Terms of licensing and use of the Provectus Secure Contacts App

1. Scope

These license and terms of use (“Terms of Contract“) apply between Provectus Software GmbH (“Provectus“) and the customer who plans to use the standard application software Provectus Secure Contacts App (“App“) in his company for a limited period of time. Provectus grants the customer the use of the App for a limited period of time on the basis of these Terms of Contract and provides the customer with the latest available version of the App for this purpose. Any conflicting general terms and conditions of the customer shall not apply.

2. Inclusion

These Terms of Contract shall apply in the respective current version. Provectus shall notify the customer in text form of any amendments to these Terms of Contract no later than two weeks before their proposed effective date. The customer may either agree or reject the amendments prior to the proposed effective date of the amendments. The customer’s approval shall be deemed granted if the customer has not notified Provectus of its rejection prior to the proposed effective date of the changes. Provectus will point out this approval effect to the customer.

3. Subject Matter

Provectus transfers the App to the customer for the term of these Terms of Contract in the form of a software lease. This transfer also includes the granting of the rights required for the contractual use of the App in accordance with clause ‎5.
The scope of functions of the App, the owed quality of the App as well as the hardware and software conditions of use result conclusively from Annex 1 to these Terms of Contract. Annex 1 is part of the contract.
Provectus makes the App available to the customer for download in the designated stores of the manufacturers. A license key is required for the use and activation of functions, which will be provided to the customer electronically after receipt of the order. The license key entitles the customer exclusively to use the App in accordance with these Terms of Contract.
The license key must be issued by an administrative user using Microsoft Endpoint Manager (Intune). The Microsoft licenses required for this must be purchased separately by the customer. An administrative user on the part of the customer must activate the use of the App in the customer’s tenant (Consent).
The software is provided for the following contractual use:
1. The use of the App is only permitted to traders in the sense of section 14 of the German Civil Code (BGB). A trader means a natural or legal person or a partnership with legal personality who or which, when concluding a legal transaction, acts in exercise of their trade, business or profession. Access is only permitted and possible with a Microsoft 365 company account. Use with private Microsoft accounts is not permitted.
2. The number of licenses for which Provectus permits use (number of users) is specified in the order. The customer itself must ensure that no more users than agreed use the App.
3. The customer is responsible for the backup of his data.
4. The customer is responsible for the data protection-compliant and secure configuration of the App. Provectus provides the necessary documentation.
5. The customer is not entitled to circumvent technical restrictions.
Installation and configuration services, instructions, training and other consulting and maintenance services beyond the leasing of the App are not subject of the contract. The guarantee of access for the customer to the internet or the operation of data lines or data networks as parts of the internet are also not the subject of the contract.
Provectus owes consulting services only if this is expressly and separately agreed. Any consulting services to be provided shall be remunerated separately by the customer at reasonable and customary market conditions.
Provectus is entitled to perform maintenance, updates or changes to functionalities on the App at any time. The number and frequency are at the discretion of Provectus, taking into account the legitimate interests of the customer and the performance of the contract.
Adjustments or changes to the App are only owed insofar as they are necessary for the maintenance or repair of the App or to ensure the contractual use. Otherwise, Provectus is only obligated to make adjustments or changes if this is expressly agreed; corresponding services are to be remunerated separately by the customer at reasonable and customary market conditions, if applicable.

4. Establishment of the contractual relationship

The customer receives an offer of the licenses (number and price) and the Terms of Contract from Provectus or a Provectus distribution partner. By submitting the order based on this offer, the customer accepts these Terms of Contract. The final conclusion of the contract comes into effect with the order confirmation by Provectus or the Provectus distribution partner acting on behalf of Provectus.

5. Granting of rights

Upon full payment of the license fees owed, the customer shall receive the non-exclusive, non-transferable and non-sublicensable right, limited in time to the term of the contract, to use the App by the customer itself and/or for use by companies affiliated with the customer pursuant to section 15 of the German Stock Corporation Act (AktG) to the extent granted in these Terms of Contract. The contractual use includes the download as well as the loading, displaying and running of the installed App.
The customer is not entitled to reproduce, edit, decompile, sell, lend, rent or otherwise sublicense the App or to publicly reproduce or make the App available.
If the customer violates any of the above provisions, all rights of use granted under these Terms of Contract shall immediately become invalid and shall automatically revert to Provectus. In this case, the customer must immediately and completely stop using the App and delete or uninstall all copies of the App installed on his systems.

6. License fee

The license fees for the transfer of use are based on the price list valid at the time of the conclusion of the contract and can be found in the respective offer of Provectus or the Provectus distribution partner. Invoicing takes place after the order and then at the beginning of any renewal term in advance and is due in each case within 14 days after invoicing, unless otherwise agreed.
Provectus is entitled to increase the license fees for the first time after the expiration of twelve months after the date on which the product became ready for operation, with a written notice of three months to the end of the month. Further increases can be made at the earliest twelve months after the previous increase takes effect. The increase must be reasonable and in line with the market. The customer has the right to terminate the contractual relationship within a period of six weeks after receipt of the announcement of an increase.

7. Protection of the app / audit and notification obligations of the customer

The customer is obliged to take appropriate measures to secure the App against access by unauthorized third parties.
At Provectus’ request, the customer shall enable Provectus to verify the proper use of the App, in particular whether the customer is using the program quantitatively within the scope of the licenses purchased by the customer. For this purpose, the customer shall provide Provectus with information, grant access to relevant documents and records, and enable an audit of the hardware and software environment used by Provectus or by an auditing company named by Provectus and acceptable to the customer. Provectus may conduct the audit on the customer’s premises during its regular business hours or have it conducted by third parties bound to secrecy. Provectus will ensure that the business operations of the customer are disturbed as little as possible by its on-site activities. If the audit reveals that the purchased number of licenses has been exceeded by more than 5% (five percent) or that the license has otherwise not been used in accordance with the contract, the customer shall bear the costs of the audit, otherwise the costs shall be borne by Provectus. All other rights remain reserved. In addition, the customer agrees to pay any underpaid license fees within 30 days after written request. The assertion of further rights of Provectus, such as further damages or extraordinary termination rights remains unaffected.

8. Term and termination

The beginning of the term of these Terms of Contract is the receipt of the order confirmation by the customer. At this time, the term of the license begins, unless a different time has been agreed.
The term of the license shall be twelve months and shall automatically renew for additional twelve months unless terminated by either party upon four weeks’ notice (“Notice Period“) effective as of the original or renewal term.
The initial license key has a term of twelve months. When the license is renewed, a new license key must be issued and imported. If the license key is not renewed before the expiration of the term, the App can no longer be used. Provectus will provide the customer with a new license key early as part of the renewal, but no earlier than the expiry of the Notice Period.
During the term of the license, the customer may add additional licenses for an appropriate fee. The term and price of the added licenses shall be based on the remaining term and the pro rata price of the existing licenses. A reduction of licenses is possible at the earliest at the end of the agreed term of the license.
Furthermore, the contractual relationship may be terminated by either party without notice for important reason in text form. An important reason entitling Provectus to terminate exists in particular if the customer violates Provectus’ rights of use by using the App beyond what is permitted under these Terms of Contract and does not stop the violation within a reasonable period of time after a warning from Provectus or if Provectus stops operating the App.
If Provectus is not responsible for the termination for important reason, there is no claim to the (pro rata) refund of license fees already paid.
In the event of termination, the customer must cease using the App and delete or uninstall all installed copies of the App from its devices. Provectus is entitled to deactivate the App in the event of termination.
Any use of the App after termination of the contractual relationship is prohibited.

9. Maintenance

Provectus shall maintain the contractually agreed quality of the App during the term of the contract and shall ensure that no third-party rights conflict with the contractual use of the App.
Provectus will eliminate any defects of quality and title in the App (rental item) within a reasonable period of time. Provectus also fulfills its obligation to eliminate defects by making a reworked App available for download in the manufacturer’s designated store and offering the customer support to solve any installation problems that may arise, if necessary.
The customer is obligated to report defects in the App to Provectus without delay. In doing so, the customer shall take into account Provectus’ advice on problem analysis within the scope of what is reasonable for the customer and shall forward to Provectus all information available to the customer that is necessary for the elimination of the defect.

10. Liability

Provectus is only liable if Provectus has violated an essential contractual obligation (Cardinal obligation). Cardinal obligations are such contractual obligations, the fulfillment of which makes the proper execution of the contract possible in the first place and on the compliance with which the customer has regularly relied and may rely. This liability is limited to the contract-typical and the predictable damage in the case of property damage and financial loss.
The liability of Provectus as a whole is limited per year to the total net compensation incurred in the respective year in which the damage occurred. Liability for loss of profit and loss of savings as well as liability for consequential damages caused by a defect is excluded. The statutory liability for intent and gross negligence and under the German Product Liability Act (ProdHaftG) shall remain unaffected; this shall also apply to liability for culpable injury to life, body or health and in the event of the assumption of a guarantee.
Provectus assumes no liability for the use of third-party apps that are launched from the App, insofar as this is possible and permitted by the customer.
Provectus is not liable for damages caused by force majeure, riots, war or natural events (including pandemics) or other events for which it is not responsible, such as network disruptions or orders by public authorities in Germany or abroad.

11. Confidentiality

The parties undertake to treat the information about the respective party obtained under these Terms of Contract as confidential. The obligation to maintain confidentiality \ TLP:AMBER shall apply to all financial, technical, economic, legal, tax, business, employee or management-related or other information (including technical information relating to the contract software that cannot be inferred from marketing materials or manuals or from the delivered contract software itself, records, and know-how) relating to the respective other party or an affiliated company, is not generally known and in the non-disclosure of which the respective party has a legitimate interest from the point of view of an objective recipient who, applying the care of a prudent businessman, assesses the nature of the information, the specific circumstances and the manner of its disclosure. The duty of confidentiality also extends in a special way to all information explicitly marked as a trade secret or in a corresponding manner or otherwise protected (hereinafter collectively referred to as “Confidential Information“). Provectus claims trade secret protection for itself both in the source code of the App and in the operating function and appearance. In all other respects, the Provectus software classification policy (https://www.provectus-software.de/tlp) shall apply.
The respective other party undertakes to treat the Confidential Information as confidential and neither to forward it to third parties nor to make it accessible in any other way or to use it for purposes other than those contractually agreed. The respective other party may only disclose the information to such employees or entities that are contractually or professionally obligated to maintain the corresponding confidentiality.
The parties undertake to take suitable precautions to protect the Confidential Information, but at least those precautions with which the respective other party protects sensitive information about its own company. If the respective party is notified of special measures by the respective party for the protection of information marked as a trade secret or in a corresponding manner or protected in another manner, the respective party shall be obligated to comply with such measures.
The obligation to protect Confidential Information shall not exist to courts or authorities insofar as a legal obligation to disclose exists or the respective other party has obtained the Confidential Information from a third party prior to the conclusion of these Terms of Contract or obtains it thereafter from a third party without breaching these Terms of Contract, provided that the third party, to the knowledge of the respective party, has in each case lawfully come into possession of the information and does not breach a confidentiality obligation binding on it by disclosing it.
The other party is prohibited from obtaining a trade secret by observing, examining, tracing or testing information of the other party that is in its lawful possession.

12. Data protection

The parties undertake to comply with the relevant data protection regulations, in particular the provisions of the General Data Protection Regulation (GDPR) and the German Federal Data Protection Act (BDSG). The general regulations on data protection can be viewed in the data protection section of the Provectus website: https://www.provectus-software.de/datenschutz/.
Provectus undertakes to process the personal data provided to it by the customer exclusively in a lawful and transparent manner, in good faith and solely for the purpose of providing the contractual services.
The parties agree that the customer is the controller within the meaning of Art. 4 no. 7 GDPR for the processing of personal data in the App. Provectus has no access to the personal data processed in the App.
For downloading the App from the Apple Store or other app stores, the respective terms of use agreed between the customer and the store always apply, also with regard to data protection. Apple and Google only provide Provectus with anonymized download figures. Personal data is not provided to Provectus.
Logging can be activated by the customer in the App, e.g. to send logs to Provectus in support cases. This data is sent to Provectus manually by the customer himself. In this case, Provectus will process personal data of the customer only upon explicit instruction. For this purpose, the parties will separately conclude a data processing agreement in accordance with Art. 28 (3) GDPR.
Provectus undertakes to use only employees for the provision of the contractual services who have been familiarized with the statutory provisions on data protection and the special data protection requirements of these Terms of Contract by means of suitable measures and who have been comprehensively obligated in writing to maintain confidentiality, unless they are already subject to appropriate statutory confidentiality obligations.

13. Contract

The distributor serves as the primary contact for the customer in connection with the initiation, settlement and other issues related to the App.
The customer is obliged to provide contact information of an internal contact person for commercial, contractual, and technical matters to Provectus or to the distribution partner.
Provectus reserves the right to contact the customer directly, especially in the cases of satisfaction surveys, contract changes, further development of the App and security incidents.
The parties shall notify the other party of any change in contact persons.

14. Miscellaneous

Provectus reserves the right to have functions related to the operation of the App performed by third parties.
Offsetting by the customer is only permitted with undisputed or legally established claims of the customer.
Amendments and supplements to the contract must at least be made in text form. This also applies to the amendment or cancellation of this clause.
General terms and conditions of the customer shall not apply.
The contract shall be governed exclusively by German law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11.4.1980 (UN-Purchase Right).
The parties are aware that the software may be subject to export and import restrictions. In particular, approval requirements may exist or the use of the App or related technologies may be subject to restrictions abroad. Customer will comply with the applicable export and import control regulations of the Federal Republic of Germany, the European Union and the United States of America, as well as all other relevant regulations. The customer’s performance of the contract is subject to the proviso that no obstacles based on national and international regulations of export and import law as well as no other statutory provisions prevent performance.
The parties agree for all disputes arising from and in connection with these Terms of Contract, the exclusive jurisdiction of the courts at the registered office of Provectus, insofar as the requirements under Section 38 German Code of Civil Procedure (ZPO) are met. However, Provectus is entitled to appeal to any other competent court.
Should individual provisions of these Terms of Contract be invalid, this shall not affect the validity of the remaining provisions as a matter of principle. In place of the invalid provision, the parties shall endeavor to find a provision that comes closest to the contractual objective in legal and economic terms.
All annexes mentioned in these Terms of Contract are part of the contract.
Definitive is only the German version of these Terms of Contract.

ANNEX 1: SCOPE OF FUNCTIONS AND HARDWARE AND SOFTWARE CONDITIONS OF USE

The Secure Contacts App is a software application for certain Apple (https://www.apple.com/) and Google (https://www.android.com/) mobile devices. The App is application software, so an executable program that performs one or more functions but is not relevant to the functioning of the Apple iOS and Google Android system itself.
The App makes it possible to bring together all business contacts in one App on the mobile device and store them in a secure container. A single login after administrative approval is sufficient to automatically synchronize all contacts. The App prevents synchronization of contact data with other commercial platforms, third party apps or messenger services. If the App is configured correctly by the customer, there is no data leakage from the App.
The following scope of functions is currently planned:
1. Access to the personal Exchange address book.
2. Access to the corporate address book.
3. Caller identification of all previously mentioned contacts.
4. Initiate phone calls, chats, SMS via Microsoft Teams and cell phone.
5. Encrypted storage of all data used by the App on the end device (encryption with Apple iOS or Google Android mechanisms).
6. Securing the App with Intune Policies (preventing data leakage)
7. Securing access with the help of Azure AD Conditional Access Policies (restriction of allowed devices).
The following data is used by the App for this purpose:
1. First and last name.
2. Company name.
3. Position.
4. All saved e-mail addresses.
5. All stored phone numbers.
Provectus does not represent or warrant that the App or any feature or content of this App will operate or function without interruption or otherwise error-free, that the App is free of viruses, other harmful components, free of third party rights, or fit for any particular purpose.