Tresorit – Terms of Service June 2019

Version: 19/06/2019

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1. Service

   1. Scope: This Agreement governs the access and use of all products and services owned and offered by Tresorit, including applications, websites and technologies or functions and relating Software (the "Services"). You may access and use the Services in accordance with this Agreement, the Acceptable Use Policy, the Tresorit Privacy Policy and the Data Processing Addendum (if applicable).

   2. Resellers: As a Customer, you may purchase a subscription directly from a third party ("Reseller"). In such cases, in addition to this Agreement, separate terms and conditions with the Reseller may apply to your access to the Service. You expressly acknowledge and agree that Tresorit is entitled to enforce this Agreement against you and that Resellers are not authorized to make any promises or commitments on Tresorit's behalf. Tresorit is not bound by any obligations other than what is specified in the documents listed above in clause 1.1.

   3. Changes in Service: We are always looking for ways to make the Services better, smarter, and more secure. To live up to that, we may need to modify features and functionality from time to time. If we change the Services during the term of this Agreement in a manner that materially reduces functionality or limit access to certain features, we will notify Customers at the email address associated with their account. After receiving the notice, as a Customer, you may terminate this Agreement within thirty days. In such case, you will be provided with a pro-rata refund of any pre-payment. This termination right will not apply to updates made to features provided as Beta Services.

2. Confidentiality of Encrypted Content

   1. Encryption: You acknowledge that by using the Service, the files uploaded and/or shared through the Service ("Customer Files") are encrypted by client-side encryption before they leave the User's location ("Encrypted Content"). According to the best of Tresorit's knowledge and the current state of the art, Encrypted Content cannot be decrypted or inverted by Tresorit or any unauthorized third party.

   2. Collaboration: When you upload and/or share Customer Files through the Service, Encrypted Content can only be decrypted by you by accessing your account and by persons with whom Encrypted Content is specifically shared with ("Collaborator"). If you are a Company Administered User, or the relevant Collaborator is a Company Administered User, in certain cases your Administrator or the Administrator of your Collaborator may also have cryptographic access to the shared Encrypted Content in accordance with section 5 (Business Administrator) below.

   3. Roles and permissions: You understand that Encrypted Content will be accessible by Collaborators to the extent the relevant Collaborators have been granted access. Your and Collaborators' rights are defined in accordance with your "permission" that defines whether you can modify, delete or reshare the Encrypted Content. Before sharing Encrypted Content, please consider the permissions of the relevant Collaborator.

   4. Password: Tresorit has no access to passwords and there is no way for Tresorit to recover passwords relating to your account. Tresorit is not liable if Encrypted Content cannot be decrypted due to password loss. It is strongly recommended that Users keep backups of any content on their own systems.

3. Customer Files

   1. Limited Permission: This Agreement does not grant Tresorit any ownership over the contents of Customer Files or over Customer's intellectual property, except for the limited rights that are reasonably necessary for Tresorit to provide the Services in accordance with this Agreement, in particular to store, backup or transfer (as set out in clause 4.3) Customer Files and Service Data.

   2. Content: You understand that Tresorit uses strong cryptography algorithms to protect Customer Files and as a Customer, you are fully and solely responsible and accountable for the content of Customer Files. By using the Services, you guarantee that you have all required permissions for each Customer File – including copyright and other intellectual property rights – to distribute, transfer, store and/or make the content available online through the Services.

   3. Company Administered Users: As a Company Administered User or Administrator, you acknowledge that Customer Files are owned by Customer and this Agreement provides Customer with many choices and control over Customer Files uploaded and/or shared within the Services, as set out in section 5 (Business Administrator). In addition, depending on the relevant Collaborator's rights, Collaborators may be able to modify, delete or reshare the Encrypted Content.

4. Data processing and transfer

   1. Personal Data: In order to operate and provide the Services, Tresorit collects certain non-encrypted information ("Service Data") that may include Personal Data. Further information about how Tresorit collects, uses and discloses Personal Data is set out in Tresorit's Privacy Policy and the Data Processing Agreement (if applicable). Customer acknowledges that, due to client-side encryption, Encrypted Content is not deemed to be Personal Data from the perspective of Tresorit, as Tresorit cannot use encrypted information to identify any individual.

   2. Sub-processors: Customer agrees that in providing the Services, Tresorit will engage entities within the Tresorit group and authorized service providers, to process Encrypted Content and Service Data ("Sub-processors"), including and without limitation, any associated Personal Data under this Agreement within the EEA, the United States and in other countries and territories. The list of Sub-processors is available at: https://support.tresorit.com/hc/en-us/articles/216114397-Third-party-services.

   3. Data transfers: Customer agrees that Tresorit and its Sub-processors may transfer Encrypted Content and Service Data between their servers, to the devices of Users and/or Collaborators, and as a result, Users and Collaborators may have access to Customer Files in locations other than Customer's country. Tresorit may provide the ability for Customer to select a major geographic area for data storage purposes. In such case, Tresorit will store Customer Files within that area chosen by Customer.

   4. Data Processing on behalf Customer: If Customer has an account for business purposes ("Business Subscription"), by entering into this Agreement Customer instructs Tresorit to process Personal Data on its behalf and to provide the Services in accordance with Tresorit features and functionalities or as further documented by mutually-agreed upon written instructions given by Customer and accepted by Tresorit. Customer acknowledges that its Company Administered Users' use of the Services is subject to Tresorit's Privacy Policy and understand that it identifies how Tresorit collects, stores, and uses certain information. Customer will make Company Administered Users familiar with the Privacy Policy.

   5. Data Processing Agreement: If Customer has a Business Subscription and is subject to EU Data Protection Laws, Customer agrees to the Data Processing Addendum (available through the Tresorit application). Customer cannot process any information via the Services that falls within the definition of "Protected Health Information" under the HIPAA Privacy Rule (45 C.F.R. Section 164.051) unless Customer and Tresorit have entered into a separate HIPAA Business Associate Agreement.

5. Business Administrators

   1. Administrator rights: In the case of certain Service Plans, Customer may appoint selected Company Administered User(s) as "Administrator(s)" and may change this role at any time. Administrators may have the ability to monitor, restrict or terminate access to accounts relating to Customer's subscription ("Company Administered User Accounts"). In addition, Administrators may be entitled to request different or additional services (including setting up policies and 2-Step Verification for Customer accounts), assist in third-party product integrations, and accept notices, disclosures, and terms and conditions.

   2. Advanced control: Customer may set up advanced control in his own Business Subscription. Upon the consent of Company Administered Users to advanced control, a designated Administrator will gain cryptographic access to their Encrypted Content ("Recovery Administrator"). In such case, Tresorit will continue to store Customer Files in accordance with clause 2.1 above, i.e. Encrypted Content cannot be decrypted or inverted by Tresorit or any unauthorized third party. However, the designated Recovery Administrator will have access to the recovery key and might also reset Company Administered Users' passwords and may be able to access, disclose, restrict or remove information in or from Company Administered User Accounts.

   3. Joining a Business Subscription: As a Customer, you may convert your private account into a Company Administered User Account by joining a Business Subscription. In that case, all data stored with Tresorit (including Encrypted Content and Service Data) will also be transferred into the Business Subscription. Be careful to join the right organization's Business Subscription because after joining the Business Subscription, you may not able to convert it back without deleting all data stored within the Service.

   4. Business Email: If the primary email address of Customer's account is owned by an organization and was assigned to Customer as an employee, contractor or member of the organization, the Administrator may require that Customer joins the relevant Business Subscription and to convert his private account. In this case, Customer may not be able to use the Service without accepting the terms of that Business Subscription and without joining that Business Subscription.

   5. Managed Services: If Customer purchases the Services via a Reseller, Customer may appoint any of the Reseller's personnel as Administrators of Customer's account. In this case, Customer Files are stored in accordance with clause 2.1 above, i.e. Encrypted Content cannot be decrypted or inverted by Tresorit or any unauthorized third party, but Customer acknowledges that, the Reseller may be able to control and have access to account information, including Customer Files and Service Data.

6. Customer responsibility

   1. Eligibility to use: You represent and warrant that: (i) you are of legal age (18 years of age or older or otherwise of legal age in your resident jurisdiction) and competent to agree to this Agreement and (ii) you have validly entered into this agreement and have the legal power to do so.

   2. Compliance: As between the parties, Customer is responsible for compliance with the provisions of this Agreement and the Acceptable Use Policy, including for any and all activities that occur under Company Administered User Accounts. Customer is solely responsible for compliance with laws and regulations applicable to Customer's and Company Administered User's use of the Services. Customer maintains all responsibility for determining whether the Services are accurate or sufficient for its purposes.

   3. Customer Administration of the Services: Customer is responsible for maintaining the confidentiality of passwords and Customer accounts. Customer, and not Tresorit, is responsible for the internal management or administration of the Service. The Services support logins using 2-Step Verification. If a 2-Step Verification method is switched on for Customer's account(s), Tresorit will not let access to the relevant accounts without 2-Step Verification.

   4. Customer Passwords: Customer understands and accepts that if Customer's or a Company Administered User's password is lost, he cannot get access to his account. To prevent the loss of files, Customer will maintain, protect, update, secure and backup his computer and his locally stored and synchronized Customer Files. Customer acknowledges that Tresorit does not offer back-up services but rather a cloud storage sync and share service.

   5. Embargoed Countries: The Software includes cryptographic software that may be subject to import or export controls or other restrictions under the laws of the country in which Customer intends to use the Services. It is Customer's sole obligation and responsibility to check such limitations before using the Services and to comply with such restrictions and limitations.

      Customer shall not access or use the Services if Customer located in any jurisdiction in which the provision of the Services, Software or other components is prohibited under the laws of Switzerland, the United States or the European Union or other applicable laws or regulations (a "Prohibited Jurisdiction") and 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) 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; (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.

   6. Security of devices: Without prejudice to clause 3.2 above, parts of encryption keys may be stored on Customer's and its Users' device (memory or persistent storage), or Tresorit may provide you a printable recovery encryption key. Even in cases where such encryption key is provided to Customer, Encrypted Content cannot be decrypted or inverted by Tresorit or any unauthorized third party. Customer is responsible for devices relating to its Business Subscription and any copy of printed or otherwise archived recovery keys. Tresorit cannot be held liable if Customer's device is stolen or hacked and an unauthorized person gets access to Encrypted Data by accessing a locally stored copy, or by obtaining un-protected passwords or any encryption keys stored on the relevant device.

   7. Internet connection: You understand that certain functions of the Services require Internet connection. You are responsible for procuring and maintaining the network connections that connect your network to the Services, including, but not limited to, "browser" software that supports protocols used by Tresorit. You are responsible for obtaining and maintaining all connectivity, computer software, hardware and other equipment needed for access to and use of the Services.

7. Third-party requests

   1. Customer Responsibility: Because of client-side encryption specified in clause 2.1, Encrypted Content cannot be decrypted or inverted by Tresorit or any unauthorized third party. Accordingly, Customer is responsible for responding to any request from a third-party relating to Customers', including Company Administered Users', use of the Services ("Third-party Request"), including Customer Files and Service Data, via its own access to information. Customer will seek to obtain information required to respond to Third-party Requests and will contact Tresorit only if it cannot obtain such information despite diligent efforts.

   2. Tresorit Responsibility: If Tresorit receives a Third-party Request relating to Customer, then – to the extent allowed by law and by the terms of the Third-party Request – Tresorit will make commercially reasonable efforts to: (i) notify Customer promptly of Tresorit's receipt of a Third-party Request; (ii) comply with Customer's commercially reasonable requests regarding its efforts to oppose a Third-party Request; and (iii) provide Customer with information or tools required for Customer to respond to the Third-party Request, if Customer is otherwise unable to respond to the Third-party Request.

      If Customer fails to respond promptly to any Third-party Request, Tresorit may, but will not be obligated to do so. In particular, Tresorit may provide Service Data in response to a Third-party Request, respecting all limitations in clause 2.1, if Tresorit has a reason to believe that it is required: (i) to comply with any law or order issued by any legal authority; (ii) to avoid infringement of the rights of a third party; (iii) to protect the property of Tresorit or the personal safety of our users and the public.

8. Fees

   1. Service Plan: Tresorit offers both free and paid Services. If Customer subscribes to a paid Service directly through the subscription flow of Tresorit, then prices and features of Services depend on the Service Plan selected as well as any changes instigated by Customer. Tresorit's current prices and features are published on Tresorit's website.

   2. Fees, currency: Customer will pay Tresorit or the relevant Reseller all applicable fees ("Fees") for the 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.

   3. Licenses: Subject to any limitation on the number of individual user accounts available under the applicable Service Plan(s) to which Customer subscribed, access to and use of the Services is restricted to the specified number of individual Company Administered Users permitted under Customer's subscription.

   4. Subscription Period: When subscribing to a paid service, Customer may elect the term of its 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.

   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. 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.

   7. Downgrade and cancellation: No refunds or credits for Fees or payments will be provided to Customer if Customer elects to downgrade or cancel its Service Plan. Please consider the relevant changes carefully as downgrading the Service Plan may cause loss of content, features, or capacity of the Service, and Tresorit does not accept any liability for such loss.

   8. Changes: Tresorit uses reasonable commercial efforts to implement changes of the Service Plan or features instigated by Customer as soon as possible. If Customer decides to downgrade or cancel, changes will take effect the day after the last day of the then current Subscription Period.

   9. Joining the subscription of others: If your account as a Customer is added to the subscription of another Tresorit customer, then all previous subscriptions under your account may be immediately cancelled and removed. As a Customer, you understand and acknowledge that if you join the subscription of another Tresorit Customer, you become dependent from this customer and take the risk that Tresorit may suspend the Service for reasons caused by this customer.

   10. 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.

   11. Changes of fees: In cases where Tresorit offered a specific duration and Fee for use of the Service, the Fee will remain in force for the relevant Subscription Period. However, Tresorit does not represent or warrant that a particular Service Plan will be offered indefinitely and reserves the right to change the prices for or alter the features and options in a particular Service Plan. Tresorit may revise the relevant Fees by providing Customers at least thirty days' notice. Subject to applicable law, Customer's use of the Service will be charged at the then-current Fee(s) after the relevant period ends, unless Customer cancels the subscription at the end of his current subscription period.

   12. Purchase from Reseller: If you as a Customer purchase from a Reseller, then the scope of the Services and the specifics of your payment obligations are stated in your agreement with the Reseller. In such case, you owe payment to the Reseller as agreed between you and the Reseller, but you acknowledge that Customer's rights to use the Services may be suspended or terminated if Tresorit does not receive the corresponding payment from the Reseller.

9. Promotions and free services

   1. 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.

   2. Free Services: If Customer registers for a free trial, promotional offer, or other type of limited offer for use of the Services ("Free Service"), Customer may need to accept additional terms and conditions upon registration. Any such additional terms and conditions are hereby incorporated into this Agreement by reference and are legally binding.

   3. Trial: Customer can sign-up for a trial for some of the Services which may require payment preauthorization. The trial period starts on the day when Customer creates the trial subscription. During the trial, Customer may cancel at any time until the last day of the trial. If the trial period ends, the relevant subscription may automatically be converted to a paid subscription and the relating Fee will be automatically charged. For accounts used for business purposes, Tresorit reserves the right to reduce the term of a trial period or end it altogether without prior notice.

   4. Disclaimer: Free Services are provided "AS IS" and "as available" without any warranty that may be set forth in this Agreement, and Tresorit DISCLAIMS ANY IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND TRESORIT'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO CUSTOMER'S USE OF THE FREE TRIAL IS EUR 100.

10. Software

    1. Customer's rights: Tresorit remains the owner of the Software at all times. Tresorit grants to you a limited non-exclusive, non-transferable license to use the Software in connection with the Services and in accordance with this Agreement. Tresorit and its licensors retain ownership of all copies of the Software even after installation on your devices.

    2. Software updates: The Software may be updated automatically from time to time. In other cases, you may need to download and install the latest version of the Software. Any updates provided by Tresorit shall be deemed to be subject to this Agreement unless Tresorit indicates otherwise. Depending on the update, you may not be able to use the Services until you have downloaded the latest version of the Software and accepted any new terms. Users must keep their Tresorit clients up-to-date. If you skip updating for more than 6 months, Tresorit may suspend or terminate this Agreement and the relevant User's account with a fifteen-day notice.

    3. Open-Source: You acknowledge that the Software may contain third-party, open-source software components ("Open-Source Component"). To the extent required by the licenses covering Open-Source Components, the terms of such licenses will apply in lieu of this Agreement with respect to that component of the Software. The list of the Open-Source Components if the Software is available on the Tresorit website (https://tresorit.com/third-party-code).

    4. DRM: Certain Tresorit services may include the Tresorit DRM service. You may choose to use Tresorit DRM service, as an optional part of the Service. To use Tresorit DRM, you may need to install an add-in to his computer. Tresorit DRM is part of the Service, and by installing Tresorit DRM add-in or start using Tresorit DRM service, you also agree with the following EULAs of the software included in the add-in:

       • http://www.­download.­windowsupdate.­com/­msdownload/­update/­v3/­static/­EULA/­en/­eula.htm;
       • http://office.­microsoft.­com/en-us/microsoft-software-license-terms-for-microsoft-office-2010-HA101817777.aspx;
       • http://technet.­microsoft.­com/en-US/dn567972.

    5. By using or installing Tresorit DRM, you agree that the Software will save Microsoft RMS credentials into Microsoft Office and other applications, which supports DRM, to enable the automatic consumption of DRM protected contents. You agree, that after turning on DRM protection, content will be DRM protected automatically, and protected Customer Files may be opened or edited only with internet connection.

11. 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. Use of the Services: The Services are the property of Tresorit or Tresorit's licensors. Tresorit grants you limited, non-exclusive, revocable permission to make use of the Service during the term of this Agreement. You agree to abide by Acceptable Use Policy and not to use the Services in any manner not expressly permitted by this Agreement or the Acceptable Use Policy.

    3. 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.

    4. Identifying Customer: Unless otherwise instructed by Customer in writing, Tresorit may publish and identify Customer as a user of the Service, and Customer grants to Tresorit a non-exclusive, fully paid-up licence to use its logos and trademarks and agrees that Tresorit may use any logo and/or name associated with Customer on the Tresorit website and other marketing materials. Tresorit agrees to comply with all reasonable guidelines and directions of Customer regarding the form, manner and application of such logos and trademarks. Customer can request Tresorit to stop identifying Customer as a user of the Service anytime by sending a written notice to support@tresorit.com.

12. Disclaimer

    1. Beta Services: From time to time, Tresorit may release products and features that are still subject to testing and evaluating ("Beta Service"). Despite anything to the contrary in this Agreement: (a) you may choose to use Beta Services at your sole discretion and USE BETA SERVICES AT YOUR OWN RISK; (b) Beta Services may not be supported and may be changed at any time without notice; (c) Beta Services may not be as reliable or available as the Services; (d) Beta Services have not been subjected to the same security measures and auditing to which the Services have been subjected. TRESORIT WILL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH BETA SERVICES.

    2. Provided as-is: If Customer has a paid subscription, Tresorit promises that it will try to operate the Service with reasonable care and skill and will use reasonable commercial efforts to promptly remedy any faults of which Tresorit is aware. However, Tresorit provides the Service "as is" and "as available", without express or implied warranty or condition of any kind and you shall use it at your own risk. To the maximum extent permitted by applicable law, Tresorit also 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.

    3. Limitation of liability: TRESORIT'S LIABILITY FOR SIMPLE NEGLIGENCE AND FOR AUXILIARY PERSONS IS EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, TRESORIT AND ITS AFFILIATES, RESELLERS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS SHALL IN NO EVENT BE LIABLE FOR ANY LOST PROFITS, REVENUES, OR BUSINESS OPPORTUNITIES, LOSS OF USE, LOSS OF DATA, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION AND ANY OTHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CRIMINAL, SUBSEQUENT OR CONSEQUENTIAL DAMAGES WHATSOEVER, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE, ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SERVICE OR THE SUPPORT AND MAINTENANCE SERVICES (IF ANY), REGARDLESS WHETHER TRESORIT HAS BEEN ADVISED OR SHOULD HAVE HAD KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES.

       AFOREMENTIONED LIMITATIONS OF LIABILITY DO NOT APPLY FOR CAUSED INTENTIONAL OR GROSS NEGLIGENT BREACH OF OBLIGATIONS BY TRESORIT AND DAMAGES CAUSED TO LIFE, BODY OR HEALTH, FOR DEFECTS IN CASES OF A GUARANTEE AND FOR FRAUDULENTLY CONCEALED DEFECTS, AS WELL AS FOR ANY OTHER LIABILITY THAT MAY NOT, UNDER APPLICABLE LAW, BE LIMITED OR EXCLUDED.

    4. Remedy: YOU AGREE THAT THE SOLE AND EXCLUSIVE REMEDY FOR UNSATISFACTORY SERVICE SHALL BE TERMINATION OF THE SERVICE AND A REFUND OF ANY AMOUNT ALREADY PAID BY CUSTOMER FOR THE CURRENT SERVICE TERM. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, THE AGGREGATE LIABILITY OF TRESORIT AND ITS AFFILIATES, RESELLERS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS, INCLUDING ANY NEGLIGENCE ON YOUR PART, FOR ALL CLAIMS RELATING TO THE SERVICE IS LIMITED TO THE AMOUNTS PAID BY YOU TO TRESORIT AND/OR THE SUBSCRIPTION CHARGES PAID BY THE RELEVANT RESELLER TO TRESORIT WITH RESPECT TO YOUR SUBSCRIPTION FOR THE PAST SIX MONTHS OF THE SERVICE IN QUESTION PRIOR TO THE FIRST EVENT OR OCCURANCE GIVING RISE TO SUCH LIABILITY.

       SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OR PERSONAL INJURY OR DEATH WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY. IN THESE JURISDICTIONS, TRESORIT'S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

    5. 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.

    6. Force Majeure: Tresorit will not be liable to Customer or to any other third party for failure to perform or any delay in the performance of the Service due to fire, flood, war, riot, strike, explosion, lock out, injunction, natural disaster, interruption of transportation, acts of war, terrorism, labour disputes, acts of civil or military authority, power blackouts, computer viruses, or any other event beyond Tresorit's reasonable control.

    7. Third-party Services: The Service may contain features and functionalities linking to or providing certain functionality and access to third party websites and services. Tresorit has no influence on the contents of these linked pages, and makes no warranty whatsoever with respect to such links, websites, or services.

13. Indemnification

    1. 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 in any way connected with the access to or use of the Services by Customer or its Company Administered Users or the violation of this Agreement by Customer or its Company Administered Users, including any third-party claims relating to Customer Files.

14. Suspension

    1. Suspension for cause: Tresorit may suspend access to Services or restrict its functionality if:

       1. Customer fails to timely pay any amount owed to Tresorit;

       2. Customer or a Company Administered User breaches any provision of this Agreement or the documents referred to in this Agreement;

       3. Tresorit has reason to believe that Customer is in breach of any applicable law or regulation;

       4. Tresorit is requested or directed to do so by any competent court of law, government authority, public agency, or law enforcement agency;

       5. Customer is or becomes subject to any bankruptcy or similar proceedings; or

       6. if, in its sole discretion, Tresorit believes that continued use of the Services by Customer or his Company Administered Users creates legal risk for Tresorit or presents a threat to the security of the Services or other customers.

    2. Notice: Tresorit will use commercially reasonable efforts to notify Customer and the relevant Company Administered User (if applicable) prior to any such suspension, unless Tresorit reasonably believes that: (i) it is prohibited from doing so under applicable law; or (ii) it is necessary to delay notice in order to prevent imminent harm to the Services or a third party. If notice is delayed, Tresorit will provide the notice if and when the related restrictions in the previous sentence no longer apply.

    3. Effects of suspension: If Tresorit Services are suspended in accordance with clause 14.1 above, Customer remains responsible and liable for all Fees and charges which have incurred up to the date of suspension as well as for any Fees for any Service to which Customer or his Company Administered Users continue to have access. As a result of suspension, Customer Files will not be deleted unless specified otherwise in this Agreement or Customer explicitly requests their deletion.

15. Term

    1. Service Term: This Agreement enters into effect on the date you accept it or start using the Service and continues until terminated either by you or Tresorit.

    2. Effects of termination: If this Agreement is terminated: (a) the rights and licences granted by Tresorit to you will cease immediately; (b) Customer may, prior to termination, request reasonable additional time to export its Customer Files, provided that Tresorit can charge Customer for such extended access based on Tresorit's then-current standard fees; and (c) Tresorit may delete any Customer Files and Service Data relating to Customer's account in a commercially reasonable period of time in accordance with its Privacy Policy.

    3. Company Administered User Rights: Company Administered User's rights under this Agreement remain effective until Customer's subscription expires or terminates, or Customer's access to the Services has been terminated by Customer or Tresorit. When a Business Subscription is terminated in respect of a Company Administered User's account, Tresorit may convert his account to a free account available for a limited term.

    4. Survival: The following sections will survive expiry or termination of this Agreement: 6 (Customer responsibility), 7 (Third-party Requests), 8 (Fees), 11 (Intellectual Property Rights), 12 (Disclaimer), 13 (Indemnification), 15 (Term), 17 (Miscellaneous).

    5. Renewal: Customer acknowledges and agrees that Customer's Subscription will automatically be renewed on a monthly or annual basis, for the same Subscription Period (but for no longer than a year), unless Customer indicated otherwise before the renewal date.

16. Termination

    1. Termination for convenience: Customer may elect to terminate his account(s) and subscription to a Service as of the end of its then current subscription period (i) with an account closing mechanism or (ii) by contacting Tresorit in accordance with clause 17.11 (Notices) below. In this case, Customer's subscription will not be renewed. There is no refund for any pre-paid service. Customer may terminate its free subscriptions immediately without cause.

       Tresorit may terminate this Agreement by providing sixty-day notice if it discontinues the Service. In this case, Tresorit will provide Customer with a pro-rata refund of any pre-payment.

    2. 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. Tresorit may terminate the Agreement immediately on notice to Customer if (i) Customer fails to timely pay any amount owed to Tresorit; or Tresorit reasonably believes that (ii) the Services are being used by Customer or its Users in violation of applicable law, or (iii) continued use of the Services by Customer (or its Company Administered Users) creates legal risk for Tresorit or presents a threat to the security of the Services or other customers; or (iii) Customer or a Company Administered User breaches any provision of this Agreement or the documents referred to in this Agreement.

    3. Termination for cause (Reseller terms): If Customer purchases the Service(s) through an authorized Reseller, Tresorit may (i) suspend Customer's account(s) and the use of Services immediately upon notice to Customer; (ii) terminate this Agreement with a fifteen-day notice, if:

       1. Tresorit is notified by the Reseller of Customer's failure to pay amounts due to the Reseller with respect to your subscription to the Service;

       2. the Reseller fails to pay any amounts due to Tresorit pursuant to the terms and conditions of the agreement between Tresorit and the relevant Reseller with respect to Customer's subscription to the Service.

       Customer hereby consents to these suspension and termination rights; acknowledges and agrees that Tresorit shall have no liability to Customer of any kind with respect to any such suspension or termination. Customer's sole recourse with respect to any such suspension or termination shall be against the relevant Reseller.

    4. Inactive Free Accounts: If Customer is registered for a free service and Customer has been inactive for at least 210 days and within such time period, Customer does not subscribe for paid Services, Tresorit may suspend and/or terminate the Tresorit Services with a fifteen-day notice to Customer.

17. Miscellaneous

    1. Changes in terms: Tresorit may revise the terms of this Agreement from time to time, in particular due to changes in the Services or applicable laws and regulations, and the most current version will always be available on Tresorit's website. If, in Tresorit's sole discretion, an amendment is material, Customers will be notified in writing with a thirty-day notice. Other revisions may be posted on Tresorit's website, and you are responsible for checking that website regularly. If you do not agree to the amended terms, you may terminate this Agreement and your account(s) with a thirty-day notice. By continuing to access or use the Services after the amendment enters into effect, you agree to be bound by the revised Agreement.

       Despite this clause, changes to this Agreement which are (i) more favourable to Customer; (ii) required by law; or (iii) related to the addition of a new service, extra functionality to the existing Service; or (iv) changes which neither reduce your rights nor increase Customer's responsibilities, will come into effect immediately if they are stated in the change notice.

    2. 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.

    3. Disputes: The parties both agree that any dispute between the parties in connection with the Services and/or this Agreement shall be determined by arbitration administered by the International Centre for Dispute Resolution (ICDR) in accordance with its International Arbitration Rules. The number of arbitrators shall be one (1) as shall be selected by the ICDR. The place of arbitration shall be Zurich, Switzerland. The language of the arbitration shall be English. If Customer resides in a country (for example, in the EU member state) with laws that give consumers the right to bring disputes in their local courts, this clause does not affect those requirements.

    4. Company Administered User disputes: As a Company Administered User, you acknowledge and agree that, as between Tresorit and Customer, it is solely Customer's responsibility to and respond and resolve any dispute with any Company Administered User relating to or based on Customer Files or Service Data, the Services or Customer's failure to fulfil his obligations under this Agreement.

    5. 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 Service. It supersedes any prior contract or oral or written statements regarding your use of the Services.

    6. 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.

    7. 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.

    8. 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.

    9. Independent Contractors; No third-party beneficiaries: 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. Non-parties do not benefit from and cannot enforce this Agreement. There are no third-party beneficiaries to this Agreement.

    10. 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.

    11. 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, Franklinstrasse 27, CH-8050 Zurich, Switzerland or to support@tresorit.com. Tresorit reserves the right to make reasonable steps to verify Customer's or Company Administered Users' identity before responding to or acting upon Customer's request.

18. Glossary

    1. In this Agreement:

       1. Administrator means selected Company Administered User(s) designated by Customer who administers the Services on behalf of Customer. Administrators may have the ability to monitor, restrict or terminate access to accounts relating to Customer' subscription in accordance with section 5.

       2. Affiliate means any entity that controls, is controlled by or is under common control with a party, where "control" means the ability to direct the management and policies of an entity.

       3. Agreement means the terms of this document.

       4. Beta Services means products and features that are released by Tresorit and are still subject to testing and evaluating.

       5. Business Subscription means a subscription for business purposes.

       6. Company Administered User means an individual, whether an employee, business partner, contractor, or agent of a Customer, who is being invited and permitted by Customer to use the Services subject to this Agreement.

       7. Company Administered User Accounts mean the accounts relating to Customer' subscription established for Company Administered Users.

       8. Customer Files means any files uploaded and/or shared through the Service.

       9. Encrypted Content means Customer Files uploaded to the Tresorit Services, which are encrypted by client-side encryption before they leave Customer location.

       10. Fee means all applicable fees paid by Customer for Tresorit or the relevant Reseller for the Services.

       11. Free Service means any free trial, promotional offer, or other type of limited offer for use of the Services provided by Tresorit.

       12. Intellectual Property Rights means 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.

       13. Open-Source Component mean third-party components which the Software may contain and which is released under a license that is considered as free software license by the Free Software Foundation (https://www.­gnu.­org/­philosophy/­free-sw.html).

       14. Personal Data shall have the same meaning as under the General Data Protection Regulation (Regulation (EU) 2016/679).

       15. Prohibited Jurisdiction means any jurisdiction in which the provision of the Services, Software or other components is prohibited under the laws of Switzerland, the European Union or the United States, or other applicable laws or regulations.

       16. Promotions means any specific pricing structures, discounts, features, promotions, and other benefits which is offered to Customer.

       17. Reseller means an unrelated third party authorized to sell Tresorit subscriptions.

       18. Services means all products and services owned and offered by Tresorit, including applications, websites and technologies or functions.

       19. Service Data means non-encrypted information which is collected by Tresorit (and may contain Personal Data), in order to operate and provide the Services.

       20. Service Term means the period of effectiveness of this Agreement, which begins on the date Customer accepts the terms of this Agreement and continues until Customer's subscription expires or its use of the Services ceases, whichever is later.

       21. Collaborator means a person with whom Encrypted Content is specifically shared with.

       22. Software means the software provided by Tresorit (either by download or access through the website) that allows Customer and Company Administered Users (where applicable) to use any functionality in connection with the relevant Service.

       23. Sub-processors mean the entities within the Tresorit group and authorized service providers, which are engaged by Tresorit in providing the Services, to process Encrypted Content and Service Data.

       24. Suggestions means any feedback, ideas, comments, enhancement requests, recommendations or suggestions Customer sends or shares with Tresorit.

       25. Third-party Request means any request from a third-party relating to a User's use of the Services, including Customer Files and Service Data.

       26. User means any individuals using or accessing Tresorit Services.