Terms and Conditions for Securosys CloudHSM

Edition: July 2024

1. Definitions

1. Whenever used in this Agreement with an initial capital letter, the terms quoted and defined in this Section 1, whether used in singular or plural, shall have the meanings specified below.

Term	Definition
“Agreement”	shall mean the order form, this document, and any further appendices.
“Affiliate”	means, with respect to an entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with such entity or its successor entity, but only for so long as such control exists.
“Appendix”	shall mean any document appended to, and thereby explicitly forming an integral part of this Agreement.
“Documentation”	shall mean the description of the Platform accessible at https://support.securosys.com/, the product-specific supplement, and Securosys policies. The documentation comprises additional information and terms for the Use of the Platform. Unilateral changes to this Documentation do neither materially reduce the quality or quantity of the Platform or the Service nor add material obligations to the Subscriber.
“Support Hourly Base Rate” (HBR)	Support Hourly Base Rate (HBR) is the rate at which support will be invoiced to customer for support services provided answering questions and solving or bypassing known problems or problems not being caused by Securosys Service.
“Licensed Material”	shall mean the Platform and Documentation.
“Order Form”	Shall mean an order form declaring Subscriber’s will to purchase goods or subscribe to services Securosys is offering. Among other things, an Order Form is specifying the number of items or subscriptions ordered, the subscription term, applicable fees.
“Platform”	shall mean the combination of Software and physical hardware provided by Securosys to Subscriber via the Internet.
“Software”	shall mean computer programs, computer program changes, computer program enhancements, provided in object code, and/or any documentation related thereto provided by Securosys.
“Use” or “Service”	shall mean the complete or partial, momentary, or permanent booting, importing, storing, transmitting, transforming, displaying, running, and playing of the Software and/or accessing of the Platform.

2. Scope

1. The scope of this Agreement is to define terms and conditions for the remote connection and use of the Services and Platforms operated by Securosys under the brand CloudHSM like shared/dedicated HSMaaS, TSBaaS and others.

3. Structure and Precedence

1. The Parties agree on the following structure of documents constituting this Agreement:
   1. The Order Form and its appendices
   2. This document, the Terms and Conditions for Securosys CloudHSM
   3. The Service Level CloudHSM HSMaaS / TSBaaS, Appendix I
   4. The Service Description - CloudHSM HSMaaS / TSBaaS, Appendix II
2. In case of a conflict between the terms of these documents, the order form prevails over the terms stipulated in its Appendices, and the Order Form and its Appendices prevail over terms of the documents in (ii) - (iv). Omitted terms in a document are completed by terms of the subordinate document. In case of a conflict between this document and/or documents (iii) and (iv), the terms of the earlier document shall prevail over those of the later document.
3. Any general terms and conditions of Subscriber are explicitly waived.

4. Provision

1. The Service is provided by remote access, i.e., Internet.
2. The contractual services are delivered from Securosys to Subscriber at the outgoing router interface of Securosys’ data center or as specifically described in the description of the service. Subscriber’s access to the Internet, network connection as well as provision and maintenance of the necessary hardware and software is not subject of this Agreement.
3. Securosys shall provide Subscriber the necessary login credentials for the remote access and the Licensed Material.
4. Unless stipulated otherwise in this Agreement, Securosys shall provide the Software and Documentation in their latest version which is released by Securosys to its Subscribers.
5. For parts of the Services for which no SOC 2 report is available, Securosys grants the Subscriber an audit right. All costs associated with the audit (e.g., time spent, travel expenses, subcontractor costs) shall be borne by Subscriber. The time spent will be charged at the generally applicable hourly rate.

5. Ownership and License

1. Securosys shall retain ownership and own the Licensed Material. The intellectual property rights pertaining to the Licensed Material shall vest in Securosys. Securosys shall own all rights in developments, translations, changes and updates/-grades of the Licensed Material and any copies made thereof as well as the rights of any disassembly of the Software and copies thereof.
2. Securosys grants Subscriber a non-exclusive, non-transferable, for the term of this Agreement, worldwide, fully paid up with the fees under this Agreement, royalty-bearing, and irrevocable license to use the Licensed Material according to this Agreement.
3. The license granted to Subscriber in Section 5.2 is limited to the Use of the Licensed Material within Subscriber’s organization and Subscriber’s Affiliates. This license shall not include the right to sub-license, sell, lease, transfer or otherwise grant third parties’ access to the Platform and/or Licensed Material in parts or in whole without Securosys’ written agreement. However, Subscriber is allowed to allow its and its Affiliates’ third-party service providers (e.g., IT outsourcing providers or freelancers) access to the Platform and/or Licensed Material to the extent these third-party service providers use this access to the Platform and/or Licensed Material only for Subscriber or Subscriber's Affiliates (i.e., not any other of their clients), and Subscriber is responsible for their acts and omissions as it were its own acts or omissions.

6. Terms and Termination

1. This contract becomes effective upon delivery of the credentials to Subscriber according to Section 4.3 above.
2. The term of the agreement, unless specified differently in the Order Form, is in minimum twelve (12) months, and unless terminated, the Agreement is automatically extended by twelve (12) months. Subscriber may terminate this Agreement, or any relevant Appendix by mail with a three (3) months’ notice period to the end of the current Agreement term. Securosys may terminate this Agreement, or any relevant Appendix by mail with a six (6) months’ notice period to the end then current Agreement term. Shorter periods are possible against additional fee. There shall be no refund for one-time license fees; recurring license fees (subscription fees) are due until the effective date of termination (i.e., the expiration of the notice period), unless Subscriber terminates this Agreement for cause due to breach of contract by Securosys or according to Section 6.6 due to Securosys changes.
3. Either party may terminate this Agreement with twenty (20) days’ notice on any month end if: (i) the other party is notified in writing that it is in material breach of the terms or conditions of this Agreement; (ii) such party does not remedy such breach within thirty (30) days following such notice. If Securosys' certifications (e.g., ISO 27001) or the agreed certifications of their data center is revoked or not extended, Subscriber has the right to terminate this Agreement for cause. Securosys shall proactively inform Subscriber on such changes in the certification level.
4. Either party may terminate the Agreement immediately if: (i) the other party files or has filed against it a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, or is adjudicated bankrupt (ii) makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, received, or custodian for a substantial part of its property
5. Although Securosys may offer the service temporarily free-of-charge, Securosys may cease any free-of-charge access to the Platform at any time.
6. The features of the Platform and the Securosys policies may be enhanced and may be adapted by Securosys to reflect technical advances and to allow for the Platform’s continuing compliance with applicable mandatory law (whereas such enhancements/adaptation shall not materially reduce the quality or quantity of the Platform or the Service nor add material obligations to the Subscriber) (“Continuous Modification”). Securosys will provide information about Continuous Modifications within a reasonable period of notice (in general 6 weeks before the change is scheduled to take effect). This change notice will be issued by email. In the event that a change may negatively affect the justified interests of Subscriber so that Subscriber can no longer reasonably be expected to adhere to the agreements in the order form, Subscriber may terminate the affected cloud service in writing with a notice period of one month until one month after the announced change became effective.
7. Upon termination of this Agreement, Subscriber’s remote access right to the Platform and Subscriber’s right to the Use of the Licensed Material shall cease without undue delay. Subscriber shall entirely and irrevocably delete the Documentation and any copies thereof, in part or in whole, as well as all login credentials for the remote access, unless they are necessary for tax or other legal reasons, to proof potential claims against Securosys or are included in regular IT back-up-systems. In the latter event, they remain subject to confidentiality and have to be deleted in the regular back-up cycles. Subscriber shall inform Securosys upon Securosys’ written request about such deletion. If Subscriber does not comply with this deletion obligation or if Subscriber accesses the Platform and/or uses the Licensed Material after termination of the Agreement, Securosys shall be entitled to continue invoicing any recurring fees. If Subscriber's migration to a replacement provider cannot be completed on schedule, Securosys shall continue to provide the services under this Agreement in the existing scope and at the defined Service Levels in return for payment of reasonable consideration until such time as the migration work is completed ("Transitional Period"). The remuneration paid by Subscriber for the services prior to the termination/expiration of this Agreement shall be deemed reasonable consideration for a period of three months. Following the aforementioned period and every six months thereafter, the Parties shall renegotiate the remuneration.
8. Upon termination, Subscriber’s HSM key data (partition) is deleted by Securosys in accordance to the written cancellation order by Subscriber. Any data in backups are kept confidential and will be deleted in the regular back-up cycles.

7. Remuneration

1. The fees according to the Order Form are due by Subscriber in advance after submittal of proper invoice by Securosys (including – if provided by Subscriber in due time before the time of the invoice – a purchase order number).
2. The fee is due by Subscriber irrespective of Subscriber activity.
3. Unless stipulated otherwise in the Agreement, all amounts exclude the applicable VAT. VAT shall be added to the invoice by Securosys and is due by Subscriber.
4. In case of default of payment by the Subscriber with due and undisputed amounts equaling to at least 3 months payments (whereas Subscriber shall dispute amounts only in good faith) and after two reminders with a grace period of 10 days each, Securosys has the right to block Subscriber’s access to the Service.
5. Subscriber shall be liable for any interest on overdue payments under this Agreement commencing on the date such payment becomes due. The annual interest rate shall be five per cent (5%) per year.
6. The recurring fee agreed in the order form applies for the initial subscription term agreed therein. The fee applicable for a renewal term corresponds to the fees for the preceding initial or renewal term, unless Securosys increases the fees as follows:
   1. Subject as is set out below, Securosys may at its discretion adjust the recurring fees with effect from the start of a renewal term by giving three months’ written notice of the fee adjustment to Subscriber:
   2. The fee change has to be agreed by the parties if the cloud service is renewed automatically for the renewal period unless Subscriber terminates the contract with effect at the expiration of the contractual term, by giving written notice at least one month prior to the expiration date of the preceding contractual term. If the date of the termination chosen by Subscriber is after the renewal term, the adjusted prices shall apply for the time between the end of the preceding term and the end of the Agreement.
7. Payment of the service fee is due as following:
   1. In advance on a yearly basis or
   2. In advance for the complete committed subscription duration or
   3. In advance for the complete committed subscription duration if the subscription period is less than one year
8. Invoicing is generally done only once per year or once for the full period of subscription commitment. If invoicing, as per subscriber decision, is required to be done more than once a year or if an administrative intervention is required by the Securosys SA accounting department (like reminders, administrative activities on non-Securosys systems, etc.), than a service fee of at least CHF 75.00 will be applied per additional invoice or per administrative intervention by the accounting department. This is independent or additional to any other financial obligation by the subscriber as per these GTCs.

8. Subscriber’s Obligations

1. Subscriber shall be responsible and accountable for the selection, provision, installation, implementation, system requirements, use and maintenance of the necessary hardware, software and network services for (i) the remote access up to the router interface of Securosys’ data center, and (ii) the Use of the Licensed Material.
2. Backups outside the Platform (i.e. HSM cluster) of HSM partition data (e.g. key objects) is the sole responsibility of Subscriber. Subscriber is responsible to keep such backups safeguarded.
3. Subscriber may only use the Platform if Subscriber is not prohibited by any applicable laws from doing so. If Subscriber is located in a country embargoed by the Swiss government or other applicable law from receiving our Services or is on the Swiss Chamber of Commerce’s Denied Persons List or Entity List (i.e., https://www.sesam.search.admin.ch/sesam-search-web/pages/search.xhtml and https://www.seco.admin.ch/seco/de/home/Aussenwirtschaftspolitik_Wirtschaftliche_Zusammenarbeit/Wirtschaftsbeziehungen/exportkontrollen-und-sanktionen/sanktionen-embargos/sanktionsmassnahmen.html), he is not permitted to contract any Services from Securosys.
4. Subscriber shall protect its, and its own users’ respectively, login, identification, and authentication credentials for the remote access to the servers of Securosys from access by unauthorized third parties and shall not disclose any such credentials to any unauthorized third parties. Subscriber shall inform Securosys without undue delay if there are indications that an unauthorized third party has obtained access to the login, identification, or authentication credentials, or if such credentials could be misused.
5. Subscriber shall be responsible and accountable for obtaining the necessary consent from any person whose personal data (according to the Swiss Federal Act on Data Protection) is being processed. Such consent shall include to the extent necessary the Subscriber processes or discloses by using the Platform.
6. Subscriber shall not, nor allow others to, misuse the Platform. In particular, Subscriber shall not transmit, or allow others to transmit, any data or other content and/or information, which is illegal, or which infringes copyrights and/or other intellectual property rights of third parties to the servers of Securosys. Subscriber shall remain responsible for his own and for his users’ data, respectively, or other content and/or information.
7. Subscriber shall refrain from retrieving information or data by unauthorized access or by access of an unauthorized third party. Penetration tests are allowed. The timing of these tests shall be aligned with Securosys.
8. Prior to any submission of data, content and/or information (other than key data in HSM) via e-mail or to support portal by Subscriber, and/or by end users of Subscriber, Subscriber represents that all such data, content and/or information has been scanned with state-of-the-art anti-virus programs.
9. If the data, content and/or information transferred by Subscriber infringe third party rights, is in harm to the Platform or is in any other way in breach of this Agreement, then Securosys may disable such data, content and/or information in parts or in whole. In such event Subscriber shall either provide or acquire the necessary rights to access such data, content and/or information or change these data, content and/or information in a way that it is non-infringing or shall delete these data, content and/or information from the Platform. If Subscriber does not comply with this request, Securosys shall be entitled to delete for objects different than keys the data, content and/or information and/or terminate the Agreement for cause without notice. Right to claim damages remains reserved.
10. By subscribing to the Service, the Subscriber acknowledges that personal data (name, e-mail, phone, position) of Registered Support Users and the Contact details for survey of subscriber satisfaction are collected and processed for the purpose of interaction under this agreement. Subscriber shall not transfer any sensitive or special categories personal data to Securosys. Subscriber may request deletion of personal data. In such case personal data will be anonymized to preserve for operational reasons the ticket flow on the support portal.

9. Warranty of Services

1. Securosys warrants the Service set forth in Appendix I and II.
2. Securosys actively monitors the market with regard to (security) vulnerabilities and threats to its Licensed Material that become known. If such vulnerabilities/threats become known, Securosys takes the necessary measures without undue delay to close these vulnerabilities and prevent security threats. Securosys further proactively informs Subscriber of the vulnerabilities/threats as soon as they become known, so that Subscriber can assess the corresponding risk and immediately provide Subscriber with the measures taken to prevent them (in particular bug fixes and updates) without additional cost.
3. Subject to a delivery of the Licensed Material without warranty (i.e., trial versions, free-of-charge Platform access), Securosys warrants that the Platform meets the specification in the Documentation at the time of conclusion of this Agreement.
4. Subscriber undertakes to test the Licensed Material prior to any productive use. Subscriber acknowledges and agrees that after termination of this Agreement any remote access to the servers of Securosys shall cease. Securosys will delete data, content and information transmitted to the Service after termination of this Agreement upon written cancellation order. In case Subscriber does not provide a cancellation order Securosys will send two reminders with a grace period of 10 days each before deleting the data. Securosys may charge reasonable fees for the storage of Subscribers data, content and information beyond the termination of the Agreement.
5. If after release of new Software Subscriber detects and informs Securosys in writing by means of a support ticket of a programming error of the Software or if Securosys becomes aware otherwise of such error, Securosys shall correct such programming error within due time (of at least thirty (30) days) and, in Securosys’ sole discretion, consist of debugging, instructions to avoid the programming error (whereas such work-around shall only be a temporary solution and does not relief Securosys from its obligation to fix the error), or provision of new Software that is error free but still complies with all contractually agreed requirements. If despite two (2) rounds of efforts by Securosys the programming error cannot be corrected and if the usability of the Software compared to the Documentation is severely impaired or impossible, then Subscriber shall set another grace period to correct the programming error, upon which unsuccessful expiry Subscriber may terminate the Agreement. The remuneration shall then be reimbursed by Securosys to Subscriber from the moment of the error reporting until the end of the prepaid Subscription period, after which the Subscriber shall have no access anymore to the Licensed Material.
6. This warranty shall be voided if the Subscriber misuses the Licensed Material or modifies the Licensed Material without authorization and this modification impacts the causes the error.
7. This warranty shall be voided to the extent that Securosys is not responsible for the programming error.

10. Warranty of Title

1. To the best of its knowledge, Securosys represents and warrants that Licensed Material (including its Documentation) does not infringe the rights of any third party.
2. In the event of a third-party right infringement claim against the Licensed Material, Securosys shall defend Subscriber against such claim at its expense and pay all costs, damages, and attorney’s fees up to an amount that a court finally awards or that are included in a settlement approved by Securosys (further damages are reimbursed capped on the limitation of liability according to Section 11), provided that Subscriber:
   1. without undue delay notifies Securosys in writing by registered mail of the claim; and
   2. allows Securosys to control and reasonably cooperates with Securosys in the defense and any related settlement negotiations.
3. If such a third-party claim is made, or appears likely to be made, Subscriber agrees to permit Securosys to enable Subscriber to continue to use the Licensed Material or to modify it or to replace it with Licensed Material that is at least functionally equivalent but non-infringing. If Securosys determines that none of these alternatives is reasonably available, Subscriber agrees to return the Licensed Material to Securosys upon written request. Securosys shall then issue Subscriber a credit equal to the amount paid by Subscriber for the Licensed Material for the current contract year.
4. This remedy is Securosys’ entire obligation to Subscriber regarding any infringement claim.
5. To the extent the modification of the Platform by Subscriber causes the infringement, the indemnification above shall be void.

11. Limitation of Liability

1. Circumstances may arise where, because of a default by Securosys in performance of its obligations under this Agreement or other liability, Subscriber is entitled to recover damages from Securosys. Regardless of the basis on which Subscriber is entitled to claim damages from Securosys, and except as expressly required by law without the possibility of contractual waiver, Securosys’ entire liability for all claims in the aggregate for the term of this Agreement arising from or related to the Software or service or otherwise arising under this Agreement shall not exceed the amount of 100% payments paid by Subscriber to Securosys for the current contract year.
2. The limit in Section 11.1 also applies to any of Securosys’ subcontractors. It is the maximum, for which Securosys and its subcontractors are collectively liable.
3. Securosys liability for damages caused (i) by wilful misconduct; (ii) by gross negligence; (iii) to life, limb or health as well as (iv) under the laws of product liability and (v) for given guarantees remain unaffected.
4. The limitation of liability in this Section 11 applies accordingly to Subscriber and its Affiliates.
5. Except as expressly required by law without the possibility of contractual waiver, under no circumstances is Securosys or its subcontractors liable for any of the following even if informed of their possibility:
   1. loss of, or damage to data;
   2. special, incidental, exemplary, indirect, or consequential damages; or
   3. lost profits, business, revenue, goodwill, or anticipated savings.

12. Confidentiality and Data Protection

1. Notwithstanding Sections 13.3 and 13.4 hereafter, both parties undertake to protect the other party's Confidential Information acquired in connection with contract performance, as confidential to the same extent they protect their own Confidential Information however at least with the care of a prudent businessman. Confidential Information of the other party may only be shared with or disclosed to third parties who are under obligations of confidentiality substantially similar to those in this Section 12 and only to the extent this is necessary to enable the receiving party to exercise its rights or perform its obligations under the Agreement. Any reproduction of any Confidential Information of the other party shall contain any and all confidential or proprietary notices or legends which appear on the original, as far as this is technically feasible.
2. Section 12.1 above shall not apply to any Confidential Information that: (a) is independently developed by the receiving party without reference to the disclosing party's Confidential Information; (b) is generally available to the public without a breach of the Agreement by the receiving party or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (c) at the time of disclosure, was known to the receiving party free of confidentiality restrictions; or (d) the disclosing party agrees in writing is free of confidentiality restrictions (e) is required to disclose due to the laws of respective jurisdiction of such party or other applicable law, including in respect of any government authorities, or pursuant to any order of a court or a judgment. In the latter case, the receiving party shall without undue delay inform the disclosing party, to the extent allowed by law, and shall take all reasonable efforts to defend such disclosure.
3. Securosys undertakes to comply with the provisions of the applicable data protection legislation (i.e. Swiss data protection law and GDPR), to comply with the latest technical and organizational standards generally accepted in professional circles. Securosys may collect, process, and use the data only within the scope of this contract and in accordance with the instructions of the Subscriber.
4. If a data subject asserts any data protection claims (e. g. for information, correction, or deletion) against Securosys, Securosys shall support the Subscriber by forwarding the request to Subscriber.
5. When engaging subcontractors Securosys will design the contractual agreements with such subcontractors in writing and in such a way that they comply with the provisions of this Section 12 of this Agreement. Securosys remains responsible for the acts and omissions of these subcontractors as if these were its own.

13. General Provisions

1. All notices for default under, or termination of, this Agreement shall be sent by registered mail to the Party’s addresses according to the order form.
2. Each Party is an independent contractor and shall independently establish prices and terms for its services and/or products. Neither Party is, nor will claim to be, a legal representative of the other Party. This Agreement does not create a joint venture, employment relationship or agency relationship between the Parties.
3. Except as expressly provided in this Agreement, neither Party grants the other Party, whether directly or by implication or otherwise, any patent, copyright, trademark, trade secret, know-how, or other intellectual property right. No Party shall remove or alter any symbols or legends indicating any intellectual property right. The usage of Subscriber's brand and name in marketing material requires Subscriber's prior written consent.
4. Except as explicitly provided in this Agreement, neither Party may assign, or otherwise transfer, its rights or delegate its obligations under this Agreement without the prior written consent of the other Party. Any attempt to do so shall be void. However, the assignment of this Agreement, in whole or in part, to an Affiliate does not require the consent of the other Party. Securosys is also permitted to assign its rights to payments under this Agreement without obtaining the contracting Party’s consent.
5. Neither Party shall be liable for any failure or delay in the performance of its obligations under this Agreement if such failure or delay is due to a force majeure event, such as without limitation, acts of God, fire, flood, natural catastrophe, power surges, acts of any government or of any civil or military authority, national emergencies, riots, vandalism, terrorism, war, insurrection, strikes, or any occurrence beyond the reasonable control of such Party. Securosys shall take all commercial reasonable efforts to prevent and remedy the effects of a force majeure event. If a force majeure event prevents one party from the performance of its contractual obligations for more than 30 Business Days, the other party has the right to terminate the Agreement for cause. Securosys shall refund any fees for the remaining term on a pro-rata-basis.
6. To the extent permitted by applicable law, except for claims arising out of Sections 5, 7 and/or 8, neither Party may bring an action arising out of this Agreement, regardless of form, more than one (1) year after the cause of action has accrued.
7. Any rights and obligations, which by their nature survive and continue after the expiration or termination of this Agreement, shall survive, and continue, and shall bind the Parties and their successors and assigns, until such obligations are fulfilled.
8. This Agreement may only be amended by a writing signed by authorized representatives of the Parties.
9. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions will in no way be affected or impaired as long as the intent of the parties can be preserved. In such cases, both Parties undertake to replace the invalid, illegal or unenforceable provision with another valid, legal, and enforceable regulation. The same principle applies to open terms or omissions.
10. This Agreement is governed by Swiss law, without regard to the conflict of law provisions. The United Nations’ Convention on International Sales of Goods of 11 April 1980 (SR 0.221.211.1) does not apply.
11. Place of jurisdiction for any dispute arising from, or in connection with, this Agreement shall be exclusively the competent courts of Zurich, Switzerland.