Tresorit – SwissID Sign Bundle Terms of Sale

This document (the "Agreement") is a legally binding agreement between you ("Customer") and Tresorit; and governs the purchase of subscriptions to the “Swiss qualified electronic signature” cloud products and services of SwissSign AG (the "SwissID Sign Services").

If you are agreeing to this Agreement not as an individual but on behalf of your organization, then "Customer" means your organization. In this case, this Agreement will bind your organization, unless your organization has a separate agreement in effect with us. You confirm that you have the necessary authority to enter into this Agreement on behalf of Customer before proceeding.

Please read this document carefully. You accept this Agreement by placing an order with Tresorit in connection with the SwissID Sign Services. Please do not place any order for the SwissID Sign Services if you are under 18 of age or barred from using the SwissID Sign Services under applicable law.

Scope
1. Reseller: Customer understands and acknowledges that Tresorit is reselling subscriptions for the SwissID Sign Services on behalf of SwissSign AG (the "Service Provider"). The SwissID Sign Services and any relating support services are provided by the Service Provider. Tresorit does not make any representations or warranties relating to the SwissID Sign Services or software and Tresorit is not responsible for the implementation or configuration of the SwissID Sign Services.
2. Service Provider Terms: The SwissID Sign Services are performed by the Service Provider in accordance with the SwissID Sign Terms and Documentation. Customer acknowledges that the Service Provider may amend the Documentation and change the features and functionalities of the SwissID Sign Services anytime. For the avoidance of any doubt, Customer understands and acknowledges that the Tresorit Terms of Service is not applicable in relation to the SwissID Sign Services.
3. Access rights: Customer will use the SwissID Sign Services for its own legitimate business purposes only, and Customer shall not resell, sub-lease, sub-rent, or sub-license the SwissID Sign Services to any third party. The Customer acknowledges that it will be required to accept the SwissID Sign Terms of Use or enter into a similar agreement with the Service Provider as a condition precedent for using the SwissID Sign Services. Access to and use of the SwissID Sign Services is restricted to individuals who create an account for the SwissID Sign Services within the framework of Customer’s subscription or invited to Customer’s Signing Room.
Customer’s responsibility
1. Compliance: As between the parties, Customer is responsible for compliance with the provisions of this Agreement and the SwissID Sign Terms, including for any and all activities that occur in Customer’s Signing Room. Customer is solely responsible for compliance with laws and regulations applicable to Customer’s and its User’s use of the SwissID Sign Services.
2. Customer Administration of the Services: The Customer, and not Tresorit, is responsible for the internal management or administration of the SwissID Sign Service. The Customer is responsible for maintaining the confidentiality of passwords and User Accounts. Customer understands and acknowledges that the SwissID Sign Services are subject to different security guarantees than the Tresorit Services, in particular Customer Files uploaded and/or shared through the SwissID Sign Service are not encrypted by client-side encryption.
3. Internet connection: The Customer is responsible for procuring and maintaining the network connections to the SwissID Sign Services. The Customer is responsible for obtaining and maintaining all connectivity, computer software, hardware and other equipment needed for access to and use of the SwissID Sign Services.
4. Embargoed Countries: Customer is aware that the SwissID Sign Services are subject to certain export restrictions. It is the Customer’s sole obligation and responsibility to check such limitations before using the SwissID Sign Services and to comply with such restrictions and limitations. The Customer shall not access or use the SwissID Sign Services if Customer located in any jurisdiction in which the provision of the SwissID Sign Services is prohibited under the laws of Switzerland, the United States or the European Union or other applicable laws or regulations (a "Prohibited Jurisdiction") and the Customer shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. Customer represents and warrants that (i) the Customer is not prohibited from receiving Swiss, EU or US exports; (ii) Customer is not a national of, or a company registered in, any Prohibited Jurisdiction, in particular any of the jurisdictions specified here ; (iii) Customer shall not permit Users to access or use the Services in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (iv) Customer shall comply with all applicable export laws regarding the transmission of technical data. The Service Provider may request additional documents from Customer’s Users in connection with their place of residence.
Fees
1. Subscription: The SwissID Sign Services are offered online on a subscription basis. The current prices and limits of the Service Plans are published on Tresorit’s website. Customer may elect a monthly or annual Service Plan ("Subscription Period"). If Customer selects a monthly Service Plan, Customer can switch to an annual Service Plan at any time. If Customer selects an annual Service Plan, Customer may not change to a monthly Service Plan until the end of the one-year term of Customer’s Service Plan.
2. Ordering: Once an Order is submitted, its terms are final and cannot be amended. The subscription is activated once the Order is confirmed by Tresorit, and the relevant fee has been received by Tresorit.
3. Auto-renewal: Fees will automatically be charged monthly or annually, for each month, partial month or year, depending upon the billing period selected by Customer for the subscription. Customer agrees that its subscription is automatically renewed for the same period at the end of each billing period (but for no longer than a year), and Tresorit may charge automatically at the end of the trial or the renewal, unless Customer notifies Tresorit in advance that Customer wants to cancel. Customer orders are irrevocable, non-cancellable and cannot be modified once submitted.
4. Fees, currency: Customer will pay Tresorit all applicable fees ("Fees") for the subscription to the SwissID Sign Services, in the currency quoted at the time of purchase. Customer authorises Tresorit, to charge Customer for all applicable Fees using Customer’s selected payment method. Fees are non-refundable except as required by law or as otherwise specifically permitted in this Agreement.
5. Billing: Customer must provide current, complete, accurate and authorized payment method information (e.g. credit card information). Tresorit may bill: (i) in advance; (ii) at the time of purchase; (iii) shortly after purchase; or (iv) on a recurring basis.
6. Taxes: Fees are exclusive of taxes and Customer is responsible for all taxes. Tresorit will invoice Customer for such taxes if Tresorit believes that it has a legal obligation to do so and Customer agrees to pay such taxes if so invoiced. If Customer is exempt from paying any taxes, Customer must provide Tresorit with a valid exemption certificate for all relevant jurisdictions, and Tresorit will not collect the taxes covered by the relevant certificate.
7. Promotions: Customer may receive or be eligible for certain pricing structures, discounts, features, promotions, and other benefits (collectively, "Promotions"). Any and all such Promotions may be modified or terminated without notice. It will be Tresorit’s sole decision as to whether any eligibility requirement has or has not been met and Tresorit may require evidence or confirmation for such purpose. All Promotions are subject to availability, are non-transferable and non-exchangeable.
8. Changes in fees: Tresorit reserves the right to revise and update the applicable Fees, and the different Service Plans available, at any time at its sole discretion. Any such revision or updates to the Fees will apply prospectively following the effective date of the fee revision or update.
Limitations and eligibility
1. Eligibility: To use the SwissID Sign Services, Users may be required to register a User Account with the Service Provider and accept the SwissSign Terms. For Electronic Signatures, Users must also have a SwissID at the necessary security level for using the SwissID Sign Services and each User need a properly functioning device, in particular a smartphone with an up-to-date operational system in accordance with the applicable SwissSign Terms, including fingerprint scanner and/or facial identifier. Customer acknowledges and understands that its Users may be required to perform an identity check and submit any form of authentication required during the registration process, as determined by the Service Provider in its sole discretion.
2. Usage limits: The maximum number of electronic signatures that can be used during a Subscription Period are specified on the in the relevant Order and/or Documentation. Customer understands and acknowledges that those Electronic Signatures which are not used within the relevant Subscription Period will be irreversibly lost and cannot be refunded. If Customer exceeds the usage limit, Customer’s use of the SwissID Sign Services may be reduced so that it conforms to that limit. If Customer is unable or unwilling to abide by a contractual usage limit, upon Tresorit’s request, Customer will execute an Order for additional quantities of Electronic Signatures, and/or Customer may be required to pay any invoice for excess usage.
3. Local laws: It is Customer’s responsibility to determine whether the features of the SwissID Sign Services are appropriate for its intended purposes and the laws and regulations that apply to Customer and its Users. Customer is aware of the nature of qualified electronic signature under Art. 2(e) of the Swiss Federal Act on Electronic Signature. Customer is solely responsible for ensuring that the documents, agreements or contracts it executes within the framework of the SwissID Sign Services can legally be formed by Electronic Signatures and to inform its Users accordingly. In addition, Customer is solely responsible for determining how long any contracts, documents, and other records are required to be retained or stored under any applicable laws or regulations and to archive Customer Files accordingly.
4. No legal advice: You understand and acknowledge that Tresorit is not a law firm, and it does not provide any legal advice. If legal advice is needed, you should consult your attorney. Neither Tresorit, nor the Service Provider shall be a party to any of the agreements executed within the framework of the SwissID Sign Services.
No warranty
1. Limited warranty: Each party represents and warrants that: (i) they are a valid legal entity in good standing under the laws of the jurisdiction in which they are organized; (ii) they have full power and authority to enter into this Agreement, which will create a binding agreement between the parties; and (iii) the performance by the parties under this Agreement will not violate any obligation or duty owed to a third party. Customer represents that it has the requisite expertise to evaluate the suitability of the SwissID Sign Service and it has in fact undertaken its own investigation of whether the SwissID Sign Services are accurate or sufficient for its purposes and it has relied upon its own skill and judgement in ordering the SwissID Sign Services.
2. Disclaimer: Customer acknowledges that the SwissID Sign Services are subject to the applicable SwissSign Terms and data processing agreement (if applicable), which may contain a limited warranty from the Service Provider. All Customer’s rights and remedies with respect to the SwissID Sign Services, including any warranty, liability, and indemnity will be governed by the applicable SwissSign Terms and data processing agreement. Tresorit does not make any representations or warranties relating to the SwissID Sign Services or software.
3. Provided “as-is”: Except as provided in this section 5, to the maximum extent permitted by applicable law, Tresorit disclaims any warranties of merchantability, fitness for a particular purpose or non-infringement or any warranty that the Service are of any particular quality or purpose.
Limitation of Liability
1. Liability cap: Tresorit’s liability for any damages relating to this Agreement or the SwissID Sign Services are limited to the amounts actually paid or payable by the Customer to Tresorit under this Agreement for the past six months preceding the first event or occurrence giving rise to the damage. In no event will Tresorit be liable for any incidental, consequential, special, punitive or indirect damages of any kind, including damages resulting from delay, loss of profits, lost business opportunity, loss of content, interruption of business or loss of goodwill, which may arise in connection with or pertaining to this Agreement or the SwissID Sign Services, even if such party has been notified of the possibility or likelihood of such damages occurring under any theory of law (including tort or other theory).
  
  Nothing in this Agreement shall exclude or limit the liability of either party for (i) for intentional and gross negligence, (ii) for any damages arising from injury to life, body or health, or (iii) any other liability to the extent the same may not be excluded or limited by applicable law.
2. Independent Allocations of Risk: Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of this Agreement between the parties. This allocation is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of this Agreement, and each of these provisions will apply even if the warranties in this Agreement has failed of their essential purpose. Customer agrees that any contract or other document relating to the purchase of subscriptions to the SwissID Sign Services submitted to Tresorit that includes any warranty to Customer or that includes language that may create a liability for Tresorit, or conflicts with this Agreement, is void and of no effect.
Indemnity

To the extent permitted by law, Customer will defend, indemnify and hold harmless Tresorit, including its employees and Affiliates, from and against any claims, incidents, liabilities, procedures, damages, losses and expenses, including reasonable legal and accounting fees, arising out of or resulting from the access to or use of the SwissID Sign Services by Customer or the violation of the SwissID Sign Terms or this Agreement by Customer.
Termination
1. Effect: This Agreement enters into effect on the day when you accept this Agreement and continues until terminated either by Tresorit or the Customer.
2. Termination for convenience: Customer may elect to terminate its subscription to the SwissID Sign Service as of the end of its then current subscription period. In this case, Customer’s subscription will not be renewed. There is no refund for any pre-paid service.
3. Termination for cause: Either party may terminate this Agreement with notice if the other party materially breaches this Agreement and such breach is not cured within fifteen days after the non-breaching party provides notice of the breach. In case of termination for cause by Customer, Tresorit will provide Customer with a pro-rata refund of any pre-payment. For the avoidance of any doubt, Tresorit shall not deemed in default if Service Provider suspends or terminates Customer’s access to, or use of the SwissID Sign Services in accordance with clause 8.5 below.
  
  Tresorit may terminate the Agreement immediately on notice to Customer in particular, if (i) Customer fails to timely pay any amount owed to Tresorit; or (ii) Tresorit reasonably believes that Customer has breached clause 2.1 of this Agreement. Customer is also deemed to be in material breach and Tresorit may terminate the Agreement immediately on notice to Customer if Service Provider terminates the provision of the SwissID Sign Services to Customer in accordance with clause 8.5.
4. Survival: The following sections will survive expiry or termination of this Agreement: 2 (Customer responsibility), 3 (Fees), 5 (No warranty), 6 (Limitation of Liability), 7 (Indemnification), 8 (Term), 9 (Intellectual Property Rights), 11 (Miscellaneous).
5. Suspension / termination by the Service Provider The Service Provider may suspend or terminate the provision of the SwissID Sign Services if (i) Customer uses the SwissID Sign Services in violation of the SwissSign Terms, or (ii) under circumstances specified in the SwissSign Terms. Any such action by Service Provider does not give Customer the right to terminate this Agreement. If the SwissID Sign Services are suspended in accordance the above, Customer remains responsible and liable for all Fees and charges which have incurred up to the end date of suspension.
6. In certain cases, Customer may terminate the SwissID Sign Services as expressly set out in the SwissSign Terms. In such case, the Customer must comply with all processes and requirements under the SwissSign Terms and must inform Tresorit in advance about its election to exercise such termination rights, prior to Customer’s written notice to Service Provider. In the case of such termination, the payment of service credits is the sole and exclusive remedy of the Customer, and further obligation and liability of Tresorit relating to any claims are excluded.
Intellectual Property
1. Reservation of Rights: Each party shall retain all rights, title and interest in and to all its respective patents, inventions, copyrights, trademarks, domain names, databases, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, "Intellectual Property Rights"). Except as expressly set out in this Agreement, this Agreement does not grant any right, title, or interest to you with respect to the Services or in any Tresorit Intellectual Property Rights.
2. Feedback: Tresorit may use any feedback, ideas, comments, enhancement requests, recommendations or suggestions ("Suggestions") that you send or share with Tresorit without any obligation to you. You hereby grant to Tresorit a world-wide, royalty free, irrevocable, perpetual license to use and otherwise incorporate any Suggestions.
Data protection
1. Tresorit will process certain data about Customer and its Users which may include Personal Data. Any such data will be processed in accordance with the Privacy Notice which you acknowledge. Customer is responsible for Customer Data (including Personal Data) as entered into, supplied or used by Customer and its Users. Customer represents and warrants that it is entitled to process and transfer Customer Data, including the relevant Personal Data of Users and such processing complies with the applicable data protection laws.
2. Customer consents to Tresorit providing certain information, including Personal Data, to the Service Provider and granting the Service Provider permission to access or otherwise process such information for the purposes of the provision of the SwissID Sign Services. Customer also acknowledges and agrees that the Service Provider may send electronic communications in relation to the sign-up process.
3. Customer acknowledges that data processing of SwissID Sign Service is governed solely by the SwissSign Terms and the privacy policy of the Service Provider, and where applicable, Customer will enter into a data processing agreement with the Service Provider directly. Tresorit does not endorse, is not liable for, and makes no representations as to the manner in which the Service Provider uses, stores, or processes data. Customer understands that Tresorit is not responsible or liable for any changes to or deletion of your data as a result of, or in connection with the use of the SwissID Sign Services.
Miscellaneous
1. Governing law: This Agreement is governed by Swiss law, excluding the Swiss conflict of law rules. The parties specifically exclude applicability of (i) the United Nations Convention on the Sale of Goods and (ii) any Incoterms. For the avoidance of any doubt, if Customer is a consumer and has its habitual residence in the EU, this clause does not affect the protection provided by mandatory provisions of the law of Customer’s residence.
2. Disputes: The parties both agree that any dispute between the parties in connection with the Services and/or this Agreement shall be determined by the courts of Zurich.
3. Severability; Entire agreement: The provisions of this Agreement apply to the maximum extent permitted by relevant law. If any court or relevant authority decides that any part of this Agreement is unlawful, unenforceable, or invalid, the remaining clauses will remain in full force and effect. This is the entire contract between the parties regarding the subject matter. It supersedes any prior contract or oral or written statements regarding your use of the Services. If Customer requires the use of a purchase order, no provision of any such document used by Customer will supersede or supplement this Agreement, and the terms and conditions of any such purchase order will have no legal effect.
4. Waiver; Remedy: The failure of either party to enforce a provision of this Agreement is not a waiver of its right to do so later. The waiver by Tresorit of any breach shall not be deemed a waiver of any subsequent breach of the same or any other term of this Agreement. Any remedy made available to Tresorit by any of the provisions of this Agreement is not intended to be exclusive of any other remedy.
5. Expiration of Claims: Both parties agree that except for claims related to the indemnification obligations above, all claims arising under or related to this Agreement must be brought within two years after the date the cause of action arose.
6. Assignment: Customer may not assign or transfer this Agreement or any rights or obligations under this Agreement without Tresorit’s written consent. Tresorit may not assign this Agreement without providing notice to Customer. However, Tresorit may freely assign its rights and obligations under this Agreement in its entirety to an Affiliate or in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets provided that any such successor agrees to fulfil Tresorit’s obligations under this Agreement.
7. Independent Contractors: Customer and Tresorit are independent contractors and are not the agents or representatives of the other. This Agreement is not intended to create a joint venture, partnership, or franchise relationship between the parties.
8. Language: Tresorit may provide translations of this Agreement or other terms or policies. Translations are provided for informational purposes only. If there is any inconsistency or conflict between a translation and the English version, the English version will apply.
9. Notices: Notices must be sent via email, first class post, airmail or overnight courier and are deemed given when received. Notices to Customer may also be sent to the applicable account email address and are deemed given when sent. Any questions about this Agreement, pricing, complaints, or other inquiries are to be addressed to Tresorit AG, Pfingstweidstrasse 60b, CH-8005 Zurich, Switzerland or to support@tresorit.com. Tresorit reserves the right to make reasonable steps to verify Customer’s identity before responding to or acting upon Customer’s request.
Glossary