Lawyer Monthly Magazine - August 2019 Edition

be true, fair and complete and all its negotiation efforts must be genuine and in good faith. Should a negotiation counterparty fail to comply with these obligations it will become liable to the other party for all damages caused thereby, irrespective of whether the contract at issue was executed or not. What ‘boxes’ must an ICT agreement tick to ensure it is a strong contract and what are the general terms and conditions for different types of ICT companies’ contracts? Few statutory restrictions exist in Switzerland which mandatorily limit contract parties’ abilities to define their business relationship as they wish. This approach, combined with the fact that Switzerland is a neutral country with a legal system based on the principles of good-faith dealing between reasonable people (as aforementioned), is the reason why Swiss law is regularly chosen to govern international business contracts. ICT and other technology contracts are no exception to this rule. This contractual freedom in principle also applies to standard form agreements under Swiss law. However, for standard form agreements and agreements which also embody general terms and conditions (ie, pre- defined standard clauses unilaterally prepared by one party), the Federal Supreme Court has developed specific rules as to how they should be adopted to become extensive knowledge than its contract partner about the strengths, weaknesses, opportunities and threats affecting their particular business relationship. The other contract party thus risks entering into a permanent binding contract without an accurate prior assessment of related economic and legal consequences. To counterbalance this information asymmetry, Swiss law imposes certain duties of care and consideration on contract parties of which pre-contractual information obligations are paramount. One of the basic principles governing all areas of Swiss private and public law is the legal obligation to act in good faith (Article 2 of the Civil Code). Inacontract negotiation situation, both parties must negotiate with care and take into account all relevant circumstances of the particular business relationship at issue with a view to discovering which pre-contractual disclosure obligations one party has to its prospective contract party as a result of the above information. To the extent any particularities are relevant to a counterparty’s decision toenter intoaparticular ICT or other technology related agreement but are not evident for it when consulting available public sources, all information revealed by the other party during the negotiations must You advise life science, ICT, virtual and augmented reality, micro- and nanotechnology, cryptocurrency as well as other high tech clients in all legal areas: how have you seen these areas change over the years with the developments of different technology? Switzerland is the 20th biggest economy in the world calculated by its annual gross domestic product (GDP) despite it only having 8.5 million inhabitants, being the size of Virginia and not being a member of the European Union. It is the home of world leading universities, such as the Swiss technology Institutes in Zurich and Lausanne, as well as Zurich University, and 70% of all Swiss students study at a world top 200 Swiss university. Apart from globally known multinationals, Switzerland also has strong technology clusters with many successful and innovative small and medium-sized companies in life sciences, ICT, other advanced engineering, space-, micro- and nanotechnology, cryptocurrency and blockchain technology sectors. The Swiss economy is particularly strong in new technologies such as biotech, med-tech, fin-tech, cybersecurity, robotics, game and entertainment software, industrial design and services of all kinds, as well as forward and backward vertical integration of product development, marketing, commercialisation and logistics along the value chain. In the legal field, this leads to more and more intricate agreements needed to properly integrate the different roles and duties of the various players involved in successfully developing, scaling-up and bringing new products and services to the global market. These intricate agreements may be less categorized intodifferent types of the same sort, i.e. often must be build-up from scratch to implement all peculiarities of the particular business case at hand, i.e. without the use of any standard form agreements (see below). What is important to take into accountpriortoenteringintoany ICT or other technology related agreement in Switzerland and why is it important for contract parties to get it right? The Swiss legal system generally imposes few statutory restrictions on contract parties to ICT and other technology related agreements. However, during negotiations before the conclusion of any new agreement, one contract party, for e.g. the technology provider or a distributor providing access to a particularly attractive sales channel, may have more TECHNOLOGY AND SCIENCE Technology Agreements & Licensing: How to Get It Right Speaking to Dr Jeannette Wibmer, we learn how ICT and tech companies can get their agreement contracts right, in order to avoid problems in the long run. 44 WWW.LAWYER-MONTHLY.COM | AUG 2019 Expert Insight By Dr Jeannette Wibmer LLM, Badertscher