Standard Terms and Conditions of Business (STCB)
Version V1.2 - November 9 2010
The “DataInherit” service of DSwiss AG enables clients to store their electronic data securely in an online data storage device and to allocate the data to one or more Beneficiaries. This service shall be provided upon payment (pay subscription types: password Safe PREMIUM, DataInherit Silver Safe, DataInherit Gold Safe etc.) or without charge (free subscription type: Password Safe FREE etc.). For the use of the service, the following terms and conditions shall apply:
1. The STCB as an Integral Part of the Contract, and their Amendment
DSwiss AG provides its “DataInherit” service solely on the basis of these STCB. The client explicitly accepts them by clicking in the relevant field on the DSwiss AG website.
Amendments to these STCB are indicated in the client’s account and published on the DSwiss AG website before they come into effect. The client must confirm these amended STCB in his account. Following confirmation, the client has the right to revoke the contract in accordance with Section 3 below. The contract is not extended if the client fails to confirm the amendments or revokes the contract. The right to terminate the contract without notice in accordance with Section 8 below remains reserved.
2. Existence of the Contract
It is herewith explicitly stated that the content of the website or of the account registration of DSwiss AG simply represents an invitation to submit an offer and does not constitute a binding offer.
For his part, the client indicates his intention to avail himself of the “DataInherit” service by supplying the necessary details and through express confirmation of his consent to the contractual conditions, including these STCB. Before the electronic dispatch of his offer, the client has the opportunity to correct all input errors.
The contract with DSwiss AG comes into effect once the statement of acceptance reaches the client’s account. The right of revocation set forth in Section 3 below remains reserved. A contract exists only with a client who has the capacity to contract.
3. The Client’s Right of Revocation
The client is entitled to revoke his contract with DSwiss AG within two weeks of its validation (when the statement of acceptance reaches the client’s account). Reasons do not need to be given. The deadline is deemed complied with if the written statement of declaration is received within the time allowed at the following address:
DSwiss AG
Badenerstrasse 281
8003 Zurich
Switzerland
In the event of an effective revocation, the mutually provided goods and services must be returned.
4. Description of the “DataInherit” Service
4.1 Data Upload
On conclusion of the contract, DSwiss AG shall allocate the customer a personal memory location (quota) in his online data store. This will enable the customer to load his electronic data (files or passwords) into his account (data upload).
The client retains all rights in the stored data. The client instructs DSwiss AG to process the data within the meaning of data reproduction solely for the purposes of storage.
4.2 User Name, Password and Login Recovery Code
For uploading data, the client chooses an access name (user name) and an access password (password). This ensures that only the client has access to his stored data. The client also receives a login recovery code in case he can no longer remember his user name and/or password.
DSwiss AG does not have access to the client’s account and stored data. DSwiss AG therefore has no knowledge of the content of the stored data.
The client alone is responsible for the safe custody and use of his user name and password. Should these access codes come to the knowledge of a third party DSwiss AG does not accept any liability for any resulting losses and damage.
4.3 Data Allocation to Future Beneficiaries
Following data upload the client may enter in one of the input screens (of the web application) provided by DSwiss AG. details of the person authorized to perform the activation (Trustee), and of the Beneficiaries, as well as the data to be stored and made accessible to them following valid triggering of the transfer process (data inheritance)
4.4 Activation Code
The activation code is a code that, when entered into the DSwiss AG website, initiates the process enabling the Beneficiaries to access the data (data inheritance).
Following the allocation of the data, the client receives the activation code, which he gives to one or more persons authorized to perform the activation (Trustees). The client may change the activation code at any time, thereby canceling the previous one.
4.5 Data Inheritance
The client instructs his Trustees that in the circumstances specified by the client they are to enter the activation code into the DSwiss AG website and thereby initiate the data inheritance procedure. The client alone is responsible for ensuring that the Trustees follow his instructions.
First, this triggers the sending of an automatic notification to the client, following which the data inheritance will be executed unless the client intervenes to halt the process. At the same time, the Trustee receives a message that the client has been notified and has been given the opportunity to halt the process, and that the data inheritance procedure will continue unless halted by the client within a safety delay specified by the client.
If the activation code has been entered but the client intervenes and halts the process, the activation code is rendered invalid. The client must arrange for a new activation code to be issued in accordance with Sections 4.3 and 4.4.
If the data inheritance process is not interrupted within the safety delay, the data allocated by the client are made accessible to the Beneficiaries designated by the client. This takes place by means of an automated procedure whereby the Beneficiaries are given the access code (user name and password) for their data sector. The client has already chosen the various methods of contacting them (email, SMS, postal address) at the time of registration when making his offer.
The Beneficiaries are also notified that they will have the option, within a period of 90 days, to download the data allocated to them or to conclude a contract with DSwiss AG in respect of their own account.
4.6 Formal Requirements under Inheritance Law
The client is responsible for ensuring that, in the event of his death, the allocation of the stored electronic data to the Beneficiaries meets the relevant formal requirements under inheritance law. In particular, the client shall ensure that any legacies or wills satisfy the applicable formal requirements under inheritance law. Necessary documents (e.g. wills) may be handed over to a Trustee.
4.7 Storage Period for the Data
Throughout the duration of the contract, DSwiss AG shall ensure that the client’s electronic data are stored securely.
On expiry of the contract, the obligation of DSwiss AG to retain the data shall also end. DSwiss AG shall have the right to release the customer’s account and the relevant quota in the online data store and to delete the data archived therein. If the user of a free DataInherit product does not log in to his account at least once within 1 year (365 days), his account shall be considered unused and the content shall be deleted.
The obligation of DSwiss AG to store data will also come to an end on completion of the data inheritance relating to all data, at the end of the period of time duly notified to the Beneficiary in accordance with Section 4.5 above, irrespective of whether the beneficiaries have downloaded the data, have concluded their own contract with DSwiss AG, or have not gained access within the time allowed.
5. The Client’s Usage Fee
Depending on the type of subscription, the DataInherit service shall be subject to a charge (pay subscription types) or free of charge (free subscription type). Any user charge shall be due for the contractual period chosen by the customer and shall be paid in advance. The amount of the usage fee depends on the scope of performance (e.g. quota) of the account. The client will be informed of the usage fee for the quota when he formulates his offer. The client authorizes payment when he submits his offer.
An extension of the contract requires the prior payment of the applicable usage fee for the chosen scope of performance.
The amount of the usage fee is based on the prices published on the DSwiss AG website at the time the contract is concluded or extended, as the case may be.
6. The Client’s Liability and His Exclusive Responsibility for Data Content
DSwiss AG is unable to inspect the content of the data stored by the client. As a consequence, it cannot check the content transmitted by the client for its legality.
The client alone is responsible for his stored data. DSwiss AG accepts no liability whatsoever for the content of the client’s stored data.
The client undertakes to comply with Swiss law and the law of his State of residence in connection with the use of the “DataInherit” service. To this end, the client undertakes, in particular, only to store data on the online data storage device for which he has the necessary rights. The client further declares that he will never store credit card data or illegal or pornographic content or content that glorifies violence.
The client also warrants that his data do not contain any malware that might harm DSwiss AG or other clients or other parties.
Any breach of this contract notwithstanding, the customer also undertakes to hold DSwiss AG harmless in full from any claims lodged against DSwiss AG by third parties on the basis of the data stored by the customer with DSwiss AG.
7. Guarantee and Liability of DSwiss AG
DSwiss AG undertakes to fulfill the highest security requirements. Naturally, however, it is unable to guarantee that the “DataInherit” service will be available at all times free of faults, particularly since circumstances outside its sphere of influence may give rise to malfunctions. DSwiss AG does not guarantee that it will be possible in future for all data types to be reproduced on the hardware and software available at the time.
DSwiss AG is not liable for losses and damage resulting from slight negligence. For loss of data DSwiss AG is only liable in the event of gross negligence and only for data that have demonstrably been loaded by the client into his account on the online data storage device of DSwiss AG. The liability of DSwiss AG is limited to twice the usage fee paid up until then by the harmed client.
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 by other means.
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 AG is obliged to delete all anonymously stored data because of an official order.
8. Contractual Term
The contract comes into existence between the client and DSwiss AG and is valid for the term chosen by the client.
If the client pays the usage fee for an extension of contract requested by the client before the contract made with DSwiss AG comes to an end, the contract with DSwiss AG will be extended accordingly.
The contract shall expire should the customer discontinue payment of the user fee. The contract shall also end upon completion of the inheritance of all data and expiry of the time limit to the beneficiaries in accordance with point 4.5 above. For free DataInherit products, the contract shall expire 1 year (365 days) after the customer logs in to his personal online data storage account for the last time.
The parties to the contract have the right to terminate the contract without notice for good cause. There is good cause in particular if the amended Standard Terms and Conditions of Business (STCB) are not confirmed or are revoked by the client in accordance with Section 1 above, provided DSwiss AG has important reasons for carrying out the amendment.
9. Data Protection
The “DataInherit” service does not require clients of DSwiss AG to transmit personal data.
If a client of DSwiss AG transmits his own personal data, DSwiss AG guarantees their protection. Accordingly, DSwiss AG will use the transmitted data only for the provision of the “DataInherit” service. The client always has the option to inspect and update his stored personal data through his account. Any and all personal data will be deleted at the end of the storage period in accordance with Section 4.7.
10. DSwiss AG as Exclusive Rights Holder
DSwiss AG exclusively and comprehensively reserves the rights (copyrights, domain rights, trade-mark rights, patent rights, etc.) as well as all know-how in its website and in its “DataInherit” service.
11. Applicable Law and Jurisdiction
The contract concluded between the customer and DSwiss AG shall be governed by Swiss law. The parties agree that the Zurich Commercial Court shall have sole jurisdiction.
12. Severability Clause and Definitive Language Version of the STCB
Should any individual provisions of the contract concluded between DSwiss AG and the customer, including these general terms and conditions, be or become void or unenforceable, the validity of the remaining provisions shall in no way be affected. Any void or unenforceable provision shall be replaced by a valid provision that comes as close as possible to the intentions of the original provision. The same procedure shall be adopted if any gaps should be discovered in the contract.
If the provisions of the STCB in the different language versions are not equivalent in sense and purpose, the German version of the STCB shall be definitive.
Earlier Terms:
