General Terms and Conditions

IMPORTANT – READ CAREFULLY: This is a legal agreement (“Agreement”) between you (“You” or “CUSTOMER”) and KMSEC (“KMSEC”) – “the Parties”.

IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE SOFTWARE, ASSOCIATED DOCUMENTATION, SERVICE OR ANY PORTION THEREOF AND DO NOT REQUEST OR ACCEPT SUPPORT SERVICES FROM KMSEC. WARRANTIES, SUPPORT, LICENSES, AND DAMAGES ARE DISCLAIMED AND/OR LIMITED BELOW, PLEASE READ ENTIRELY AND CAREFULLY.

The contractual partner is KMSEC GmbH, Wolfshagener Str. 73, 13187 Berlin, Germany. 

§ 1 Applicability of the Agreement

(1) KMSEC's General Terms and Conditions (GTC) are applicable for all license related services and product sales of KMSEC. Any conflicting or deviating terms or conditions of the CUSTOMER are not applicable, as long as KMSEC does not explicitly accept them in writing.

(2) The "On-Premise Terms and Conditions (Subscription)” for KMSEC On-Premise” become an integral part of this Agreement. It is available

(i) below in the same file or

(ii) on the same website this “General Terms and Conditions” was provided to you.

(3) The CUSTOMER may, at any point in time, also after the formation of a contract, open, print, download or save these GTC via the Link https://www.kmsec.de/en/generaltc/

§ 2 Formation of the Agreement

(1) The formation of a service contract for services of KMSEC is triggered by;

  1. the receipt of the letter of acceptance for a written quotation of KMSEC, or
  2. the acceptance of the request via E-Mail by KMSEC, if the CUSTOMER has previously used the booking functionality of the respective APPLICATION or SERVICE of KMSEC by entering complete and correct invoicing information along with the selection of the offering to be purchased and by pressing the button "Purchase". The contract term for software subscriptions shall commence on the day of the license’s delivery respectively the license’s activation. Possible minimum terms shall commence on that day as well.

(2) The KMSEC websites solely represent a request to submit quotations.

(3) The CUSTOMER must be either a corporation or entrepreneur, that is a natural or juristic person or a non-incorporated firm having legal capacity, which at the time of formation of the Agreement, solely acts as part of their commercial function. For CUSTOMERS of KMSEC GmbH this means a CUSTOMER must be either a corporation or entrepreneur within the meaning of § 14 BGB (German Civil Code).

§ 3 Prices

(1) The prices for KMSEC’s products and services are based on the underlying quotation.

(2) The remuneration shall become due for payment 

(i) in accordance with the agreed period of time in the written quotation or

(ii) unless otherwise agreed, within 14 (fourteen) calendar days upon the rendering of the invoice for the entire contract term.

The remuneration shall be payable for each calendar month commenced as from the provision of the use in operable condition. The CUSTOMER may settle the same by means of bank transfer or accepted credit cards. If the CUSTOMER has legitimately terminated the contract summarily, the remuneration is to be repaid pro rata temporis. In the case of default in payment, the statutory provisions shall apply.

(3) KMSEC shall be entitled to increase the remuneration for the first time after the expiration of 12 (twelve) months following the commencement of the Agreement upon written notice of 4 (four) weeks, with effect from the commencement of the month following thereon. The CUSTOMER shall have the right, within a period of 4 (four) weeks following receipt of the notice, to terminate the contractual relationship in writing. KMSEC shall draw the attention of the CUSTOMER to this right of termination with each notice of increase.

(4) The Fee for the products or services shall be owed with the addition of any applicable tax.

(5) Additional services may be delivered by KMSEC according to then current rates for time and actual expenses incurred in the delivery of such service at a cost mutually agreed to in advance by the Parties under a separate Statement of Work (SoW). This shall apply in particular for the training of CUSTOMERS and/or users.

(6) Changes related to invoice details (e.g. invoice address or order number) shall be communicated to KMSEC forthwith. If the rendering of an invoice is already completed by the time KMSEC becomes aware of such change, especially the Customer’s payment obligation at the original due date shall remain unaffected by the rendering of a new invoice and the associated delay.

§ 4 Confidentiality

(1) The Parties hereto shall maintain as confidential, all information which they receive from each other within the scope of this contractual relationship, and only use the same vis-à-vis third parties – irrespective for which purpose – with the previously obtained written consent of the respective other party. Companies affiliated with the respective party shall not be understood as third parties. Affiliation means any entity which is controlled by, is in control of or under common control with the party. For purposes of this definition, “control” means the direct or indirect beneficial ownership of over 50% (fifty percent) of the voting interests (representing the right to vote for the election of directors or other managing authority) in an entity. For CUSTOMERS of KMSEC GmbH the above definition of affiliated companies is to be understood in accordance with § 15 AktG [Aktiengesetz – Corporation Law]. Information to be treated confidentially shall only include information which is expressly designated as confidential by the party providing the information and such information whose confidential nature unequivocally derives from the circumstances of the provision of the same. In particular, the CLIENT DATA is to be treated confidentially by KMSEC, should KMSEC obtain knowledge of the same.

(2) The obligations under section (1) shall not apply for such information or any parts thereof in respect of which the recipient party proves that a) it had knowledge of the same or the information was generally accessible prior to the date of receipt, or b) the information was in the public domain or generally accessible prior to the date of receipt, or c) the information was in the public domain or generally accessible following the date of receipt without the party receiving the information being responsible therefore.

(3) The obligations under section (1) shall also continue in existence beyond the end of the Agreement for an indefinite period of time for as long as the criteria of exception under § 2 have not been proven.

(4) Only if the contractual partner is KMSEC, Inc., the liability of either Party for claims arising under this § 4 shall be limited by nothing in this Agreement.

(5) KMSEC is explicitly allowed to name the CUSTOMER as reference in publications on the Internet and print media. Aside from its company name the CUSTOMER designates for this purpose the advertising materials, logos, and agrees to grant all the necessary rights to use them. The CUSTOMER will inform KMSEC, without request, if specific policies (e.g. Corporate Identity) for the usage of such logo or reference naming exist. Furthermore, the CUSTOMER agrees to contribute a one-page success story and to participate in three reference customer visits per year of other KMSEC prospects upon request. A reference will be used only objectively in an appropriate way and shall be excluded, if obvious CUSTOMERS' legitimate interests are in opposition to this use of reference. The CUSTOMER has always the possibility to reject in writing future use of reference, but the existing print media at the moment of the rejection can still be used. The CUSTOMER can be used as a reference until three years after the end of the contract.

§ 5 LIABILITY; LIMITATION OF LIABILITY

(1) THE PARTIES SHALL BE LIABLE TO EACH OTHER WITHOUT LIMITATION IN THE CASE OF DELIBERATE INTENT, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE FOR ALL DAMAGE CAUSED BY THEM OR THEIR STATUTORY REPRESENTATIVES OR VICARIOUS AGENTS.

(2) IN THE CASE OF ORDINARY NEGLIGENCE, THE PARTIES SHALL BE LIABLE WITHOUT LIMITATION ONLY IN THE CASE OF INJURY TO LIFE, LIMB OR HEALTH.

(3) EXCEPT AS EXPRESSLY PROVIDED HEREIN, A PARTY SHALL ONLY BE LIABLE FOR DAMAGES ARISING OUT OF THE MATERIAL BREACH OF THIS AGREEMENT. LIABILITY FOR A MATERIAL BREACH OF THIS AGREEMENT SHALL BE LIMITED TO THE REIMBURSEMENT OF THE DIRECT DAMAGES WHICH TYPICALLY RESULT FROM A MATERIAL BREACH IN SUCH CASE.

(4) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION (INCLUDING NEGLIGENCE OR STRICT LIABILITY), WHETHER OR NOT THE PARTY IS ADVISED OF OR MIGHT HAVE ANTICIPATED THE POSSIBILITY OF SUCH DAMAGES.

(5) EACH PARTY’S TOTAL LIABILITY SHALL BE LIMITED TO THE AMOUNT PAID OR PAYABLE BY THE CUSTOMER TO KMSEC FOR THE SERVICES PROVIDED UNDER THIS AGREEMENT, AND IN NO EVENT, SHALL EITHER PARTY’S LIABILITY EXCEED 500,000.00 €. SECTIONS (1) and (2) SHALL REMAIN UNAFFECTED HEREBY.

§ 6 Minimum wage

(1) KMSEC hereby assures that it complies with the applicable regulations for minimum wage (in case of the Federal Republic of Germany the MiLoG (German minimum wage Law)).

(2) KMSEC is also fully liable for its subcontractors, or any one of its subcontractors’ suppliers to comply with the applicable regulations for minimum wage.

(3) KMSEC fully indemnifies, holds harmless and defends the CUSTOMER against fines based on any claim concerning the applicable regulations for minimum wage (e.g. § 21 MiLoG (German minimum wage Law)) due to a breach of the same by KMSEC’s employees or employees of its subcontractors in the entire delivery/service chain.

§ 7 General Terms

(1) KMSEC reserves the right to change provisions of this Agreement. Such change requires the CUSTOMER’S approval. KMSEC will notify the CUSTOMER of such change by e-mail or in written form at least 30 (thirty) calendar days before coming into effect. The approval is given automatically if the CUSTOMER does not object the change via e-mail or in written form within 30 (thirty) calendar days of the receipt. If the CUSTOMER objects, the contractual relationship continues to be governed by the original Agreement terms.

(2) The contractual relationship shall be governed, controlled, interpreted and defined by and under the laws of Germany.The exclusive jurisdiction and venue of any action with respect to the subject matter of this Agreement shall be the courts of Berlin and each of the Parties hereto submits itself to the exclusive jurisdiction and venue of such courts for the purpose of any such action.

(3) The Parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods.

(4) Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Any waiver of any provision of this Agreement will be effective only if in writing and signed by waiving party.

(5) The CUSTOMER is allowed to transfer this Agreement including all rights and obligations to an affiliated corporation. Affiliation means any entity which is controlled by, is in control of or under common control with the CUSTOMER. For purposes of this definition, “control” means the direct or indirect beneficial ownership of over 50% (fifty percent) of the voting interests (representing the right to vote for the election of directors or other managing authority) in an entity. For CUSTOMERS of KMSEC GmbH the above definition of affiliated companies is to be understood in accordance with § 15 AktG [Aktiengesetz – Corporation Law]. The CUSTOMER shall inform KMSEC in writing about the new contractual partner within a period of 30 (thirty) calendar days before the effective date of the transfer.

(6) KMSEC is allowed to transfer this Agreement including all rights and obligations to a corporation of its choice. The transfer will come into effect 30 (thirty) calendar days after the receipt of the transfer notification sent by e-mail to the CUSTOMER. In case of a transfer of the Agreement, the CUSTOMER has the right for extraordinary termination of the Agreement, which needs to be exercised within 7 (seven) calendar days after receipt of the notification.

(7) Should individual provisions of this Agreement be adjudicated to be unenforceable, the effectiveness of the remainder of this Agreement shall remain unaffected thereby.

(8) Oral arrangements are only valid and applicable if confirmed by both Parties in writing.

Version: April 15th , 2019