Status: 24th March 2022
1. Scope and Conclusion of Contract
1.1 These General Terms and Conditions (GTC) are applicable to all services provided by OBJECT within the scope of Subsign.
1.2 The customer agrees to these GTC by signing the offer of OBJECT or by concluding a contract via the subsign portal, whereby in each case a customer contract between the customer and OBJECT comes into existence. Contractual supplements, which the customer may wish to apply, are hereby explicitly excluded. An explicit deviating regulation is reserved, provided that both parties.
1.3 To use Subsign, the customer must accept additional terms and conditions of the trust service provider Swisscom Trust Services AG. The terms and conditions as published at https://www.subsign.ch/en/agb/swisscom shall apply in each case. OBJECT reserves the right to adjust the terms and conditions of the trust service provider if the latter changes its terms and conditions.
2. Accounts
After the Customer Contract comes into force, OBJECT shall provide the Customer with the access data for the Customer Account, which enables the Customer to create the User Accounts.
3. OBJECT-Services
3.1 In order to sign documents with a qualified electronic signature (QES) or an advanced electronic signature (FES), authentication of the signer and a signature generated by the trust service provider, Swisscom Trust Services AG, are required. OBJECT integrates these components, which fulfil the requirements of ZertES and/or eIDAS regulation, into the subsign services.
3.2 OBJECT is neither a trust service provider nor a recognition body within the scope of the Swiss Federal Act on Certification Services in the Field of Electronic Signature and Other Applications of Digital Certificates (Federal Act on Electronic Signature, ZertES). OBJECT is also not a trust service provider under Regulation (EU) No. 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (eIDAS Regulation).
3.3 Insofar as OBJECT makes third-party services available to the customer within the scope of subsign services, their availability, quality requirements as well as contractual and terms of use shall be governed by the provisions of such third-party services.
3.4 OBJECT endeavours to provide the Subsign Services on an end-to-end basis. However, OBJECT is not responsible for the Subsign Services being fully available at all times. Availability may be temporarily limited, especially if this is necessary regarding maintenance work (upgrades and the like) or security-related incidents (patches and hotfixes). In this respect, OBJECT will endeavour to take the interests of the users into account as much as possible.
4. Right of use
4.1 The right to use the Subsign services shall arise upon full payment of the initial remuneration by the Customer. The right of use shall remain in force as long as the customer has paid the remuneration owed in each case by the due date.
4.2 The right to use the Subsign Services shall enable the Customer to use the Subsign Services as intended, non-exclusively, limited to the term, non-transferable and non-sublicensable within the scope ordered by the Customer.
4.3 Subject to any written agreement with OBJECT to the contrary, this Clause 4 conclusively governs the use of Subsign Services. Any further use of the Subsign Services is not permitted.
5. Intellectual property rights
5.1 By opening a customer account, the customer acknowledges that OBJECT is exclusively and fully entitled to the rights to the Subsign Platform.
5.2 The Customer is not permitted to copy, redistribute, and make available via framing or other methods any content of the Subsign Services in whole or in part. The customer is prohibited from publishing non-public content of Subsign services.
6. User fees and other remuneration
6.1 Upon conclusion of the contract, the customer undertakes to pay the agreed remuneration.
6.2 Insofar as services subject to a charge have been provided to the customer, the customer shall be obligated to pay the remuneration specified for such services.
6.3 There is no entitlement to reimbursement for payments made.
6.4 OBJECT reserves the right to increase the prices. Such increases shall be announced by OBEJCT in due time and reasonable in advance. The customer has the right to terminate the contract extraordinarily on the date on which the increase of the prices according to the announcement of OBJECT becomes effective. The extraordinary termination must be declared by the customer in writing to OBJECT within 30 days after receipt of the announcement.
7. Terms of payment
7.1 Unless otherwise agreed in writing, invoices shall be paid in full within 30 days of the invoice date. Upon expiry of the payment period, the customer shall automatically be in default without any reminder.
7.2 Unless otherwise notified by OBJECT, Subsign's prices are exclusive of any value-added tax or value-added tax, expenses and outlays.
8. Exclusion of offsetting
OBJECT is entitled to set off own claims against the customer. The customer is not entitled to set off own claims against OBJECT.
9. Obligations and Assurances of the Customer
9.1 The client agrees to keep the billing information submitted to OBJECT current, accurate and complete.
9.2 The customer undertakes to protect his authentication data against unauthorized access according to the state of the art and to inform OBJECT immediately if there is any suspicion of unauthorized access to the customer account or a user account.
9.3 Procurement, installation, operation and maintenance of any necessary software and hardware within the customer's sphere of influence are the sole responsibility of the customer. In no way is OBJECT responsible or liable for the client's Internet access.
9.4 The customer is obligated to report defects and technical malfunctions to OBJECT immediately. In doing so, he will consider OBJECT's hints for problem analysis within the scope of what is reasonable for him and forward to OBJECT all information available to him that is necessary for the elimination of the malfunction.
9.5 The customer is aware that the transmission of documents to be signed may be subject to export control. The customer bears the sole responsibility for compliance with the statutory export regulations. He is deemed to be the exporter and importer (as applicable) of his data, goods, software, technology, and intellectual property and acknowledges that OBJECT (incl. the trust service provider) is not involved in the export or import process.
10. Entry into force, term, termination, suspension
10.1 The contractual relationship begins with the conclusion of the customer contract.
10.2 The term of a subscription results from the customer contract.
10.3 Unless otherwise agreed in the customer contract, the term of a subscription is automatically extended by a further year. The contract can be terminated at the end of a term or at the time agreed in the customer contract.
10.4 Extraordinary terminations may be declared for an earlier date than the end of a contract term in accordance with the following rules:
10.4.1 To the point in time according to clause 6.4. if the customer exercises his special right of termination in case of price increases declared unilaterally by OBJECT;
10.4.2 with immediate effect in accordance with the provisions of Clause 10.5.;
10.4.3 to the point in time pursuant to Clause 17.2. if the Customer exercises its special right of termination in the event of adjustments to the GTC.
10.4.4 with immediate effect, if the trust service provider terminates its contractual relationship with OBJECT, or fails to provide its services, so that as a result OBJECT is unable to provide the services under the customer contract and/or is unable to provide them in full; in this case, OBJECT is alternatively entitled to temporarily suspend the provision of the services, after notifying the customer.
10.5 If Customer has breached any material term of the Customer Agreement and such breach either cannot be cured or has not been cured within a period of 10 days after notice, OBJECT may terminate this Agreement at any time with immediate effect or suspend the provision of the Service, upon notice to Customer. If Customer is in default of payment of any compensation, it shall be deemed a breach of a material provision of the Customer Agreement.
11. Suspension of the contractual relationship or access to Subsign
10.1 OBJECT shall have the right to suspend or restrict Customer's access to Subsign Services:
10.1.1 if the customer is in default of payment of remuneration;
10.1.2 if the customer violates the customer contract, the GTC or the terms of use;
10.1.3 if, due to circumstances within the Customer's sphere of risk, the unimpaired operation of Subsign is jeopardized.
10.1.4 Immediate termination for cause (Section 10.5) remains possible even if OBJECT has already suspended access to the Subsign Services.
12. Effect of termination of the contract
Outstanding payment obligations as well as rights and obligations which expressly or according to their nature remain unaffected by a termination of this Agreement shall survive the termination of this Agreement. OBJECT is not obligated to refund to the client any remuneration already paid.
13. Data privacy
13.1 For all information regarding the handling of customer data, OBJECT refers to its separate privacy policy.
13.2 The Customer shall ensure and warrant that it complies with all legal and regulatory requirements and observes the provisions of data protection law when processing personal customer data.
13.3 Furthermore, the Customer shall ensure that system users are authorized to forward personal data and documents to OBJECT and make them available for processing in accordance with the Customer Agreement.
13.4 Any obligations to inform third party system users or other affected parties who are not direct users of the OBJECT services, but who arise from the nature of the documents to be signed, are the responsibility of the customer.
14. Order processing
14.1 Should the conditions for commissioned processing of personal data be met, the customer may request a commissioned processing contract from OBJECT.
14.2 OBJECT reserves the right to charge the customer a processing fee if there is any deviation from OBJECT's order processing agreement.
14.3 The conclusion of a commission processing contract requires the consent of both parties.
15. Liability
15.1 OBJECT is liable for any legal reason in case of intent or gross negligence, in case of negligent or intentional injury to life, body or health, or due to mandatory legal liability such as under product liability law.
15.2 Regardless of the cause of liability (contractual, non-contractual, breach of a warranty, etc.) and regardless of the number and the time of occurrence of the damaging events, OBJECT is liable to the customer (incl. authorized system users) for the direct and immediate damages that OBJECT has demonstrably and culpably caused to the customer out of or in connection with the customer contract, if and to the extent that OBJECT's liability insurance covers the damages. The amount of coverage for personal injury and property damage is 10'000'000 Swiss Francs.
15.3 OBJECT excludes liability for any other or further damages, for indirect, special, incidental, or consequential damages, loss of profits, loss of use, unrealized savings, loss of earnings, business or production interruption, loss of data and loss of reputation, regardless of the cause.
15.4 OBJECT excludes any liability for damages, the cause of which is related to the services of the trust service provider, if there is a contract between the client and the trust service provider or if the client can claim the damage directly from the trust service provider.
15.5 OBJECT excludes any liability for damages caused by the customer, such as non-compliance with the terms of use, damages caused by incompatibility of the terminal equipment or software used with the system operated by OBJECT, interruption of data transmission, deactivation of necessary cookies or damages caused by lack of access security on the part of the customer. OBJECT further excludes any liability for damages in connection with epidemics and pandemics, especially in connection with the COVID-19 pandemic.
15.6 OBJECT excludes any liability for damages that may arise due to lack of availability of the Subsign services.
15.7 The foregoing liability provisions shall also apply with respect to OBJECT's liability for further vicarious agents and legal representatives.
16. Indemnification
16.1 If a third party disputes the ownership and/or rights of use of the Subsign Services, OBJECT agrees to fully indemnify and defend the customer adequately against all claims arising from the customer's use of the Subsign Services.
16.2 Customer agrees to fully indemnify and defend OBJECT and its representatives, employees, and agents from and against any and all claims arising out of Customer's use of the Subsign Services and to pay OBJECT damages (including for full legal defence costs). This applies, in particular, but not exclusively, to the following cases: (a) the breach or violation of any provision of these TOS, in particular the misuse of Subsign Services; (b) breach of the terms and conditions of any trust service provider; (c) the breach or violation of any applicable law and/or the infringement of any third-party rights.
16.3 The potentially or actually injured party shall inform the other party without delay as soon as a third-party assert claims to this effect. In this case, the parties will consult with each other. The parties will support each other in an appropriate manner in the defence of such claims and inform each other promptly about the course of proceedings.
17. Force majeure
17.1 Should the provision of the services not be possible or not be possible in the offered and booked form due to reasons for which OBJECT is not responsible (e.g. natural disasters, strike, warlike events, riots, official restrictions, epidemics or pandemics, or force majeure), there is neither a claim for reimbursement of the (proportional) fees nor for compensation of other (financial) damages.
17.2 If OBJECT does not fulfil its own contractual obligations, the fulfilment of the contract (or the date for the fulfilment of the contract) will be postponed according to the occurred event. OBJECT shall not be liable for any damages incurred by the customer due to the postponement of the performance of the contract.
18. Nondisclosure
18.1 All OBJECT employees sign a non-disclosure agreement and agree to keep confidential information secret and to use it only in the context of the aforementioned activity for OBJECT ECM and for no other purposes.
18.2 If a client is known to be subject to official, professional, or banking secrecy, OBJECT expressly undertakes to observe the resulting confidentiality requirements at all times.
19. Final provisions
19.1 Neither party may transfer rights and obligations under this Agreement to third parties without the prior express consent of the other party.
19.2 Should any provision of these GTC prove to be unfulfillable, invalid, or ineffective, this shall not affect the fulfilment, validity and effectiveness of the remaining provisions. In this case, the parties undertake to replace the unfulfillable, invalid, or ineffective provision with a fulfillable, valid or effective provision that comes closest in terms of content and economy to the original intention of the parties.
19.3 The contractual relations between the parties shall be governed exclusively by Swiss law, to the exclusion of the Vienna Sales Convention (CISG).
19.4 Exclusive place of jurisdiction is at the registered office of OBJECT. However, OBJECT is in any case entitled to appeal to the court at the customer's place of business.