Terms

Translation of the German version

General Terms and Conditions

for agreements between

You (either as a natural person or a juristic person) - in the following called „customer“ - and

messageconcept GmbH Gesellschaft für IT-Marketing, Grosse Witschgasse 17, 50676 Cologne, Germany - in the following called „provider“.

1. Scope, Definitions

The provider develops and markets software, and provides services in the areas of IT, marketing and distribution.

The provider and the customer conclude an agreement about the purchase of one or more software products, or about a maintenance agreement, or about other products or services.

The subject of the agreement is precisely defined in the provider‘s offer to the customer.

The customer declares that he acts as an entrepreneur. An entrepreneur is a natural person, or a juristic person, or a corporate body, who is performing business or self-employed professional activities when involved in legal acts.

 

2. License

If the customer purchases from the provider a software product manufactured by the provider, the provider grants the customer the timely unrestricted, non-exclusive right to use the licensed software product to the extent the purchased license model allows it.

The provider‘s license models provide for a licensing scheme based on the amount of servers, or on the amount of users, or on the amount of mail boxes, or on other criteria. Details are subject to the respective license model, chosen by the customer.

The copying and archiving of the software product solely for purposes of the customer‘s own data protection is allowed. All copyrights and other intellectual property rights of the software product, and of updates, documentation etc. remain with the provider.

The program or parts of it - with the exception laid down in the following paragraph 4 - may neither against payment nor free of charge be disseminated, licensed, rented, changed, translated, adapted or published. The software product or parts of it may not be disassembled, decompiled, or otherwise be retransformed into a general readable format. §§ 69d and 69e of the German Copyright Act, UrhG, remain unaffected.

If the customer acts as distributor, reseller, merchant, or other service provider, who distributes the software product to end users, the customer has to explicitly declare this in the course of the order process, and name the concrete end user as end-licensee. Provided for this, the customer has the right to assign the software product according to the applicable license model fully and permanently to the named end user. The customer instantly has to delete all copies of the software product from the used hardware including external data carriers. The end user has to declare his agreement to these license conditions.

 

3. Maintenance

If the customer concludes a maintenance agreement with the provider, maintenance fees are subject to relevant license model. The maintenance agreement includes software updates and support services.

In case updates of the software products are released during the term of the maintenance agreement, the provider delivers those updates free of charge to the customer. Though, there is no obligation of the provider to release software updates.

The provider delivers support services primarily through email services. The customer receives the respective contact details after the conclusion of the maintenance agreement. For regular maintenance customers, support services are free of charge.

 

4. Other Services, Consulting

Other provider services need to be paid separately by the customer and include in particular:

- Changes to software products that are not subject to maintenance services according to Number 3) of this agreement, in particular adjustment to new products and services and adaptation to customer related changes in his course of operations;

- Software adjustment to changed hardware and/or software surrounding of the customer, including new program versions (e.g. releases, updates/upgrades) of third party software used on the system;

- Clearance of malfunctions, which have occurred due to inappropriate system operation by the customer, an act of God, intervention of third parties, or other reasons not related to the provider;

- Other software adjustments, supplements, and enhancements on the customer‘s request;

- General consulting services, charged on the basis of hourly rates.

 

5. Fees and Payment

All provider fees are exclusive of the relevant German V.A.T. The customer needs to pay V.A.T. to the extent required by German law, in addition to the indicated provider fees.

The amount of provider fees is subject to the provider‘s offer to the customer. In his offer, the provider explicitly lists potential delivery fees, which need to be paid by the customer.

Provider fees are due for payment within 14 days after invoice issuing. Is the customer in default with the payment of provider fees, and a provider‘s reminder remains without effect, the customer is obliged to pay on the open debt an interest rate of 10% above the base rate, calculated from the date of default entry. The customer‘s obligation to pay default interest does not affect the provider‘s right to claim further default damages.

 

6. Term of the Agreement

The provider may terminate this agreement without previous notice, if the customer fails to comply with a relevant term of this agreement. In the event of termination, the customer must destroy the software product including all copies. In addition, the customer must remove all copies of the software from the server and all computers and terminals on which it is installed.

In case the customer concludes a maintenance agreement with the provider, this maintenance agreement has a preliminary duration period of one year, beginning with the day of the software purchase. If the maintenance agreement is not being terminated six weeks previous to the end of the one year period by either party, the agreement each time automatically extends to another one year period.

Term of contracts of other provider services is subject to the provider‘s offer to the customer. The right of both parties to terminate the contract for substantial cause remains unaffected.

 

7. Warranty

The warranty period is 12 months, beginning with the day of the software purchase.

The provider does not warrant that the software product can be operated free of error / fault independent from the hardware and software surroundings used by the customer. The customer, who chooses a license model without integrated maintenance services, must notify the provider about recognizable errors / faults in written form within a period of one week from receiving the software. Otherwise, the customer does not have any right to rise warranty claims.

The provider is otherwise liable for material defects according to the general German laws, in particular §§ 434 ff. of the German Civil Code (BGB).

A provider‘s guarantee only exists, if the provider explicitly included into his offer and defined such a guarantee with regard to a specific product.

The customer is not entitled to transfer his warranty rights to a third party.

 

8. Liability

The provider is liable for damages caused by the lack of given provider guarantees, and for damages caused by intention or gross negligence of the provider.

The provider is not liable for damages caused by slight negligence, with the exception of direct damages caused by a slightly negligent violation of essential core contract duties. In this case, the liability is limited to the amount of the purchase price for the customer‘s license. The provider is not liable for indirect damages or consequential damages (in particular loss of profit or loss of production) caused by negligence.

The provider is not liable for the reorganization or reconstruction of data, unless the provider caused its destruction by intention or gross negligence, and the customer made sure that the data can be reconstructed from data material in machine-readable form with justifiable effort.

The customer is aware of the fact that he is obliged to support damage minimization and must regularly conduct data back-ups and must take all available additional data protection measures in case of a suspected software error.

 

9. Data Processing Notices

In order to be able to carry out agreements with its customers, the provider collects customer data. With regard to the data collection, the provider adheres the applicable provisions of the German Data Protection Law (BDSG) and the Electronic Media Law (TMG). Without the customer‘s consent, the provider will only collect, process, or use customer data, if this is necessary in order to be able to carry out the agreement properly.

Without the customer‘s consent, the provider will not use customer data for purposes of advertising, marketing, or market research.

 

10. Final Provisions

German law applies to all agreements between the provider and the customer, under explicit exclusion of UN contract law.

Place of jurisdiction for all disputes arising from agreements between provider and customer is the domicile of the provider.

This agreement as a whole remains in effect even if single parts of it may turn out to be legally ineffective.

General terms and conditions of the customer are not applicable. The provider explicitly objects its application.

The original text of this agreement is in German language. In case of discrepancies between the German and the English version of this agreement, the German text shall prevail.

 

Edition: 2010-09-01

General Terms and Conditions of Business of cleverbridge AG and cleverbridge, Inc.

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