General terms & conditions (hereinafter referred to as „GTC“)
1.1 Hyrock is a mortgage specialist offering mortgage and real estate services to sophisticated private and institutional clients in Switzerland and abroad.
1.2 The purpose of these GTC is the use of the services that Hyrock provides to its clients and partners. Consent to these GTCs shall be given by making use of the corresponding services and shall apply to all contractual relationships between Hyrock and its contractual partners, unless otherwise contractually agreed in individual cases.
1.3 The contracting party acknowledges the obligations of the present GTC by concluding the contract. The GTC shall have priority over any general terms and conditions of the contracting party.
2.1 With regard to the content, scope and execution of the services to be rendered, the contractual relationship agreed separately and in writing between Hyrock and the other contracting party shall apply.
2.2 All services are subject to Hyrock's accessible terms and conditions. Hyrock may change the range of services or discontinue the provision of services at any time.
Right of substitution
3.1 Hyrock shall be entitled to consult employees, expert external consultants, companies and institutions to perform the contractually agreed services on behalf of and for the account of Hyrock. These substituted private individuals and/or legal persons are subject to the same confidentiality obligation and data protection and use provisions as Hyrock or its employees (see point 4 Confidentiality obligation and point 5 Data protection and use).
4.1 The parties undertake to maintain secrecy with regard to all confidential information of which they become aware on the occasion of or in connection with the receipt or performance of contractual services. All data concerning facts, methods and knowledge which are not generally known or not publicly accessible at least in their concrete application within the framework of the execution of the contractual relationship shall be regarded as confidential. The obligation to secrecy continues beyond the termination of the contractual relationship. The foregoing obligation shall not prevent Hyrock from performing the same or similar contractual services for other contracting parties while maintaining confidentiality.
4.2 The contracting party shall release Hyrock from its obligation to maintain secrecy insofar as this is necessary for the provision of the contractual services and for the maintenance of the business relationship as well as for the safeguarding of Hyrock's legitimate interests, in particular in the case of Hyrock's legal or regulatory obligations to provide information, in the case of legal steps taken by the contracting party against Hyrock as well as in the collection of Hyrock's claims against the contracting party.
Data protection and use
5.1 Hyrock shall comply with the provisions of the Data Protection Act in the performance of its duties. Hyrock is obliged to keep trade secrets and confidential information concerning the processes and circumstances of the Customer safe, unless the disclosure of such facts is necessary for the performance of this order. This confidentiality obligation shall remain in force even after termination of the contractual relationship. The use of client and customer data for marketing purposes requires the separate, express consent of the client.
5.2 Hyrock may process the information it becomes aware of - in particular also the personal data of the contractual partner - by means of computer technology or have it processed by third parties. The contractual partner agrees that personal data may be used by Hyrock to provide the contractual services and to maintain the business relationship and may also be passed on to third parties for this purpose.
5.3 Hyrock disclaims all liability for damage incurred by the contractual partner as a result of the use of mail, telephone, fax, Internet, e-mail and other forms of transmission or transport facilities, in particular delays, transmission errors, technical defects, malfunctions or interventions in the facilities of the network operators.
Delivery of data and information to Hyrock
6.1 The contracting party shall immediately notify Hyrock in writing of all facts material to the contractual relationship, in particular changes in its name and address.
6.2 Notifications by Hyrock shall be deemed to have been made when the consignment has been sent to the last address given in writing by the contracting party.
6.3 Complaints arising from the contractual relationship must be made immediately. Hyrock shall be given the opportunity to remedy the defect within a reasonable period of time.
6.4 To the extent permitted by law, Hyrock and its employees shall not be liable for any direct or indirect loss, liability, cost, claim, expense or damage of any kind arising out of or in connection with the use of the Services.
6.5 Hyrock shall only be liable to the other party for unlawful intent and gross negligence. The existence of unlawful intent or gross negligence shall be proved by the other party who wishes to derive a claim therefrom.
6.6 The limitation of liability under Clause 6.4 shall also apply to all persons to whom Hyrock has delegated the management of transactions.
6.7 In the event of substitution, Hyrock's liability shall be limited to the proper selection, instruction and supervision of the third party.
6.8 In the event of substitution, Hyrock's liability shall be limited to the proper selection, instruction and supervision of the third party. It shall be released from its contractual obligations as long as and to the extent that force majeure persists. If the force majeure ceases to exist, the contractual rights and obligations shall come into force again, unless the force majeure lasts for more than one year. In this case, the party not affected by the force majeure shall be entitled, but not obliged, to revoke or terminate the contract by written notice.
Intellectual properties, licenses
7.1 Notwithstanding any cooperation between Hyrock and the other party, Hyrock shall be exclusively entitled to all intellectual property rights such as intellectual property rights and licence rights to the documents, products or other work results produced by Hyrock in the course of the execution of the contractual relationship as well as to the know-how developed or used therein.
Compensation and reimbursement of expenses, terms of payment
8.1 The compensation shall be agreed individually on the basis of the contract. If nothing to the contrary is apparent from the agreement, the compensation owed in addition to the reimbursement of expenses shall be based on rates customary in the industry. Value added tax will be charged additionally.
8.2 Hyrock may demand reasonable advance payments for compensation and outlays as well as advance invoices for work already performed and outlays.
8.3 The right of the contracting party to offset shall be excluded.
8.4 Several contracting parties shall be liable to Hyrock as joint and several debtors.
Termination of the contractual relationship
9.1 The contractual relationship shall end upon fulfilment or provision of the agreed service(s), upon expiry of the contractually agreed term or upon revocation or termination in accordance with Section 9.2.
9.2 Unless otherwise agreed, both the contracting party and Hyrock may terminate the contractual relationship in writing at any time.
9.3 If the contracting party is a natural person, the contractual relationship shall not expire in the event of his death, declaration of missing property or incapacity to act. If the contracting party is declared bankrupt or similar proceedings are instituted against it, the contractual relationship shall not expire until revoked or terminated by Hyrock or the competent authorities.
9.4 Subject to longer statutory periods, Hyrock shall keep the documents for a period of 10 years after termination of the contractual relationship. However, this obligation shall expire before the expiry of this period if Hyrock has requested the other party in writing to receive the documents and the other party has not complied with this request within 6 months of receiving them.
10.1 The contracting party waives its right to set off claims against Hyrock.
10.2 Hyrock reserves the right to amend or supplement the GTC at any time. These changes or amendments shall be notified to the other party by post or other suitable means and shall be deemed to have been approved within one month without objection.
10.3 Should any of the present clauses be declared invalid, this shall not affect the other provisions of the GTC. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision whose effects come as close as possible to the economic objective pursued by the contracting parties with the invalid or unenforceable provision.
10.4 These GTC and any disputes arising out of or in connection with the relationship between Hyrock and the contracting party shall be governed exclusively by Swiss law.
10.5 The exclusive place of jurisdiction for all disputes between Hyrock and the other party shall be the domicile of Hyrock. However, Hyrock shall be entitled to sue the other party at its domicile.
Zurich, March 2019