1.1 These General Terms and Conditions (hereinafter also referred to as "GTC") apply to the entire business area of MKY Group AG (hereinafter also referred to as the "Company"), Industriestrasse 28, 9100 Herisau, as well as its other branches. The company operates in the areas of trust, business and tax consulting, and real estate.
1.2 Together with a mandate agreement, confirmation letter, or engagement letter, as well as any other associated annexes and attachments, these General Terms and Conditions apply to all of the aforementioned business areas. Furthermore, these General Terms and Conditions also apply to other services provided directly or indirectly to the client by MKY Group AG without a mandate agreement, confirmation letter, or engagement letter.
1.3 By placing an order, the client acknowledges the General Terms and Conditions of MKY Group AG. These General Terms and Conditions are also an integral part of all letters of intent, offers, cost estimates, and order confirmations of MKY Group AG. They take precedence over any general terms and conditions of the client, as well as override prior provisions and contracts.
1.4 The provisions of these general terms and conditions shall always apply unless the mandate agreement, the confirmation letter or the engagement letter contains specific provisions that deviate from these terms and conditions.
1.5 MKY Group AG reserves the right to make changes to these Terms and Conditions at any time and to publish the current version on the company's website www.mkygroup.ch. The new version of the Terms and Conditions will take effect upon publication on the MKY Group AG website. The version of the Terms and Conditions in effect at the time the contract is concluded and presented to the customer or the customer is informed of it applies to the customer, unless the customer has already accepted the newer version of the Terms and Conditions with the changes.
2.1 The contract is concluded when the customer accepts the offer from MKY Group AG regarding the agreement to purchase products and/or services.
2.2 The contract is also concluded when the customer uses the products and services offered by MKY Group AG.
2.3 The contract concluded between the Client and the Company shall commence upon its signature at the latest and shall end upon the agreed expiry of the period of time, the complete fulfilment or provision of the contract or upon termination.
2.4 The contracting parties are entitled to terminate the contract in writing with immediate effect or at a specific time. The company is entitled to terminate this contract immediately and without obligation to continue the work underway, particularly in the event of impending insolvency, outstanding receivables more than 90 days overdue, or excessive indebtedness of the client. The same applies if the client demands unlawful conduct from the company. In all cases, the company is entitled to the full remuneration for the services provided up to that point, including expenses and other outlays, regardless of the non-completion of the work. MKY Group AG must be held harmless by the client in all cases.
2.5 If the ordinary termination occurs at an inopportune time, the terminating party is obliged to compensate the other party for any resulting damages, if applicable in addition to the fee claim based on the actual hourly expenditure and the applicable hourly rates plus the expenses incurred.
2.6 In the case of natural persons, the contractual relationship shall terminate upon the death or incapacity of the client or for any other reason pursuant to Articles 35 or 405 of the Swiss Code of Obligations.
2.7 If the Client becomes bankrupt or similar proceedings are initiated against him, the contract shall only expire after its revocation or termination by MKY Group AG or by the competent authorities.
3.1 Both parties have the right to revoke or terminate the contract at any time. Any expenses already incurred must be reimbursed to the other party in full. Cancellation at an inopportune time is subject to compensation, and any further claims for damages remain reserved (see also Section 2 of the Terms and Conditions).
3.2 When purchasing products, exchange is excluded.
4.1 MKY Group AG is entitled to engage employees, expert external consultants, companies, and institutions to carry out the contract, acting on behalf of and for the account of MKY Group AG (right of substitution). Furthermore, the company may engage additional auxiliary personnel to fulfill its contractual obligations and in compliance with mandatory legal provisions.
4.2 The Company is authorized to take all measures necessary for the diligent fulfillment of the contract on behalf of the Client. In particular, the Company is authorized to obtain information from banks and bank-like institutions, tax authorities, social security institutions, insurance companies, debt collection and bankruptcy offices, the commercial registry office, and the like on behalf of the Client.
4.3 The Company has the right, within the scope of its general duty of care and in connection with the orders placed with it, to carry out analyses/research and other work for the Client which the Company, in good faith, considers necessary for the prudent fulfilment of the order.
5.1 Unless otherwise stated, all prices are in Swiss francs (CHF). All prices are exclusive of any applicable value-added tax (VAT).
5.2 The company reserves the right to change prices at any time. The prices valid at the time of contract conclusion according to the MKY Group AG price list apply.
5.3 In addition to the fee claim, MKY Group AG is entitled to reimbursement of expenses incurred and third-party fees. If MKY Group AG uses third parties to provide its services (see Section 2 of the General Terms and Conditions), the client undertakes, upon request, to pay the fee claims and expenses incurred by these third parties directly and to fully indemnify MKY Group AG from any obligations incurred within the scope of the contract.
5.4 Cost estimates are based on estimates of the scope of the necessary work and are prepared on the basis of the data provided by the client. Therefore, they are not binding for the final calculation of the fee and are purely indicative.
5.5 Upon termination of the contract, the Company is entitled to charge the Client a flat fee of CHF 300.00 excluding VAT for the infrastructure and archiving costs incurred as a result of the termination of the contract. This also applies if the Company terminates the contract itself.
5.6 MKY Group AG may request reasonable advances on fees and expenses, as well as issue individual or regular interim invoices for services and expenses already performed. In the event of a request for an advance or the issuance of an interim invoice, it may make the provision of further services dependent on full payment of the amounts claimed.
5.7 The Company is entitled to charge an additional administration fee when billing or invoicing its services based on the price/fee list. This will partially cover the increasingly large and relevant administrative activities (e.g., with government agencies, offices, postal services, etc.).
6.1 The customer is obligated to pay the invoiced amount within the specified payment term from the invoice date. The client's right of set-off is excluded. Generally, the payment period is 20 days from the invoice date.
6.2 If the invoice is not paid within the aforementioned payment period, the customer will be sent a reminder. If the customer fails to pay the invoice within the specified reminder period, they will automatically be in default. MKY Group AG reserves the right to charge reminder fees. From the time of default, the customer will owe default interest at a rate of 5%. From reminder level 2 onwards, MKY Group AG reserves the right to cease all activities without prior warning.
6.3 A collection fee of at least CHF 300.00 will be charged for debt collection measures. MKY Group AG is exempt from the obligation of confidentiality and professional secrecy for the assertion of claims against the client arising from the contractual relationship.
6.4 The Company may deviate from the invoicing principle and request payment in advance without giving reasons.
6.5 If the Company also offers products for purchase, rental or other use via an online platform, it may also request payments electronically during the ordering process (credit cards, PayPal or other payment systems).
6.6 In case of late payment, the Company reserves the right to refuse to provide the service or deliver the product.
7.1 By agreeing to these Terms and Conditions, the Client confirms that they have full legal capacity and are of legal age. In the case of representing a legal entity, the undersigned confirms that they are legally and factually authorized to represent the legal entity as a representative or body of the legal entity and can legally enter into this contract.
7.2 The Client confirms that all information provided is true, up-to-date, does not infringe the rights of third parties, is not contrary to common decency and is in compliance with applicable law.
7.3 The client undertakes to take all necessary precautions promptly and to omit nothing to ensure that the company can effectively and properly fulfill its contract in accordance with the statutory, statutory, and regulatory provisions, as well as with the due care required of the company. In particular, the client must, without being asked, provide the company with all documents necessary for the execution of the contract, complete, accurate, and in a timely manner, so that MKY Group AG has sufficient processing time. Likewise, the client is obligated to inform MKY Group AG in a timely manner of all business transactions, events, and circumstances that the company needs to know for the proper fulfillment of the contract.
7.4 In all cases, the client must disclose, without being asked, who is beneficially entitled to the transactions conducted. Any changes to the board of directors and/or the shareholder/managing director status must be reported to MKY Group AG, without being asked and without delay, stating the current personal details.
Deliveries from MKY Group AG are deemed to have been made when they have been sent to the last address provided by the client or made available to the client in accordance with the client's instructions. The date of dispatch is determined by the date noted on the copies or shipping lists in the possession of MKY Group AG.
9.1 Complaints arising from the order must be reported immediately. MKY Group AG must be given the opportunity to rectify the situation. Liability for any indirect damages and consequential damages is completely excluded. Generally, reference is made to the full, non-delegable responsibility vested in the board of directors or senior management of the client's company within the meaning of Art. 716a of the Swiss Code of Obligations (OR), which stipulates that the board of directors or senior management of the company is solely responsible for the financial planning and management of the company.
9.2 MKY Group AG is only liable to the client for direct damages caused by unlawful intent or gross negligence. The client wishing to assert a claim must provide evidence of unlawful intent or gross negligence. This limitation of liability also applies to all persons to whom MKY Group AG has authorized the handling of business.
9.3 Any liability for auxiliary personnel is completely excluded. In the event of substitution, MKY Group AG's liability is limited to the proper selection, instruction, and supervision of the third party.
9.4 The company regularly publishes blog posts on various topics on its own website and other media channels. These posts are generally written and descriptive in nature. They in no way replace individual analysis and precise advice. Any liability and claims for damages in this context are therefore completely excluded.
9.5 Email communication from and to MKY Group AG takes place via public, non-protected data transmission networks. MKY Group AG disclaims any liability for damages incurred by the client as a result of transmission errors, technical defects, malfunctions, or interference with the network operators' facilities.
9.6 The limitations of liability set out in these Terms and Conditions also apply to the selection of IT programs and applications (such as cloud solutions) used by MKY Group AG.
9.7 In the event of damage, MKY Group AG's liability is limited to the maximum amount of the annual fee paid. Any liability for auxiliary personnel is completely excluded.
9.8 In the event of force majeure, the party unable to fulfill its contractual obligations as a result shall not be liable to the other party for any damages. It shall be released from its contractual obligations for as long as and to the extent that the force majeure continues. If the force majeure ceases, the contractual rights and obligations shall reapply, unless the force majeure lasts more than one year. In this case, the party not affected by the force majeure shall be entitled, but not obligated, to revoke or terminate the contract upon written notice.
10.1 The customer agrees that the company may process, process, and use the data collected during the conclusion of the contract, including personal data, to fulfill its obligations under the contract. The company will take the measures required to secure the data in accordance with legal regulations and observe the processing principles. The customer fully consents to the storage and contractually compliant use of his data, including personal data, by the company and is aware and agrees that the company is obligated and authorized to disclose customer information to these or third parties upon order of courts or authorities.
10.2 The customer also agrees that MKY Group AG may use the personal data in anonymized form for marketing purposes.
10.3 The processing of data, including personal data, is governed by the MKY Group AG privacy policy. The privacy policy can be viewed at any time on the company's website at the following address: www.mky.group/datenschutz.
10.3 of the Terms and Conditions or have been given the opportunity to do so.
10.4 The client confirms that he has read the data protection declaration of MKY Group AG and confirms the data protection declaration applicable to the processing of personal data by MKY Group AG as per section.
10.5 The Client confirms and guarantees that it complies with the applicable data protection principles when processing any personal data and is authorized to share, disclose, or transmit any personal data necessary for the fulfillment of the order to MKY Group AG. This authorization includes obtaining any necessary consent from the data subjects and explicitly consenting to the sharing, disclosure, or transmission to MKY Group AG. In this context, the Client confirms that it has informed the data subjects of MKY Group AG's data protection policy. The Client undertakes to indemnify MKY Group AG and, in the event of its own violation of the aforementioned principles and guidelines, to be liable for any claims against MKY Group AG.
All intellectual property rights, such as intellectual property rights and licensing rights, to the documents, products, or other work results created by MKY Group AG within the scope of the contractual relationship, as well as to the know-how developed or used in this process, belong exclusively to MKY Group AG, regardless of any collaboration between MKY Group AG and the customer. MKY Group AG grants the customer a non-exclusive and non-transferable right of use for the exclusive personal use of the documents, products, and other work results provided to it, including the associated know-how. The customer may only pass on documents, products, and other work results, or parts thereof, as well as individual technical statements, to third parties with the express written consent of MKY Group AG. The customer shall refrain from modifying the documents provided to it by MKY Group AG, in particular the binding report. The same applies to products and other work results, unless their purpose is specifically for further processing by the customer. Any reference to the existing contractual relationship between the parties, particularly in the context of advertising or as a reference, is only permitted with the mutual consent of both parties.
Subject to longer statutory periods, MKY Group AG must retain the documents for a period of 10 years after completion of the contract. However, the client has no legal right to retention by the company. This obligation expires before the end of this period if MKY Group AG has requested the client in writing to receive the documents and the client has not complied with this request within three months of receiving it. It is hereby expressly stated that the client is solely responsible for fulfilling the statutory retention obligations (as stipulated, for example, in the Swiss Code of Obligations and the Swiss Commercial Records Ordinance).
Should any provision of this agreement be invalid or unenforceable, the validity of the remaining provisions shall not be affected. In such a case, the parties are obligated to replace the respective provisions with provisions that most closely approximate the intended purpose.
14.1 All legal relationships in connection with this contract shall be governed by Swiss law, whereby the United Nations Convention on Contracts for the International Sale of Goods is explicitly excluded.
14.2 The parties agree that the place of jurisdiction shall be CH-9100 Herisau, the registered office of MKY Group AG. Furthermore, the company reserves the right to sue the client before any legally competent court.
