TV1 GmbH, Beta-Str. 9a, 85774 Unterföhring (“Licensor”) is one of the leading providers of online video solutions and offers its customers, among other things, the provision of video material as live streaming (“Streaming”) or video on demand (“VoD”) as well as a tool for online conferences (“Video.Taxi Studio”). The content is made available via the Video.Taxi platform (“Platform”). Optionally, in addition to these services, customers may agree with the Licensor on the provision of a media library, automatic or edited subtitling (for VoD and streaming), automatic translation of subtitles (VoD only) and/or the installation of payment barriers (pay per view). The offers of the Licensor are directed exclusively at business owners within the meaning of § 14 BGB (German Civil Code).
The Licensee makes use of the Licensor’s services and wishes to provide its customers (“Customers”) with video material (“Content”) via the platform and in a video player (“Player”).
The Licensor and the Licensee (jointly also “Parties” and individually also “Party”) have agreed on the use of the Platform in an online order form (“Order Form”). In addition to the provisions in the Order Form, the following “Terms of Use” (together with the Order Form “Agreement”) shall apply:
1. Subject Matter, Registration and Conclusion of the Contract
1.1 The subject matter of the contract shall be the services of the Licensor, agreed upon by the parties in the order form.
1.2 The scope of use agreed in the order form may be limited by the number and length of the content, the number of users, the quality of provision or other factors specified therein.
1.3 The Licensor shall make the content available for the maximum number of viewers agreed in the Order Form. If the maximum number of viewers is exceeded and the content is provided for more viewers, which the Licensor is not obligated to do, the Licensor shall not be liable for any disruptions caused by too many users accessing the content at the same time.
1.4 The Licensor shall provide support exclusively to the Licensee in accordance with the provision under 10. The Licensor shall not be obliged to answer direct inquiries from customers.
1.5 The Licensor may offer that use is free of charge during a test phase for a period agreed in the order form in accordance with the provisions under 11 (“Test Phase”).
1.6 The conclusion of the contract between the parties shall be governed by the following provisions:
1.6.1 The Licensee may initially register on the Licensor’s website by entering its company name, the name of the person who is performing the registration, its e-mail address, a password and a telephone number. After verification of the e-mail address in a double opt-in procedure, the licensee can register on the platform. Successful registration shall not give rise to any further obligations to perform on the part of the parties.
1.6.2 If the Licensee is registered in accordance with 1.6.1, it can book the services of the platform via the order form. The online information on the services of the Licensor and the provision of the order form do not constitute an offer within the meaning of Section 145 of the German Civil Code (BGB), but an invitation to submit an offer.
1.6.3 By sending the order form, the Contractor submits a binding offer. The contract shall be concluded by the release of the services agreed in the order form in the portal or a separate confirmation of the contract by the Licensor by e-mail.
2. Rights of Use
2.1 The Licensor grants the Licensee a worldwide, non-exclusive, non-transferable right, limited to the term of the Agreement, to use the Platform and the Player to publish its Content in accordance with the scope specified in the Order Form. The right of use is limited to the cloud-based use of the platform on the hardware provided by the Licensor for this purpose. The Licensee is also entitled to embed the Content via the Player or its own Player in any number of its own websites or the websites of third parties. The Licensee is only permitted to use the Content in social media or RTMP targets to the extent specified in the order form.
2.2 The Licensee shall comply with the scope of the license agreed in the order form. The Licensor may, at its own discretion, technically prevent an exceedance or permit it without restriction or make it dependent on an upgrade of the Services. If an exceedance is possible without booking an upgrade and if the Licensee exceeds the contractually agreed scope, the Licensor shall be entitled to pay an appropriate additional remuneration, which may be determined by the Licensor at its reasonable discretion, taking into account the agreed price, the scope of use booked and the extent of the exceedance. If an additional remuneration is not agreed there, an appropriate remuneration is to be paid, which is to be determined on the basis of the extent of the exceedance in relation to the agreed scope of use. If a scope of use is agreed for a certain period of time (“usage period”) (e.g. the number of livestreams per month), the unused services shall expire after the end of the usage period and cannot be carried over to the next usage period.
2.3 The Licensee is entitled to create accounts for its employees, subcontractors or customers through which they can provide and manage the Content (“Account Users”). The parties have agreed on the number of permitted accounts in the order form. If several main accounts are provided for therein, the Licensee may create separate accounts for separate Content (e.g. for several customers). The Licensee shall oblige the Account Users to choose a secure password and not to disclose their access data to third parties and to carefully protect them from access by third parties.
2.4 The Licensee acknowledges that the exclusive rights to the Platform, all technologies contained therein, and documentation made available are and shall remain with the Licensor. Nothing in this Agreement shall be construed as conferring any rights in the Platform or any part thereof on Licensee. All rights to the Platform not expressly granted to Licensee in this Agreement are reserved to Licensor.
2.5 The Licensee may not use the Platform for purposes other than those agreed in this Agreement and shall protect its access data from unauthorized access by third parties. Without limiting the generality of the foregoing, the Licensee shall not, in particular, (i) use the Platform or any part thereof for any purpose other than the provision of Content for its own business or its customers, (ii) allow third parties other than its employees, subcontractors or customers to use the Platform without the prior written consent of the Licensor and/or transfer its rights to use the Platform, (iii) modify, add to, alter or adapt the Platform, (iv) reverse engineer, decompile, translate, disassemble or disassemble any data formats forming part of the Platform and/or otherwise attempt to obtain the source code of the Platform or any part thereof (except as permitted under 2. 6); (v) make copies of the Platform; (vi) use the Platform to develop a competing product or service; (vii) disable, modify or circumvent any license management system or security mechanism provided with the Platform, (viii) access or use the Platform to provide data processing services to others; and/or (ix) remove, alter or conceal any proprietary or copyright notices, trademarks or other identifying marks of Licensor or any third-party rights holder.
2.6 The statutory rights of the Licensee pursuant to § 69d para. 2 and 3 and Section 69e of the German Copyright Act shall remain unaffected, provided, however, that (i) decompilation of the Platform pursuant to Section 69e of the German Copyright Act may only take place after prior written request to the Licensor in which the Licensee requests the required information and the Licensor does not provide the required information within two weeks, and (ii) the parties enter into an appropriate non-disclosure agreement which ensures the protection of the Platform and the source code from access by third parties.
2.7 The Licensor is only obligated to design the Platform in such a way that it works in the current version and the two previous versions of the popular browsers Firefox, Chrome, Safari (with the exception of Video.Taxi Studio) and Edge and with state-of-the-art hardware.
3. Content
3.1 The Licensee is solely responsible for the production and provision of the Content.
3.2 The Licensor is not obligated to check the Content with regard to technical suitability, quality requirements, viruses or possible infringements.
3.3 The Licensee shall monitor the provision of the Content and notify the Licensor of any disruptions in accordance with the provision under 9.4.
3.4 The Content shall comply with the scope agreed in the order form, in particular with regard to its length. If the scope is exceeded, the Licensee shall be obligated to pay reasonable additional remuneration, which may be determined by the Licensor at its reasonable discretion, taking into account the agreed price, the booked scope of use and the extent to which the scope is exceeded.
3.5 The Licensee grants the Licensor the non-exclusive, irrevocable, worldwide right to make the Content publicly accessible, to broadcast it and to make all necessary reproductions, distributions and adaptations. In particular, the Licensor is permitted to have subtitles of the Content created automatically or by employees or subcontractors (“Auxiliary Persons”) and to have translations made automatically or by Auxiliary Persons. Editing of the Content is otherwise only permitted if it is limited to technical changes and does not alter the Content. The provision under 3.9 remains unaffected.
3.6 The Licensor is entitled to transfer the rights granted under 3.5 to auxiliary persons who provide services in connection with offering the platform and the services of the Licensor.
3.7 The Licensee shall ensure that (i) it has all necessary rights granted to the Licensor under 3. 5, (ii) the Content does not contain any offensive, racist, adult, youth-endangering, violence-glorifying, sexist, pornographic, insulting or immoral content and does not violate any third-party rights or statutory provisions, in particular the intellectual property rights of third parties, (iii) the Content does not contain any viruses or other harmful components that may affect the Platform, the Licensor and/or the Users in any way. This applies worldwide, as a local limitation of the retrievability of the Content has not been agreed.
3.8 The Licensee grants the users of the Platform (“Platform Users”) the worldwide, non-exclusive right to access the Content and to make all necessary reproductions, distributions and adaptations.
3.9 If the Licensor has concrete indications that the Content (i) in whole or in part violates this Agreement and/or third-party rights and/or statutory provisions and/or (ii) contains viruses or may impair the Platform or the Licensor’s services in any other way, the Licensor shall be entitled to block or remove the Content. The Licensor shall inform the Licensee thereof without undue delay, stating the reasons. If the Licensee remedies the infringement, the Licensor shall release the Content again or enable a new upload. The agreed remuneration shall remain unaffected by a justified blocking or removal, as shall a right of the Licensor to extraordinary termination.
3.10 The Licensee alone is responsible for ensuring that all legal and official requirements are met and for obtaining any permits, licenses and approvals required for the publication of the Content. In particular, the Licensor will not and cannot check whether the offering of the Content requires a broadcasting license. The Licensor points out the possibility of applying for a clearance certificate from the relevant state media authority. Furthermore, the Licensee alone is responsible for ensuring compliance with any age requirements and other regulations for the protection of minors.
4. Access Restrictions
4.1 The Licensee shall decide for itself whether to make the Content available to any Platform User or to make it available in a protected area which only allows its customers to access after entering an access code (“Protected Area”). In the future, the Licensor may additionally provide that a protected area is only possible by means of a login to be assigned to the customers by the Licensee, but shall not be obliged to do so.
4.2 The Licensee shall be responsible for setting up the protected area.
4.3 If access is permitted with a login, the Licensee shall manage the accesses of its customers.
4.4 If access is permitted with access codes, the following provisions shall apply:
4.4.1 The Licensee is responsible for generating the access codes via the Platform itself.
4.4.2 The access codes must consist of 13 digits and/or capital letters and may not contain umlauts and special characters (example: 6P7J7-J5O8-46GV). The number of access codes generated may not exceed any number agreed upon in the Order Form. If the scope is exceeded, the Licensee shall be obliged to pay an appropriate additional remuneration, which may be determined by the Licensor at its reasonable discretion, taking into account the agreed price, the booked scope of use and the scope of the excess.
4.4.3 The access code may only function once in such a way that multiple users cannot start streaming at the same time by means of an access code. If an access code is used more than once, the first started streaming will be interrupted after some time. For a transitional period, multiple streaming based on the same access code may occur.
4.5 The Licensor is exclusively responsible for granting access to the Content only to those customers who have an access code provided by the Licensee or the corresponding login data. The Licensor is not obligated to perform any further verification of the Customer’s authorization (e.g., with regard to the Customer’s payment to the Licensee or the Customer’s age).
4.6 The Licensor may block access codes or login data at the request of the Licensee, but is not obliged to do so. In particular, the Licensor is not obligated to ensure that a retrieval of the Content started by a customer with an access code transmitted by the Licensee or after a successful login is subsequently interrupted.
4.7 The Licensor enables the Licensee to save the Content after the streaming time via a download link to be made available to the Licensee. The customer can set the period for which a download is possible after the broadcast. The Licensor will not provide a recording option for the platform users.
5. Streaming
5.1 If the provision of streaming is agreed in the order form, the following provisions shall apply.
5.2 The Licensee shall be solely responsible for the supply of the encoded signal. He shall set up and start the transmission of the signal on the platform himself. At the Licensee’s option, the Licensor will either provide Licensee with an RTMP ingest address through which the Licensee will deliver the signal, or the Licensee will provide an RTMP pull address on the Platform through which the Licensor will collect the signal.
5.3 The Licensor shall owe the provision of the live stream in the quality agreed in the Order Form at the time specified therein (“Streaming Time”).
5.4 The Licensee shall provide the signal in the required quality. The Licensor shall not be obliged to point out to the Licensee that the transmitted signal does not correspond to the maximum quality owed by the Licensor.
5.5 A retrievability or storage of the content beyond the streaming time is not subject matter of the streaming, but only owed if the provision of VoD is agreed.
5.6 The Licensor shall make the Content available at the time of streaming in such a way that the platform users can access it as agreed.
5.7 The Licensee may perform two independent test streamings via the platform prior to the streaming time and notify the Licensor in text form of any errors.
5.8 The Licensor shall additionally provide the Licensee with Video.Taxi Studio for conferences in accordance with the following provisions:
5.8.1 The content exchanged via Video.Taxi Studio shall be deemed content within the meaning of the provisions under 3.
5.8.2 Insofar as Video.Taxi Studio enables the recording of video conferences, which the Licensor is not obligated to do, the Licensee is solely responsible for ensuring that the recording does not infringe any third-party rights. The Licensee is aware that the recording of images and sound without the consent of the parties involved may constitute a criminal offense.
6. VoD
6.1 If the provision of VoD is agreed in the order form, the following provisions shall apply.
6.2 The Licensee shall independently upload to the Platform the Content that it will make available for viewing on the Platform.
6.3 If it is agreed in the order form that the Licensee will set up its own media library in which it will offer the Content, the Licensee shall be responsible for the set-up and design itself. The rules agreed for the content under 3.2 and 3.5 to 3.10 shall apply to the content (texts, images, etc.) that can be called up in addition to the content in the media library.
7. Subtitles
7.1 If the provision of subtitles is agreed in the Order Form, the following provisions shall apply.
7.2 The Licensor shall be obligated to generate the subtitles automatically on a software basis. Edited provision shall only be owed if this is expressly agreed in the order form and only in the case of VoD. The Licensee is aware that an automated subtitling may contain errors. Error-free subtitling is therefore not agreed.
7.3 If expressly agreed in addition in the Order Form, the Licensor shall additionally provide subtitles in translation in the languages agreed therein. This service is limited to VoD. Edited provision shall only be owed if this is expressly agreed in the order form. The Licensee is aware that an automated translation may contain errors. An error-free translation is therefore not agreed. ‘
7.4 The Client is aware that subtitling that is completely synchronous with the spoken word is not possible and that slight deviations may occur.
8. Payment Systems
8.1 Unless otherwise agreed in the Order Form, the Licensor is not obligated to make Content accessible only behind a payment barrier. This also applies if the content is made available in a protected area. The Licensee is, however, entitled to provide its customers with access codes or login data only against payment. The Licensee shall be solely responsible for the processing of such payment. The Licensor shall not be subject to any obligations in this respect.
8.2 If agreed in the order form, the Licensor shall provide the option of making content accessible only against individual payment (pay per view). The Licensee shall be responsible for setting up the pay barrier. After payment, the customer receives access to the content and also an access code by e-mail, which they can then use to log in again after an interruption. The payment is processed by a payment service provider.
9. Verfügbarkeit und Support
9.1 The Licensor guarantees that the Content is available on the platform in the form provided by the Licensee. The Parties are aware that for various reasons the retrieval of the Content may not run smoothly for a short period of time and that short and sporadic interruptions, irrespective of their cause, do not constitute a defective performance on the part of the Licensor.
9.2 The Platform shall be available for an average of 98% of the calendar year (“Availability Time”), provided that the Platform is used in the contractually agreed sense.
9.3 Availability shall be calculated by subtracting the downtime that does not count as availability time according to 9.6 (“Downtime”) from the maximum possible availability time (“Availability Max.”), dividing by the Availability Max. and multiplying by 100. This results in the following formula: (Availability Max. – Downtime) divided by (Availability Max. × 100)
9.4 The Licensee shall notify the Licensor without undue delay of any downtime not caused by announced maintenance work.
9.5 The Licensor shall be entitled to carry out regular maintenance work, but shall try to keep interruptions to a minimum. The Licensor shall inform the Licensee at least one week before the work is to begin. In urgent cases, for example to eliminate security vulnerabilities, the Licensor may shorten the notice period or, if not otherwise possible, start the maintenance work without prior notice. If prior notice is not possible, Licensee shall be informed immediately after the work has begun.
9.6 The availability time shall not include downtimes resulting from
9.6.1 announced maintenance work,
9.6.2 unforeseeable, urgent maintenance work, e.g., to eliminate security vulnerabilities,
9.6.3 force majeure or other events beyond the Licensor’s control which could not have been foreseen and prevented by the Licensor, in particular strikes, lockouts, special weather conditions, power failures, traffic disruptions or pandemics (“Force Majeure”),
9.6.4 third parties that are not subcontractors of the Licensor,
9.6.5 software or hardware used by Licensee or its customers and platform users or a faulty internet connection,
9.6.6 Content not properly provided by the Licensee,
9.6.7 a landing page of Licensee that is inaccessible or malfunctioning,
9.6.8 a failure to perform tests on a Streaming, to the extent that the disruption could have been prevented by a prior test and appropriate reporting of errors to the Licensor,
9.6.9 inadmissible and therefore removed or blocked Content,
9.6.10 a failure to notify the Licensee of a malfunction in a timely manner, or a failure or delay in cooperation on the part of the Licensee,
9.6.11 exceeding the agreed number of viewers,
9.6.12 incorrect access codes or login data transmitted by the Licensee.
9.7 The Licensor shall not be responsible for any disruptions under the provisions of 9.6. The Licensor may nevertheless endeavor to cooperate in the elimination of the malfunction to the extent reasonable and appropriate, but shall not be obligated to do so.
10. Support and Maintenance
10.1 The Licensor shall provide support services by telephone and e-mail from Monday to Friday between 09:00 and 17:00 (“Service Hours”).
10.2 The support services shall only cover questions regarding the use of the platform. The Licensee may order further support services at the hourly rate specified in the order form, in particular with regard to support in connection with pre-settings of the Licensee.
10.3 Unless otherwise agreed in the order form, the Licensor provides a response time of 48 hours during the service time. Times outside the service time shall not be included.
10.4 The following services are not covered by the support:
10.4.1 services outside the agreed service time,
10.4.2 services with regard to the content and malfunctions related to the software or hardware used by the Licensee or the Users or the Internet connection,
10.4.3 services that become necessary because the Licensee fails to comply with its obligations to cooperate,
10.5 The Licensor shall be entitled, but not obliged, to update the platform. Warranty claims shall remain unaffected.
11. Test Phase
11.1 If the parties have agreed on a test phase, the contract shall come into effect with the scope of services agreed on in the order form without the Licensee owing any remuneration for this.
11.2 The scope of services during the test phase shall be based on the scope of services selected by the Licensee in the order form, which shall then also be deemed to have been agreed in the event of a transition from the test phase to the contract term pursuant to 11.5. The Licensor may provide for further restrictions within the test phase which result from the order form.
11.3 During the test phase, the Licensor and persons for whose fault the Licensor is responsible in accordance with the statutory provisions, unless liability under the Product Liability Act applies, shall be liable exclusively
11.3.1 in the event of intent and gross negligence (§ 599 BGB),
11.3.2 if the Licensor has fraudulently concealed a defect (§ 600 BGB), and
11.3.3 in the event of slight negligence in the case of injury to life, body or health.
11.4 The Licensee shall be entitled to take advantage of a test phase for the respective services only once in each case. If the Licensee makes use of a test phase again (e.g., by registering with different registration data), it shall be obliged to pay the remuneration agreed for the period after the test phase also for the test phase.
11.5 The Licensee may terminate the test phase on the platform on the penultimate day of the test phase at the latest. If he does not do so, the term of the agreement shall begin in accordance with 12.1 and the agreed remuneration shall be paid.
11.6 Unless otherwise agreed, the provisions of the Agreement shall apply during the test phase.
12. Term and Termination
12.1 The contract shall commence on the date agreed in the order form and shall have an indefinite term (“contract term”). If an annual remuneration is agreed, the contract may be terminated with one month’s notice to the end of each contractual year; if a monthly remuneration is agreed, the contract may be terminated with one month’s notice to the end of the next contractual month. A contract year begins on the day the contract is concluded and ends one day earlier in the following year, a contract month begins on the day the contract is concluded and ends one day earlier in the following month. This applies accordingly to the following years. If a test phase has been agreed and the contract is not terminated at the end of this phase in accordance with 11.4, the contract term shall begin on the first day after the end of the test phase. Termination with a different period of notice, also and in particular in accordance with § 627 BGB or § 648 BGB, is excluded.
12.2 The right of the parties to terminate the contract extraordinarily for good cause shall remain unaffected. § 543 para. 2 no. 1 BGB shall not apply.
12.3 Upon termination of this Agreement, the Licensee shall immediately cease using the platform. The Licensor shall be entitled to delete all Content immediately after termination of the Agreement.
12.4 The right of the parties to extraordinary termination shall remain unaffected.
12.5 The termination must be in writing.
13. Remuneration and Payment Methods
13.1 The Licensee shall pay the Licensor the remuneration agreed in the order form for the provision of the Services.
13.2 All amounts stated in the order form are exclusive of the applicable statutory value added tax.
13.3 The Licensor currently offers credit card payment and PayPal as payment methods. The processing is carried out via a payment service provider. The Licensor may offer additional payment methods at any time. If the Licensor offers payment on account, the activation of the Services on the platform is dependent upon the receipt of the agreed payment for the term of the agreement. If a test phase has been agreed, the activation of the services for the contract period shall be dependent upon the receipt of the agreed payment for the contract period. The Licensor may also make the conclusion of the contract dependent upon a review of the Licensee. In this case, the contract may be confirmed in accordance with 1.6 after the verification.
13.4 The remuneration shall be paid monthly in the case of a monthly contract and annually in the case of an annual contract (in each case “remuneration period”). Payment shall be due in advance at the beginning of the remuneration period.
14. Liability and Indemnification
14.1 The liability of the Licensor for payment of damages and reimbursement of expenses shall be excluded unless otherwise provided for in the following provisions.
14.2 The exclusion of liability shall not apply to damage caused by culpable breach of a material contractual obligation in a manner that jeopardizes the achievement of the purpose of the contract. Material contractual obligations are obligations the fulfillment of which makes the proper performance of the contract possible in the first place and the observance of which the contractual partner regularly relies on and may rely on. However, liability shall be limited to the damage typical for this type of contract, the occurrence of which each contracting party had to expect on the basis of the circumstances known to it at that time. With regard to this typical contractual damage, the liability of the Licensor for property damage and further financial losses resulting therefrom shall be limited to an amount of EUR 50,000.00 per case of damage.
14.3 Furthermore, the exclusion of liability shall not apply to damages resulting from injury to life, body or health caused by a negligent breach of duty by the Licensor or to damages caused by an intentional or grossly negligent breach of duty by the Licensor.
14.4 Insofar as the liability of the Licensor is excluded or limited, this shall also apply to the liability of its legal representatives, employees and vicarious agents.
14.5 If the Licensor has given a guarantee, the content of this guarantee shall not be affected by the above limitation of liability.
14.6 Any liability under the Product Liability Act shall remain unaffected.
14.7 If claims are asserted against the Licensor by third parties or public authorities because the Content infringes their rights and/or statutory provisions, also and in particular in the event of an infringement of broadcasting or data protection regulations, the Licensee shall indemnify the Licensor against such claims and reimburse the Licensor for the costs of a reasonable legal defense.
14.8 The Licensee shall be responsible for the actions of its employees, account users and customers as for its own actions.
15. Warranty
15.1 The statutory warranty provisions shall apply with the exception that the Licensor shall not be liable, regardless of fault, for damage that already existed at the time the platform was provided (Section 536a (1) of the German Civil Code) and the Customer’s right to remedy defects itself is excluded (Section 536a (2) of the German Civil Code).
15.2 The Licensor’s warranty shall not apply in the event of defects based on one of the circumstances listed under 9.6.
15.3 The Licensee shall immediately notify the Licensor in text form of any defects of the Platform in a manner that enables the Licensor to reproduce the defect. The Licensor shall not be liable for any damage incurred by the Licensee due to a delay in reporting a defect.
15.4 In the event of a defect, the Licensor shall be entitled to rectify the defect twice before the Licensee is entitled to any further rights.
16. Force Majeure
If the Licensor is unable to perform or to perform on time due to force majeure or unforeseeable events for which it is not responsible, regardless of whether these events occur at the Licensor or its auxiliary persons, the Licensor shall be entitled to postpone performance for the duration of the impediment plus a reasonable start-up period or to withdraw from the contract in whole or in part - insofar as the impediment persists for an unforeseeable period of time.
17. Limitation
All claims arising from and in connection with this Agreement against the Licensor and/or its auxiliary persons, in particular claims for defects, claims for damages or claims for reimbursement of expenses, shall become statute-barred after one year, irrespective of whether they are contractual or statutory claims. The commencement of the limitation period shall be governed by the statutory provisions. The limitation period shall not apply in cases of (i) intent, (ii) gross negligence, (iii) breach of a material obligation within the meaning of 14.2, (iv) personal injury, (v) liability under the Product Liability Act and (vi) fraudulent concealment of a defect. The Licensee’s right to rectify defects shall remain unaffected during the term of this Agreement.
18. Non-disclosure
18.1 Each Party (“Receiving Party”) shall keep confidential the information of the other Party (“Disclosing Party”) of which it becomes aware in the course of the pre-contractual and contractual cooperation and which (i) has an economic value and (ii) is marked as confidential or the confidentiality of which results from the nature of the information or the type of disclosure, in particular technical specifications, customer relations, business ideas and know-how, and the content of this Agreement (“Confidential Information”), shall be kept confidential, shall not be used for purposes other than the performance of this Agreement, shall not be disclosed to third parties and shall be adequately protected against unauthorized disclosure by third parties.
18.2 The Receiving Party undertakes in particular,
18.2.1 to provide for confidentiality measures as for its own Confidential Information, but in no case less stringent than those corresponding to an appropriate market standard and the state of the art,
18.2.2 keep all documents and materials containing Confidential Information separate from all other documents, materials and records and in such a manner that they are identifiable as trade and business secrets of the Disclosing Party and are protected against theft and unauthorized access,
18.2.3 not to make copies of the Confidential Information unless this is necessary for the performance of this Agreement; and
18.2.4 to notify the Disclosing Party immediately upon becoming aware of any actual or threatened unauthorized use or disclosure of Confidential Information and to take all reasonable steps to prevent or stop such use or disclosure, if necessary with the assistance of the Disclosing Party.
18.3 Confidential Information shall not include information:
18.3.1 which the Receiving Party proves is publicly known,
18.3.2 for which the Disclosing Party has waived its protection in writing,
18.3.3 the Receiving Party has obtained by means other than cooperation with the Disclosing Party, without being subject to any obligation of confidentiality,
18.3.4 the Receiving Party has obtained by observing, examining, deconstructing or testing a product or item that has been made publicly available; or
18.3.5 the Receiving Party is under a legal, judicial or regulatory obligation to disclose. In such case, the Disclosing Party shall be notified of the disclosure as soon as and to the extent permitted by law without undue delay.
18.4 The Receiving Party may only provide the Confidential Information to employees and subcontractors to the extent necessary for the performance of this Agreement and to the extent that such employees and subcontractors are bound to confidentiality at least in a manner consistent with this Agreement.
18.5 The non-disclosure agreement shall survive the end of the cooperation of the parties by three years.
18.6 Upon termination of this Agreement, the Parties shall immediately return to the Disclosing Party all documents and electronic records containing confidential information or, if so requested by the Disclosing Party in text form, delete them. The deletion shall be confirmed in writing upon request of the disclosing party.
19. Data Protection
19.1 The parties undertake to comply with data protection regulations. Should it become apparent that data protection measures not provided for in this Agreement are necessary or that additional agreements must be concluded, these parties shall implement the necessary measures in good faith. If the additional effort for the Licensor is not only insignificant, the Licensee shall be obliged to remunerate the additional effort at the hourly rate regulated in the order form for supplementary support services.
19.2 The Licensor shall process personal data of the Customers and Platform Users. The parties have therefore separately concluded a contract for order processing.
20. Export
The Licensee agrees to comply with all applicable export regulations, embargoes and sanctions, including but not limited to those of the United States of America and the United Kingdom (“Export Laws”), and will not offer or provide Services through the Platform in any country subject to applicable economic sanctions or other trade controls unless the Licensee has obtained an exemption. The Licensee represents and warrants that it will not (i) use the Platform in violation of any Export Laws, (ii) use the Platform for any purpose prohibited by Export Laws, or (iii) provide Services to any person/entity not authorized to use the Platform. The Licensor shall have the right, but not the obligation, to conduct any necessary reviews of Export Laws, and the Licensee shall promptly provide the Licensor with all necessary information upon request. The Licensee agrees to indemnify and hold the Licensor harmless from and against any and all claims, actions, damages, fines and costs related in any way to the Licensee’s failure to comply with export laws.
21. Final Provisions
21.1 Amendments must be made in writing. This shall also apply to any amendment of this written form requirement.
21.2 The Licensee shall be entitled to set-off or retention only in the case of undisputed or legally established claims.
21.3 The contractual relationship between the parties shall be governed exclusively by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
21.4 Place of performance and exclusive place of jurisdiction shall be Munich.
21.5 Should individual provisions of this contract be or become invalid, this shall not affect the validity of the remaining provisions. In place of an invalid provision, that provision shall be deemed agreed which comes as close as possible to the intended purpose. This shall also apply in the event of gaps in the contract.
Status of these terms of use: September 29th, 2022