General Terms and Conditions
General Terms and Conditions for SIMSme (private customers)
1. Parties to the Contract
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 users of SIMSme.
The following definitions apply in this contract:
App: The software required to use SIMSme on mobile end devices.
Single chat: Transmission of messages to a recipient using SIMSme.
Recipient: User to whom SIMSme messages are transmitted.
Group chat: Transmission of messages to multiple recipients using SIMSme.
Mobile end devices: Smartphones operated using an operating system released for SIMSme.
Message: Images, text, locations, or contacts that can be exchanged between users via SIMSme.
SIMSme user account: Account in SIMSme for which the user's mobile end devices can be authorized.
Server: A Brabbler AG SIMSme server, as defined in No. 3 (14).
3. Subject of the Contract, services provided by SIMSme
(1) SIMSme is an internet-based, cross-platform service for the secure exchange of messages between users of mobile end devices.
(2) The exchange can take the form of a single chat or group chat. The SIMSme user creates a message using the SIMSme app on their approved mobile device and then specifies the message recipients. The message is copied into the recipients' inbox and a push notification (based on the platform, for example, Apple Push Notification or Google Cloud Messages) is transferred with the information that new messages have been received and can be accessed.
(3) The messages are then available for the recipient to download. Each message is deleted on the SIMSme server immediately after it has been downloaded by the respective recipient, otherwise after 30 days.
(4) The user may specify that a message should self-destruct.
(5) The subject of the Contract is provision of the SIMSme service on a Brabbler AG server and provision of related apps in the download portals of the various system platforms.
(6) The SIMSme system is designed on the basis of an end-to-end encryption concept, such that
i. no unencrypted information (document, document keys, document and folder names) is transmitted or stored on the SIMSme server,
ii. the key required to decrypt the documents does not leave the respective end device, and
iii. documents can only be read on the approved devices of the user and recipients. Any recipient may pass on the messages.
(7) Algorithms and methods considered to be secure according to the current state of the art (recommendations of the Federal Office for Information Security) are used for encryption.
(8) SIMSme is constantly developed with regard to the supported encryption algorithms, document formats, system platforms, and functions. Brabbler AG always provides users with up-to-date apps to ensure the functionality of the system.
(9) Users can download and install an app for each of their end devices with their own telephone numbers. It is only possible to use the SIMSme service with one of these programs.
(10) Use of the programs requires setting up a user account on the SIMSme server. An end device with an updated app version and a valid mobile phone number is required to set up the user account.
(11) The SIMSme server and associated storage system are operated at a data center in Germany which is certified according to ISO 27001 IT-Grundschutz. Brabbler AG does not transfer any data abroad. This does not affect any transfers initiated by users to end devices being used abroad by other users.
(12) The SIMSme server does not store passwords. Authentication takes place exclusively on the released end devices of the user.
(13) The service may only be used for private purposes. Commercial use is prohibited and requires a separate license.
Upon registration, a SIMSme user account is created for the SIMSme user.
5. Conclusion of the contract
The user must first download and install the app onto their end device. When the app is opened for the first time, the registration process will start during which the user submits an offer to conclude a contract. Brabbler AG accepts this offer by registering and activating the SIMSme user account.
(1) The use of SIMSme and the apps, including the transmission of completely encrypted messages, is free of charge.
(2) Individual features can be purchased for a fee.
7. Duties and obligations of the user
(1) The user will use the SIMSme system solely for the purpose of exchanging messages.
(2) It is the responsibility of the user to determine to what extent the services offered are appropriate to meet the specific legislative, legal, or other data protection and data security requirements and to independently determine the extent to which it is permissible to use the services offered within the scope of SIMSme for the purpose intended by the user. Brabbler AG does not provide any legal advice in this regard. It should be noted that complete security cannot be guaranteed through technical processes and that the security of encryption processes is subject to continuous change.
(3) The user is responsible for their activities, in particular for the messages attributable to the user which have been uploaded by third parties, stored in the system, held ready for retrieval and/or transmitted or distributed. The user is obliged to take appropriate measures to protect the hardware and software involved in the use of the services (client system) in order to ensure security and integrity on the part of their client system. This in particular includes the use of the current version of the SIMSme app, operating system and browser software in addition to up-to-date precautions to protect IT security (anti-virus scanner, firewall, IT security software, etc.).
(4) The SIMSme user must ensure that the password is protected against unauthorized use by third parties. In particular, the user is required to keep their password secure, as the user will otherwise be unable to access messages and the password cannot be reset by Brabbler AG.
(5) The user must ensure that the use of the services does not have any negative effects for Brabbler AG or for any other third parties. The user is therefore prohibited from using the services offered by Brabbler AG for illegal purposes, and/or in particular:
i. from storing legally prohibited content and transferring or making this available to third parties;
ii. from uploading illegal or immoral content to the system or transferring or making this available to third parties, including references to such content. This in particular includes content which serves the purpose of sedition [Volksverhetzung] as that term is used in Sections 130, 130a and 131 of the German Criminal Code (StGB), encourages crime or glorifies violence, is sexually offensive or pornographic [pornografisch] as that term is used in Sections 184 et seq. StGB, could cause serious moral harm to or affect the well-being of children and young people, infringes the copyright or intellectual property rights of third parties or could damage the reputation of Brabbler AG.
8. License to the app
(1) For the duration of this contract, SIMSme users will receive the non-exclusive, non-transferable, non-sub-licensable license for the software within the scope of the purpose of this Contract.
(2) The SIMSme user is entitled to use the SIMSme app solely for operation on the SIMSme server within the scope of SIMSme. (3) SIMSme users are not permitted to modify the app or adapt, translate or edit it in any way or combine the app with other software.
(4) The user hereby indemnifies Brabbler AG and its agents from all third-party claims asserted against Brabbler AG as a result of culpable violation of the obligations set out in these General Terms and Conditions and/or as a result of other culpable damaging actions of the user or a third party attributable to the user. Furthermore, the user shall provide compensation for any further damages which are incurred, including the cost of any necessary legal action and defence. This obligation also applies to the misuse of the user account by third parties if the user is at fault.
9. Rights and obligations of Brabbler AG
(1) Brabbler AG provides the SIMSme services in accordance with the provisions of this contract.
(2) Brabbler AG will refrain from doing anything that is or could be suited to endangering the security and integrity of stored data and information. Brabbler AG and its employees will therefore never ask for the private key or user identification of the end devices or save such data.
(4) Brabbler AG will continuously develop the system, in particular with regard to knowledge about IT security technology. New functions may also be developed and existing functions may be replaced by new ones or removed from the system.
(5) Brabbler AG is entitled to change the security system, in particular the encryption system, at any time and switch to a new system using the latest new technology.
(6) In the event of a culpable violation of provisions of law or these General Terms and Conditions by a user or third party attributable to the user, Brabbler AG is entitled to temporarily block the services, either in whole or in part. This is without prejudice to the right to terminate the contract without notice under Section 12 paragraph (2).
(7) Brabbler AG reserves the right to arrange for third parties to provide all or some of the services to be provided under this Contract.
10. Warranty, customer service
(1) The statutory warranty rights apply for the users of SIMSme.
(2) SIMSme is self-explanatory and easy to use. Users can contact support[at]sims.me as a customer service if they have any questions.
11. Liability and limitations of Brabbler AG's liability
(1) Claims for damages by SIMSme-user, regardless of the legal grounds, and claims for the reimbursement of expenses are hereby disclaimed, unless the damage is caused by gross negligence or wilful breach of duty or an at least negligent breach of essential contractual obligations, i.e. those contractual obligations which are essential for performance of the contract, which would jeopardise the achievement of the contractual purpose if breached and which the other party should regularly be able to rely on (material obligation). In the latter case, liability is limited to the typically foreseeable damage.
(2) This limitation of liability does not apply to damage resulting from injury to life, body or health, in the event of liability on the basis of the German Product Liability Act (Produkthaftungsgesetz) or if Brabbler AG has has provided a warranty as an exception.
(3) BrabblerAG is not liable for damage resulting from power outages and performance delays due to unforeseeable events which are not the fault of Brabbler AG, its legal representatives or its agents (force majeure). Force majeure events in particular include war, civil unrest, natural disasters, fire, sabotage attacks by third parties (such as computer viruses), power outages, official orders, lawful industrial action within the company and the failure or a reduction of performance of communication networks.
(4) Brabbler AG is also not liable for damage resulting from data losses if this damage could have been avoided by the SIMSme users by performing proper regular data backups.
12. Contract duration, termination, end of contract
(1) The Contract for the use of SIMSme commences when the app is downloaded, opened and used for the first time and is concluded for an indefinite period. The user can delete their user profile on the SIMSme server at any time and then delete the app on their device.
(2) This is without prejudice to the right of either Party to terminate the contract for good cause. Good cause for Brabbler AG to extraordinary terminate the contract in particular exists if the user behaves in a manner that is likely to jeopardise the availability and integrity of the SIMSme service or if Brabbler AG terminates the SIMSme service.
(3) At the end of the Contract, the user account will be closed on the SIMSme server and all saved data will be deleted. At the end of the Contract, it will no longer be possible to access the data or extend the Contract.
13. Final provisions
(1) The user will be notified of amendments to these General Terms and Conditions or the fees in an appropriate manner, in particular by providing a reference to the SIMSme website. If no written correspondence from the user objecting to the amendments is received by Brabbler AG within six weeks after receipt, these amendments shall be regarded as having been accepted. Brabbler AG will specifically point out these consequences to users when it notifies them of the amendments.
(2) The invalidity of any provisions of these General Terms and Conditions will not affect the validity of the remaining provisions of these General Terms and Conditions. Invalid provisions will be replaced by provisions that most closely reflect the intended economic meaning of the invalid provision. The same applies in the event of any contractual gaps requiring remediation.
(3) The courts in Munich have exclusive jurisdiction for legal disputes arising from or in connection with the use of the services or these General Terms and Conditions, and if the user is not a permanent resident of Germany or relocated their place of residence or habitual abode abroad after these General Terms and Conditions came into effect, or if their place of residence or habitual abode is unknown at the time at which the action is commenced. Otherwise, jurisdiction will be determined based on the rules in law.
(4) The law of the Federal Republic of Germany applies. However, the law on the United Nations Convention on the International Sale of Goods (CISG) does not apply. The contractual language is German.
(5) These General Terms and Conditions may be accessed at any time in the SIMSme Portal.
Version: March 2019