General Terms & Conditions
Swiss Mountain Guides General Terms and Conditions
Written by the Swiss Mountain Guides Association (hereinafter referred to as SMGA)
A. General Points
Art. 1 Scope of the Contract
1.1 Each contract is comprised of the two following and integral parts, which shall apply in the event of contradictions in the following order:
1.1.1 Individual agreements between the client (principal) and the guide (agent) 1.1.2 These General Terms and Conditions (hereinafter referred to as GTC).
1.2 As defined by these GTC, any person having obtained the Swiss Mountain Guide Federal Certificate or any other equivalent certificate recognised by the International Federation of Mountain Guide Associations (IFMGA) shall be considered to be a mountain guide. Any person meeting this criterion shall be considered as a mountain guide as defined by these GTC, if he/she has been entrusted with the mandate of serving as a mountain guide. It may be a man, a woman or an organisation (e.g.: simple partnership formed by several mountain guides jointly and severally liable within the meaning of Art. 530 and following of the Swiss Code of Obligations, or a legal entity such as a general partnership or even a corporation in its capacity as agent), provided that the organisation retained has hired one or more guides that have obtained the above-mentioned certificate to perform the mandate.
Also considered as mountain guides, as defined by these GTC, are aspiring guides (men and women), provided that they are authorised to accompany clients alone, in compliance with the SMGA directives in effect for aspiring guides, and that they have spontaneously revealed their status to the client without any ambiguity and explained that their capacity to carry out mountain missions with clients in an autonomous manner is limited.
1.3 Each contract (mountain guide mandate) is exclusively governed by Swiss Law, independently of the fact that the mission may be carried out in part or in whole in a foreign country. Swiss Law, and notably Mandate Law (Art. 394 and following of the Swiss Code of Obligations) complete the integral parts mentioned in Art. 1.1 of these GTC.
1.4 Under the condition and provided that the Swiss Federal Law of 18 June 1993 on Flat Fee Trips (PauRG; SR [Systematic Collection of Federal Law] 144.3) is applicable, mandatory regulations arising therefrom (see Art. 19 PauRG) shall take precedence over the points previously exposed in Art. 1.1 and Mandate Law (see Art. 1.2 of these GTC).
Art. 2 Date of Effect of Contract
2.1 The contract shall come into effect as soon as the parties (client and guide) have agreed on the essential content of the contract, which is to say the fundamental provisions of the contract. This may include an oral agreement.
2.2 A possible confirmation of the mandate, in written form (letter, telecopy, e-mail, telex, telegram, etc.), drafted either by the guide or the client, will only serve to allow both parties to prove more easily that the contract exists and in no way constitutes a sine qua non condition of its validity. In the absence of an immediate and written contestation of the written confirmation of a mandate, the content of said confirmation becomes binding on both parties.
2.3 Art. 2.1 and 2.2 of these GTC shall not apply if one or both of the parties stipulate(s) an express condition, according to which the contract is only valid in written form. In the event of a formal agreement of this type or of a reservation (stipulated unilaterally) providing for a written form without further specifications, a letter, telecopy, e-mail or telex, as well as any other procedure providing for the written forwarding of the agreement!s content shall also apply.
Art. 3 Quality Assurance provided by the Guide
3.1 The guide is responsible for carrying out the mandate with due diligence, in compliance with the knowledge and skills required by the Swiss Mountain Guide Federal Certificate (capacities that the client has the right to expect), in accordance with the legal provisions regarding liability.
3.2 The guide guarantees that he/she has obtained the appropriate Swiss Mountain Guide Federal Certificate. If the mandate is binding on several persons, they shall all certify that they have obtained said Swiss Mountain Guide Federal Certificate. If one more or more aspiring guide(s) is/are among them (see Art. 1.2 of these GTC), he/she/they may only be party to the contract provided that he/she/they is/are authorised to accompany clients alone, in compliance with the SMGA provisions in effect for aspiring guides and that he/she/they has/have revealed his/her/their status to the client, who has expressly agreed thereto.
3.3 The guide guarantees that another possible guide with whom he/she subcontracts has also obtained the Swiss Mountain Guide Federal Certificate. The guide may not be party to a contract with a person lacking the Swiss Mountain Guide Federal Certificate (e.g.: mountain guide certified in another country or aspiring guide) unless he/she has obtained the express agreement of the client. He/she must submit the request in a timely manner to the latter and explain the situation comprehensively.
Art. 4 Quality Assurance provided by the Client
4.1 The client shall follow the guide!s instructions to the letter rigidly. Should this not be the case, the latter has the right to terminate his/her mandate immediately, and the client shall be bound to remit the full contractual remuneration.
4.2 The client shall spontaneously inform his/her guide of any possible risks that concern him/her (and specifically of a medical nature). In the absence of contrary indications, the client guarantees to the guide that he/she has the required capacities (physical condition, physical and mental health, mountain experience, sure-footedness, absence of vertigo, equipment, etc.) to undertake the tour covered by the contract. If a client does not fulfil his/her obligation to inform, in the event of a problem, the guide has the right to turn back immediately, and the client shall be bound to remit the full contractual remuneration (also see Art. 13.1, paragraph d and Art. 13.2 of these GTC).
4.3 The client accepts the risks inherent to the tour, independently of the fact that the mandate must be carried out with diligence by the guide.
Art. 5 Insurance
5.1 The guide confirms having obtained professional civil liability insurance coverage. The SMGA recommends additional coverage of CHF 10 million per accident, which includes bodily injuries and equipment damage. Upon request from the client, the guide shall provide a photocopy of his/her insurance policy in order to prove that he/she has effectively subscribed to professional civil liability insurance coverage. Moreover, the guide is covered by the usual and mandatory insurance, notably health and accident insurance.
5.2 It is incumbent upon the client to subscribe to the following type of insurance (recommended) in his/her name and for his/her own account:
Insurance in the event of withdrawal from the contract, also called cancellation fee insurance (see Art. 5, paragraph e of the PauRG)
Health and accident insurance
Insurance covering search, rescue and repatriation costs in the event of accident or sickness, provided that these clauses are not already included in the health and accident insurance (also see Art. 5, paragraph e of the PauRG)
Civil liability insurance including mountain accidents.
Art. 6 Jurisdiction
6.1 In the event of a dispute arising from the mountain guide contract, ordinary courts of law shall be competent.
6.2 Parties to the contract agree that the guide!s domicile shall be the exclusive place of jurisdiction.
B. Remuneration of the Mandate
I. Fundamental Provisions in Matters of Remuneration
Art. 7 Structural Elements of Remuneration
7.1 Remuneration for the guide!s services includes the following elements:
7.1.1 Fees 7.1.2 Reimbursement of ancillary expenses 7.1.3 Value added tax (if necessary)
7.2 Fees correspond to either one or more per-diem flat rates (see Art. 9 and following of these GTC), or one or more flat rates per summit (see Art. 14 and following of these GTC).
7.3 If the guide is subject to VAT, this tax is not included either in the per-diem rate or in the rate per summit. Consequently, he/she may add it to the invoice.
Art. 8 Remuneration Agreement
8.1 The guide and the client must agree on the guide!s remuneration, and specifically on his/her fees (also see Art. 2.2 of these GTC relative to the mandate confirmation), when finalising the contract. The per diem fees recommended by the SMGA, as well as the flat rates per summit published are nonbinding recommendations (indication prices).
8.2 If the parties fail to set the guide!s remuneration when finalising the contract, the client shall pay the per diem fee(s) in accordance with Art. 9 and following of these GTC, at the subsidiary flat rate set in Art. 10.1, 10.2 and 11 of these GTC, plus reimbursement of ancillary expenses in accordance with Art. 17 and following of these GTC.
II. Remuneration on a Per Diem Flat Rate Basis
Art. 9 Determination of the Per Diem Flat Rate
9.1 The per diem flat rate may vary between CHF 450.00 and CHF 840.00
9.2 The criteria serving to determine the per diem flat rate within the framework defined in Art. 1 of these GTC are the following:
Number of clients per guide: the latter has both the right and the duty to adapt the number of clients he/she accompanies (size of the group) to the tour!s conditions (e.g.: based on the clients! capacities, difficulty and length of the tour, weather conditions, etc.); if the guide accompanies more than one client, he/she shall apply a suitable charge for each additional person.
Difficulty and length of the tour, weather conditions, etc.
Client!s capacity (health, age, experience, etc.)
Effective date of contract: the earlier the contract is signed, the lower the per diem flat rate will be.
Number of days for the tour or training (not including return travel); a higher per diem flat rate shall be applied for a one, two or three-day contract than for one of four days or more.
Art. 10 Subsidiary Per Diem Flat Rate
10.1 If the parties do not agree on a specific fee or do not set fees at all (see also Art. 8.2 of these GTC), the per diem flat rate shall be CHF 450.00
10.2 If the parties do not agree on a specific price, the subsidiary per diem flat rate shall also apply for the fees stipulated in Art. 11 to 13, as well as in Art. 15 and 16 of these GTC.
Art. 11 Return Trips
11.1 If the outbound trip (arrival by transport and/or approach on foot) begins on the previous day after 1:00 pm, the client shall remit one half of the subsidiary per diem flat rate set in Art. 10.1 of these GTC. If the outbound trip begins on the previous day before 1:00 pm, the client shall remit the full subsidiary per diem flat rate in accordance with Art. 10. of these GTC.
11.2 If the return trip (on foot and/or by transport) ends on the day after the tour before 12:00 noon, the client shall remit one half of the subsidiary per diem flat rate set in Art. 10.1 of these GTC. If the return trip ends on the following day after 12:00 noon, the client shall remit, as payment for the day following the tour, the full subsidiary per diem flat rate in accordance with Art. 10. of these GTC.
11.3 The outbound trip starts at the place of immediate availability of the guide (e.g.: domicile, seasonal residence or point of arrival of the return leg of the preceding tour), while the return trip ends on the next place of immediate availability of the guide (e.g.: domicile, seasonal residence or point of departure of the outbound trip of the next mandate).
Art. 12 Cancellation
12.1 If the guide must cancel the tour due to reasons under his/her control (e.g.: sickness, accident, family situation, etc.), neither of the parties shall be bound to remunerate or indemnify the other.
12.2 If the guide must cancel the tour due to reasons beyond his/her control (e.g.: inclement weather, hazardous mountain conditions, disruption of transportation links, etc.), the client shall remit, based on the days agreed to and the time required for the return trip, the subsidiary per diem flat rates set in Art. 10.1 and 11 of these GTC, plus reimbursement of actual ancillary expenses (e.g.: cancellation fees for the lodging reserved, etc.). However, the guide shall be bound to propose substitute tours to the client that correspond to the capacities of the guide and of the client (e.g.: tour to another summit, via ferrata, in-door climbing, canyoning, etc.).
12.3 If the client cancels the mandate, for any reason whatsoever, he/she shall remit the full amount of the agreed upon fee to the guide or, as the case may be, should an agreement on fees not exist, the subsidiary flat rate set in Art. 10.1 of these GTC plus the per diem flat rate for the return trip in accordance with Art. 11 of these GTC, and according to the following provisions relative to cancellation fees plus actual respective ancillary fees (e.g.: cancellation fees for the lodging reserved, etc.):
Cancellation 60 to 31 days prior to the start of the tour: 25% of fees
Cancellation 30 to 11 days prior to the start of the tour: 50% of fees
Cancellation 10 days or less prior to the start of the tour: 100% of fees.
Art. 13 Stoppage and Interruption
13.1 The agreed upon per diem flat rate or, as the case may be, should an agreement on fees not exist, the subsidiary per diem flat rate set in Art. 10.1 of these GTC plus respective ancillary expenses are always due in the following cases:
When the guide must, for safety reasons (inclement weather, hazardous conditions, client!s fatigue, etc.), stop the tour
When the guide sets up a day of rest because of inclement weather or at the client!s request
When the client decides to stop the tour
When the guide decides to stop the tour due to reasons stated in Art. 4.1 of these GTC.
When the guide stops a tour that has started in order to provide assistance to trekkers in difficulty, because he/she is duty-bound and authorised to do so, on the condition that this involvement does not imperil the safety of his/her own clients.
Note: The client!s obligation to remit the entire remuneration to the guide when the latter provides assistance to trekkers in difficulty is legitimate in the community of risks of all mountain climbers. On his/her part, each client may count on the assistance of other professionals of the mountain if his/her guide and the client himself/herself should be in difficulty.
13.2 If a tour of several days must be stopped, Art. 13.1 of these GTC shall apply by analogy.
III. Flat Rate Remuneration per Summit
Art. 14 Amount of the Flat Rate per Summit
14.1 Instead of per diem flat rate remuneration, the parties may agree on remuneration in the form of a flat rate per summit.
14.2 The prices published by cantons or regional and cantonal mountain guide associations serve as indication prices to determine flat rates per summit for the area where the tour covered by the mandate will be held.
14.3 The flat rate per summit remunerates the ascent of a given summit with a client from a specific departure point (e.g.: a shelter) and following a specific route (e.g.: the East Ridge).
14.4 The flat rate per summit published is only valid for a single client. The guide has the right to require an additional 10 to 20% of the flat rate per summit for each additional client, not to exceed a maximum additional charge of 50%. The degree of difficulty and the length of the tour are essential in the calculation of the additional charge within a range of 10 to 20%.
Art. 15 Return Trips
15.1 Remuneration of the time dedicated to return trips is subject to provisions in accordance with Art. 11 of these GTC.
15.2 Should a specific agreement on a per diem flat rate not exist, the additional flat rate due for return trips shall be calculated on the basis of the subsidiary per diem flat rate set in Art. 10.1 of these GTC.
Art. 16 Cancellation and Stoppage or Interruption
16.1 Provisions in compliance with Art. 12 and 13 of these GTC shall apply by analogy.
16.2 Should a specific agreement on a per diem flat rate not exist, the fees due in this case shall be calculated on the basis of the subsidiary per diem flat rate set in Art. 10.1 of these GTC.
IV. Ancillary Expenses
Art. 17 Return Trips
17.1 The client must reimburse the guide for actual travel expenses for return trips as well as all possible travel expenses incurred during the mandate (e.g.: use of transportation means such as cable cars, etc., when changing sites). Furthermore, the client shall pay for his/her own travel expenses.
17.2 If it is impractical, or even impossible to use public transportation links or in the event the use of the guide!s personal vehicle allows to shorten return trips, the guide has the right to request an indemnity of CHF 60.00 per kilometre, independently of the fact that he/she is accompanied by the client or not. If, for one of the above-mentioned reasons or upon request by the client, a taxi service or similar private transportation means are called, expenses incurred are also for the client!s account.
Art. 18 Lodging
18.1 The client also pays for the guide!s actual lodging expenses (e.g.: in shelters and hotels, etc.) as well as his/her own lodging expenses.
Art. 19 Food
19.1 The guide!s and the client!s eating expenses in shelters, hotels, restaurants, etc., plus the price of beverages and tea for the flask are for the client!s account.
19.2 Possible snacks eaten by the guide and the client during the tour and taken out of each party!s knapsack are to be provided individually by the parties at their own expense.
Art. 20 Equipment (Material)
20.1 The guide!s expenses relative to his/her equipment (purchase, maintenance, repairs, etc.) are included in the fees remitted.
20.2 The guide has the right to expect the client to have his/her own equipment available necessary to carry out the mandate. If specific equipment is required, the guide shall inform the client in a timely manner.
20.3 If the client does not have the equipment required, the guide may rent it to the client, upon request and at cost price, provided and on the condition that this operation can be reasonably expected from the mountain guide.
V. Payment Terms
Art. 21 Determination of Payment Terms
21.1 The date on which the guide!s remuneration must be remitted (the latter includes the fees and reimbursement of ancillary expenses) must be set when finalising the contract. In the same manner, whether the client must pay for lodging and eating expenses directly must be determined (in accordance with Art. 17 and following of these GTC), in addition to his/her own lodging and eating expenses.
21.2 The guide has the right to request a down-payment from the client at a given date prior to carrying out the mandate. Such an agreement may include a suspensive provision stipulating that in the absence of remitting the down-payment within the deadline established, the contract becomes null and void for both contracting parties.
Art. 22 Absence of Set Payment Terms
22.1 In the absence of any set payment terms, the client shall reimburse the fees and ancillary expenses within 10 days of receiving the guide!s invoice on the bank or postal checking account indicated by the latter.
22.2 The invoice may be given to the client at the end of the mandate in handwritten form. In this case, the payment period of ten days comes into effect upon delivery of said invoice.
These Swiss Mountain Guides General Terms and Conditions have been approved by the Central Committee of the SMGA on 01/12/2005.