GENERAL TERMS AND CONDITIONS

1. Subject to further specifications in the relevant quotation or any written agreement between the Parties, upon Activation, Ventuz shall provide Maintenance for Contract Software to Customer (i) with regard to a Software Purchase, during the first year upon Activation and, if mutually agreed at least by email, thereafter, or (ii) with regard to a Software Subscription, during each time period that the Subscription Fee has been paid for in advance. The maintenance services for Contract Software that Ventuz offers are limited to:
   (a)     bugfixes, code corrections and patches of the Contract Software (all together: Updates),
   (b)     enhancements, new technologies, extensions, general enhancements and/or modifications to the Contract Software (all together: Releases), such Releases only to be provided at Ventuz’ sole discretion,
   (c)      an online knowledge base of information,
   (d)     a community support forum where customers, partners, and other users of Ventuz software products can share information and ideas about how to use the software, (lit. (a)-(d) all together: Maintenance).
2. Updates serve to ensure the functionality of the Contract Software on a permanent basis as well as to continuously improve it. In the case of a Software Subscription Ventuz will inform Customer about available Updates and will perform such Updates at the request of Customer. If Customer does not regularly perform Updates, this may lead to an impairment of the functionality of the Contract Software.
3. Unless the relevant quotation specifically provides otherwise, Ventuz owes no further services under this License Agreement. In particular, under this License Agreement, Ventuz is neither obligated to render installation, implementation, setup, consulting, adjustment and/or training services nor to create and deliver individual programming and/or additional programs. If, however, Customer and Ventuz agree on such additional services, Customer shall (i) in exchange for the provision of these additional services pay to Ventuz the applicable fees and expenses, including without limitation any cancellation fee for cancelled or postponed services, as well as any taxes, if any, required to be paid by Ventuz in respect of fees for such services, (ii) reimburse Ventuz for reasonable travel expenses (even where the destination is within the same city) and any other reasonable disbursements incurred as a result of business travel in connection with such additional services, and (iii) reimburse Ventuz for any reasonable out-of-pocket expenses incurred in the provision of such additional services, including, but not limited to telecommunication expenses and other office related expenses. With regard to Ventuz’ liability for such additional services, § 11 of these General Terms and Conditions applies.
4. The Maintenance will always relate to the Contract Software in its entirety, provided that Ventuz offers services for it.
5. Maintenance does not include maintenance services for (i) software that is used on or in conjunction with hardware or software other than as further specified, (ii) customized, altered or modified software, (iii) defects in the Contract Software due to accidents, hardware malfunction, abuse or improper use, (iv) any version of the Contract Software for which Maintenance has been discontinued by Ventuz, (v) any on-site services or remote access services (unless Ventuz requests remote access to assist Ventuz in understanding an issue), (vi) assistance in developing user-specific customizations, (vii) assistance with installation or configuration of hardware, including computers, hard drives, networks or printers, (viii) assistance with non-Ventuz products, services or technologies, including implementation, administration or use of third-party enabling technologies such as databases, computer networks or communications systems.

§ 8 Renumeration

§ 9 Delivery and transfer of risk

1. Unless otherwise agreed, Customer will be provided with one (1) copy of the relevant version of the Contract Software current at the time of shipment.
2. Ventuz will deliver to the Customer the Contract Software by making it available for download (Electronic Delivery). Ventuz may supply a Dongle to the delivery address. Customer shall pay the costs for shipping and packaging of the Dongle. The Dongle itself does not contain the Contract Software but merely a license-registration code.
3. Delivery of any purchased hardware is deemed effected at the time Ventuz passes the hardware to the forwarding agent; Electronic delivery is deemed effected at the time Ventuz makes the Contract Software available for download and with regard to the delivery of the Dongle at the time Ventuz passes the Dongle to the supplier. The risk transfers to Customer at the time of such delivery.
4. In case of a Software Subscription, if requested by Customer, Ventuz may, in Ventuz’ sole discretion, transfer Customer’s Subscription to a Dongle at Customer’s costs and in accordance with the provisions above. Notwithstanding the foregoing and for the avoidance of doubt, such transfer shall not change the nature of the Software Subscription.

§ 10 Rights in case of defects

1. The Contract Software and/or the hardware provided by Ventuz is programmed essentially to correspond with the specifications. Minor or insignificant deviation from the agreed or assumed quality as well as minor impairments of use shall not be deemed material or legal defects and, therefore, do not give rise to any rights for Customer. Accordingly, specifications do in general not amount to warranties unless a warranty is provided separately in writing. In particular, with respect to Updates, Releases or any other supply of new upgrades or new versions, Customer’s rights in the event of defects are limited to the new functions of such Update, Release, upgrade or new version as compared to the previous one.
2. Customer shall report defects in writing, providing a comprehensible description of the symptoms and documenting such symptoms to the extent possible with written records, print-outs or other documents attesting to the underlying defects. Reports of this nature should allow the defect to be reproduced. Customer’s statutory duty to examine goods and report defects is not affected thereby.
3. In the event that Customer demands supplementary performance (Nacherfüllung) on account of a defect, it is in Ventuz’ discretion to choose the way of supplementary performance (repair, subsequent delivery or replacement). In case Ventuz has not been able to remedy a defect within a first period, and Customer grants Ventuz a grace period, within which Ventuz is unable to remedy the defect, or Ventuz has failed to remedy the defect in an adequate number of attempts, subsequent delivery or replacement is deemed unsuccessful; in such cases, Customer may, at its option, rescind this License Agreement subject to applicable legal provisions or reduce the purchase price and demand to be reimbursed for damages or expenditures incurred.
4. If the defect only relates to hardware delivered by Ventuz, Customer is not entitled to rescind the License Agreement in its entirety but only relating to such hardware.
5. If the Dongle needs to be replaced due to loss or defect, Customer shall pay the applicable replacement fees and shipping costs as indicated in the then-current price list. Ventuz is not responsible and will not give any refund for the time during which the Contract Software could not be used due to loss or defect of the Dongle.
6. Customer cannot terminate or rescind the License Agreement on account of Ventuz’ non-performance or under-performance if Customer has contributed to the defect, such contribution not being insignificant.
7. In the event that Ventuz renders services to assess or remedy defects without being obligated to do so under this License Agreement, Ventuz shall be compensated by Customer at the usual rates. This applies in particular if there is no evidence of a defect or if a defect is not attributable to Ventuz.
8. Customer’s rights in cases of defects expire after twelve (12) months, such period of limitation commencing upon Electronic Delivery of the Contract Software, including manuals. In cases of Ventuz’ intentional misconduct or gross negligence, the fraudulent concealment of a defect, injuries to life, body or health or legal defects as well as for warranties, the statute of limitations applies.

§ 11 Liability

1. Under this License Agreement, Ventuz is liable only pursuant to the provisions of this § 11 Sections 2-8.
2. In all cases of contractual and extra-contractual liability, Ventuz only pays damages (Schadensersatz) or covers expenditures made in vain (Ersatz vergeblicher Aufwendungen):
   (a)        in cases of intentional misconduct and the absence of a quality guaranteed by Ventuz (Beschaffenheitsgarantie), in the full amount;
   (b)       in cases of gross negligence, only in the amount of typical foreseeable damages that the duty breached was intended to prevent; however, such limitation does not apply if and to the extent that the damages were caused by Ventuz’ legal representatives or senior staff or resulted from the violation of an obligation essential to this License Agreement (Cardinal Obligation”). Cardinal Obligations are fundamental obligations, which form the core of this License Agreement, which were instrumental in bringing about its execution and on the fulfillment of which Customer may rely; in cases of simple negligence, only in reference to the violation of a Cardinal Obligation, provided that the object of this License Agreement is placed in jeopardy, and only in the amount of typical foreseeable damages that the duty that was breached was intended to prevent, but always limited to the lower of (1) EUR 50,000 per damaging event, up to EUR 250,000 in total, or (2) the amount paid to Ventuz under this License Agreement.
   (c)       Ventuz shall apply the diligence customary to its business (branchenübliche Sorgfalt). When determining whether Ventuz is at fault, the Parties acknowledge that no software can be created entirely free from technical error.
3. The right to assert contributory negligence (Mitverschuldenseinwand) is not affected.
4. Ventuz is liable for damages caused by intentional misconduct or gross negligence on the part of Ventuz, its legal representatives or senior staff, as well as for damages deliberately caused by other (vicarious) agents; with respect to gross negligence of other (vicarious) agents, Ventuz liability is subject to the provisions governing basic negligence in § 11 Section 2(c).
5. Ventuz is liable to an unlimited extent for damages from injuries to life, body or health caused by the intentional misconduct or negligence of Ventuz, its legal representatives or (vicarious) agents.
6. Ventuz is liable for damages resulting from the absence of assured qualities (zugesicherte Eigenschaften) up to the amount that is covered by the purpose of such assurance and which Ventuz could foresee at the time of the assurance.
7. In cases of product liability, Ventuz is liable in accordance with the German Product Liability Act (Produkthaftungsgesetz – ProdHaftG).
8. Any further liability on Ventuz’ part is excluded.

§ 12 Confidentiality

§ 13 Term and termination

1. If the Parties have concluded a Software Purchase, neither Party may terminate this License Agreement without cause.
2. If the Parties have concluded a Software Subscription, the Parties agree on the following:
   (a)         subject to the provisions of the quotation or any individual written agreement between the Parties, the Software Subscription has a fixed term of one (1), three (3), six (6), or twelve (12) months and shall thereafter be automatically renewed by successive periods of the agreed fixed term each; and
   (b)         each Party may terminate the License Agreement in writing without notice by the end of the relevant fixed period and according to the terms set forth in the relevant quotation or these General Terms and Conditions.
3. In case of termination, the License automatically falls back to Ventuz, Ventuz’ obligation for further Maintenance, Customer’s obligations to further pay the License Fee(s) and the Maintenance Fee shall terminate. In case of a Software Subscription, Customer will lose access to any functionality, content or service that requires a Software Subscription.
4. Subject to the terms set forth in the relevant quotation, if, in addition to the License, the Parties have agreed on the provision of Maintenance and in case such Maintenance would otherwise renew automatically, such Maintenance may be terminated at each anniversary of the Activation with thirty (30) days prior written notice, in which case Ventuz’ obligation for Maintenance and Customer’s obligation to pay the Maintenance Fee shall terminate. For the avoidance of doubt, where the Parties have agreed on a Software Subscription, such Maintenance cannot be terminated separately.
5. Regardless of the conclusion of a Software Purchase or a Software Subscription, each Party may terminate the License Agreement for material breach by the other Party. A Party is in material breach of contract when it gravely violates the provisions of this License Agreement, and such violation is not remedied even after the other Party has specifically so demanded in writing.
6. Ventuz is specifically entitled to terminate for material breach if Customer is in default with respect to the payment of contractually owed fees, or if Customer fails to fulfill its obligation even after an adequate grace period was set – unless it raises a justified objection against the underlying payment claim. This also applies in the event that Customer becomes insolvent during the term of the License Agreement, or is at risk of becoming insolvent or over indebted, or in the event that Customer persists with, does not immediately discontinue or fails to remedy within 30 days a significant breach of contract despite Ventuz’ written notice. Ventuz may further terminate the License Agreement for cause if Customer breaches significant duties of cooperation, thus placing the object hereof in jeopardy or, if, due to export/import restrictions or embargoes, Ventuz has a legitimate interest in terminating the contract.
7. If Ventuz terminates the Software Purchase for material breach, the License automatically falls back to Ventuz, Ventuz’ obligation for further Maintenance and Customer’s obligation to further pay the Maintenance Fee shall terminate. If Customer terminates the Software Purchase for material breach by Ventuz, Ventuz’ obligation for further Maintenance and Customer’s obligation to further pay the Maintenance Fee shall terminate. If Customer terminates the Software Subscription for material breach by Ventuz, the License automatically falls back to Ventuz, Ventuz’ obligation for further Maintenance, Customer’s obligations to further pay the License Fee(s) and the Maintenance Fee shall terminate.
8. Upon any termination of the License hereunder (e.g. by rescission, end of agreed license term or termination), Customer shall immediately cease use of the Contract Software and Confidential Information.
9. Within one (1) month after any termination of the License, Customer shall irretrievably destroy or upon Ventuz’ request deliver to Ventuz all copies of Contract Software and Confidential Information in every form, except to the extent it is legally required to keep it for a longer period in which case such return or destruction shall occur at the end of such period. Customer must certify to Ventuz in writing that it and its affiliates have satisfied the obligations under this section.

§ 14 Data protection

1. In some cases, Ventuz processes data regarding the use of its software. However, Ventuz does not collect data about the content generated or edited with the software but merely meta data, which are only used to improve Ventuz’ products and services. In some cases this data may contain personal data in the sense of the EU General Data Protection Regulation (GDPR). Specific contents of Customer are only processed if Customer expressly consents to such data processing. Ventuz provides more information about the processing of personal data in its Privacy Policy which can be found here: www.ventuz.com/privacypolicy.

§ 15 Miscellaneous

1. Without the written consent of Ventuz, Customer shall not be entitled to assign any rights or claims arising from or in connection with this License Agreement to any third party.
2. Customer may only exercise the right to set-off with respect to undisputed claims or those that have been legally established.
3. Customer may only exercise a right of retention with respect to undisputed claims or those that have been legally established.
4. Any amendment, change, modification or adjustment of the terms of this License Agreement, including this written-form requirement, shall be made in writing and signed by the Parties’ authorized representatives.
5. In the event that a provision of these General Terms and Conditions, or any part thereof, is found to be invalid or otherwise unenforceable, the remaining provisions hereof continue in full force and effect, and the Parties will agree to replace the ineffective or unenforceable provision with such appropriate one that comes closest to what the Parties would have wanted at the time of the execution hereof had they been aware of such ineffectiveness or unenforceability; the same applies in cases in which this License Agreement are found to contain a gap.
6. The Agreement will be governed by and construed in accordance with German law, without giving effect to any choice of law or conflict of laws provision. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply to this Agreement.
7. Each Party irrevocably agrees to submit to the exclusive jurisdiction of German courts with respect to all claims or matters arising from or in connection with this License Agreement or the legal relationships established by this License Agreement. The exclusive legal venue for all disputes arising between the Parties from or in connection with the License Agreement and its implementation is Hamburg, Germany.
8. Neither Party is liable for the untimely, incomplete or absent fulfillment of its contractual obligations if and to the extent that performance is evidently beyond its control, including but not limited to cases of Force Majeure, fire, flood, weather, illness, strike or lock-out, labor unrest, plant closure, embargo, war, accidents, acts of war (whether or not war is actually declared), hostilities or civil unrest, terrorist acts, transportation defects, loss or malfunctions of utilities, communications or computer (software and hardware) services, government action or power outage, provided that the Party in question uses reasonable efforts to comply with the terms of this License Agreement as soon as practicable. A Party asserting a Force Majeure Event will notify the other Party promptly, giving an indication of the likely extent and duration of such Force Majeure Event.
9. Insofar as either Party’s release pursuant to Section 8 above concerns its principal obligations, the other Party is likewise relieved from its principal obligations for such period of time.