1. Preamble, Subject Matter of the Contract
The subject matter of these Terms and Conditions is the provision of the use of the software Boxcryptor (“Boxcryptor”) and the software Whisply (“Whisply”) (Boxcryptor and Whisply together “Products”) by accessing a telecommunication connection, for the purpose of making use of the functionality of the above-mentioned products and the provision of the respective right of use, for both products. Whisply consists of software which runs in the User’s browser (“Web App”) and software on Secomba’s servers (“Hosted Service”).
Secomba provides the Products for free and in an extended version on a payment basis, limited to the term of the contract on the basis of these Terms and Conditions. Secomba is not incumbent upon the prevention of failures originating from the risk area and liability of the customer, third party soft- and hardware providers or any other third parties, especially those failures, caused by the faulty operation or modification of the products or third party software, caused by the contamination of the respective components with computer viruses, the use of inapplicable data mediums, faulty hardware, blackout of the electric power supply or any data transmitting line. Neither is Secomba incumbent upon the prevention of failures originating from lacking information security, improper environmental conditions at the point of use of the products/services or failures originating from forces majeure.
Secomba will use best efforts to ensure that the Hosted Service is available on the Internet with an availability of 95 % on annual average. This does not include downtime due to maintenance and software updates, as well as times during which Secomba’s webservers cannot be reached over the Internet due to technical or other problems that cannot be controlled by Secomba (in particular force majeure and fault of third parties).
These Terms and Conditions are applicable for both Consumers and Business Customers (as defined below), but in each case only for end users. Free versions of the Products may only be used by Consumers. For the purpose of these Terms and Conditions, (i) a „Consumer“ is any individual entering into the contract for purposes that may not predominately be attributed to its commercial or self-employed professional activity (Sec. 13 of the German Civil Code), and (ii) a „Business Customer“ is a Customer (whether an individual, company or partnership vested with legal capacity) who enters into the relevant contract in the conduct of its business or its self-employed professional activity (Sec. 14 para. 1 of the German Civil Code).
To use Whisply the User has to register at https://www.whisply.com in accordance with the provisions below.
The User has to provide correct and up-to-date data when registering for Whisply. The User will update such data in case of changes. The User will have the possibility to correct data before finalizing the registration.
In case the User is a Business Customer, the person acting on behalf of the User must be authorized by the User or must have representation authority. Secomba is entitled to demand proof of such authorization at any time at its sole discretion. Secomba may block the User’s account at any time if the person acting on behalf of the User fails to provide the required proof of authorization for the registration and use of the services within a period of one week after receipt of the corresponding request.
The User will keep the access data for Whisply confidential and take the required measures to maintain confidentiality. The User will inform Secomba immediately by email to firstname.lastname@example.org in case of any suspected or occurred misuse of the access data.
The User will back up the data transmitted to Whisply or encrypted by Boxcryptor on a regular basis in order to ensure that data and information can be restored in the case of loss.
3. Access to and Scope of the Products
After payment of the remuneration according to section 9, Secomba will provide the User as agreed Boxcryptor or Whisply as download and will grant access to Whisply via Internet, in order to enable the use of the same in line with the selected licensing model and these Terms and Conditions.
Secomba reserves the right to limit the functional scope of free Products , or to make such functions subject to payment. Secomba will announce such change in advance to users.
4. License Conditions
All title, ownership rights and intellectual property rights in and to the Products (including but not limited to any patches and updates) and any and all copies thereof are owned by Secomba. These Products are protected particularly by the copyright laws of Germany, international copyright treaties and conventions and exceeding the before mentioned provisions, by other further statutory provisions (laws, regulations, directives).
To the extent agreed, Secomba grants the User, for the duration of the contract, the non-exclusive, non-transferable, non-sublicensable right to use the agreed Product in accordance with the conditions as agreed by the parties. The aforementioned usage right applies accordingly to new versions, updates or upgrades to the relevant Product that are provided by Secomba during the term of the contract. However, Secomba shall not be obliged to make available new versions, upgrades or updates. The User shall not be entitled to use, copy, download or make the relevant Product available to third parties beyond the purpose of the contract.
If the contractual use of the Products is impaired by the proprietary rights of third parties without the fault of Secomba, Secomba is entitled to suspend the affected services. Secomba will immediately notify the User and, in case the User is precluded from accessing data, provide suitable access to this data. In that case, the User shall not be required to pay for the non-rendered services. Other claims and rights remain unaffected.
Rights not explicitly granted to the User remain with Secomba.
No source code will be provided to the User, unless agreed otherwise.
Secomba offers different versions of the Products. The versions differ with respect to the permitted purposes of use (personal use/business use), as well as the functional range available.
Unless otherwise agreed by the parties,
- The Products may only be used for personal purposes and must not be used for commercial, business or professional use cases to the extent the free versions and the end user versions (e.g. Boxcryptor Personal) of the Products are used.
The User may not:
- work around any technical limitations in the Products,
- make more copies of the Products than agreed by the parties or permitted by applicable law,
- rent, lease or lend the Products,
- reverse engineer, derive source code, modify, decompile, disassemble, or create derivative works of this Products, in whole or in part, unless permitted by applicable law,
- hack or modify (or attempt to modify or hack) or distribute the Products,
- directly or indirectly remove, disable, alter or circumvent any proprietary notices or labels or serial numbers contained on or within the Products.
These license conditions shall also apply to any patches or updates the User may obtain for the Products.
5. Limitation of Liability
For any claim arising from or in connection with these Terms and Conditions, without regard to its nature or legal reason, particularly for, but not limited to, breach of contract (“Vertragspflichtverletzung”) or tort (“unerlaubte Handlung”), Secomba, its employees and vicarious and auxiliary agents are to be liable only and exclusively in the following cases:
In case of personal injury or death to persons as well as for deliberate (“vorsätzliche”) and gross negligent (“grob fahrlässige”) action Secomba has unlimited liability. Secomba shall be liable for slight negligent action (“einfache Fahrlässigkeit”) only in cases of a breach of duty essential to the purposes of any agreement entered into by the parties (“vertragswesentliche Pflicht”). Such an essential duty is a duty whose fulfillment is the basis for the execution of the agreement and on whose fulfillment the contractual partner thus can rely on. In this case Secomba’s liability shall be limited to damages which are typical and foreseeable at the time of conclusion of any agreement entered into by the parties.
For the loss of data and its recovery Secomba is not liable if such loss would have been avoidable by reasonable data backup measures.
Any liability arising from mandatory law, e.g. the German Act on Product Liability (“Produkthaftungsgesetz”) remains unaffected by this clause.
In case that the Product was distributed as free version (i.e.free of charge) Secomba shall be liable in accordance with the sections above only for deliberate (“vorsätzliche”) and fraudulent (“arglistige”) action.
6. Third Party Software
The Products contain Third-Party-Software for which additional license terms may apply. The contained Third-Party-Software and their license terms can be found at: https://www.boxcryptor.com/third-party-terms and https://www.whisply.com
Users are entitled to the statutory warranty rights. The warranty period shall be two years if the User is a Consumer or otherwise one year.
8. Notice on the Right of Withdrawal for Consumers, Model Withdrawal Form
Consumers (i.e. all natural persons) that agree upon a transaction, which is predominantly neither attributable to their commercial, nor their self-employed activities, may withdraw their contractual statement for the supply of a service which is provided at a distance under the following stipulation.
The following right of withdrawal applies to Products or services, which are provided for a consideration.
1. Right of withdrawal
You have the right to withdraw from this contract within 14 days without giving any reason. The withdrawal period will expire after 14 days from the day of the conclusion of the contract. To exercise the right of withdrawal, you must inform us
Secomba GmbH, Werner-von-Siemens-Str. 6, 86159 Augsburg, Germany Telephone number: +49 82190786150 Email: email@example.com
of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post, fax or email). You may use the attached model withdrawal form, although this is not obligatory.
To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
Effects of withdrawal
If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.
If you have demanded provision of the Product during the period within which to exercise the right to withdraw from the contact, you are obligated to reimburse Secomba with the fair amount, proportionate to the Product received by you, by the time you informed Secomba of your execution of your right to withdraw your contractual statement, relative to the entire scope of the contractually agreed upon volume and value of the provision (of the Product).
Reference to termination of the right to withdraw, ahead of time
The right to withdraw from a contract for the provision of a service terminates ahead of time, in case we provided the service in its entirety and did not begin with using the service before receiving notice of your explicit content and affirmation, of the knowledge of the invalidity of your right to withdraw, in case Secomba did fulfill its contractual obligations in its entirety.
2. Model Withdrawal Form
(complete and return this form only in case you wish to withdraw from the contract)
Secomba GmbH, Werner-von-Siemens-Str. 6, 86159 Augsburg, Germany Email: firstname.lastname@example.org
I/We (*) hereby give notice that I/We (*) withdraw from my/our (*) contract of sale of the following goods (*)/for the provision of the following service (*),
Ordered on (*)/received on (*),
Name of consumer(s),
Address of consumer(s),
Signature of consumer(s) (only if this form is notified on paper),
(*) Delete as appropriate.
9. Remuneration, Prices, Payment
User shall pay Secomba the remuneration agreed. Payment may be made by credit card, Paypal or bank transfer.
All Prices include statutory VAT, if not explicitly stated otherwise.
Payment of the remuneration shall be due and payable upon conclusion of the agreement.
The User shall have no right to set-off or retention, except to the extent that the counterclaim has not been disputed by Secomba or been determined by a final and binding court decision.
10. Contract Duration, Termination
To the extent Secomba provides Products free of charge, the respective contract is established for indefinite contract duration.
The User may terminate the contract any time with effect to the day following the termination notice. Secomba may terminate the contract with a notice period of one month with effect to the end of the relevant month.
To the extent Secomba provides services against payment, the respective contract is established for the agreed duration (“initial time period”); in the absence of a specific agreed initial time period, the initial time period will be 12 months beginning with the conclusion of the agreement. The agreement will be automatically renewed by a period equal to the initial time period, unless a party terminates the contract in advance.
The User may terminate the contract anytime with effect to the end of the relevant contractual time period. Secomba may terminate the contract with a notice period of one month with effect to the end of the contractual time period.
Each contract may be terminated by each party without notice for good cause. Good cause that entitles Secomba to terminate the contract shall exist in particular if the User breaches the rights of use granted by Secomba by using a Product beyond the extent permitted under this contract, and does not refrain from the breach following a notice by Secomba within a reasonable time period, or if the User fails to pay an invoice despite a reminder with a reasonable deadline.
Termination notices must be issued in text form, e.g. via email.
With expiration or cancellation of the contractual relationship, independent of the cause for the end of the relationship, the user is obligated to stop making use of the Products immediately and has to hand over all personal access details, as well as all copies of such details (should copies exist), entirely. Fulfillment of this obligation has to be declared on oath, if requested by Secomba.
11. Customer Information
The offerings of Secomba via e-commerce-platforms are not legally binding but invitations to make a purchase offer.
By placing an order, the User makes a binding offer to purchase the relevant product.
The order shall be deemed to be accepted by Secomba or it’s payment provider upon subsequent explicit (email) acceptance of the order. The Contract with the User shall not become effective until Secomba’s acceptance.
With regard to the conclusion of the contract, the following languages are available: German, English.
If any provision of these Terms and Conditions is held to be unenforceable for any reason, the parties will replace the invalid provision with a valid provision which comes closest to the economic purpose of the invalid provision. The remaining provisions of these Terms and Conditions shall not be affected.
It is pointed out to the user that IT-services may be subject to export and import restrictions. In particular, an obligation to obtain a permit may be required, or the use of the Product or the relevant technologies might be subject to restrictions in some countries. Fulfillment of the contractual obligations is made, under the caveat that there are no national laws or international regulations for import and export that would be violated by the fulfillment of the contractual obligation.
For any disputes involving these Terms and Conditions, the place of jurisdiction shall be Augsburg, (Federal Republic of Germany), provided the User is a merchant (“Kaufmann” within the meaning of Sec. 1 para. 1 of the German Commercial Code), a legal entity or separate estate under public law, or has no general jurisdiction in the Federal Republic of Germany.
Any contracts entered into between Secomba and the User shall be governed by the laws of the Federal Republic of Germany under exclusion of any conflict of laws provisions and the UN Convention on the International Sale of Goods.
Secomba may change or amend These Terms and Conditions. Such changes will come into force after Secomba has provided the amended terms to the User and the User did not object within a period of six weeks from receipt of the amended terms. Secomba will notify the User on the consequences in case the User does not object. Amended terms will generally be provided via email. For this purpose, the User has to ensure that emails can be received at the email address provided. In case the User objects to the changes, Secomba may terminate the contract with a notice period of two weeks within four weeks upon the date of reception of the opposition with effect to the following month.
European ODR: https://ec.europa.eu/odr/