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General Terms of Contract (GTC) for Use of www.simap.ch

Version dated 29.09.2009
30.03.2017: modification of place of jurisdiction
05.09.2019: Addition to item 4.5, par. 2 and to item 8.1, par. 3

1 Preamble

The Association for Provision of an Information System on Public Procurement in Switzerland (simap.ch association; hereinafter “Association”) operates such an information system on its website www.simap.ch. The platform provides an environment for the exchange of information between public procurement authorities (hereinafter “Procurement Authorities”) and potential bidders. The Procurement Authorities may publish their invitations to tender on www.simap.ch. The bidders have the opportunity to announce their intention to tender, examine the relevant documents, and use the forum to submit questions to the Procurement Authorities. The Association also uses the www.simap.ch site to provide additional information on public procurement procedures in Switzerland.

The Association pursues its objectives as a non-profit organisation. All users are entitled to make use of www.simap.ch free of charge.

2 Object of contract, applicability

2.1 Object of contract

These General Terms and Conditions regulate the provision of information by the Association and use of the platform for exchange of information between Procurement Authorities and potential bidders.

2.2 Applicability of General Terms of Contract

These General Terms and Conditions apply to persons and entities (hereinafter “Users”) who actively use www.simap.ch in procedures for the awarding of public-sector contracts. These include bidders announcing their intention to tender and Procurement Authorities publishing invitations to tender on the platform; Users can take the form of natural persons as well as legal persons under private law or public law.

2.3 Conclusion of contract

All Users that register online as a procurement authority or a bidder automatically confirm their acceptance of these General Terms and Conditions. The obligations contained therein apply equally to natural persons who use the platform and to the legal persons for whom they act (e.g. Procurement Authorities, bidders, or data providers). Provisions containing references to the term ‘User’ apply equally to natural persons and to the legal persons they represent.

3 Services provided by the Association

3.1 Availability of information and functionalities

The Association makes the following information and functions available to its Users:

• a list of invitations to tender, a list of awards and a list of other public-sector invitations to tender from the current and the preceding week
• a list of public-sector invitations to tender broken down by type of partner (cantons, Swiss cities, federal authorities, and public corporations)
• a search engine capable of performing both simple and advanced searches
• a list of all public Procurement Authorities using www.simap.ch
• a list of bidders’ names (available to Procurement Authorities only)
• a function for downloading tender documents made available to www.simap.ch by the Procurement Authorities
• a function enabling bidders to submit questions on invitations to tender in cases where Q&A forums are provided
• a function enabling Procurement Authorities to answer any such questions online
• a list of contact addresses for use in the event of problems, questions, or other requests
• practical instructions for bidders and tips for Procurement Authorities
• a collection of documents (laws, resolutions, agreements) and links relating to public procurement procedures
• a large number of documents and links relating to www.simap.ch (general information, links to similar platforms in other countries, glossaries)
• onward transmission of simap data to official bodies responsible for publications
• Offer of subscriptions for data providers (GTC for Subscriptions for Dataproviders of simap.ch)

3.2 Support and Help desk

To assist its Users, the Association provides online help functions (user manual, instructions for use, tips) and a help desk. The help desk answers questions solely related to the functionalities of www.simap.ch.

The help desk is not responsible for addressing problems related to the Users’ hardware or software. Likewise, the help desk does not address questions relating to laws and regulations on public procurement; any such questions must be addressed to the responsible office at federal or cantonal level.

4 User responsibilities

4.1 General responsibility

The individual User bears the sole responsibility to both the Association and the other Users for the legality and accuracy of all content he or she publishes on www.simap.ch. This responsibility extends to all information and data (texts, images, etc.) he or she publishes on the site.

4.2 Observance of legal requirements

When using the platform, the User undertakes to comply with Swiss law. In particular, the User ensures that the content and offers he or she publishes on www.simap.ch infringe no legal provisions (especially provisions of criminal, competition, trademark, copyright or telecommunications law, data protection regulations or regulations on invasion of personal privacy). In addition, the content of the publications must not violate public morals or contain any other items of a dubious nature. The User further undertakes to respect the rights of third parties and to verify his or her publications for accuracy and freedom from viruses prior to their placement on the site.

4.3 Control of site content

The Association does not systematically control content and offers published by a User. If the Association has reasonable evidence of illegal, immoral, or inaccurate information or offers published by a User, it will, after informing that User accordingly, take the precaution of deleting the relevant publication from www.simap.ch. In accepting these General Terms and Conditions, the User automatically authorises the Association to take the final decision on deletion of publications that might be illegal, immoral, or inaccurate.

The association reserves the right in the event of misuse of the platform to report the User to the responsible authority (in particular, the prosecution authorities). The Association may also exclude any User who infringes legal or contractual requirements from using the platform and reserves the right to lodge claims for damages.

4.4 Password confidentiality

Each User who receives a password (access code) for the www.simap.ch site bears full responsibility for the secrecy and safekeeping of the access data. The User is not permitted to disclose these access data to third parties, but is entitled to make them known to members of his or her own organisation.

4.5 Special responsibility of Procurement Authority

The Procurement Authority is responsible for observance of the regulations governing the awarding of public-sector contracts. In particular, the Procurement Authority bears full responsibility for the content of its invitations to tender, any corrections or additions thereto, discontinued procedures, prequalification decisions, awards, replies to questions asked in the forum, and for any other information on an invitation to tender published on the www.simap.ch site.

It is the responsibility of the Procurement Authority to note any restrictions on further use of the tender documents within the documents themselves (see item 8.1). The Association recommends that Procurement Authorities apply such restrictions as an exception only and after legal review.

4.6 Consent

In completing the form confirming his or her participation in the tender procedure, the bidder authorises onward transmission of his or her data to the Procurement Authority.

The Bidder and the Procurement Authority accept that information on the awarding of a contract is published on the www.simap.ch site.

4.7 Liability of the User

The User bears full liability for all loss or damages resulting from infringement of his or her contractual obligations and indemnifies the Association against any claims filed against it by third parties.

5 Responsibilities of the Association

5.1 Correct functioning of platform

Although the Association bears responsibility for conscientious provision of its services and normal functioning of the platform, the User is aware that functional defects cannot be ruled out in complex information systems, even when these are designed and operated with all due care. Consequently, the Association cannot guarantee that the www.simap.ch site will function without defects. The same applies to transmission of data to the cantonal gazettes (KHB) or to the Schweizerische Handelsblatt (SHAB).

Any application errors will be corrected either by updates or by revised versions. The Association is free to decide the time for correction of errors. When supplying updates or revised versions, the Association gives no guarantee that all functions will be maintained in unchanged form.

5.2 Availability of services

Although the Association cannot guarantee uninterrupted availability of www.simap.ch functionalities and the help desk, or that the platform will be accessible at all times, it will endeavour to remedy any system failures occurring within its area of responsibility as quickly as possible. Depending on the duration of the interruption or complexity of the problem, the Association will display status reports on the www.simap.ch site.

5.3 IT security

The IT security level of the www.simap.ch site is modern and appropriate. User data are protected by https encryption and by the use of passwords and security codes.

The Association has no influence whatsoever on data files exchanged between Users and is consequently unable to guarantee either their integrity or their readability. The Users bear full responsibility for format compatibility and for keeping their files free of viruses.

5.4 Confidentiality, data protection

The Association treats all non-public information that comes to its knowledge during provision of its services in strict confidence and does not communicate any such information to third parties without the relevant User’s prior consent.

Unpublished personal data is treated in confidence and adequately protected against access via unauthorised persons. In entering his or her personal data on a contact form or sending an e-mail, the User confirms his or her consent to processing of these data for the relevant use.

5.5 Data storage/archiving

The archiving/deletion on simap.ch is regulated as follows:

For an open procedure, all documents are deleted automatically by the system 31 days after the deadline for bid submission or submission of the project contribution.

For a selective procedure, the documents are deleted automatically by the system 12 months after the deadline for submission of the application for participation.

All publications (invitations to tender, awards) are saved on simap.ch for a maximum of 5 years and are open to the public.

5.6 Liability of the association

In the event of claims filed for any legal reason whatsoever, the Association’s liability is limited to damage or loss caused through gross negligence or a wilful act of the Association itself or the responsible employee(s). Unless otherwise stipulated by mandatory law, the Association excludes its auxiliaries and subcontractors from liability, and also excludes any liability whatsoever for indirect or consequential loss or damage. The Association’s liability is limited to the amount of its assets.

Notwithstanding the precautions taken to prevent misuse of its www.simap.ch services and its reaction to any warnings received, the Association cannot exclude the possibility of use of these services for improper purposes. The Association disclaims any responsibility or liability for loss or damage caused by such misuse though either Users or third parties.

The Association further disclaims any responsibility or liability for the content or the correct functioning of other sites which can be accessed via hyperlinks.

5.7 Position of the Association

The Association’s position is independent and neutral. It has no influence on decisions taken by a Procurement Authority and published on the www.simap.ch site. Consequently, objections to the awarding of contracts cannot be filed against the Association.

The Association is neither a party to nor an intermediary in contracts concluded between Users of www.simap.ch. All procurement contracts are concluded and executed exclusively between the relevant Procurement Authority and bidder outside the www.simap.ch site.

6 Exclusion from use of site

The management of the Association may exclude Users from access to the functionalities of the www.simap.ch site or restrict their access rights without notice. Such exclusion or restriction takes place in the following cases in particular

• misuse of www.simap.ch
• User failure to observe these General Terms and Conditions
• reasonable grounds exist for suspecting that a User’s publication is unlawful or violates public morals
• misuse or disclosure of the access code
• User’s online transmission (either intentionally or unintentionally) of virus-infected data

A User’s exclusion automatically terminates his contractual relationship with the Association. The User cannot contest either a restriction, an exclusion, or the termination of the contractual relationship.

7 Termination of contract

Either party may terminate the contractual relationship at any time and without stating reasons therefore. Notice of termination must be served in writing (by e-mail).

The Association may cease operation and close down the platform at any time without incurring any liability for claims from the User. The Association communicates any such action in advance.

8 Final provisions

8.1 Rights to www.simap.ch

The composition of the platform and the applications for preparing and accessing the site content are intellectual property of the Association and its relevant partners and are protected by copyright. The content of invitations to tender remains intellectual property of the relevant Procurement Authority. The Association is nonetheless entitled to transmit the content to third parties.

The prior written agreement of the Association is required for the reproduction (in whole or part), publishing or linking (in particular via integration in a website or intranet) of platform structures, applications or content provided on www.simap.ch. Such agreement is not required for the printing out or downloading of content for personal or non-commercial use or for the downloading and publication of tender documents.

Persons who download tender documents, by virtue of their actions, undertake vis-à-vis the Procurement Authorities and persons with rights to the tender documents to comply with any conditions or restrictions to the further use of the tender documents that are noted in the same or that arise on the basis of copyright law and other relevant legislation. In order to facilitate compliance with any restrictions on use, the Association recommends that Procurement Authorities place the following text in the relevant documents: “These documents may be used for the sole purpose of submitting a bid. Any further use of these documents is subject to restrictions”, supplemented by a link to or details of the restrictions.

8.2 Amendments to functionalities and the GTC

The Association reserves the right to amend, supplement, or reduce the processes, structure and functionalities of the platform at any time. In addition, the Association may amend any content that it provides on www.simap.ch at any time.

The Association may amend these GTC at any time. Users are informed of such amendments by e-mail or by any other suitable (online) means. By continuing to use the platform, the User accepts the amended GTC. If the amendments are not accepted, the contractual relationship terminates with immediate effect. The current and binding version of the GTC is available on www.simap.ch and can be printed directly from the site.


8.3 Partial nullity

If any individual provisions or sections of these General Terms and Conditions prove invalid or impracticable, this does not affect the validity of the remaining provisions.

8.4 Settlement of disputes

In the event of differences of opinion in connection with the use of the www.simap.ch site or with the most recent valid version of the General Terms of Contract, the parties to the contract undertake to make every effort to find a mutually acceptable solution in good faith.

If there are any discrepancies or inconsistencies between the various language versions of these standard Terms and Conditions, the German version prevails.

8.5 Place of jurisdiction, applicable law

The sole place of jurisdiction for all disputes between the Association and the User arising either from these General Terms and Conditions or from the use of www.simap.ch is the legal domicile of the chair of the Association.

The contractual relationship is governed by Swiss substantive law.