General terms and conditions
We draft and review general terms for Swiss businesses in B2B and consumer dealings. We focus on understandable clauses, risk allocation suited to the business model and effective incorporation of terms into your contracting processes.
Effectively incorporating general terms
General terms do not apply merely because they are published on a website. The counterparty must consent in connection with contract conclusion and have a reasonable opportunity to read them. Later references on invoices generally do not suffice for an already concluded contract.
Individual agreements may prevail over general terms. Surprising clauses and unclear wording may be problematic under applicable interpretation rules. A clear contract structure is therefore worthwhile even in business-to-business dealings.
Content from a business perspective
Service descriptions, contract conclusion, prices, payment and delivery terms should reflect actual processes. Duration, renewal, termination and handling performance failures should be regulated as precisely as possible. Different products or customer groups may require different terms.
Liability, warranty, usage rights and confidentiality must not be considered in isolation. Mandatory law limits certain provisions, such as particular liability exclusions. General terms replace neither privacy notices nor necessary data processing agreements.
B2B, consumers and amendments
Different protective rules apply to consumer transactions than to purely B2B relationships. In particular, statutory scrutiny of abusive general terms under the Federal Act against Unfair Competition protects consumers. International customers may also make foreign mandatory rules relevant.
A new version of general terms does not automatically change existing contracts. Amendment mechanisms, notification and consent must be examined. Version control and clear evidence of contract conclusion help establish later which terms were actually agreed.
Frequently asked questions
Is a link to our terms in the website footer sufficient?
A mere footer link does not ensure effective incorporation. The specific ordering or contracting process must refer to the terms in time and obtain consent. The counterparty must be able to access them reasonably.
Can we exclude liability completely?
No, not without limits. Mandatory rules set boundaries, for example for intent or gross negligence. Special provisions and the contract type may impose further limits. Liability clauses should fit actual risks.
May we use the same terms for businesses and private customers?
This is not always appropriate. Consumer protection, jurisdiction and other mandatory rules may differ. Separate or clearly differentiated drafting helps avoid unsuitable clauses.
What happens if both parties' terms conflict?
Examine which terms were actually agreed and how the conflict should be resolved. A blanket priority clause in your own terms is not a safe solution. An expressly agreed order of precedence is sensible.
Can we amend existing contracts through new terms?
Not merely by publishing a new version. A valid amendment mechanism and required notices or consents must be examined. Mandatory rules remain applicable even with an agreed amendment clause.
Are general terms also a privacy policy?
No. General terms regulate the contractual relationship; privacy notices explain personal data processing. Depending on the business model, further agreements, such as processor agreements, are required. The documents should be consistent.
Complex questions from practice
How can an online shop prove which version of terms was validly agreed at purchase?
A current website link does not prove which terms applied to a previous purchase. Version, reference in the ordering process, conclusion time and confirmation should be documented clearly. A pre-ticked box also does not alone determine effective incorporation.
Keep respective versions and the relevant order design. Storage must comply with data protection law. Clear version management helps assess later disputes over returns, liability or payment using the terms actually agreed.
Can a contractual liability cap also limit recall costs and data-protection losses?
Whether a liability cap covers particular losses depends on the claim's basis and clause scope. Mandatory limits remain; third parties and authorities are not automatically bound by an internal agreement. Terms such as direct and indirect losses must be used clearly and consistently.
Compare possible loss scenarios with insurance and recourse rights. Recall costs or data-protection consequences may trigger different claims. A blanket cap should therefore not be assumed to provide comprehensive protection against every financial consequence without review.
How can new terms be introduced into existing long-standing customer contracts?
New terms do not apply merely because they are published online. Review existing amendment clauses, necessary notification and required consent. Customers who do not consent may remain subject to the old terms, or permissible termination routes may become relevant.
Plan introduction, evidence and handling of objections. Notices should clearly explain changes and their effective date. Distinguishing new contracts from ongoing contracts prevents different sets of rules from becoming unknowingly mixed.
What additional general-terms risks arise when targeting consumers abroad?
Mandatory foreign consumer-protection and jurisdiction rules may apply even with a choice of Swiss law. Sales countries, distribution model and targeted customer approach affect assessment. Labelling a relationship B2B does not automatically make a person actually acting privately a business customer.
Review planned markets and the ordering process before expansion. Returns, pricing information and dispute resolution may require country-specific assessment. Swiss standard terms should therefore not be used unchecked for all foreign transactions.