General Terms & Conditions

SEAL SQ Corp. is a company limited by shares incorporated under the laws of the British Virgin Islands, with its register office at Craigmuir Chambers, Road Town, VG1110, British Virgin Islands. 

SEAL SQ Corp. is a subsidiary of WISeKey International Holding AG (“WISeKey”), a company registered and incorporated under the laws of Switzerland having company registration number CHE-143.782.707 and registered office at General-Guisan-Strasse 6, 6300 Zug, Switzerland. 

In these general terms and conditions, “SEAL SQ” shall mean any legal entity of the SEALSQ Group Company including SEAL SQ Corp., WISeKey and all companies in which WISeKey– directly or indirectly – holds a controlling part of the company’s capital, providing Products and Services (as defined below) to the Client (as defined below).  
Unless otherwise stated in a written agreement duly signed by SEAL SQ, these general terms and conditions shall apply to all sales of semiconductor and/or other Products and Services provided by SEAL SQ to the Client. In the event of any discrepancy between these terms and conditions and a written agreement accepted by a Client, these terms and conditions shall apply unless explicitly stated in the written agreement that it is the intention of the parties to modify the General Terms and Conditions. 

1.    Definitions: 

1.1.    Products and Services means all sales of semiconductor and/or any products and services produced and provided directly by SEAL SQ excluding any products and services produced by third parties, even if provided by SEAL SQ to the Client. 

1.2.    Client means the person and/or company with whom SEAL SQ agrees to provide Products and/or Services through the implementation of a Proposal. SEAL SQ and the Client may be referred to herein as “Parties”. 

1.3.    Proposal means a clearly defined set of activities agreed upon by SEAL SQ and the Client for the provision of Products and Services. 
        
1.4.    Staff means all SEAL SQ personnel, subcontractors, consultants and persons used by SEAL SQ for the provision of the Products and Services. 

2.    SEALSQ’s Undertaking: 

SEAL SQ will provide its Products and Services in accordance with the specifications agreed upon by the Parties in a proposal signed by them (the “Agreement”). The warranties related to the Products shall be defined in the proposal or in the corresponding licenses or documentation of the Products in question. Any Services provided by SEAL SQ shall be undertaken in accordance with professional standards of care taking into consideration the specific circumstances and the limitations of the environment in which they are provided and of the resources made available by the Client to provide them. 

3.    Intellectual Property Rights:

3.1.    Client acknowledges that SEAL SQ, its vendors and licensors, retain all intellectual property rights and title (including any patent, copyright, trademark and other rights) in and to all of SEAL SQ’s and vendors’ and licensors’ Confidential Information, trade secrets or other proprietary information, Products, and the ideas, concepts, techniques, inventions, processes, software or works of authorship developed, comprising, embodied in, or practiced in connection with the Products or Services provided by SEAL SQ hereunder (all of the foregoing “Works”), including without limitation all modifications, enhancements, configurations, upgrades, and interfaces to the SEAL SQ designated hardware and software supporting such Services (the “Service Components”). SEAL SQ and vendors and licensors reserve and retain all intellectual property rights and title associated with Works created by SEAL SQ and vendors and licensors and derivatives of such Works, including without limitation all Works or derivatives developed or created by SEAL SQ, vendors and licensors or their personnel or contractors during the course of performing the Services for, or providing the Products to, Client. Any Software provided by SEAL SQ, including its operation, code, architecture and implementation, as well as the look and feel of the Software are the valuable intellectual property of SEAL SQ, vendors and licensors. Any such Software is protected by Swiss Copyright laws and international treaty provisions.

3.2.    The Client shall only exercise intellectual property rights explicitly granted to it under the Agreement or under any third-party products or services agreements or licenses consented to and required for the purposes of the Proposal. 

4.    Payment Terms

4.1.    All fees as set forth in the Proposal agreed upon by the Parties shall be invoiced in accordance with the corresponding payment schedule. All recurring fees shall be due and payable by Client and will be automatically invoiced by SEAL SQ on an annual basis unless otherwise specified in the Proposal. Client shall pay each invoice within thirty (30) days after receipt at SEAL SQ’s address set forth above (or as communicated in the future by SEAL SQ) in Swiss francs if the pricing proposal was made in Swiss francs or in USD or EUR and should be paid into the relevant bank account that will be mentioned on the invoice. 

4.2.    SEAL SQ’s fees for the Products and Services provided hereunder as of the Effective Date are set forth in the corresponding Proposal. During the term of the Agreement between the Parties, Client may purchase or license additional Products and Services subject to the terms of the Agreement at SEAL SQ’s then current fees by submission of a purchase order to SEAL SQ incorporating or making reference to their Agreement. Any modifications to the fees shall be based on their commercial reasonability and negotiated in good faith by the Parties. Any increase of fees done by third parties regarding their products and/or services shall be automatically reflected in the fees payable by Client if payable through SEAL SQ. 

4.3.    Any fees agreed upon and payable to SEAL SQ or through SEAL SQ do not include fees related to shipping and packaging, taxes or duties of any kind at a local or national level, royalties, bank fees, or travel and accommodation expenses. 

5.    Client Obligations: 

5.1.    Payment: Client shall pay all fees agreed upon in a timely manner and shall use its best endeavours to ensure that such payment is undertaken in the most efficient and cost effective manner for SEAL SQ. 

5.2.    Regulatory Compliance: Client shall, wherever applicable, comply with all relevant regulations and obtain at its own expense any pertinent licenses or permits required for the provision of the Products and Services, including, but not limited to those required for the provision of digital certification services, the heightened legal recognition of digital signatures and digital certificates, as well as those required for the importation, exportation, re-importation, re-exportation, and use of any restricted products required (e.g. cryptographic or dual use products). SEAL SQ shall under no circumstances be liable for any rejections or delays in the attainment of permits, licenses or regulatory compliance in any manner required for the provision of the Products and Services. 

5.3.    Parallel Contracts: As part of and as a requirement for the provision of the Products and Services, Client may be required to negotiate and sign with SEAL SQ or third parties’ specific contracts. Client shall use its best reasonable endeavors to negotiate and sign such contracts in a manner that does not impede or in any way obstruct the timely provision of the Products and Services. 

5.4.    Access to Premises and Property: The Client warrants that SEAL SQ shall have, free of charge, unimpeded access to all premises and property of the Client or any third parties in respect of which access is required for the performance of the Services and implementation of the Agreement. The Client will be responsible for any damage to such premises or any property thereon resulting from such access and will indemnify SEAL SQ and each of the Personnel in respect of liability for any such damage, unless such damage is caused by the default or negligence of SEAL SQ of any subcontractors or the personnel of either of them. 

5.5.    Services, Facilities and Property of the Client: The Client shall assist SEAL SQ without charge to obtain all pertinent data and information required and shall give such assistance as shall reasonably be required by SEAL SQ for the carrying out of its duties under the Proposal. The Client shall give its decision on all sketches, drawings, reports, recommendations and other matters properly referred to it by SEAL SQ for decision in such reasonable time as not to delay or disrupt the performance by SEAL SQ of its Services under the Agreement. 

5.6.    Client Lack of Compliance and Delays: Lack of compliance with the Proposal requirements by the Client or third parties represents an implied acceptance by the Client in any consequent delays in terms of SEAL SQ’s deadlines for implementation. In the event that such non-compliance risks a delay of more than 2 months or the total paralysis of the implementation, SEAL SQ may decide to continue the implementation or not. In any case, the Client agrees that any such delay or total paralysis shall enable SEAL SQ to be paid immediately for any work undertaken to date, regardless of the payment schedule agreed upon. 

5.7.    Fees for Client Delays Hindering other Work of WISeKey Staff: In the event that any action item agreed upon delays the work of SEAL SQ consultants in a manner that restricts them from performing other work unrelated to the Client’s project then the Client shall be required to pay the fees of such consultants corresponding to the delay caused by the Client. (e.g. unavailability of Client staff to meet with SEAL SQ staff, delay of meetings during a trip to the Client’s premises, country, etc.). 

5.8.    Solicitation of Staff by Client: The Client including any of its group companies or divisions or in any other form of legal structure regardless of its geographical location shall desist from offering employment to the Staff. However, should such an eventuality arise due to some unforeseen circumstances, during the term of the Agreement, then the client shall give SEAL SQ three (3) months written notice to that effect, and after the said three (3) months, the Client shall pay SEAL SQ twelve (12) months professional charges of such personnel, at the time of notice, as compensation. 

5.9.    Country Access and Travel Arrangements: When travel is required by SEAL SQ Staff for the provision of the Products and Services, Client shall use its best efforts to ensure to:

5.9.1.    provide Staff with work permits and such other documents as shall be necessary to enable SEAL SQ to execute its obligations under this proposal; 

5.9.2.    arrange for the Staff and, if appropriate, their eligible dependents to be provided promptly with all necessary entry and exit visas, residence permits, exchange permits and any other documents required for their stay in the Client’s country.

5.9.3.    facilitate and/or undertake the necessary actions to ensure prompt clearance through Customs of any property required for the Services and of the personal effects of the Staff and their eligible dependents in order to comply with the deadlines agreed upon by the Parties in the corresponding project plan; and 

5.9.4.    issue to employees, agents, consultants, and representatives all such instructions as may be necessary or appropriate for the prompt and effective provision of the Products and Services. 

6.    Indemnification 

6.1.    Indemnification of Client by SEAL SQ: SEAL SQ hereby agrees to defend at its own expense or, at its own discretion, settle any claim or action brought against Client for SEAL SQ’s infringement of the intellectual property rights of third parties and indemnify Client against any and all damages, costs (including, without limitation, attorneys’ fees), judgements, awards or liability, that a court may award against Client under any such claim or action arising from SEAL SQ’s non-compliance with its Data Centre practices and policies or the infringement of intellectual property rights. 

6.2.    Indemnification of SEAL SQ by the Client: The Client shall keep SEAL SQ, both during and after the term of the Agreement, fully and effectively indemnified against all losses, damage, injuries, deaths, expenses, actions, proceedings, costs and claims, including, but not limited to, legal fees and expenses suffered by SEAL SQ or any Third Party where such loss, damage, injury or death is the result of a wrongful action, negligence or breach of Contract by the Client or its employees or agents. 

7.    Third Party Products and Services: 

SEAL SQ MAKES NO WARRANTY, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE AND DISCLAIMS ANY AND ALL LIABILITY FOR ANY GOODS, SERVICES OR SOFTWARE NOT PRODUCED BY SEAL SQ BUT REFERRED THROUGH SEAL SQ OR PROVIDED BY THIRD PARTIES FOR THE PURPOSES OF COMPLIANCE WITH THE PROPOSAL OR OTHERWISE.

8.    Limitation of Liability: 

WITH THE EXCEPTION OF THE INDEMNIFICATION OBLIGATIONS IN CLAUSES 6.1 OF THESE TERMS AND CONDITIONS, SEAL SQ SHALL NOT HAVE ANY RESPONSIBILITY OR LIABILITY WHATSOEVER FOR ANY COSTS FOR THE ACQUISITION OF SUBSTITUTE PRODUCTS, LOSS OF PROFIT, BUSINESS, REVENUES, CONTRACTS OR ANTICIPATED SAVINGS, OR FOR ANY SPECIAL, CONSEQUENTIAL INCIDENTAL, OR INDIRECT DAMAGES INCURRED OR SUFFERED BY THE CLIENT, HOWEVER CAUSED, ARISING OUT OF THIS AGREEMENT. IN NO EVENT SHALL SEAL SQ BE LIABLE FOR ANY AMOUNT GREATER THAN THAT RECEIVED UNDER THE AGREEMENT FROM THE CLIENT. 

9.    Notice 

Unless otherwise explicitly agreed herein all notices, demands or other communications under those terms & conditions must be given or made in writing and must be delivered personally, sent by fax, electronic mail, or by registered postal mail to:

SEAL SQ , c/o WISeKey SA
Avenue Louis-Casaï 58
1216 Cointrin
Switzerland
Fax: +41 22 5943001
Email: info@wisekey.ch

10.    Governing Law, Jurisdiction 

The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the sale of any Products. These terms and conditions, and any disputes arising out of or relating thereto, shall be governed by and interpreted in accordance with the laws of Switzerland, or France, as the case may be based on the location of the SEAL SQ selling entity, excluding the rules applicable to conflict of laws. Client consents to and agrees that the exclusive jurisdiction for any dispute arising out of or in connection with these terms and conditions lies with the courts of Geneva (Switzerland), Paris (France), respectively. Notwithstanding the foregoing, all sales in Europe shall in all cases be subject to the laws of Switzerland and courts located in Geneva (Switzerland), regardless of the location of the SEAL SQ selling entity. In addition to any other remedy, SEAL SQ shall be permitted to seek injunctive and/or equitable relief.

11.    Severability 

If any section, sentence, clause or phrase of these terms and conditions should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of these terms and conditions. In the event that any part of these terms and conditions is held to be invalid by a court of competent jurisdiction, SEAL SQ reserves the right to amend, repeal, add, replace, modify any other provisions or terminate this agreement.

12.    Confidentiality

12.1.    Definition of Confidential Information: Confidential Information shall mean any information, communication or data, in any form whether oral, written, graphic, electromagnetic forms or otherwise, relating to either party or to their business or affairs, including but not limited to technical specifications, methods, know-how, technology, security systems, security procedures and policies, as well as software and information ascertainable by inspection or analysis of samples and the nature of the business relation between the Parties including the terms, subject matter and any business model the subject of the business relation disclosed to one party by the other party or by a third party on behalf of the other party, whether before or after the date of the Agreement, but shall exclude any part of such disclosed information or data which:

i.    is or becomes common knowledge without a breach of this agreement by the Parties;
ii.    the receiving party can show that:

a.    it was in its possession or known to it by being in its use or being recorded in its files or computers or other recording media prior to receipt from the disclosing party and was not previously acquired by the receiving party from the disclosing party under an obligation of confidence or
b.    it has been developed by or for the receiving party at any time independently of any information disclosed to it by the disclosing party;

iii.    the disclosing party gives prior written approval for its disclosure;
iv.    the receiving party obtains or has available from a source other than the disclosing party without breach by the receiving party or such source of any obligation of confidentiality or non-use towards the disclosing party;
v.    is hereafter disclosed by the disclosing party to a third party without restriction on disclosure or use; or
vi.    is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided, however, that the receiving party shall provide prompt notice thereof to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure.

12.2.    Obligation to Disclose Confidential Information between Parties: Each Party shall disclose and provide to the other such Confidential Information as the disclosing party deems is necessary for the purpose of the provision of the Products and Services.

12.3.    Obligation to Maintain Confidentiality: Both Parties shall maintain the other party’s confidential information in confidence and shall exercise in relation thereto no lesser security measures and degree of care than those which the receiving party applies to its own similar type of confidential information which the receiving party warrants as providing adequate protection against unauthorised disclosure, copying or use. The receiving party shall ensure that disclosure of such confidential information is restricted to those employees, directors, auditors, and professional advisers of the receiving party or any of its subsidiaries having the need to know the same for the purpose of this agreement. All confidential information, copies thereof, including, but not limited to, that which is stored electronically, shall be returned to the disclosing party upon termination of this agreement. The receiving party shall delete the information stored on electronic media in a sufficiently secure manner once the corresponding information has been delivered to and received by the disclosing party.