Standard Terms and Conditions of Business (T&C) DSwiss AG

of November 21, 2012 (Version 1.4)
                            

1.     Scope

These Standard Terms and Conditions of Business (hereinafter referred to as “T&C”) set forth the terms governing the contractual relationship between DSwiss AG, principal place of business and registered office in Zurich, Switzerland, (hereinafter referred to as “DSwiss”) and the customer with regard to Internet Data Safe services enabling customers to store their electronic data securely online in a data storage device, to share such data with team members, as applicable, and to allocate the data to one or more beneficiaries.

In these T&C “he”/”his” etc. is meant to include both the male and female gender, and legal entities where applicable.

2.     T&C as an Integral Part of the Contract and their Amendment

DSwiss provides its Internet Data Safe services solely on the basis of these T&C as well as the other integral parts of the contract referred to in these T&C (hereinafter referred to as the “Contractual Relationship”).  By clicking in the relevant field during account registration, the customer explicitly accepts these T&C as well as the Contractual Relationship.

Amendments to the provisions of this Contractual Relationship may be implemented by DSwiss at any time and at its absolute discretion. Such amendments are displayed in the customer's account and published on the DSwiss website before coming into effect.  The customer must confirm these amended T&C in his account. Following confirmation, the customer has the right to revoke the contract in accordance with Section 4 below. The Contractual Relationship is terminated if the customer fails to confirm the amendments or revokes the contract. The right to terminate the Contractual Relationship without notice in accordance with Section 9 below remains reserved.

3.    Contractual Relationship coming into Effect

It is hereby explicitly stated that the content of DSwiss’ website or of the account registration simply represents an invitation to submit an offer and does not constitute a binding offer by DSwiss. The customer, on his part, indicates his intention to avail himself of the Internet Data Safe services offered by DSwiss by supplying the necessary details and through express confirmation of his consent to the provisions governing the Contractual Relationship.

The Contractual Relationship comes into effect only upon the statement of acceptance by DSwiss having been received in the customer's account. The right of revocation set forth in Section 4 below remains reserved.

Each account that the customer opens for himself or a legal entity shall be personal and may not be transferred to any other individual or legal entity without the express authorization of DSwiss. Not admissible is specifically, without limitation, the resale of accounts.

4.     Customer’s Right of Revocation

The customer is entitled to revoke the Contractual Relationship with DSwiss within two weeks of its conclusion (when the statement of acceptance issued by DSwiss is received in the customer’s account). Reasons do not need to be given. The deadline is deemed to have been complied with if the written statement of revocation is received within the time allowed at the following address:

DSwiss AG
Badenerstrasse 281
8003 Zürich
Switzerland

In the event of an effective revocation, the performance received by each party from the other must be returned.

5.      Description of the Services performed by DSwiss              

5.1      Data Upload, Change and Deletion

On conclusion of the Contractual Relationship, DSwiss shall allocate the customer a personal storage space of an agreed-upon size (quota) in a data storage device. This will enable the customer to upload his electronic data and to save them in the storage space allocated to him (hereinafter referred to as "Data Upload"), to the extent that the storage space is sufficient for this purpose.

The customer retains all rights in the uploaded data. The customer authorizes DSwiss to process the data within the meaning of data reproduction solely for the purpose of storage.

The customer may download, change or delete the uploaded data at any time.

5.2      User Name, Password and Login Recovery Code

As part of uploading data, the customer chooses an access name (hereinafter referred to as the “User Name”) and an access password (hereinafter referred to as the “Password”). This will ensure that only the customer has access to his archived data. The customer also receives a login recovery code to be used in case he does not remember his User Name and/or Password.

DSwiss has no access to the customer’s account and archived data. DSwiss therefore does not gain any knowledge of the content of the archived data.

The customer is responsible for taking care of the safe custody and use of his User Name and Password. Should these access codes become known to any third party, DSwiss shall not be liable for any resulting loss or damage, and the customer must indemnify and hold DSwiss harmless against damages in accordance with Section 7 hereof.

5.3      Data Inheritance

The customer has the option to make the uploaded data available to beneficiaries (so-called data inheritance). The customer can use an input mask provided by DSwiss to designate the beneficiaries of these data (hereinafter referred to as the “Beneficiaries”) and the persons being able to activate the data inheritance process (hereinafter referred to as the “Persons Authorized to Perform the Activation” or “Trustees”).   This information is not mandatory. The customer does not have to designate any Trustees or Beneficiaries. The data stored in the Team Space of the product “SecureSafe for Teams” may not be transferred via data inheritance to Beneficiaries.

Following the allocation of the data, the customer receives the activation code, which he may pass on to one or more Trustees. This is a code that, when entered on DSwiss' website, initiates the process enabling the Beneficiaries to access the data. The customer may change the activation code at any time, thereby canceling the previous activation code.

The customer instructs his Trustees that, in the circumstances specified by the customer, they are to enter the activation code on the DSwiss website and thereby initiate the data inheritance process. The customer shall be exclusively responsible for the Trustees following his instructions.

First, entering the activation code triggers the sending of an automatic notification to the customer, following which the data inheritance will be executed unless the customer intervenes to halt the process. At the same time, the Trustee receives a message that the customer has been notified and has been given the opportunity to halt the process, and that the data inheritance process will continue unless halted by the customer within a safety delay specified by the customer.

If the activation code has been entered but the customer intervenes and halts the process, the activation code is rendered invalid. The customer must arrange for a new activation code to be issued in accordance with the provisions stipulated above.

If the data inheritance process is not interrupted within the safety delay, the data allocated by the customer are made accessible to the Beneficiaries designated by the customer. This takes place by means of an automated procedure whereby the Beneficiaries are given the access code (User Name and Password) for their data area. The customer has already chosen the various methods of contacting him (email, SMS, postal address) at the time of registration when submitting his offer.

The customer shall be exclusively responsible for the contact information regarding the Beneficiaries and Trustees being up to date and accurate. DSwiss is in no event obligated to scrutinize this information itself.

The Beneficiaries are informed that they will have the option, exercisable within a period of 90 days, to download the data allocated to them or to conclude a contract with DSwiss regarding an account of their own.

The customer is obligated to ensure that he can provide data access to the Beneficiaries without violating third party rights or applicable statutory provisions.

The customer is responsible for ensuring that, in the event of his death, the allocation to the Beneficiaries of the data uploaded by the customer meets the relevant formal requirements under inheritance law. In particular, the customer shall ensure that any bequest or appointment as heir by disposition will satisfy the applicable formal requirements under inheritance law. Necessary documents (e.g. wills) may be handed over to a Trustee.

5.4      Data Storage Period

Throughout the duration of the Contractual Relationship, DSwiss shall ensure that the customer’s uploaded data are securely archived.

On expiration or termination of the Contractual Relationship, DSwiss’ safekeeping obligation shall also come to an end subject to Subsection 9.3 below. In this case, DSwiss shall have the right to release the customer’s account and the relevant quota in the online data storage and to delete the data archived therein.

The safekeeping obligation of DSwiss will also come to an end on completion of the data inheritance relating to all data uploaded by the customer, at the end of the 90 day period communicated to the Beneficiary in Subsection 5.3 above, regardless of whether the Beneficiaries have downloaded the data, have concluded their own contract with DSwiss, or have not obtained access within the time allowed.

5.5      Additional Services provided by DSwiss

For all intents and purposes, DSwiss’ products and the services to be performed by DSwiss under this Contractual Relationship as well as all rights and obligations of the customer pertaining thereto are described on DSwiss’ website. These descriptions form an integral part of this Contractual Relationship.

6.     Customer’s Usage Fee

Depending on the type of subscription, DSwiss’ services are either subject to a charge (hereinafter referred to as “Paid Subscription Types”) or free of charge (hereinafter referred to as “Free Subscription Type”). Any usage fee becomes due for the contractual period chosen by the customer and is payable in advance. The amount of the usage fee depends on the scope of performance granted to the customer (e.g. quota). The customer is informed of the usage fee upon submitting his offer and choosing his quota.

The amount of the usage fee and the payment terms for Paid Subscription Types are published on DSwiss’ website. The prices and payment terms published on DSwiss' website at the time of entering into or renewing the Contractual Relationship shall be the applicable prices and terms. The related information published on the website of DSwiss forms an integral part of this Contractual Relationship.

Any contract renewal of Paid Subscription Types requires the prior payment of the applicable usage fee for the chosen scope of performance. In the event of late payment of such fee, the Contractual Relationship shall terminate automatically.

The usage fee shall be due and payable upon receipt of the acceptance in the customer’s account according to Section 3 above, and must be paid by the customer immediately unless explicitly agreed otherwise between the parties hereto. The customer shall be in default without any further reminder from DSwiss. Default interest shall be 5% p.a.

Notwithstanding any provision to the contrary in these T&C, DSwiss shall not provide any services to the customer for Paid Subscription Types unless the usage fee has been paid in full.

7.         Customer’s Responsibility and Liability

DSwiss is unable to inspect the content of the data stored by the customer. Consequently, it cannot check the content transmitted by the customer for its legality.

The customer alone is responsible for his uploaded data. DSwiss accepts no liability whatsoever for the content of the customer’s uploaded data.

The customer undertakes to comply with Swiss law and the law of his country of residence in connection with the use of the services provided by DSwiss. The customer undertakes in particular that he will only upload data for which he has the necessary rights and which do not violate Swiss law, the applicable laws of any other jurisdiction, or any rights (including, but not limited to, the right to privacy) of third parties or DSwiss. The customer further agrees that he will never upload credit card data, illegal or pornographic content, or content that glorifies violence.

The customer also agrees to ensure that his data do not contain any malware that harm or might harm DSwiss or other customers or third parties.

Should the customer violate any of the provisions above and DSwiss be held liable therefor, DSwiss shall be free to take any legal action deemed necessary.  The customer hereby agrees and undertakes that he will fully indemnify and hold DSwiss harmless against any liability for loss or damage, claims, demands, costs and reasonable legal fees (including, but not limited to, third party claims) arising in connection with the data uploaded by the customer, or suffered by DSwiss due to the customer’s violation of the provisions of these T&C.

If the customer has paid for a SecureSafe for Teams, he is subject – in his capacity as the administrator (hereinafter “Administrator”) of the SecureSafe for Teams – to special liability in accordance with the provisions of these T&C. He shall be entitled to transfer his duty as the Administrator at any time to another customer of DSwiss who has access to the corresponding SecureSafe for Teams (hereinafter “Future Administrator”) if the transfer process described on the DSwiss’ website can be completed successfully. The same shall apply to any other transfer to Future Administrators. However, each former Administrator continues to be responsible in any event for the content and the activities of SecureSafe for Teams concerning the period during which he was the Administrator.

8.     Warranty and Liability of DSwiss

DSwiss places high demands on itself when it comes to fulfilling the most stringent security requirements. Nonetheless, any and all warranty claims of the customer shall be excluded hereby unless explicitly agreed upon otherwise in these T&C. DSwiss is, in particular, not in a position to guarantee that the Internet Data Safe services will be retrievable at all times free of faults or that a certain level of availability is present. Moreover, DSwiss, in particular, does not guarantee that it will be possible in future for all data types to be reproduced on the hardware and software then available.

DSwiss’ liability arising from and in connection with the Contractual Relationship is excluded to the extent legally permitted.

The customer alone shall bear the risk of unauthorized third parties gaining access to the data stored by him either in the context of data inheritance or in another context.

The customer shall bear the risk resulting from any changes in the law. This shall apply in particular if anonymous and encrypted data may no longer be stored on the Internet as a result of a changed legal position and DSwiss is obligated to delete all anonymously stored data because of an official order.

DSwiss has no access to and no knowledge of the customer’s passwords and will not be able to reset or restore them. The customer acknowledges and agrees that his data may irretrievably be lost if he forgets the password (cf. also Subsection 5.2 above). The customer acknowledges and agrees that DSwiss has no possibility to consult the SecureSafe for Teams. Therefore, the only persons responsible for the content and the activities of the SecureSafe for Teams are the persons having uploaded the content (hereinafter “Responsible Customer”) as well as the Administrator of the relevant SecureSafe for Teams. In the event of violations of these T&C or the applicable law by the Responsible Customer the Administrator of the SecureSafe for Teams must provide for the immediate elimination of the violation of the law. The Responsible Customer as well as the Administrator of the SecureSafe for Teams are jointly and severally liable to DSwiss and shall fully indemnify and hold DSwiss harmless from any loss or damage, cause of action, claims, costs and reasonable legal expense related to the data uploaded by the Responsible Customer or suffered by DSwiss because the Responsible Customer or the Administrator of the SecureSafe for Teams have violated these T&C or applicable law.

The customer acknowledges and agrees that when using the SecureSafe for Teams he may be exposed to contents that he considers humiliating, offensive or otherwise unpleasant. The customer waives any claim based on the content of the data stored or distributed through the use of the services.

9.     Contractual Term, Termination and Consequences of Termination

9.1     Contractual Term

The Contractual Relationship between the customer and DSwiss shall come into effect upon receipt of the acceptance in the customer’s account in accordance with Section 3 above and is valid for the contractual term chosen by the customer.

If the customer pays the usage fee to DSwiss for a renewal of the Contractual Relationship requested by him before expiration of the Contractual Relationship, the Contractual Relationship with DSwiss will be renewed accordingly.

The Contractual Relationship shall expire should the customer discontinue payment of the usage fee. The Contractual Relationship shall also end upon completion of the inheritance of all data. For free DSwiss services, the Contractual Relationship shall expire one (1) year (365 days) after the customer logs in to his account for the last time.

9.2      Termination and Blocking

The parties have the right to terminate the Contractual Relationship effective at notice for good cause without advance notice. There is good cause giving DSwiss the right of termination effective at notice in particular if the amended T&C are not confirmed or are revoked by the customer, or if the customer commits a violation of this Contractual Relationship.

For SecureSafe for Teams, DSwiss shall be entitled to terminate the Contractual Relationship with a customer only partially, i.e. with respect to any one or several SecureSafes for Teams or the personal data safe of the customer effective at notice for good cause. DSwiss shall in such cases also be entitled to terminate all data safes of the customer effective at notice, or to terminate the Contractual Relationship with all users of the affected SecureSafe effective at notice. Termination effective at notice regarding all users of a data safe is admissible in particular in cases where one or several users of a SecureSafe for Teams have violated these T&C or applicable law, or if DSwiss has reason to believe that this is the case, and the Administrator of the SecureSafe for Teams has not intervened immediately against such violations or potential violations.

DSwiss shall be further authorized to block without advance notice any kind of data safe (including SecureSafe for Teams) if there is good cause within the meaning of the provisions set forth above.

9.3      Consequences of Termination

The termination of this Contractual Relationship regardless of the reason thereof shall have the following effects: (1.) The usage fee already paid by the customer shall be forfeited, i.e. DSwiss does not reimburse such fee to the customer; (2.) The customer has in case of a termination of the Contractual Relationship for good cause (but not in other cases of termination of the Contractual Relationship) 90 days from the date of termination of the Contractual Relationship the possibility to download the data uploaded by him.

The customer shall be exclusively responsible for the timely download of the data uploaded by him. DSwiss shall not have any duty of notification in this respect. DSwiss shall, in particular, not be obligated to warn the customer prior to the expiration of the Contractual Relationship or termination of this Contractual Relationship of the deletion of the data after termination of the Contractual Relationship.

A termination of a customer shall never result in the cancellation of the SecureSafe for Teams unless the customer is the Administrator of that SecureSafe for Teams.

10.     Data Protection

Both parties agree to comply with any and all applicable data protection laws and regulations.

Data uploaded by the customer will be used by DSwiss exclusively for the performance of the Internet Data Safe services.

The customer always has the option to inspect and update his stored personal data through his account.  Any and all personal data of the customer will be deleted at the end of a period of three months in accordance with Subsection 9.3 hereof.

The customer undertakes to ensure that the Beneficiaries and Trustees chosen by him agree to their function within the scope of this Contractual Relationship and, in particular, to receiving emails from DSwiss.

11.     DSwiss as Exclusive Rights Holder

DSwiss exclusively and comprehensively retains all rights to (copyrights, domain rights, trademark rights, patent rights, etc.), as well as all know-how in its website and its Internet Data Safe services.

12.    Final Provisions

12.1    Offset prohibition

The customer has a right to withhold payments or offset against counterclaims only to the extent that such counterclaims are uncontested or have been established as final and binding and are no longer subject to ordinary legal remedies.

12.2    Modification of the Services performed by DSwiss

DSwiss shall be entitled to modify or discontinue any of the services to be performed under this Contractual Relationship at any time and at its absolute discretion. In the event of modification of the services performed by DSwiss, paragraph 2 of Section 2 above shall apply accordingly.

12.3    Written Form

Written form for notifications or the notice of termination within the meaning of this Contractual Relationship shall include emails or any notification on the customer's account. Excepted, however, shall be the statement of revocation or termination by the customer, which may not be given by email.

12.4    Customer’s T&C Not Applicable

The customer’s standard terms and conditions of business shall not apply to this Contractual Relationship.

12.5    Severability clause

Should any one or more provisions of this Contractual Relationship be or become void or invalid, the remainder thereof shall not be affected thereby. In the event of a clause becoming void or invalid, such clause shall be replaced by one that most closely fulfills the economic purpose of the invalid provision.

12.6    No Loss of Rights

Should any of the parties fail to exercise any of its rights under this Contractual Relationship at all or in a timely fashion, this shall not result in the forfeiture or loss of these rights. The failure to or late exercise of any right shall not result in this right no longer being exercisable.

12.7    Governing Version

In the event of inconsistencies or questions of interpretation between the German and the English versions of these T&C, the German version shall prevail.

12.8    Place of Jurisdiction and Applicable Law

The Contractual Relationship between the customer and DSwiss is subject to Swiss substantive law without giving effect to conflict of laws rules and international treaties.

The Zurich Commercial Court has exclusive jurisdiction in case of disputes.

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