General Terms and Conditions
General Terms and Conditions for SIMSme (Business Customers)
1. Contracting Parties
The parties to the SIMSme contract are Brabbler Secure Message and Data Exchange Aktiengesellschaft (hereinafter “Brabbler AG”), Ria-Burkei-Straße 26, 81249 Munich/Germany, Registration Court Munich HRB 217480, telephone: +49 89 95 45 94 7-0, e-mail: email@example.com (the names of the currently authorized representatives of Brabbler AG can be found in the legal notice) and the SIMSme user who/that has the legal capacity of a businessperson/legal entity within the meaning of Section 14(1) of the [German] Civil Code (BGB) (hereinafter referred to as the “user” or “users”).
The following definitions apply to this contract:
Messenger app: Mobile app messaging service for use with SIMSme on smartphones.
Single chat: Transmission of messages via SIMSme to one recipient.
Recipient: User to whom messages are being transmitted via SIMSme.
Group chat: Transmission of messages via SIMSme to multiple recipients.
Messenger: Communication software for SIMSme as messenger app or web messenger.
Mobile user devices: Smartphones that are run with an operating system authorized for SIMSme.
Message: Pictures, texts, locations, or contacts that can be exchanged between users via SIMSme.
SIMSme user account: SIMSme account required to use the messenger service on user device.
Server: A SIMSme server of Brabbler AG.
Web messenger: Browser-based messenger for use with SIMSme on desktop computers or tablets.
3. Subject Matter of the Contract, SIMSme Contractual Services
(1) SIMSme Business is a web-based, multi-platform service for the secure exchange of messages between users of mobile user devices and desktop computers.
(2) The exchange can take place in a single chat or a group chat. SIMSme Business users generate messages on their authorized mobile devices or desktop computers using SIMSme Business Messengers and in the settings determine which recipients the messages are to be sent to. The messages are copied into the mailboxes of the recipients and the recipients receive a push notification (e.g. an Apple Push Notification, a Google Cloud Message, etc. depending on the platform) informing them that new messages are available and can be retrieved.
(3) The messages may then be downloaded by the recipients. Every message is deleted from the server 90 days after sending. During this 90-day period, messages are synchronized between the various user devices assigned to the SIMSme user account so as to ensure availability across all devices used.
(4) Users can determine that messages self-destruct.
(5) The subject matter of the contract is the provision of the SIMSme Business services on a server of Brabbler AG and the provision of the associated apps on the download portals of the various system platforms. The application settings can also be made via the Management Cockpit, a separate web application through which the administrator can manage the purchased licenses. More detailed information about the services is found in the performance specifications at www.sims.me/business/de/features/. All of the aforementioned services are hereinafter referred to as “services”.
(6) SIMSme Business is designed as an end-to-end encryption system such that
i. no unencrypted messages can be transferred or stored on the SIMSme server;
ii. the keys required to decrypt the messages are saved exclusively in the messenger; and
iii. messages can only be read on the messenger apps of the users or the recipients.
(7) The algorithms and processes used for the encryption are regarded as secure pursuant to the latest technical standards (recommendations of the [German] Federal Office for Information Security).
(8) Further developments are continually being made on the supported encryption algorithms, system platforms, and functionalities of SIMSme Business. Information on the current state of developments is found in the latest performance specifications at www.sims.me/business/de/features. Brabbler AG must always provide the users with up-to-date apps with which the operability of the system is being ensured.
(9) Under the conditions set out in Section 4, users may download, install or call up via browser, and use an app in a contractually conform manner on each of their user devices with their own SIMSme user account. The use of the SIMSme service is only possible with these programs (apps).
(10) To use the programs, a user account must be created on the server. For creating a user account, a user device with an up-to-date app and a valid mobile telephone number or e-mail address is needed.
(11) The server and its associated storage system must be operated in a computer center in Germany that is certified pursuant to ISO 27001 basic IT protection. No transferring of data to a foreign country is made by Brabbler AG. Transfers initiated by users to user devices used by the users in a foreign country are not affected by this.
(12) The server does not store passwords. Authentications take place exclusively on the authorized user devices of the users.
(13) The use of the service for commercial and business purposes is allowed under the conditions set out in Section 4.
4. Conditions for Using SIMSme Business
(1) The purchase of at least one SIMSme Business license, the proper registration of the user with SIMSme Business, and the maintaining of a SIMSme Business user account are mandatory prerequisites and conditions for using the SIMSme Business services.
(2) With the registration, a SIMSme user account is created for the user.
(3) Users must first download and install the apps on their user devices or call it up via web browser. The registration process begins with the first opening of the app. In this process, the user makes the offer to conclude a contract. The offer is accepted by Brabbler AG through its registration and activation of the SIMSme user account.
5. Concluding of the Contract
(1) By sending the [completed] online order form that is provided on the website www.sims.me/business, the user is making an offer to conclude a contract to purchase SIMSme Business licenses. Confirmation of receipt of the user’s offer is made by Brabbler AG by sending an order confirmation in text form. The order confirmation simply informs the user that the order has been received. It does not constitute acceptance of the offer. IfBrabbler AG accepts the user’s offer, the desired number of licenses is sent as login codes to the user via e-mail or the licenses will be directly allocated to the administrator account for management via the Management Cockpit. The contract is thereby concluded and SIMSme Business can be used under the conditions set out in Section 4.
(2) Alternatively, the user can purchase individual licenses through the in-app purchase function offered by Apple and Google.
6. Remuneration and Invoicing
(1) The remuneration owed is found in the price lists available at https://www.sims.me/business/en/pricelist/.
(2) The user’s obligation to pay remains in effect even in cases of authorized or unauthorized use of the login code by third parties. However, as soon as the user has informed Brabbler AG of such unauthorized use, Brabbler AG must promptly take appropriate countermeasures (e.g. blocking the login code).
(3) Any remuneration owed by the user is due for payment in euros plus the statutory German VAT in effect at any given time.
(4) The remuneration is due for payment upon receipt of the invoice sent by letter. Invoicing must be effected in advance for the respective term of the contract.
(5) The invoice must be paid within 14 days to the bank account stated on the invoice.
(6) If the in-app purchase function of Apple and Google is used, the remuneration and the invoicing are governed by the conditions prescribed by them.
7. User’s Obligations
(1) Users may only use the SIMSme Business system for exchanging messages.
(2) It is the responsibility of the users to verify the extent to which the services offered satisfy the special statutory, legal, or other requirements of data privacy and data security and to verify for themselves the extent to which the use of the services offered by SIMSme Business is lawful for the purposes intended by the users. Brabbler AG does not provide any legal advice on this. Attention is drawn here to the fact that absolute security cannot be guaranteed by technical procedures and especially that the secureness of encryption procedures is subject to constant change.
(3) Users are responsible for their own activities, especially for messages that are uploaded, stored in the system, kept ready for retrieval, and/or transmitted or distributed by them or by third parties for whom they are vicariously liable. Users are obligated to take appropriate measures to protect the hard- and software (customer system) used by them for the services in order to ensure the security and integrity of their customer systems. This especially includes the use of the most current version of the SIMSme Business app, the operating system software or the browser software, and the taking of the most up-to-date precautions to protect IT security (virus protection scanner, firewall, IT security software, etc.).
(4) SIMSme Business users must ensure that their passwords are protected from unauthorized use by third parties. They must particularly ensure that their passwords are kept in safe custody, since they cannot access messages without them.
(5) Users must ensure that the use of the services in no way whatsoever prejudices Brabbler AG or any other third parties. The services offered by Brabbler AG may therefore not be used by users for unlawful purposes and/or for abusive purposes, and especially:
i. no legally prohibited content may be stored and transmitted or made available to third parties;
ii. no unlawful or unethical content may be put into the system and transmitted or made available to third parties, not even through a reference to such content. This especially includes content that within the meaning of Sections 130, 130a, and 131 of the [German] Criminal Code (StGB) is meant to incite hatred [of national, racial, religious, etc. groups], to provide instructions on how to commit a crime, to glorify or trivialize violence, that is sexually offensive, that is pornographic within the meaning of Section 184 ff. StGB, that is capable of endangering children or adolescents in a serious moral manner or that is detrimental to their well-being, that infringes the copyrights or the industrial property rights of third parties, or that could harm Brabbler AG’s reputation.
8. Rights of Use of the Messenger App
(1) For each license purchased and for the term of this contract, SIMSme Business users acquire the non-exclusive, non-transferable, and non-sublicensable right to install the software on their user devices and to use it for the purposes set out in this contract.
(2) SIMSme Business users may only use the messenger app for operation on the SIMSme server in conjunction with SIMSme Business.
(3) SIMSme Business users may neither alter the messenger app nor adapt it, translate it, or rework it in any other way nor combine it with any other software.
9. Rights and Obligations of Brabbler AG
(1) Brabbler AG must provide the SIMSme Business services in accordance with the provisions of this contract.
(2) SIMSme Business and the associated systems at the point where the server connects to the Internet (router output ports of the computer center) must be available per month on an average of 99.5% of the time. Excluded from this are interruptions caused by maintenance work, updates, and repairs.
(3) Brabbler AG must refrain from everything that is or could be capable of endangering the security and integrity of the stored data and information. Brabbler AG or its employees will therefore never request or store the private keys or passwords of the user devices.
(4) Brabbler AG collects, in conformity with data privacy law, anonymized and statistical data on usage for quality control purposes and for further developing SIMSme Business in line with requirements. In doing so, the number of downloads, chats, messages, etc. are being cumulatively registered without the possibility of tracing the user. Users can refuse this by disabling the function “Collect anonymous usage data” under “Data Privacy Notice for SIMSme Business” in the app.
(5) Brabbler AG must continually develop the system, especially with respect to discoveries in the area of IT security technology. This means that new functions can be developed and existing functions can be replaced by new ones or removed from the system.
(6) Brabbler AG is entitled at any time to change the security system, especially the encryption system, and to convert it to a new system that meets the latest technical standards.
(7) In the case of a negligent/intentional violation of statutory provisions or of these GT&Cs by a user or by a third party for whom such user is vicariously liable, Brabbler AG is entitled to temporarily block the services entirely or partially. The right to terminate the contract without notice pursuant to Section 12(2) is not affected by this.
(8) Brabbler AG reserves the right to have all of the contractually owed services performed entirely or partially by third parties.
The user indemnifies Brabbler AG and the third parties engaged by it to perform its contractual obligations from all claims of third parties that are asserted against Brabbler AG as a result of a negligent/intentional breach of the obligations set out in these GT&Cs and/or as a result of other negligent/intentional acts of the user or of third parties for whom such user is vicariously liable. Furthermore, the user must compensate for any loss in excess of the foregoing, including the costs of any necessary lawsuits and the defending of them. This obligation also exists in the case of an abuse of the user’s account by third parties in so far as the user is at fault [includes intention and negligence] for it.
11. Warranty, Customer Services
(1) In the case of a defect, Brabbler AG must remedy the defect through either patches or releases, the choice of which is theirs. If the remedying of the defect proves unsuccessful within a reasonable time period, users are entitled, in the case of a serious defect, to their statutory rights to terminate the contract and to the right to obtain damages to the extent set out in Section 12. There is no right to a reduction of the purchase price.
(2) Excluded entirely from the warranty claims [for defects] are such errors that are caused by external influences, operating errors, software changes made by the user, or any other disturbances outside the scope of Brabbler AG’s responsibility.
(3) The user undertakes to inspect the software promptly upon receipt for any defects/operational errors and to promptly, within two weeks at the latest, report any defects discovered. Any defects or operational errors that occur later must also be promptly reported to Brabbler AG after their discovery. If patent defects that were evident even without careful inspection are not promptly reported, i.e. within 14 days at the latest, after their discovery, then the warranty for these ceases to apply.
(4) Warranty claims are barred by limitation within one year.
(5) SIMSme Business is self-explanatory and easy to use. For any questions, all users can contact customer service at firstname.lastname@example.org.
12. Brabbler AG’s Liability and Limitations of Liability
(1) SIMSme Business users’ claims for damages, regardless of the legal grounds for them, and their claims to compensation for ineffectual expenditures are excluded unless the loss is occasioned by a grossly negligent or an intentional breach of duty, or by an at least negligent breach of fundamental contractual obligations, which means such contractual obligations the fulfillment of which makes it possible at all to properly implement the contract, the breaching of which jeopardizes the attainment of the contractual purpose, and the compliance with which the other party is readily entitled to rely on (cardinal obligations); liability in the latter case is limited to loss that is typical and foreseeable.
(2) The aforementioned limitation of liability does not apply to loss ensuing from a fatal injury, a bodily injury, or an injury to a person’s health, to liability under the [German] Product Liability Act (ProdHaftG), or to cases where Brabbler AG has, as an exception, given a guarantee.
(3) Brabbler AG is in no way liable for loss occasioned by failures or delays in performing services due to unforeseeable events for which Brabbler AG, its legal representatives, or the third parties engaged by it to perform its contractual obligations are not responsible (force majeure). Events of force majeure include but are not limited to wars, riots, forces of nature, fires, sabotage attacks by third parties (e.g. by computer viruses), power breakdowns, orders of public authorities, lawful labor disputes within the company, and the breakdown or reduced performance of communication networks.
(4) Brabbler AG is also not liable for loss caused by data losses if such loss could have been prevented by the SIMSme Business user by performing a proper backup of the data on a regular basis.
13. Term of the Contract, Notice of Termination, Contractual End
(1) The contract for using SIMSme Business pursuant to Section 5(1) begins with the sending of the login code by Brabbler AG or, if applicable, the provision of administrator rights with the associated licenses, and remains in effect for a term of 12 months. The term of the contract pursuant to Section 5(2) is determined by the period of time selected in the in-app purchase.
(2) The contractual term of the contract entered into pursuant to Section 5(1) is extended in each case by the term contractually agreed to if the contract has not been terminated in whole or in part (e.g. by reducing the number of licenses) by one party by giving 30 days’ notice prior to the end of the contractual term. The contractual term of a contract concluded pursuant to Section 5(2) automatically ends with the expiry of the contractual term selected.
(3) Each party’s right to terminate the contract without notice for good cause remains in effect. Good cause for Brabbler AG to terminate the contract without notice (extraordinary termination) includes but is not limited to cases
i. where the user acts in a manner conducive to endangering the availability and integrity of the SIMSme Business service;
ii. where a user, despite having been given a warning and a deadline [to do or stop doing something], breaches its obligations under Section 7(5); or
iii. where Brabbler AG discontinues the SIMSme Business services.
(4) A termination must be effected in writing via a letter.
(5) After the contract ends, the user’s account on the SIMSme server is closed. From the point in time the contract ends, an extension of the contract is possible–with a waiting period of 365 days–to enable access to the account. Afterwards the account is deleted.
14. Concluding Provisions
(1) Any changes to these GT&Cs or to the remuneration must be notified by Brabbler AG to the user in an appropriate manner, especially by way of notification on the SIMSme website. Unless Brabbler AG receives a written objection from the user within six weeks from receipt [of the changes], the changes are deemed accepted. Such consequences must be explicitly brought to the user’s attention by Brabbler AG together with the notification of the changes.
(2) The invalidity of one provision of these GT&Cs does not affect the validity of the remaining provisions of these GT&Cs. Invalid provisions must be replaced with provisions that come as close as possible to that which was economically intended by the invalid provisions. The same applies to any contractual gaps that need to be filled.
(3) For judicial disputes arising from or in conjunction with the use of the services or arising from these GT&Cs, the courts in Munich, Germany, have exclusive jurisdiction.
(4) The law of the Federal Republic of Germany applies. However, the UN Convention on Contracts for the International Sale of Goods (CISG) does not apply. The contractual language is German.
(5) These General Terms and Conditions of Business are available at all times on the SIMSme portal.
Version: March 2019