Anyone who delivers abroad retains Switzerland as the place of jurisdiction
Online trade is becoming increasingly international. When ordering from abroad, it is particularly important that the customer agrees to the General Terms and Conditions (GTC). These must be clearly and unambiguously formulated, especially as far as the place of jurisdiction is concerned: it is Switzerland in any case.
Consider it an iron law in any business transaction with a foreign customer: The place of jurisdiction is Switzerland. This also applies without restriction to online trading, which is gaining in importance at a rapid pace. In the United States, for example, it is already common practice to provide for a place of jurisdiction in the USA, regardless of where the customer is domiciled. In addition, provision should also be made for subordination to local law, and finally, the application of the so-called Vienna Sales Convention should be excluded. This international treaty, to which most industrialized countries, including Switzerland, are parties, defines the rules for international purchases of goods and deviates in part from national law. Clauses that exclude its applicability are permissible. In individual cases, it would have to be examined whether the Vienna Sales Convention might offer advantages to the seller. If so, an exclusion clause should be dispensed with.
General terms and conditions: Always keep a copy
The General Terms and Conditions are only valid if they are accepted by both parties. In online commerce, it is common for a check box to be displayed in the web store before the order is executed, stating "I have read and accepted the General Terms and Conditions". These must of course also be made available for reading on this occasion. The following rule applies: the more explicit the customer's declaration of intent, the greater the likelihood that a court will affirm acceptance of the terms and conditions in the event of a dispute. As a rule, the GTC are updated time and again. It is therefore advisable to keep a copy of each version.
What belongs in every GTC
The wording of the GTC is complicated and usually a matter for specialized lawyers, so that an interpretation to the detriment of the issuer can be excluded. Every GTC must include:
- Warranty
- Warranty
- Privacy
- Orders
- Invoice and payment terms
- Value added tax
- Delivery and delivery times
- Shipping areas
- Liability
- Applicable law and place of jurisdiction
Unfair statements such as "The shipping risk shall be borne by the purchaser" are inadmissible. Clauses that imply an increased risk for the purchaser are to be clearly emphasized.
Author: Raoul Egeli has been President of the Swiss Creditreform Association since 2008 and President of Creditreform International since 2014, as well as a member of the Chamber of Commerce of the SGV. He is also Managing Director of the Creditreform Egeli companies in Basel, St. Gallen and Zurich. From 2009 to 2013, he was the central president of TREUHAND|SUISSE. Raoul Egeli is the author of several specialist books on the subject of credit and receivables management. www.creditreform.ch
