Terms of Use for actaSIGN®

General

These terms of use govern the use and billing of the actaSIGN cloud service. They form a binding contractual component between the customer and axelity ag (axelity).

Version

5 July 2021

Amendments

We may amend these terms of use at any time without prior notice. The current version published on our website shall apply. To the extent that the terms of use are part of an agreement with the customer, we will inform the customer of the change by email or other suitable means in the event of an update.

Services

Subject Matter

The software actaSIGN is a product of axelity and is protected by copyright. actaSIGN is available as a web application and REST-based web service, through which the customer and their clients are provided with the ability to apply electronic signatures to PDF documents.

axelity does not act as a Trust Service Provider (TSP) with actaSIGN, but uses the services of Swisscom Trust Services AG as an Approved Partner. axelity therefore excludes all liability claims arising in connection with services provided by TSPs.

Recording and Management of Data and Documents

The customer records the following data for the application of electronic signatures:

• First name, last name and email address of participating persons
• Subject matter and message for signature requests
• PDF documents (without password protection) on which signatures are to be applied by receiving persons
• Page and coordinates of signature fields
• Template for the display of the visible signature
• Mobile phone number for the activation of advanced and qualified electronic signatures
• Role/function of the signing persons (optional)
• Location where the signature is applied (optional)
• Reason for the signature (optional)
• Free text for display in the visible signature (optional)

Data and Documents

Data Compliance and Indemnification

The parties may process data lawfully.

The customer warrants that it is authorised to process and use the data and documents for the purpose of using actaSIGN.

The customer warrants that the data and documents are lawfully collected and processed and that no statutory provisions or third-party rights are violated. The customer is aware that axelity does not review, validate or substantively alter data and documents, nor is it able to do so.

The customer shall fully indemnify axelity upon first demand against all third-party claims and the associated costs and expenses (including reasonable legal fees) incurred by axelity as a result of unlawful data processing, a violation of statutory provisions or third-party rights by the customer.

Data Storage

The storage of the customer's data and documents takes place both in a database and in a data repository on servers in a Swiss data centre. The documents remain in the actaSIGN data repository for the application of the signature until they are cleaned up by the customer using the function provided for this purpose.

Data Processing

axelity exclusively processes data of the customer and their clients in order to:

• fulfil its contractual or legal obligations (Art. 4 para. 3 and 13 para. 2 lit. a DSG, Art. 6 para. 1 lit. b and c DSGVO);
• send information about its new services (Art. 13 para. 2 DSG and Art. 6 para. 1 lit. f DSGVO);
• manage actaSIGN and ensure the error-free provision of actaSIGN (Art. 13 para. 2 DSG and Art. 6 para. 1 lit. f DSGVO).

Data Retrieval and Data Transfer

The customer may retrieve and/or transfer customer data during the operating hours of actaSIGN.

Confidentiality and Security

Confidentiality

Each party that receives confidential information from the other party is obliged to:

• treat confidential information confidentially;
• not disclose confidential information to any third party without prior consent of the other party; and
• not use confidential information for any purposes other than the fulfilment of this contract.

The party receiving confidential information may disclose the confidential information to its employees, provided and to the extent that they have signed a corresponding confidentiality agreement and need to know the confidential information in order to fulfil this contract. The party receiving confidential information is liable for its employees' compliance with this confidentiality obligation.

Exceptions

The confidentiality provisions do not apply to confidential information that:

• is not processed in encrypted form; or
• was already lawfully and without restriction known to the party that received the confidential information at the time of receipt; or
• was lawfully transmitted to the party that received the confidential information after disclosure by the other party by an independent third party without the imposition of restrictions and without breach of this contract; or
• is or becomes publicly known without any unlawful or contractually contrary act by either party; or
• is independently developed by one party without reference to confidential information of the other party.

Security

The parties shall implement appropriate security measures to:

• ensure the confidentiality and integrity of the confidential information;
• prevent unauthorised access to or unauthorised use of such confidential information.

Use of actaSIGN

Intellectual Property Rights

To the extent required for the use of actaSIGN, axelity hereby grants the customer a limited, revocable, non-exclusive and non-transferable right to use axelity's intellectual property rights for the duration of the applicable agreement.

Technical Requirements

In order to use actaSIGN properly and without restrictions, the following technical requirements are recommended:

• Use of a modern browser — Google Chrome, Mozilla Firefox, Microsoft Edge or Apple Safari (macOS) — in as current a version as possible. Older browsers, such as Internet Explorer, are expressly not supported;
• Activation of JavaScript in the browser;
• Deactivation of incognito mode;
• Adequate, uninterrupted internet connection;
• Unrestricted access to the URLs used by actaSIGN

Access Information

actaSIGN requires the use of dedicated user accounts. Only employees of the customer and persons invited in the signature process may use actaSIGN.

The customer, and their clients respectively, must treat access credentials confidentially.

Prohibited Use of actaSIGN

actaSIGN may not be used to:

• violate legal provisions;
• disrupt a computer, service, system, device or technology of a third party;
• violate the rights of third parties, such as the right to privacy or the intellectual property of third parties;
• introduce or distribute malicious software (e.g. scripts, viruses, malware, Trojans);
• grant third parties access to actaSIGN;
• compete with axelity by using access for commercial purposes outside the framework prescribed by axelity.

Blocking Access to actaSIGN

If the customer does not process data and documents in accordance with the contract or the law or violates the rights of third parties, or if axelity has reason to believe that the customer does not process data and documents in accordance with the contract or the law or violates the rights of third parties, axelity is entitled to immediately block the customer's and/or its employees' access to actaSIGN.

If the customer does not pay the applicable usage fees within the payment deadline, axelity is entitled to block the customer's access to actaSIGN.

Availability

axelity applies commercially reasonable care to ensure that the actaSIGN service as well as customer data and/or user data are available at all times, with the exception of planned downtimes. axelity shall inform the customer of such planned downtimes through the available channels, e.g. email or publication on the actaSIGN start/login page.

However, axelity hereby does not warrant that the actaSIGN service as well as customer/user data and documents are available at all times, as this depends, among other things, on the availability of the data centre and servers on which actaSIGN is operated, as well as on the internet connection and the functionality of the device used.

Liability and Warranty

Unless the liability of axelity is otherwise regulated by law or by an agreement concluded between the customer and axelity, axelity shall be liable to the customer for personal injury and for damages intentionally or through gross negligence inflicted on the customer in the course of contract fulfilment, without limitation. Liability for slight negligence is, to the extent legally permissible, excluded. In any case, axelity shall only be liable up to the amount of the damage incurred.

In particular, axelity shall not be liable if the customer or the customer's clients electronically sign documents on the basis of actaSIGN without being authorised to do so.

The customer expressly acknowledges that actaSIGN does not include any verification of the acceptance of the applied electronic signatures in the respective jurisdictions, and accordingly axelity cannot be held liable in any way.

axelity is expressly not liable if data and documents are deleted prematurely by the customer.

Contract Duration, Billing and Termination

Contract Duration, Subscriptions

The right to use actaSIGN is granted for an indefinite period. As soon as a user sets up an account or persons are invited to use an established account, subscriptions with the selected plan are activated.

Billing

The billing of active subscriptions takes place annually from the month of set-up in accordance with the applicable price list — in the first year pro rata (in months) until the end of the calendar year. Subscriptions are automatically renewed for a further year (12 months) unless they are cancelled with a notice period of 3 months before the end of a calendar year. Subscriptions are transferable and can be assigned to internal or external persons.

Termination for Cause

If one party breaches the contract, the other party may, at its discretion, either uphold the contract and waive performance, or terminate the contract at any time with immediate effect, if the other party breaches the contract and does not remedy the breach within 14 days after notification by the non-breaching party.

In the event of insolvency of a party, the opening of bankruptcy proceedings or composition proceedings or a similar event, the other party may terminate this contract with immediate effect.

Consequences of Termination

Upon termination of the contract, the right to use actaSIGN shall expire and the customer shall lose access to the data and documents. The customer must therefore transfer the data and documents before the termination of the contract; otherwise axelity is entitled to delete this data.

Applicable Law and Jurisdiction

Swiss law shall apply to these terms, unless otherwise regulated in the contract. The provisions of the Vienna Convention on Contracts for the International Sale of Goods (United Nations Convention on Contracts for the International Sale of Goods, concluded in Vienna on 11 April 1980) are excluded. The exclusive place of jurisdiction shall be at the registered office of axelity, unless otherwise agreed with the customer.

Should individual parts of these terms be or become invalid, the validity of the remaining provisions shall not be affected. In such a case, the invalid provision shall be replaced by a provision that comes as close as possible to the economic purpose of the invalid provision.

In the event of disagreements, both parties undertake to seek a solution in mutual agreement in good faith.