SWITZERLAND Law and Practice Contributed by: Dirk Spacek, Wenger Plattner
unfair/improper terms are generally prohibited under the UCA (see UCA, Articles 2 and 8). 1.2.3 Formation of Contracts Online In Switzerland, the conclusion of online contracts is generally governed under the CO. The law does not impose a general requirement for written form, mean - ing contracts can generally be concluded electronical - ly (CO, Articles 1–10). Key points include the following. • Electronic signatures – the ESigA states that qualified electronic signatures are equivalent to handwritten signatures, enabling legally binding contracts online where a signature is required by law. Simple or advanced electronic signatures may suffice depending on risk and contractual require - ments, but do not provide the same degree of equivalence. • Consent and offer/acceptance – any online con - tract conducted requires a clear offer and a clear acceptance (CO, Articles 3 and 7). Clickwrap or checkbox agreements are generally considered valid if the terms are presented clearly and accept - ance can be evidenced with a clear affirmation. • Information duties – businesses must provide essential contractual information, such as the price and performance terms, ensuring informed con - sent (CO, Articles 8–9; FADP Articles 13–15). Note that Switzerland does not provide for mandatory withdrawal rights of customers (as, eg, provided for consumers in the EU). Swiss law emphasises flexibility and functional equiv - alence with offline contracts, differing from EU direc - tives mainly by allowing a broader use of electronic forms with less prescriptive procedural requirements. 2. Software Licensing and “As a Service” Provision 2.1 “On Premise” Licence Models Rather Than SaaS Solutions Despite the growth of cloud-based SaaS solutions, many organisations continue to use on-premise licence models due to several key factors.
• Compliance and supervisory authorities – custom - ers with sensitive or regulated data (eg, in finance, healthcare or government) prefer local control to ensure compliance with supervisory authorities and/or to guarantee a higher degree of data control to their customers (as a selling argument). While the Swiss FADP generally permits outsourcing of data abroad, if certain conditions are met, the aforementioned reasons can still make companies prioritise on-premise solutions. • Technical control and customisation – on-premise deployments allow deeper customisation, inte - gration with legacy IT-systems, and control over update schedules. • Commercial cost predictability – some organisa - tions favour one-time licence fees over recurring SaaS subscriptions, particularly for long-term usage. • Performance and reliability – critical systems with high availability requirements may benefit from local infrastructure, avoiding dependence on inter - net connectivity or third-party cloud providers. • Legal and regulatory compliance – certain Swiss regulations may require data to remain within national borders, making on-premise solutions preferable. For instance, FINMA (the Swiss Finan - cial Market Supervisory Authority) expressly requires data of financial institutions to remain stored/accessible on Swiss soil. 2.2 Suspension Rights In Switzerland, software suppliers commonly include suspension clauses in licence or service agreements (in particular in cloud-based SaaS solution-agree - ments). Key triggers include the following. • Non-payment – failure to pay licence fees, sub - scription charges, or other contractual payments is the most common suspension trigger. • Breach of contract – violations of licence terms, such as unauthorised use, exceeding user limits or violation of usage restrictions, can sometimes trig - ger suspension. • Security or compliance risks – suppliers may sus - pend access if the licensee’s system poses secu - rity threats (eg, malware risks) or obviously fails to comply with data protection obligations.
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