In the world of service and work providers, drawing up a robust contract is essential to ensure that your rights are protected. This subject concerns providers of services and work carried out in Switzerland or offered to clients in Switzerland, and covers the following rules: 

• Service contracts can involve a long relationship, clothed in trust, interdependence and heightened expectations. 

• The extent of fees can vary from project to project, and according to unforeseeable circumstances, and this point leads to most disputes between the parties. 

• The service provider often incurs additional costs and the cost of materials to be re-invoiced to the customer, and the method of re-invoicing must be clear. 

• Default of payment happens very often in service contracts, and you need to protect yourself, especially when payment is in arrears during work that has already begun but not yet been completed. 

• Providing services raises other legal issues, including confidentiality, liability for subcontractors, and the design and assignment of intellectual property. 

• A service contract is not exhaustively regulated by law, so a good contract is a must. 

Any website owner offering online services in Switzerland, also because the rules on data protection are in addition, and are strictly regulated, all to be regulated in the General Terms and Conditions of Sale (GTCS). 

What is a service contract and what types are there? 

Service contracts vary according to the following: 

• Form: an oral contract is possible, and many are often concluded, for example in the shop or by calling a technician, but written contracts are recommended for long-distance transactions, for long periods or for large sums. 

It should be noted that acceptance of the general terms and conditions of sale (GTCS) online is legally equivalent to a contract, although it is not “in writing” as such.  

• Duration: service contracts can be concluded for a very short term, with a fixed duration, or provide for fairly rapid, even instantaneous, execution of the service. To this end, we offer in particular a one-off project or service contract, perfect for carrying out on-site work, removals, one-off cleaning, on-site repairs or calibration. It can also be used to carry out projects, whether tangible or intangible, such as software development or the design of an architect’s plan, up to a certain date or in successive stages. 

• Where successive projects or stages form part of a longer relationship, which is often subject to change, we suggest entering into a single Master Services Agreement which governs all legal matters, to be supplemented by brief Project Assignments which describe only the scope of the project, the timescale and the price.  

• For services of the same type that you offer to several customers under the same conditions, you can draw up only one estimate of services, a proposal to be countersigned by the customer, with optional reference to general conditions. 

• If similar services are to be provided on a regular or on-demand basis, a consultant contract is your perfect choice. Whether an individual or a company, the consultant undertakes to perform services, either at the hourly rate or at the specific prices and deadlines for each type of service (service package). 

• When you perform services that materialise and involve the transfer, examination or modification of movable or immovable property, this is the contract of works whereby the service provider is also liable for defects. 

When you perform services that materialise and involve the transfer, examination or modification of movable or immovable property, this is the contract of works whereby the service provider is also liable for defects. 

What are the main mistakes service providers can make and how can they avoid them with AdminTech? 

To avoid common mistakes when drawing up a service contract, it is important to pay attention to the following key points:  

• Unclear or insufficient description of services or works and their characteristics. In fact, it is not necessarily useful to specify all the technical data of the services to be performed, in the legal text. What is more practical, and what we suggest in our templates, is to make only a brief description, while adding a detailed appendix to avoid any misunderstanding. 

• No clear agreement from the customer on the final price. In practice, contracts often provide only an hourly rate, without giving an estimate of hours, or a simple estimated quote, without committing to a firm price. Our templates allow you to provide more details on how the price is calculated, paid, guaranteed and adjusted if necessary as the work progresses. 

• Neglecting to re-invoice costs. Whether it’s a consultant, architect, technician or IT specialist, every service provider incurs a number of costs in carrying out their work. Although the service provider bears these costs personally, it is sometimes necessary to re-invoice them to customers, especially the cost of materials or expenses incurred at the customer’s express request. Our templates allow you to re-invoice actual, fixed or variable prices. 

• Inadequate description of deadlines. With our templates that allow you to provide for single or successive deadlines, precise or estimated, with or without an obligation to tolerate a slight delay, you can better agree your obligations and formalise the customer’s expectations. 

• Absence of means of proof of performance and means of review of services. In principle, the customer only undertakes to pay according to satisfaction. In addition to a clear and detailed description of the services, our templates allow you to provide for how the services are submitted to the customer for review, and within what timeframe the customer must report a defect. 

• Do not limit the liability of the service provider. Even slight negligence can result in unforeseeable and unbearable damages. Our models, which are in line with current practice, give you the option of limiting your liability to the amount of fees actually paid during a certain period prior to the dispute. 

• Neglecting the risk of payment default. Not only is this the most common risk for any service provider, but if the services have already been started or performed, the provider is often in a precarious situation. You should therefore use the following options, which we suggest: set the costs of payment reminders, interest on arrears, provide for a guarantee deposit and set the length of delay tolerated before services are suspended. 

To avoid these mistakes, use the AdminTech online contract builder to create a robust works or project contract. 

The field of quotations and estimated prices in Switzerland is vast and can raise many questions for readers. In this article, we will address a number of questions of interest to the reader, providing detailed and relevant answers. We will explore how quotations work, their importance, the different types of quotation, the factors that influence estimated prices, and finally give some advice on how to obtain accurate and reliable quotations. 

What is a quotation and why is it important? 

A quotation is a document issued by a professional or company estimating the cost of a service or product requested by a customer. It generally includes a detailed description of the service or product and the corresponding price. An estimate enables the customer to know in advance the budget required to complete the project and to compare offers from different service providers. 

Estimates are also important from a legal point of view, as they can be used as evidence in the event of a dispute. In Switzerland, estimates are often used for certain types of work and services, particularly those carried out by building professionals, tradesmen, architects, plumbers, etc. An estimate can also be provided for IT services, removals, medical services, etc. 

What are the different types of quotation? 

There are different types of quotation, depending on the sector of activity and the project envisaged. Here are the main types of quotation: 

1. The standard quotation: this is used in many sectors and generally includes a detailed estimate of the work, products or services required. 

2. Fixed-price quotation: this sets an overall price for the entire project. This type of quotation is appropriate when the service provider can accurately assess the total cost of the work to be carried out. 

3. Estimate: this provides an approximate price range based on the information available. This type of estimate is often used when the project is complex and requires an in-depth study. 

Is a quotation compulsory? 

In Switzerland, there is no obligation to draw up an estimate. If the two parties do not agree on a fixed price or a lump sum, the price of the work is calculated on the basis of the work carried out. 

However, the question arises as to whether the customer is obliged to pay the full price according to the final statement when it differs from the estimate amount initially discussed. It all depends. 

– It is generally accepted that the difference between a quotation and an invoice should not exceed 10%, subject to special circumstances. 

– In return, the customer is obliged to tolerate this margin of increase. 

– Even if the overrun is admitted, the service provider must prove the amount of the costs and the hours actually worked, and must in any event ensure that the customer is duly informed if the overrun proves foreseeable. 

– It still has to be a genuine quotation and not a firm price that cannot be exceeded. 

– Nor may the service provider exceed the upper limit of the range if the quotation is drawn up with this in mind. 

– Lastly, the quotation must be accepted by the customer. Although it is possible to accept the quotation verbally, it is better to countersign the printed quotation as proof. 

What factors influence estimated prices? 

Estimated prices may vary depending on a number of factors, the most important of which are listed below: 

1. The nature and scale of the project: complex work or work requiring specific skills may result in higher costs. 

2. The materials and equipment used: some materials or equipment may be more expensive than others, which may influence the estimated price. 

3. Labour: the cost of labour may vary from one contractor to another, depending on their experience and reputation. 

4. Deadlines: some companies may charge extra if the project has to be completed to a tight deadline. 

How can I get accurate, reliable quotes? 

To get accurate, reliable quotes, follow these tips: 

1. Make a detailed request for a quote: provide all the necessary information about your project so that the service provider can assess the work accurately. 

2. Get several quotes: request quotes from different suppliers to compare prices and services. 

3. Check the service provider’s references: consult the opinions of previous customers and visit projects carried out by the service provider to check the quality of his work. 

4. Ask additional questions: don’t hesitate to ask questions about the estimate, materials used, timescales, guarantees or any other relevant information. 

In conclusion, quotations and estimated prices in Switzerland play a crucial role in many customers’ projects. It’s important to understand how estimates work, the different types available, the factors that influence prices and how to obtain accurate, reliable estimates. By following these tips, you’ll be able to make informed decisions when it comes to quotations. 

Whether you are a professional or private supplier, it is important to be aware of the rules governing advertising, offers and sales in Switzerland, which are as follows: 

1. Every sale is preceded by considerable marketing and advertising efforts. 
2. The law protects buyers, especially consumers, against unfair commercial practices. 
3. Breach of trade rules results not only in loss of reputation or customers, but also in damages and fines. 
4. When it comes to e-commerce, Swiss law is more restrictive than we are used to in some countries, and the sales and advertising practices of the e-commerce giants are often illegal, so we must not blindly follow their “success model”. 
5. Some unfair clauses in the general terms and conditions are totally null and void, and do you more damage and confusion than protection. 
6. The law against unfair competition also protects the free and fair market, and gives injured competitors the right to compensation. 

Main legal rules 

In what follows, we will outline the main legal rules to be aware of in terms of unfair commercial practices to be avoided in Switzerland. Here are the most important points to remember: 

Unfair competition 

To talk about unfair competition, the following three cumulative conditions must be met: 

• ault: an intentional act intended to harm a competitor, or an unintentional act (negligence). 
• Damage: the existence of certain damage suffered by the competitor. Presumed or alleged damage is not sufficient, and ricochet damage is not taken into account either. 
• The causality link: the competitor’s damage must be the result of the fault, i.e. a necessary causal link (without the fault there would be no damage) and adequate (according to general life experience, such a fault is reasonably likely to cause such damage). 

Common unfair practices that harm competitors 

The most common unfair practices that harm competitors are as follows: 

• Imitation: using the same distinctive signs as a competitor. This technique is unfair when it creates confusion between companies in the mind of the consumer. It therefore concerns the essential elements that identify a company (company name, acronym, logo are good examples). It does not matter whether a competitor’s trademark is protected. 
• Parasitism: this more subtle commercial technique involves taking advantage of a competitor’s efforts without participating in them. It is a global behaviour and not an isolated or specific act. For example, a competitor takes advantage of the reputation of a product already known to the public and manufactured by a competitor. 
• Denigration: consists of openly and publicly criticising a competitor’s products. The criticism may also relate to its work or methods. However, the criticism must clearly identify the target company. The public nature of the criticism is essential: without it, denigration cannot be characterised. 
• Disorganisation: this form of unfair competition can take several forms. In the majority of cases, it involves the mass and abusive poaching of employees. It can also involve revealing company secrets (manufacturing secrets, organisational secrets, etc.). 

Common unfair practices that harm consumers 

The most common unfair practices that harm consumers are as follows: 

• Inaccurate or misleading price indications or comparisons. 
• Spam: it is forbidden to send or forward mass advertising messages by e-mail, SMS or any other telecommunications channel without the consent of the recipients (opt-in principle). On the other hand, if you have given your address to a seller when making a purchase, the seller may send you advertising for similar products. The name of the recipient must be correctly indicated and the recipient must have the option of refusing the mail (opt-out). 
• Opaque e-commerce: a site that is attractive to the eye does not necessarily mean that the seller is serious. All too often, information about the company or its contact details is missing, making it impossible, for example, to tell whether it is based abroad. This can increase the risk of mistakes being made when placing an order or over-clicking. 
• Non-respect of the asterisk: This is one of the recurring complaints received by consumer protection associations. These include commercial calls to the home, which some people experience as harassment. From now on, all companies must strictly comply with the statement in the directory indicating that a customer does not wish to receive advertising messages. What’s more, their details may not be passed on for direct marketing purposes. 
• Promises of a win linked to a purchase: these are considered unfair if the lucky prospect depends on a call to a premium rate number, the payment of a fee, or the purchase of an item or service. Furthermore, the promise of a prize must not be linked to participation in an advertising trip, a commercial event or another prize draw. 

Recent reform on unwanted calls: From 2021, operators must filter unwanted calls. Legislation has also been strengthened to penalise advertising calls on mobile phones, spoofing and brokers working with call-centres that do not comply with the law. 

Recommendations 

To avoid the risks associated with unfair commercial and advertising practices, here are a few recommendations: 

• Take care when using direct mail or telemarketing services, as you may be held liable for their failure to comply with unfair competition law. 
• Don’t send mass spam to people you don’t know. You can still send advertising to your former customers, but only if you offer them the quick and easy option of refusing it, in which case respect their choice. 
• Be careful when using comparative marketing, both to avoid concealing the facts and to avoid denigrating other competing companies. 
• Even in the absence of a protected trademark or copyright, be careful not to copy and paste your competitors’ work product without another. Even if this content is not protected as intellectual property, its misuse is illegal. 
• When using brokers or sales agents other than your employees, make sure you delimit the liability they assume if they violate unfair competition rules by offering your products.

In Switzerland, the subject of liability for defects, fault or negligence mainly concerns service and works providers, taking into account all of the following points: 

1. Service contracts may sometimes involve a transfer or modification of ownership, giving rise to strict liability for defects without fault being required. 
2. The performance of services often involves a number of subcontractors, whose misconduct may make you personally liable. 
3. Case law on the limitation or reduction of liability by contractual clauses is fairly restrictive. 
4. In addition to the responsibilities of the service provider, the customer or his agents may also make a mistake that affects the outcome of your work. 
5. Clarity in a contract is the key to success in order to avoid any complaints about the quality of services. 

In addition, any website owner offering online services in Switzerland should be aware that system malfunctions, loss of data by the site host or cyber-attacks can cause significant damage to your customers and engage your liability. 

Main legal rules 

With regard to the legal rules governing the provider’s liability for defects, fault or negligence, here are the main points to note: 

• A service contract, otherwise known as a mandate, does not commit the service provider (or mandatary) to the result, but only to the diligent fulfilment of its obligations. 
• In principle, the service provider must commit a fault, whether intentional or negligent, regardless of its seriousness. However, in contracts governed by Swiss law, fault is presumed and it is up to the service provider to prove the contrary, where applicable. 
• However, when the service provider undertakes to carry out work that results in the creation, modification or transfer of ownership of goods, it assumes liability for any material defect even if it has not committed any fault in this respect. This is known as a “contract of enterprise”. In this case, the transfer of risk is important, just as in a contract of sale. 

• The seriousness of the fault is in principle irrelevant, but this question deserves to be qualified, through the following two points:  
  • A freelancer may or may not be a professional. A non-professional assumes less responsibility if he tells the client that he is not experienced enough to carry out a particular task and the client accepts the possible consequences. 
  • In other cases, accepting a mandate that the service provider is not sure of being able to carry out, not having enough skills, already engages his responsibility and he cannot free himself by simply declaring that he is not a professional. 
• The performance of services often involves the intervention of subcontractors, substitutes, employees or other third parties. 
  • The service provider is fully liable for the negligence of its employees or directors. 
  • If there is a firm prohibition on delegating the performance of services to third parties, its breach already gives rise to liability on the part of the provider and no additional fault or proof of fault on the part of the subcontractor is required. 
  • In other cases, the service provider is in principle fully liable for the fault of external subcontractors, subject to limitations of liability to be agreed. 

It should be noted that where the subcontractor does not perform only part of the service or only a subordinate task, but fully replaces the service provider, the latter is only liable for the care with which it chose and instructed the subcontractor. On the other hand, the substitute may be acted upon directly by the customer, subject to certain limits – the only exception in Swiss law in this area being that the substitute is not itself bound by the contract to the customer. 

• It should also be pointed out that, in addition to contractual liability, there is civil liability which applies when the subcontractor or employee personally causes damage to the customer through his fault and by acting unlawfully. It should be noted that any attack on the property, life or body of the victim is in itself unlawful, without any particular law being broken. In this way, theft, destruction, damage or injury can be brought directly against the person responsible, as well as against the service provider through contractual liability. 
• The law does not in itself prohibit limiting liability in the contract, but imposes some restrictions. 
  • Firstly, no limitation of liability is possible in the event of personal injury or damage to property, or even loss of life. 
  • Secondly, the contract does not take away the penal code, and the violation of the law cannot be forgiven simply because of the limiting contractual clause. 
  • Finally, if we accept that exoneration for slight negligence is possible, the limitation cannot apply to serious negligence or intentional wilful misconduct. 
• The limitation of liability clause – entered into prior to the harmful event – is to be distinguished from the amicable settlement reached after the event. When the customer firmly accepts the performance of services without reservation, it is virtually impossible for him to hold the service provider liable for any damage. 

Recommendations 

To limit liability in contracts of enterprise, we recommend that you consider the following tips: 

1. In contracts for work and services, remember to clearly delimit the moment of transfer of risk using our contract templates, and the service provider will no longer be liable for damage or defects after this moment. 
2. As a subcontractor, be careful if you accept payment or instructions directly from your principal’s customer, as this may imply a tacit contract with him, whereas all the limitations of liability that you have agreed with your direct principal will no longer be enforceable against this customer who has not signed up to them.
3. Always remember to limit your liability to the amount of fees paid during a certain period prior to the dispute. 
4. Even if you are contractually authorised to do so, always ask your customer for firm acceptance if you hire external subcontractors. 
5. Include a clause in the contract specifying the time limit after completion for reporting any defects in the service. If the customer accepts unreservedly that there is no defect, you can no longer be held liable.