On-Premise Terms and Conditions (Subscription)

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

KMSEC offers software (hereinafter the “APPLICATION”) for temporary installation and use on the CUSTOMER’S own hardware. The terms and conditions of this On-Premise User Agreement (Subscription) (the “Agreement”) regulate the use of the APPLICATION. By installing the APPLICATION you (hereinafter also “CUSTOMER”) agree with the following terms of the Agreement.

§ 1 Object of the Agreement

(1) The object of this Agreement is the temporary provisioning of the APPLICATION by KMSEC to the CUSTOMER for the use of its functionalities and the grant of rights to use the APPLICATION as well as for the software maintenance and development of the APPLICATION in its current version ("MAINTENANCE OF THE APPLICATION") and the provision of User-Support during the term of this Agreement in return for the payment of a fee. A perpetual license to use the APPLICATION beyond the term of the Agreement is explicitly not granted.

(2) This Agreement is subject to the additional terms of KMSEC’s General – Terms and Conditions.

§ 2 Provisioning of the APPLICATION and documentation

(1) The APPLICATION will be provided by KMSEC. The CUSTOMER can choose the delivery method from the followings alternatives:

(i) the delivery of the APPLICATION via eMail or

(ii) download of the APPLICATION via download link within 14 (fourteen) days.

The CUSTOMER’S choice must be communicated via e-mail within 2 (two) working days from the date of order, otherwise KMSEC may choose either delivery option. The installation of the APPLICATION will be performed by the CUSTOMER on the CUSTOMER’S server environment and is not the covered by this Agreement. For the installation, KMSEC provides installation documentation to the CUSTOMER.

(2) The agreed features/functionality of the APPLICATION follows the functional specifications valid at the time the Agreement was concluded. The APPLICATION’S functional specification can be found on the KMSEC website from https://www.kmsec.de/index.php/de/loesungen. These specifications are an integral part of this Agreement and may be updated by KMSEC from time to time.

(3) The number of individuals permitted to access the APPLICATION is based on the number of “USERS” requested and subsequently fully paid for by the CUSTOMER. A “USER” can be an individual, who is either

(i) an employee of the CUSTOMER,

(ii) an employee of a company within the CUSTOMER’S group of companies or

(iii) someone, who is working under direction of the CUSTOMER or under direction of a company within the CUSTOMER’s group of companies based on a contractual agreement (e.g. external consultant, contractor). In so far as KMSEC does not send credentials (e.g. user names, client certificates or passwords) to the CUSTOMER, which have been chosen by the CUSTOMER these credentials shall be immediately changed by the CUSTOMER into names and passwords known only to itself.

(4) Both Parties understand and agree that all data submitted by CUSTOMER to the database of the APPLICATION and subsequently contained in any reports, spreadsheets or analysis of any kind generated by the APPLICATON, including all intellectual property rights therein and any enhancements, derivative works and improvements thereto (together “CLIENT DATA”) are the exclusive property of CUSTOMER and nothing contained herein shall restrict CUSTOMER from using such CLIENT DATA in any way it deems fit. KMSEC shall only use CLIENT DATA for the benefit of CUSTOMER as required to its obligations under this Agreement.

(5) Upon commencement of the Agreement, KMSEC shall provide the CUSTOMER with installation documentation and USER documentation for the APPLICATION in electronic form, in English as well as in German, either by download or by making the documentation accessible online. If KMSEC provides an UPDATE to the APPLICATION, the USER Documentation shall be modified accordingly. This only applies, however, if the effects on the USER Documentation are substantial.

(6) The CUSTOMER shall be entitled to store and print out the documentation provided, and to duplicate the same in reasonable quantities for the purposes of this Agreement, subject to retaining all logos, ownership, confidentiality and other property right notices. In all other respects, the restrictions on use agreed of the APPLICATION under § 4 shall also apply to the corresponding documentation.

(7) Both Parties agree that the APPLICATION, depending on the service and components selected, may provide the possibility to integrate additional services from third parties (which require an explicit prior activation by the CUSTOMER) into the website of KMSEC or into the APPLICATION (e.g. "Microsoft Bing Translate", in the case of an optional automatic translation function within the APPLICATION). Those third-party services are not part of KMSEC’s service. KMSEC will point out such cases to the USER on the website or within the APPLICATION before allowing the activation of the corresponding functionality. The CUSTOMER solely decides whether or not they choose to activate such functionality. The contractual partner of the CUSTOMER for such services is exclusively the third party and in no case KMSEC. Only the terms of use and privacy policy of the respective third party apply for the third-party service. If such functions remain disabled based on the CUSTOMER’S decision, these services from the third parties will not be integrated into the website of KMSEC or within the APPLICATION. KMSEC reserves the right to remove any third-party service without notice at any time.

§ 3 Technical pre-requisites

(1) The installation and use of the APPLICATION requires the compliance with the KMSEC On-Premise Server System Requirements (hereinafter “SYSTEM REQUIREMENTS”). The current SYSTEM REQUIREMENTS can be found on the KMSEC website at: https://www.kmsec.de/index.php/de/loesungen and are part of the Agreement. For the operation of future versions of the APPLICATION additional SYSTEM REQUIREMENTS may be necessary.

(2) A pre-requisite for the use of the APPLICATION by a USER is a computer capable of accessing the server the APPLICATION is installed on and also one of the Internet browsers specified in the APPLICATION’S functional specification according to § 2 (2) which supports the protocol TLS version 1.0 or greater and which is configured to accept cookies and pop-ups from the CUSTOMER domains related to the use of the APPLICATION.

 (3) KMSEC shall not be responsible for the condition or properties or performance of the necessary hardware and software required by the CUSTOMER.

(4) The file formats specified in the APPLICATION’S functional specification according to § 2 (2) can be manually exported/downloaded to the CUSTOMER’S systems locally from the APPLICATION.

§ 4 Rights of use for the APPLICATION; Rights of KMSEC in the event of the authorizations for use being exceeded

(1) Rights of use for the APPLICATION and the Documentation The CUSTOMER receives, with the full payment of the fee under § 7, a non-exclusive, non-perpetual, non-sublicensable and non-transferable right of use for the APPLICATION and the Documentation, limited to the term of this Agreement, in accordance with the following provisions:

  1. The conveyance of the APPLICATION to the CUSTOMER takes place on a temporary basis. The CUSTOMER may only use the APPLICATION for its own commercial activities.
  2. The CUSTOMER shall be entitled to use the APPLICATION itself and through its employees or authorized agents in so far as these have been registered by it as authorized USERS. For the right of use the USER definition from §2 (3) applies. Use is in particular loading, displaying, executing and saving the APPLICATION. The authorized USERS shall be uniquely named via the corresponding function within the APPLICATION. A replacement of authorized USERS with other USERS is possible at any time. The licensee vis-à-vis KMSEC is exclusively the CUSTOMER. Authorized USERS are not allowed to share their user name or passwords (or other login credentials) with others, either in the employment of the CUSTOMER or otherwise.
  3. The CUSTOMER shall not be entitled to make any changes to the APPLICATION. CUSTOMER shall not embed any third-party software into the APPLICATION other than what is permitted in the Documentation. In no case CUSTOMER shall embed any third-party software into the APPLICATION that is licensed under the terms of GPL (GNU General Public License). The use of enhancements technologies is not considered as a change to the APPLICATION.
  4. If, during the term of the Agreement, KMSEC either voluntarily or due to an additional contractual agreement issues and delivers new versions, updates, upgrades or other new releases of the APPLICATION to the CUSTOMER, the above rights shall also apply.
  5. The CUSTOMER shall not be entitled to any additional rights which have not been expressly granted under this Agreement. This Agreement grants no ownership or intellectual property rights or any other comparable right for the APPLICATION. All intellectual property rights remain with KMSEC also in case of the rights granted according to this Agreement. The CUSTOMER shall not be entitled to use the APPLICATION beyond the agreed scope or to make the APPLICATION accessible to third parties without the written approval of KMSEC and shall not be permitted to replicate or sell the APPLICATION or convey the use of the same temporarily, in particular to hire it out or to lend it.
  6. All documents delivered to the CUSTOMER (the “Documentation”) are to be kept confidential unless otherwise publicly available. Their contents may not be disclosed to third parties without the prior written consent of KMSEC.
  7. The CUSTOMER shall be able to replicate the APPLICATION, as far as this is necessary for its use. This includes in particular the installation of the APPLICATION in the server environment as well as loading the APPLICATION into the system memory. The CUSTOMER is also entitled to replicate the APPLICATION exclusively for backup purposes. All backup copies are to be marked as such.

(2) Breach of the provisions under section (1) by the CUSTOMER:

  1. Should the CUSTOMER breach the provisions of section (1) for reasons for which it is responsible, and should the CUSTOMER continue to breach or repeatedly breach the provisions in section (1) for a period of 2 (two) weeks after written notice is sent to the CUSTOMER by KMSEC and if the CUSTOMER is responsible for the same, KMSEC may terminate the Agreement for cause without any period of notice.
  2. For each case in which the CUSTOMER culpably enables the APPLICATION to be used by third parties (or by individuals not named by the CUSTOMER), the CUSTOMER shall pay a penalty fee, immediately due, in the amount of 2 (two) times of the monthly fee per each unauthorized USER in accordance with § 7 (1). The right to assert claims for damages remains reserved; in this case, the penalty shall be set off against the claim to damages.

§ 5 Maintenance of the APPLICATION

A. Software Maintenance of the APPLICATION and provisioning of newer versions of the APPLICATION and the documentation

(1) MAINTENANCE OF THE APPLICATION includes preventive measures to improve the latest available version of the APPLICATION created by KMSEC in its organizational structure and behavior at KMSEC’s sole discretion. It also includes the right to receive modified or new functionalities of the APPLICATION (hereinafter called “UPDATE” or “UPDATES”) with the official release by KMSEC and to use them instead the previous version at no extra charge. UPDATES are developed and released periodically by KMSEC and provided to the CUSTOMER during the Agreement’s term.

(2) If KMSEC provides an UPDATE, the USER Documentation shall be modified accordingly. This only applies, however, if the effects on the USER Documentation are substantial.

B. User-Support

(1) "User Support" includes end user support for the use of the APPLICATION, in particular troubleshooting any unintended use of the APPLICATION’s functionalities, providing assistance in solving company-specific issues regarding the use of the APPLICATION assuming the CUSTOMER’S users have been reasonably trained in the use of the APPLICATION and sharing of related tips and tricks for the APPLICATION. The CUSTOMER acknowledges that KMSEC will only offer USER Support for the latest version of the APPLICATION made available to the CUSTOMER. This shall hold especially in those situations where KMSEC believes that an error or defect reported by the CUSTOMER can be eliminated/cured by a not yet installed UPDATE.

(2) The CUSTOMER shall have the right to name 2 (two) APPLICATION Administrators to KMSEC who are eligible to receive support from KMSEC.

(3) KMSEC shall provide User-Support to the group of individuals defined in para. (2) above either by support portal (https://kmsecgmbh.atlassian.net/servicedesk/customer/portal/1) or by e-mail (This email address is being protected from spambots. You need JavaScript enabled to view it.). The User Support does not replace the Administrator or End USER training for the APPLICATION’s use by KMSEC.

(4) KMSEC shall provide User-Support to the group of individuals defined in section (2) above (i) in German and English.

C. Excluded Services

(1) The following services can be provided at an additional charge:

  1. Installation of the APPLICATION or installation of updates;
  2. User-Support outside of the Support service hours (§ 5 B (5));
  3. Solving of problems which are caused by inappropriate usage of the APPLICATION;
  4. Recovery of data;
  5. Restoration of backed up data;
  6. Customized programming;
  7. On-site services;
  8. Trainings;
  9. User-Support regarding the interaction/integration of the SERVICE or APPLICATION with software of third parties that is not object of this Agreement;
  10. Development of CUSTOMER specific scripts; and

(2) If the CUSTOMER requires any of the services listed in section (1), the Parties may separately agree on the definition and delivery of such services which are to be paid for separately.

§ 6 Responsibilities and Obligations of the CUSTOMER

The CUSTOMER shall fulfill all duties and obligations as necessary for the performance of the Agreement. It shall in particular:

(1) keep the authorizations of use and access credentials and rights allocated to it and/or to its USERS confidential, protect the APPLICATION from access by third parties not specifically allowed under this Agreement and not pass on the same to unauthorized USERS. This authorization data and credentials are to be protected by appropriate and usual measures. The CUSTOMER shall immediately notify KMSEC if the suspicion exists that non-authorized individuals may have become aware of any USER’s access credentials or passwords, or have otherwise circumvented the provided USER authentication methods of the APPLICATION; and

(2) comply with the restrictions/obligations in relation to the rights of use under § 4, in particular and:

  1. without authorization, extract any programs, components, information or data, or enable third parties to extract the same, or interfere with APPLICATIONS which are provided by KMSEC, or cause any such interferences to be made, or, without authorization, to probe or penetrate data networks of KMSEC or promote any such penetrations;
  2. indemnify KMSEC from claims of any third parties which are based on any unlawful use of the APPLICATION by it or which arise from disputes relating to data protection, copyright or other legal disputes caused by the CUSTOMER which are associated with the use of the APPLICATION;
  3. obligate the authorized USERS that they will comply with all provisions of this Agreement applicable to them;
  4. report any defects of the APPLICATION in text form. An oral report is possible, if the CUSTOMER also reports the defect in text form within 2 (two) working days. The report has to describe the defect in detail (in particular the conditions, under which it appears, symptoms and effect of the defect);
  5. grant remote access rights to KMSEC, as long as this is necessary to achieve the object of this Agreement, e.g. for error analysis by KMSEC. KMSEC will contact the client for this purpose by e-mail or phone and in each case agrees upon the beginning of the remote access session. The CUSTOMER shall have the right to document and track the measures of KMSEC during the remote access and if necessary to conduct the required technical and organizational measures (such as data backup). CUSTOMER understands and accepts that in the course of a remote access session some CUSTOMER information may be lost (e.g. work results, inserted data), e.g. as a result of restoring the APPLICATION to an earlier state. It is solely the CUSTOMER’S responsibility to back up all information before the start of a remote access session as described in the Administrator’s guide. If the backup of the data fails, the CUSTOMER is obliged to inform KMSEC prior to the start of remote access session.

§ 7 Remuneration

(1) A fee will be charged for the services owed according to § 1. The amount of the fee shall depend upon the features chosen, the number of USERS, the components/options selected by the CUSTOMER and also the term of the Agreement. Pricing details are defined in the formal written quotation provided by KMSEC. In case those individual months are billed pro rata, each calendar day is billed as 1/365 of the annual (12 months) fee.

(2) Additional services may be quoted by KMSEC according to then current rates for time and actual expenses incurred in the delivery of such services at a cost mutually agreed to in advance by the Parties. This shall apply in particular for the training of the CUSTOMER and/or USERS.

(3) The fee is owed with the addition of any applicable tax and is payable annually in advance of each subsequent term.

(4) If the CUSTOMER reduces its license volume (reduction in volume covered by the Agreement) at or before term renewal, all previously granted discounts become inapplicable. From the effective date of the reduction in license volume, the undiscounted list prices are instead applied without discount.

§ 8 Data Protection

(1) Both KMSEC and CUSTOMER shall observe the respectively applicable data protection provisions and impose an obligation on those employees and/or USERS assigned in connection with the Agreement and its implementation to preserve data security in accordance with such provisions in so far as they have not already generally been placed under a corresponding obligation.

(2) KMSEC shall only collect and use personal data as required for the implementation and support of this Agreement. The CUSTOMER consents to the collection and use of such data solely for these purposes.

(3) If KMSEC, in the context of curing any defects through remote access, could possibly obtain access to personal data, the CUSTOMER shall be responsible to notify KMSEC prior to the transmission of personal data in order to enter into a separate contract for the processing of personal data.

§ 9 Confidentiality

Confidentiality is defined in KMSEC’s Standard Agreement.

§ 10 LIABILITY; LIMITATION OF LIABILITY

(1) Liability is partially defined in KMSEC’s General Terms and Conditions.

(2) THE LIABILITY UNDER THE GERMAN PRODUCT LIABILITY ACT REMAINS UNAFFECTED.

(3) PURSUANT TO § 536a BGB [German Civil Code], KMSEC EXPRESSLY DISCLAIMS ALL LIABILITY, IRRESPECTIVE OF FAULT, FOR DAMAGES ARISING OUT OF DEFECTS PRESENT AT THE TIME OF THE CONCLUSION OF THIS AGREEMENT, EXCEPT THAT SECTIONS (1) AND (2) SHALL REMAIN UNAFFECTED.

§ 11 Formation of the Agreement; Usage of the free trial version

(1) Prior to the use of the APPLICATION subject to charge, KMSEC offers its CUSTOMERS the use of an evaluation version of the APPLICATION free of charge for a limited period of time. The Agreement for the use of the evaluation version is established once the CUSTOMER installs the APPLICATION. Unless otherwise agreed in writing between the CUSTOMER and KMSEC the free trial period ends automatically after 30 (thirty) days.

(2) The provisions of this Agreement shall also apply to the use of the trial version of the APPLICATION. The CUSTOMER accepts these terms by installing the trial version. If the CUSTOMER wishes to use the APPLICATION following the trial period, KMSEC may provide the CUSTOMER with a written quotation to use the APPLICATION upon the CUSTOMER’s request. This Agreement is concluded by acceptance of this quotation in writing by the CUSTOMER.

§ 12 Right to Audit

The CUSTOMER will allow KMSEC, at KMSEC’s request, to verify the proper use of the APPLICATION, in particular to determine if the CUSTOMER uses the APPLICATION according to his purchased license volumes. For this purpose the CUSTOMER will provide access to KMSEC to relevant documentation and records, as well as allow the examination of the hardware and software environment used. KMSEC or a designated by a certified auditing firm under confidential obligation named by KMSEC that is also acceptable for the CUSTOMER is allowed to examine any relevant records at the CUSTOMER’S offices during its regular business hours. KMSEC will ensure that the CUSTOMER’S business is not disturbed by this action more than necessary. If the results of the examination exceeds the number of purchased licenses by more than 5% (five percent) or other use that was not agreed upon, the CUSTOMER shall bear the cost of the examination, otherwise KMSEC is responsible for the audit costs.

§ 13 Term; Termination

(1) The CUSTOMER may at any time terminate the Agreement for the evaluation version of the APPLICATION. Unless otherwise agreed in writing between the CUSTOMER and KMSEC, the free trial period ends automatically after 30 days, without the requirement of a termination request from the CUSTOMER.

(2) Unless otherwise agreed the minimum term shall be 12 (twelve) months and shall automatically be extended for an additional 12 (twelve) months if not cancelled by either Party with a notice period of 90 (ninety) days prior to the end of the term.

(3) Either party may terminate the Agreement for the other party’s material breach of this Agreement; provided such material breach has not been cured within 30 (thirty) days of the non-breaching party’s notice thereof. Notwithstanding the foregoing, KMSEC may terminate this Agreement immediately if CUSTOMER

(i) has deliberately provided false contact data,

(ii) has deliberately provided false or invalid e-mail addresses,

(iii) has deliberately provided false bank account details,

(iv) failed to pay under the agreed terms,

(v) has transferred its USER account to a third party or

(vi) tolerates the usage by a third not previously authorized by KMSEC. Except for the reasons for material breach as described above in (i) to (vi) , it is considered agreed for any other material breach, that the immediate termination must be preceded by a written reminder to the defaulting party with a deadline of 30 (thirty) working days.

(4) Notwithstanding the provisions in section (3), KMSEC may terminate the Agreement without complying with any period of notice if the CUSTOMER is in default for two (2) consecutive months or of a substantial part of the fee or, in a period of time covering more than two months, is in default with payment of the fee in an amount equivalent to two months of fees. KMSEC may in this case additionally demand liquidated damages, payable immediately in one sum, in the amount of one quarter of the remaining monthly lump sum fees calculated until the expiration of the Agreement term. The right is reserved to the CUSTOMER to prove that a lower amount of damage has been incurred.

(5) Notices of termination must be given in written form.

§ 14 Duties upon and following termination of the Agreement

(1) Following the ending of the contractual relationship, the CUSTOMER is obliged to terminate the use of the APPLICATION and remove all installed copies of the APPLICATION and to destroy all backup copies of the APPLICATION if created.

(2) The backup of the CLIENT DATA is performed solely by the CUSTOMER during the term of the Agreement. The APPLICATION contains a functionality to export data in formats according to §3 (4). If the CUSTOMER proves to KMSEC that a backup of the CLIENT DATA within the remaining term of the Agreement is not feasible, the Parties agree on a procedure that allows the CUSTOMER to export the CLIENT DATA within 14 (fourteen) days after the termination of the Agreement.

§ 15 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) For CUSTOMERS of KMSEC GmbH the contractual relationship shall be governed, controlled, interpreted and defined by and under the laws of Germany. For CUSTOMERS of KMSEC GmbH 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