Licensing terms and conditions (EULA)

of Materna Virtual Solution GmbH for the use of the software, SecurePIM, SecurePIM Management Portal and SecurePIM Gateway, limited in time

The provision of the software, SecurePIM, SecurePIM Management Portal and SecurePIM Gateway by Materna Virtual Solution GmbH, Muehldorfstraße 8, D-81671 Munich, for a use by the client limited in time, is based on the following licensing terms and conditions (hereinafter the “TCs”).

§ 1 Area of applicability of the TCs

These TCs apply exclusively to business clients, but in each case only to end users. In these TCs, a client (be it a natural person, a legal entity or a partnership with legal capacity) will be deemed to be a “business client” if the client, in the execution of the contract, acts in the exercise of the client’s commercial or independent professional activities, or if the client is a legal entity under public law or special assets under public law.
No oral side agreements were made between the parties. These TCs apply exclusively. Any terms and conditions of business of the client which deviate from, or conflict with, these TCs will not apply; this applies also if Materna Virtual Solution does not explicitly object to any terms and conditions of business of the client.

§ 2 Subject matter of the contract

The subject matter of the contract is the right of use (licence), limited in time, in relation to the software, “SecurePIM”. If the management software, “SecurePIM Management Portal“, or a “SecurePIM Gateway” is used by the client in addition, it will also become a subject matter of the contract. Unless these TCs provide otherwise, the term, “software”, covers both the software “SecurePIM“, in the version specified in the licence certificate, i.e., “SecurePIM Enterprise“, “SecurePIM Government“ or “SecurePIM SERA“ – and the management software, “SecurePIM Management Portal”, as well as the software, “SecurePIM Gateway”.
The software, “SecurePIM“, serves the encrypted storage of emails, contacts, appointments and other data on the mobile device of the client, or the client’s employees. As a supplement thereto, the software ”SecurePIM Management Portal“, serves the central configuration settings of the software, ”SecurePIM“, on the client’s mobile devices. The software “SecurePIM Gateway“ serves the secure access of the SecurePIM App to the client’s internal company network. A detailed product description, including the requirements for the client’s terminal devices, is available at www.securepim.com. To operate the software, “Secure PIM”, the client will in each case need management software, for example, “SecurePIM Management Portal”, or management software of third parties supported by the software, “SecurePIM”.
It is specified in the licence certificate whether the licence for the software, “SecurePIM”, is granted per user or per terminal device. The client may install the software, “SecurePIM”, per acquired licence per user or terminal device on the number of terminal devices, respectively, and use the same as specified in the licence certificate. In the event of a replacement of terminal devices, the software, “SecurePIM”, must first be deleted from a terminal device which is no longer used before it may be installed on a new terminal device. An installation or a use of the software, “SecurePIM”, on more terminal devices per acquired licence than the number stated in the licence certificate is inadmissible, even if terminal devices are not used or are switched off.
The software, “SecurePIM Management Portal”, will – in accordance with the agreement between the parties as per the licence certificate – either be installed by the client on a client’s own server or a server of an external service provider of the client (“on-premise”) or be hosted by Materna Virtual Solution GmbH during the term of the contract (“Cloud”). If the software, “SecurePIM Management Portal”, is not hosted by Materna Virtual Solution GmbH or an authorised partner, the client may install the software, “SecurePIM Management Portal”, on a server of the client and use it as intended during the term of the contract.
The software, “SecurePIM Gateway”, will be installed on a client’s own server.
If the client acquires additional licences for the software of Materna Virtual Solution GmbH during the term of the contract, these TCs will also apply to those additional licences, even if these TCs are not explicitly referred to.

§ 3 Download of the software; Contractual term and termination

The client may download the software, “SecurePIM”, initially as an app from an app store. Alternatively, Materna Virtual Solution GmbH provides the software, “SecurePIM”, to the client as a software package for download. Materna Virtual Solution GmbH provides the software, “SecurePIM Gateway”, as a download, and the client may install the software, “SecurePIM Gateway”, on a server of the client and use it as intended during the term of the contract. In addition, Materna Virtual Solution GmbH provides the software, “SecurePIM Management Portal”, to the client for download, if the client does not wish to have that software hosted by Materna Virtual Solution GmbH. After a successful download, the client must enter a registration code to use the software, “SecurePIM”. That code will be generated after the acquisition of the licence upon the creation of a user account by the client. One registration code may be generated per acquired licence.
The term of the contract results from the licence certificate.

§ 4 Protection of the software; Right of retention; Release blocking or usage blocking

All rights to the intellectual property of the software and the complete user documentation, as well as to all other performances created by Materna Virtual Solution GmbH in connection with the business relationship, will remain with Materna Virtual Solution GmbH, unless they are explicitly granted to the client under these TCs. This includes all concepts, ideas, design documents, algorithms, software codes and all related documents and data. The software is protected by copyright laws and international copyright treaties.
The client hereby undertakes not to make the software provided for a use limited in time, or parts thereof, accessible to third parties, neither in the original nor in the form of complete or partial copies, without the express prior written consent by Materna Virtual Solution GmbH, and not to copy, disseminate, process or distribute the software or make the software accessible to the public. “Third parties” do not include persons who use a terminal device of the client on which the software, “SecurePIM”, is installed as contractually agreed.
The client hereby undertakes to maintain unchanged the protective notes such as copyright notices and other reservations of rights included in the software programmes etc. and, in particular, not to remove or modify them. The same applies to a suppression of the screen display of corresponding features.
In the event of a breach of contract, Materna Virtual Solution GmbH reserves the right not to release the provided software, or to block the software or to exercise the right of retention in another manner, with reasonable prior notice.

§ 5 Scope of use

Materna Virtual Solution GmbH hereby grants to the client the non-exclusive and non-transferable right, limited in time to the term of the contract and limited in other respects to these TCs, to use the software and the related user documentation as intended. The further development of the software and the surrender of new versions is not owed. Materna Virtual Solution GmbH may, however, provide the client with further developed, or new, versions of the software to the extent that such versions fix bugs (if any) of the version to be replaced or exclusively include enhancements.
The client may install the software, “SecurePIM”, surrendered to the client for a use limited in time per acquired licence per user or terminal device on the number of terminal devices, respectively, and use the same as specified in the licence certificate, provided that those terminal devices are compatible with the software, “SecurePIM”, as per the product description. The simultaneous installation, holding available or use of the software, “SecurePIM”, on more terminal devices per acquired licence than the number stated in the licence certificate is inadmissible.
The client shall ensure that each user of the terminal devices on which the software, “SecurePIM”, is installed under the licence complies with these TCs.
The software will be provided to the client exclusively in its object code. Materna Virtual Solution GmbH holds all rights in relation to the source code of the software. The client has no claim whatsoever to an access to the source code, or the surrender of the source code, of the software. § 69e German Copyrights Act remains unaffected. The reverse-engineering of the various manufacturing stages of the software is inadmissible.
The client may not lease the software to third parties or temporarily surrender the software to third parties otherwise with or without remuneration. The client may not sell the software, including the user documentation and other accompanying materials, to third parties or temporarily surrender the same to third parties, in particular, by way of leasing or lending. The use of the software, “SecurePIM”, on the client’s terminal devices by the users (e.g. the client’s employees) is, however, admissible.
These TCs also apply to all corrections or updates of the software used by the client in connection with the software surrendered to the client limited in time under these TCs.

§ 6 Surrender, installation and hosting of the software; Service Levels

The software will be surrendered to the client for use during the term of the contract in accordance with these TCs.
The software will be installed by the client.
If the client has the software, “SecurePIM Management Portal”, hosted by Materna Virtual Solution GmbH, the following Service Levels will apply to the software, “SecurePIM Management Portal”:
a. Availability: The availability of the software, “SecurePIM Management Portal”, is 99.5% per year. Materna Virtual Solution GmbH may carry out maintenance work to the software, “SecurePIM Management Portal”, once a week for up to 60 minutes; that time will not be considered in the determination of the availability, provided that that work had been announced to the client in advance.
b. Service times: The service times are from Mondays to Fridays from 9:00 a.m. to 5:00 p.m. CET.
c. Help Desk: The client may report any errors of the software, “SecurePIM Management Portal”, during the service times by an email to support@securepim.com.
d. Reaction time: During the service times, Materna Virtual Solution GmbH will react to error reports within 24 hours by a status message to the client.

§ 7 Software support

Materna Virtual Solution GmbH will not provide any software support to the client directly; any claims of the client based on defects remain unaffected. If the client wishes software support, this will require a separate agreement between the client and an authorised partner of Materna Virtual Solution GmbH.

§ 8 Claims based on defects and right to terminate for good cause

Any defects of the software, including the user documentation and other documents, will be rectified by Materna Virtual Solution GmbH during the term of the contract within a reasonable period after a relevant notification by the client. Any defects will, at the option of Materna Virtual Solution GmbH, be rectified by a free-of-charge update or release of a new version of the software (including several updates or releases, if this is reasonable for the client), by a subsequent improvement, or a replacement delivery (“subsequent performance”).
The client’s right to terminate the contract without notice for good cause owing to an impossibility of use in accordance with the first sentence of § 543, section 2, no. 1 German Civil Code is excluded, unless the subsequent performance must be considered to have failed. Subsequent performance will only be considered to have failed if Materna Virtual Solution GmbH had been given sufficient opportunity to render subsequent performance, if subsequent performance is impossible, if subsequent performance is refused or unreasonably delayed by Materna Virtual Solution GmbH, if there exist reasonable doubts as to the chances of success, or if unreasonableness exists for other reasons. In other respects, the right to terminate for good cause remains unaffected.
The client may neither rectify any defects of the software itself nor instruct third parties to rectify them, and the client may not demand from Materna Virtual Solution GmbH a reimbursement of necessary expenses. § 69d, section 1 German Copyrights Act remains unaffected.
If the client has the software, “SecurePIM Management Portal”, hosted by Materna Virtual Solution GmbH, Materna Virtual Solution GmbH will not warrant that the software, “SecurePIM Management Portal”, will at all times be available and interruption-free.

§ 9 Liability

Materna Virtual Solution GmbH will be liable without limitation for any damage caused as a result of intent or gross negligence, any damage to life, body or health culpably caused by Materna Virtual Solution GmbH, in the event of the non-fulfilment of a guarantee, or if Materna Virtual Solution GmbH has fraudulently concealed a defect of the software.
In the event of a breach of a material contractual duty, Materna Virtual Solution GmbH will also be liable for slight negligence, provided that any such liability will be limited to the typical damage. In this provision, “material contractual duty” means a duty of Materna Virtual Solution GmbH, the performance of which renders the proper performance of the contract possible in the first place, a breach of which will jeopardise the attainment of the purpose of the contract, and on the compliance with which the client may regularly rely.
The liability for a loss of data is limited to the typical restoration expense which would have been incurred if regular backup copies had been made appropriate to the risk.
The liability of Materna Virtual Solution GmbH regardless of fault on account of defects of the software which already existed upon the conclusion of the contract is hereby expressly excluded.
Any additional liability of Materna Virtual Solution GmbH is hereby excluded. The liability under the German Product Liability Act remains unaffected.

§ 10 Third-party software

The software includes third-party software, to which additional general terms and conditions of business/licensing terms may apply. The included third-party software and its licensing terms can be seen in the software in the menu, “Settings”, of the SecurePIM App.

Materna Virtual Solution warrants that the subject matter of the contract or the performances rendered, respectively, are free from any third-party rights which might restrict the use by the client. Should the client be held liable by third parties on account of an infringement of property rights, Materna Virtual Solution shall use its best endeavours to assist the client in the defence of any such claims, as well as in the solution of the resultant problems. In the event of an assertion of third-party rights, Materna Virtual Solution shall assume sole liability to the person who invokes such rights and shall fully indemnify the client from and against any liability.

§ 11 Termination of the contract

In the event of a termination of the contract, Materna Virtual Solution GmbH will block the use of the software by the client.
Without undue delay after the termination of the contract, the client shall fully and finally delete the entire software on all of its terminal devices (and also on the client’s servers in relation to the software, “SecurePIM Management Portal”, and the software, “SecurePIM Gateway”) on which the software is installed, including additional copies of the software (if any).
It is hereby expressly pointed out to the client that the client may no longer use the software after a termination of the contractual relationship and that the copyright of the rights holder will be infringed in the event of non-compliance.

§ 12 Data protection

Materna Virtual Solution uses electronic data processing for the settlement of the business relationship with the client and for the internal processing of the transactions. Upon the installation of the software, “SecurePIM”, as well as when using the software, “SecurePIM Management Portal”, and the software, “SecurePIM Gateway”, only the email addresses of the users will be transmitted by the client to Materna Virtual Solution GmbH and will be stored centrally there. In addition, the data which are relevant for the operation of the software such as, for example, the validity of the licence and what modules have been activated, will be stored. Materna Virtual Solution GmbH collects, processes and stores those personal data of the client exclusively for the performance of the contract, stores those data safely and will not transmit the data to third parties. That processing of personal data of the client by Materna Virtual Solution GmbH is necessary for the performance of the contract and is, therefore, lawful in accordance with the first sentence of Article 6(1)(b) GDPR.
In addition, reference is hereby made to the data privacy statement of Materna Virtual Solution GmbH, which can be called up at https://www.virtual-solution.com/en/privacy-notice/.
If the client has the software, “SecurePIM Management Portal“, hosted by Materna Virtual Solution, the parties shall enter into a separate agreement regarding commissioned data processing in accordance with Article 28 GDPR.

§ 13 General provisions

The client may not assign or transfer any claims and/or duties under these TCs in whole or in part, or transfer these TCs to a third party as a whole, without the prior written consent by Materna Virtual Solution GmbH.
The parties’ contractual relationship, as well as all disputes which arise out of, or in connection with, their contractual relationship, are governed by the laws of the Federal Republic of Germany. The UN Sales Convention does not apply.
The exclusive place of jurisdiction for all disputes which arise from the parties’ contractual relationship directly or indirectly is Munich/Federal Republic of Germany. Materna Virtual Solution GmbH may, however, also sue the client at the client’s place of jurisdiction.
Should any of the provisions of these TCs be or become ineffective, the validity of the remaining provisions of these TCs will not be affected thereby.