Terms and Conditions of Use of the Threema Server Service

These terms and conditions of use of Threema GmbH, ("THREEMA"; "Terms of Use") shall apply to the use of the service described in Section 2.

Individuals who use the service ("Users") receive the authorisation to use the service ("User Authorisation") either directly from THREEMA or from an authorisation administrator. The administrator of User Authorisations (hereinafter the "Administrator") is defined as companies, organisations or natural persons who acquire multiple User Authorisations from THREEMA in order to make them available to a limited group of users.

1. SCOPE

The Terms of Use shall apply from the time the User uses the service. THREEMA may also require the User to confirm his/her explicit consent to the Terms of Use by clicking on them. Persons who lack full legal authority to bind a User to these Terms of Use are requested not to click on "Accept" and not to use the service until the User has consented to the Terms of Use.

2. OUR SERVICE

2.1 THREEMA provides various server services to Users (and Administrators) so that Users (and Administrators) can communicate with each other using API, desktop or mobile applications provided by THREEMA or a third party provider explicitly approved by THREEMA (each of these is hereinafter called a "THREEMA-Client") (the "Service"). THREEMA’s current offer is available on the website threema.ch. If the Service is incorporated into offers from third parties, the terms and conditions of the respective provider shall apply to the use of such offers.

2.2 THREEMA does not offer connectivity to the Internet or other telecommunications services for users. The transfer of data from and to our Service (and the payment of the applicable fees) is the responsibility of the User. In order to use our Service, a connection from the User to the Internet, as well as an authorisation, as defined in Section 3, of the sender and the recipient is required. Accordingly, no emergency calls to the police, fire service or other emergency services can be made via our service (unlike offers from SMS and telephone service providers). Emergency services must be contacted via the public telephone network.

2.3 The rights and obligations of THREEMA and the User of a THREEMA-Client are set forth in the respective user license ("EULA").

3. AUTHORISATION

3.1 If the User acquires the Authorisation to use the Service directly from THREEMA, THREEMA hereby grants the User a non-exclusive, limited right to use the Service for the permitted use, as defined in Section 4, subject to the provisions of use set out in Section 5.

3.2 If the User acquires the Authorisation to use the Service via an Administrator, the granting of rights is additionally subject to (i) the Administrator complying with its contractual obligations vis-à-vis THREEMA (or a distribution company authorised by THREEMA to conclude the agreement for the use of the Service). The Administrator may specify further restrictions and regulations for Users, particularly in order to comply with its contractual and regulatory obligations towards Users or third parties.

4. PERMITTED USE

4.1 The User may use the Service in accordance with the usage provisions (Section 5) either for operational use (Section 2) or for test purposes (Section 4.3) (jointly, "Permitted Use").

4.2 If the User uses the Service in order to use a THREEMA-Client for its intended use ("Operational Use"), the Service must be used via a THREEMA-Client that has been obtained via a distribution channel offered or approved by THREEMA (e.g. Google Play, Apple App Store or Threema Shop) or that has been explicitly released by THREEMA for use. In addition, the User must have an Authorisation as defined in Section 3 .

4.3 If the User uses the Service to test the functionality of a THREEMA-Client ("Test Purposes"), the User may also use a THREEMA-Client which has been compiled and/or modified by the User and is based on a source code published by THREEMA (https://threema.ch/en/open-source). This is subject to the conditions that (i) the User is also entitled to Operational Use, as defined in Section 2, and (ii) the User complies with the corresponding licence terms and conditions of THREEMA.

5. PROVISIONS OF USE

5.1 The User shall ensure that the hardware, software and other infrastructure used by the User in relation to the Permitted Use of the Service complies with the requirements reasonably communicated by THREEMA (https://threema.ch/en/faq/platforms). THREEMA may modify these requirements as necessary by informing the User of such changes.

5.2 The User may only access the Service via the user ID personally assigned to him/her by THREEMA or the Administrator (THREEMA-ID) and must implement appropriate technical and organisational security measures to prevent unauthorised use or access to the Service within his/her own area of responsibility. In particular, the User must keep passwords and individual access codes under lock and key and may not disclose or make access data and passwords available to any third party. Acts committed under a User’s access code are attributable to the User.

5.3 The User undertakes and warrants that the information communicated by him/her through a Service does not violate any applicable law or regulations of the Administrator; (collectively: "Unauthorised Content"). Unauthorised Content shall include in particular:

5.4 If a User finds that another User is communicating Unauthorised Content via the Service, he/she may report this to THREEMA via email to abuse@threema.ch ("Complaint").

5.5 The User may use the Service only to the extent specified for this purpose. In particular, the following acts are not permitted:

6. AVAILABILITY OF THE SERVICE

6.1 THREEMA endeavours to keep the Service accessible as consistently as possible. However, and particularly for reasons of maintenance, security or capacity or due to events beyond the control of THREEMA (such as disruptions and interruptions of public communication systems, power failures, etc.), disruptions or temporary cessation of operation of the Service may occur. THREEMA further reserves the right to temporarily restrict the use of the Service for reasons of maintenance, security or capacity. This may result in a failure of communications to be transmitted on time, correctly, or at all.

6.2 THREEMA's Service may be limited or unavailable in certain countries or regions.

6.3 THREEMA reserves the right to suspend a User’s Authorisation, restrict the availability of the Service or revoke a User’s Authorisation without consulting the User or stating reasons, provided that THREEMA (i) deems it appropriate in order to operate the THREEMA infrastructure; (ii) deems it appropriate in order to defend against potential third-party claims; or (iii) suspects that the User has breached the Terms of Use or committed unlawful acts. Users may not derive any claims against THREEMA in relation to the corresponding blocking or the revocation of User’s Authorisation and may not acquire a new authorisation, as defined in Section 3, without the explicit consent of THREEMA.

6.4 If a User finds that the use of the Service is impaired, he/she shall report this via the support form.

6.5 Where THREEMA provides support services to an Administrator or assures certain availability, these shall only apply vis-à-vis the Administrator and not vis-à-vis the User.

7. INTELLECTUAL PROPERTY RIGHTS

7.1 All rights to information, features and contents in relation to the Service (e.g., domains, patents, copyrights, trademarks and other proprietary rights) are, with the exception of User-Content, the property of THREEMA in the relationship between the User and THREEMA ("THREEMA-Content"). The publication, reproduction, transmission, modification and/or linking of THREEMA-Content is prohibited without the prior written consent of THREEMA.

7.2 All rights to information, features and contents provided by the User through the Service are the property of the User in the relationship between the User and THREEMA ("User-Content"). The User grants THREEMA the right to temporarily store the User-Content in encrypted form, to enable access to it by the group of recipients defined by the User and to take all further actions in order to provide the Service requested by the User.

8. DATA PROTECTION

8.1 The personal data of THREEMA Users that is processed and the parties to whom it is disclosed are set out in THREEMA’s Privacy Policy (https://threema.ch/privacy_policy/?lang=en).

8.2 The processing of data by the Administrator shall be carried out in accordance with the Administrator's privacy policy. Where THREEMA processes personal data on behalf of the Administrator, it does this in accordance with the data processing agreement between the Administrator and THREEMA (or the distribution company authorised by THREEMA to conclude the agreement on the use of the Service).

9. LIABILITY

9.1 General provisions

The User uses the Service at his/her own risk. THREEMA shall only be liable for direct losses that occur as a result of a wilful or grossly negligent act by THREEMA itself. In addition, and subject to the applicable mandatory statutory provisions, any liability of THREEMA and its governing bodies, representatives or auxiliary persons (including third parties who provide services for THREEMA) for losses, including but not limited to indirect losses or consequential losses (such as lost profits, the consequences of data loss or the lack of / impaired availability of the Service), regardless of the legal basis, is excluded.

Any liability of THREEMA for misconduct on the part of Users, particularly regarding false information from Users or User-Content that infringes the rights of third parties or is illegal, is excluded.

9.2 Technical malfunctions, maintenance and capacity restrictions

THREEMA shall not be liable for the temporary non-availability of the Service or for the failure of any or all of the features offered in relation to the Service. In particular, THREEMA shall not be liable for damages caused by software defects, hacker attacks or other problems caused via the Internet. Nor do such issues entitle the User to a reduction in payments to be made or to a reimbursement of payments already made.

9.3 Liability of the customer for breaches of contract; indemnification

The User shall be liable to THREEMA for any damage resulting from breaches of contract for which the User is at fault.

The User shall indemnify THREEMA against all third-party claims arising from the infringement of third-party rights in relation to the User-Content and shall compensate THREEMA for any and all further damages that may arise. In relation to THREEMA, the User assumes sole liability and all necessary and useful expenses, as well as the costs of defending against such claims in court and out of court (including court and reasonable attorney’s fees).

10. TERMINATION OF THE CONTRACTUAL RELATIONSHIP

10.1 Users may terminate the use of the Service by revoking the corresponding THREEMA-ID.

10.2 THREEMA may at any time terminate the Service it provides to a User if (i) the requirements of Section 6.3 are met; (ii) THREEMA discontinues the Service; or (iii) the User rejects the (amended) Terms of Use of THREEMA.

11. MISCELLANEOUS PROVISIONS

11.1 Transfer of rights or obligations to third parties

The parties may only transfer or pledge their rights and obligations under these Terms of Use to a third party with the prior written consent of the other party.

11.2 Severability

The nullity and/or invalidity of individual provisions of these Terms of Use shall not affect the validity of the remaining provisions. Any invalid or unenforceable provisions shall be replaced by provisions that best reflect the meaning and purpose of the invalid or unenforceable provisions in a commercially valid manner. The same shall apply to any gaps in the Terms of Use.

11.3 Amendment of the Terms of Use

THREEMA reserves the right to amend these Terms of Use at any time without stating reasons and to communicate the applicable version via a THREEMA-Client. The changes shall be deemed to have been accepted unless the User objects to them in writing within 10 days after notification or if the User continues to use the Services of THREEMA after communication.

11.4 Applicable law and jurisdiction

The contractual relationship between the User and THREEMA (including these Terms and Conditions of Use) shall be governed exclusively by Swiss law, without regard to the principles of conflicts of law.

Any and all disputes or claims arising from or in relation to the Service between the User and THREEMA, including its validity, breach or termination, shall be decided by the ordinary courts. The exclusive place of jurisdiction shall be Zurich. THREEMA reserves the right to take legal action against the User in any other competent court.

The foregoing is subject to any mandatory consumer-protection regulations.