Solicitation and References

16.1 During the term of the contract and for twelve months after its termination, the Client undertakes not to employ or directly engage any employees or subcontractors of Sulzer Consulting who were involved in performing the Services without the written consent of Sulzer Consulting. In the event of a breach, the Client owes a contractual penalty equal to six months’ gross salary or six months’ fees of the person concerned; the right to claim further damages remains reserved.

16.2 With the Client’s prior consent, Sulzer Consulting may name the Client as a reference (e.g. name and logo). The Client may withdraw this consent at any time with effect for the future.

17. Amendments to these GTC

17.1 Sulzer Consulting may amend these GTC at any time. Amendments are communicated to the Client in writing (e.g. by email) or published on the website at least 30 days before they take effect. They are deemed accepted if the Client does not object in writing before they take effect. If the Client objects, either party may terminate the affected recurring Services as of the date on which the amendment takes effect; until then, the previous version applies.

18. Final Provisions

18.1 Written form: where these GTC require written form, email and other forms of text transmission as well as electronic signatures suffice, unless a signature is expressly required. Amendments and additions to the contract must be made in writing.

18.2 Assignment: the Client may transfer rights and obligations under the contract to third parties only with the written consent of Sulzer Consulting. Sulzer Consulting may transfer rights and obligations under the contract to a legal successor.

18.3 Severability: should individual provisions of these GTC or of the contract be or become invalid in whole or in part, the validity of the remaining provisions remains unaffected. The invalid provision shall be replaced by a valid provision that comes as close as possible to its economic purpose.

18.4 Independence: the contract does not create a partnership, an employment relationship or any authority to represent between the parties.

18.5 Language: these GTC are available in German and English. In the event of discrepancies, the German version prevails.

18.6 Governing law: the contract and these GTC are governed by substantive Swiss law.

18.7 Place of jurisdiction: the exclusive place of jurisdiction for all disputes arising from or in connection with the contract is the registered office of Sulzer Consulting GmbH. Mandatory statutory places of jurisdiction, in particular for consumers, remain reserved. Sulzer Consulting is also entitled to bring proceedings against the Client at the Client’s registered office or domicile.