Lawyer Monthly Magazine - August 2019 Edition

Contact Dr Jeannette Wibmer LLM (LSE) Partner www.b-legal.ch Dr Jeannette Wibmer LLM Dr Jeannette Wibmer LLM (LSE), Attorney at law and partner with the Zurich and Zug based law firm Bad- ertscher Attorneys (https:// www.b-legal.ch/home ), has over 20 years of experience in private practice as inter- national business and IP com- mercialisation lawyer. She advises corporate clients and entrepreneurs mainly in the life science, ICT, virtual and augmented reality, micro- and nanotechnology, cryp- tocurrency as well as other high tech fields, in particular regarding the commerciali- zation of innovative develop- ments through joint ventures, technology transfer arrange- ments, licensing, distribution and other alliances based on comprehensive strategic in- tellectual property develop- ment, protection, marketing and enforcement concepts as well as venture capital and growth financings including IP due diligence examinations binding and how they should be interpreted under general Swiss contract law principles. In 2012, a restatement of Article 8 of the Unfair Competition Act (UCA) came into effect on top, which mandatorily limits the use of certain general terms and conditions deemed to be abusive as a result of their limitation of consumers statutory rights in business-to- consumer (B2C) contracts. This revision does not usually apply to business-to-business (B2B) relationships for which the case law on the adoption and interpretation of general terms and conditions developed before the rewording of Article 8 UCA continues to apply. Nevertheless, standard form agreements are regularly used mostly in B2C relationships here. Foreign counterparties willing to use their standard form agreements or general terms and conditions in Switzerland for consumers or their Swiss business partners are well advised to first consult with a Swiss lawyer to avoid unwelcome surprises regarding their effectiveness here, as well as to ascertain that such general terms and conditions are validly adopted by the counterparty here. An incorporation of general terms and conditions may be regarded as invalid (ie, non- binding and non-enforceable) if a contract party cannot produce clear evidence that the general terms and conditions were noted, understood and accepted by the other party. Unusual clauses in general terms and conditions (for e.g., clauses which deviate from Swiss law) can be non- binding and unenforceable if they are not properly brought to the attention of the other party. The counterparty using them must, therefore, direct the other party specifically to these rules and be able to prove this with suitable documentation (for e.g., by highlighting them in bold or placing them close to the counterparty’s signature). Thus, both contract parties should ensure that important clauses (for e.g., those regarding liability limitations or places of jurisdiction) are listed in individual contractual clauses specifically agreed between them and in unilaterally pre- determined and often small- print general terms and conditions should also abstain from liability waivers for gross negligence of unlawful intent for both B2B and B2C contracts. Are there different types of standard agreements in the above ICT and other high tech fields? The Swiss ICT Association and the Swiss Association for ICT and Online Service Providers offer a list of model contracts only to their members, including: a service contract for ICT planning and consulting; a software license and a software escrow agreement; a software maintenance contract; a systems integration contract; a contract for the supply of integrated IT systems; a software work contract; a hosting services contract with a software license; a contract for the provision of hosting services; a contract for the conception and realization of a web application; an outsourcing contract; a cloud infrastructure as a service contract (IaaS); a cloud services software as a service (SaaS), and a cloud services platform as a service (PaaS) contract and an order processing agreement. However, none of these model contracts can be amended to take into account further specifics of the particular ICT contract at hand. As a result of this inflexibility, Swiss ICT service providers usually work with their own tailored ICT B2B contracts here which they then vary from customer to customer. In addition, Swiss legal tech companies such as e.g. Legartis offer help to administer such custom made and often even tailored ICT contracts pre- and post-execution. It is, therefore, possible for a foreign counterparty to likewise use its foreign custom made standard form ICT agreements or general terms and conditions in Switzerland. Paramount is in such cases, to have them reviewed under Swiss law and adapted to mandatory Swiss lawand its practice beforehand in order to avoid unwelcome surprises. Otherwise, aSwiss court may not only find single clauses of general terms and conditions for ICT or other technology agreements void (ie, non- binding and unenforceable), but even hold, that ambiguous general terms and conditions must, even if not null and void from the outset, be interpreted to the disadvantage of their author here in Switzerland. LM 45 AUG 2019 | WWW.LAWYER-MONTHLY.COM Expert Insight By Dr Jeannette Wibmer LLM, Badertscher