IMPORTANT: PLEASE READ THIS SOFTWARE SERVICE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE COMINDWARE ON-LINE SERVICE (HEREINAFTER REFERRED TO AS THE “SERVICE”). COMINDWARE LTD. (HEREINAFTER REFERRED TO AS “COMINDWARE”) IS WILLING TO PROVIDE THE SERVICES TO YOU AS AN INDIVIDUAL OR LEGAL ENTITY (HEREINAFTER REFERRED TO AS “LICENSEE”) THAT WILL BE UTILIZING THE SERVICE ONLY ON THE CONDITION THAT YOU ACCEPT AND ABIDE BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. BEFORE INSTALLING AND USING THE SOFTWARE OR UTILIZING THE SERVICE YOU SHOULD CAREFULLY READ THIS AGREEMENT AND YOU MUST SELECT “I ACCEPT” OR “I AGREE” IF YOU FULLY ACCEPT AND AGREE TO ALL OF THE PROVISIONS OF THIS AGREEMENT.
Section 1 - Object of the Agreement; Licensed Software
The object of this Agreement is the making available of the software specified in Licensee’s order to which this Agreement refers (hereinafter referred to as “Order”) for Licensee’s use through an internet connection. Such software together with any copies, revisions, modifications, updates, upgrades or enhancements thereto, as may be made available from time to time by Comindware to Licensee under this Agreement, shall hereinafter be referred to as “Licensed Software”. Together with granting access to Licensed Software Comindware intends to make available to Licensee certain virtual storage space for Licensee to store data (hereinafter referred to as “Licensee Content”) in connection with Licensee’s use of the Licensed Software (hereinafter referred to as “Storage Space”). The making available of Licensed Software and of Storage Space in accordance with this Agreement shall hereinafter be referred to as “Service(s)”.
Section 2 – Making Available of Licensed Software
(1) Subject to an average of 99.0 % network availability during one (1) calendar year as defined in sub-section (2) below (hereinafter referred to as “Annual Uptime Percentage”), Comindware shall make available to Licensee the Licensed Software on a server operated by Comindware or a third party authorized by Comindware to host the Licensed Software (hereinafter referred to as “Server”). Comindware may at any time amend, modify, update or upgrade the Licensed Software, provided the implementation of such new version is reasonable and takes due account of Licensee’s interests.
(2) The Annual Uptime Percentage is calculated by subtracting from 100% the percentage of 5 minute periods during one calendar year in which Licensee’s running instances have no external connectivity and Licensee is unable to launch replacement instances. If in a given calendar year Licensee has been using Licensed Software for less than 365 days, the Annual Uptime Percentage shall be calculated pro rata temporis. Annual Uptime Percentage measurements exclude downtime resulting from one of the following events:
(3) Comindware does not owe to Licensee the installation or maintenance of an internet connection from Licensee’s computer to the exchange node operated and designated by Comindware or its contractors. Subject to reasonable prior notice to Licensee, Comindware or its contractors may change such exchange node at any time.
Section 3 – License Terms; Subscriptions
(1) Subject to the terms and conditions of this Agreement and the Comindware Terms of Services and End User License Agreement (hereinafter referred to as “EULA”), Comindware hereby grants to Licensee a non-exclusive, non transferable license to use the Licensed Software on the Server designated by Comindware (hereinafter referred to as “License”). Notwithstanding the above, Licensee shall accept the EULA during the registration process prior to utilizing the Licensed Software. A copy of the EULA is available at http://www.comindware.com/support/request/ . In the event of a conflict between the provisions of this Agreement and the EULA, the terms and conditions of this Agreement shall control.
(2) If not terminated earlier in accordance with this Agreement, the duration of the License shall begin on the date the Licensed Software is activated, and shall continue for the period of time set forth in the Order or until the end of any subsequent renewal period, as applicable (hereinafter referred to as “Active Subscription Period(s)”). Comindware will take reasonable effort to notify Licensee of the upcoming subscription expiration but it is recommended that Licensee either ensures regular manual subscription renewals or sets up an automatic renewal sequence through Licensee’s account at www.comindware.com.
(3) Comindware employs a model according to which all product subscriptions on a single customer account must share a common expiration date. This is made through aligning the end dates of all the subscriptions at the time of a license purchase. When Licensee purchases new product licenses in addition to the existing ones, Comindware will re-calculate the shopping cart in such a way that the existing subscriptions get the corresponding alignment increment payments. The mechanism is described in more detail in Comindware’s knowledge base at: kb.comindware.com
Section 4 – Web Hosting; Data Retention
(1) During the Active Subscription Period, Comindware shall, subject to the Annual Uptime Percentage, make available Storage Space, the size of which shall be specified by Comindware in its reasonable discretion.
(2) Licensee hereby grants to Comindware and its third party providers a non-exclusive, non transferable license to reproduce Licensee Content, to the extent that such reproduction is necessary for Comindware to fulfill its obligations under this Agreement. Such license may include the reproduction of data in a reserve data processing centre.
(3) Throughout the duration of the Active Subscription Period Licensee Content will be made available to authorized users of the Services according to the permission settings specified by Licensee.
(4) After Licensee’s Active Product Subscription runs out and before Licensee activates a new subscription to the service Comindware will provide a grace period of thirty (30) days during which Licensee Content is retained on a Server. During that period the Licensee Data can be accessed in read-only mode and downloaded only by the administrator of Licensee’s account within the product. If Licensee does not activate a new subscription within the grace period, the Licensee Data will become inaccessible and will not be retained for further use even if Licensee activates a new subscription thereafter.
(5) Data entered into the system during the trial period of any Service is retained for 14 days after the trial period runs out. During that period Licensee Data generated during the trial period cannot be accessed and Licensee won’t have access to the product interface. However if Licensee activates a subscription to the product during the trial period or during 14 days thereafter, all Licensee Data entered into the Storage Space will be retained for further use.
Section 5 – Access to Server; Security Measures
(1) In order to start using the Services, Licensee must create a Comindware account at www.comindware.com. The account stores the data provided by Licensee when creating or editing an account, and when purchasing, registering and activating products to it. This data is available to Licensee after logging into Licensee’s account and it will also be used by Comindware personnel to identify Licensee as a Comindware customer and ensure fulfillment of this Agreement and the EULA by Comindware.
(2) To allow Licensee access to the Server for the purpose of using the Services in accordance with this Agreement, Comindware shall provide to Licensee an access authorization which may consist of a user name and password or any other authorization tool as reasonably requested by Comindware.
Section 6 – Scheduled Maintenance
(1) Regularly scheduled maintenance time shall encompass time which is regularly and reasonably required to maintain the due operation of the Server (hereinafter referred to as “Regularly Scheduled Maintenance”). Regularly Scheduled Maintenance shall be communicated by Comindware to Licensee at least two full business days in advance and shall be scheduled to occur at night or on the weekend. Such notice may be provided at Licensee’s product access page. Comindware hereby provides notice that every Saturday 3:00am ‐ 3:20am Eastern Standard Time (GMT-0500) is reserved for routine scheduled maintenance for use as needed.
(2) Comindware may also take the Service down for unscheduled maintenance and in that event will undertake reasonable efforts to notify Licensee in advance. Such unscheduled maintenance will be counted against the Annual Uptime Percentage.
Section 7 – Acceptable Use; Security; Back Up
(1) Licensee shall not use the Services (i) to offer, for sale or otherwise, or to sell, any illegal or unlawful items or service which would be illegal or unlawful to sell in the jurisdiction in which it is sold or offered, (ii) to provision any content into the Storage Space that contains or constitutes illegal or unlawful content or promotes hate or incitements to violence, or (iii) to perform any act which, directly or indirectly, causes to be transmitted to, uploaded by or downloaded by, the Storage Space or any end user any “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other like form of solicitation. If Licensee becomes aware of any violation of this Section 7 (1), Licensee shall immediately notify Comindware and provide Comindware with assistance, as reasonably requested, to stop or remedy the violation.
(2) Licensee shall maintain, and shall procure that any of its personnel accessing the Server maintain, an adequate level of security measures in order to prevent unauthorized access to the Licensed Software and Licensee Content. If Licensee obtains attention of an unauthorized access to the Licensed Software or Licensee Content, Licensee shall promptly notify Comindware and provide Comindware with assistance, as reasonably requested, to stop or remedy such access. In the event Licensee cannot satisfactorily resolve any issue of unauthorized access, Comindware may, in conjunction with any other remedies it may have under this Agreement or under statutory laws, suspend Licensee’s access to the Licensed Software until the issue is resolved.
(3) Licensee shall be responsible for maintaining appropriate security, protection and backup of Licensee Content, which may include routine archiving and the use of encryption technology to protect such content from unauthorized access.
Section 8 – Temporary Suspension
(1) Notwithstanding Comindware’s right of temporary suspension under other provisions of this Agreement and under the applicable law, Licensee’s right to access or use any portion or all of the Services may be suspended immediately upon notice to Licensee if:
(a) Licensee’s use of or registration for the Services (i) poses a security risk to the Services or any third party, (ii) may adversely impact the Services or the systems or content of any other customer of Comindware or third party provider, or (iii) may subject Comindware or any third party to liability;
(b) Licensee is in material breach of this Agreement or the EULA, which would entitle Comindware to terminate such agreement; or
(c) Licensee has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
(2) Comindware’s right to suspend Licensee’s right to access or use the Services is in addition to Comindware’s right to terminate this Agreement pursuant to Section 12.
Section 9 - Data Protection
In the event Licensee processes personal data when using Licensed Software or the virtual storage space provided by Comindware under this Agreement, Licensee shall comply with the provisions of all applicable data protection laws. The Parties agree that Licensee is the controller of such personal data.
Section 10 – Confidentiality
Each Party shall: (i) protect any information provided by the other Party that is identified as confidential or that reasonably should be considered confidential; and (ii) use the information provided for the sole purpose of fulfilling its obligations under this Agreement.
Section 11 – Limitation of Liability
(1) Except for Comindware’s liability in accordance with statutory laws in the event of intent as well as in case of an injury to life, body and health, Comindware’s liability is restricted or excluded as follows.
(2) In case negligence the liability of Comindware towards Licensee is restricted to reimbursement of typical, foreseeable damages. However, in case of slight negligence (leichte Fahrlässigkeit) Comindware shall only be liable for damages, if it infringed a duty the performance of which is necessary to adequately perform this Agreement, in particular, if taking account of both Parties’ interests, a duty the performance of which is necessary to allow an adequate use of the Services by Licensee, and in the performance of which Licensee may trust.
Section 12 - Termination
(1) This Agreement shall become effective upon acceptance of Licensee’s Order (“Effective Date”) and shall remain in effect until terminated by either Party in accordance with Section 12 (2).
(2) Either Party may terminate this Agreement for any reason at the end of each Active Subscription Period by providing the other Party 14 days prior written notice.
(3) Upon termination of this Agreement all Services acquired by Licensee under this Agreement shall automatically terminate on the next available expiry date and not renew. The terms and conditions of this Agreement shall continue to apply to such Services until their respective expiry date.
(4) Nothing in this Agreement shall affect each Party’s right to terminate this Agreement for an important reason (Kündigung aus wichtigem Grund). A termination for an important reason shall include, but not be limited to, Comindware’s right to terminate the Agreement (i) if Comindware’s relationship with a third party partner who provides software or other technology Comindware uses to provide the Services expires, terminates or requires Comindware to change the way Comindware provides the Services, (ii) if providing the Services could create a material security risk for Comindware, or (iii) in order to comply with the law or requests of governmental entities.
(5) Sections 10, 11, 12 (3) and (5), and 13 shall survive the termination of this Agreement.
Section 13 – Final Provisions
(1) Neither this Agreement nor any rights and/or obligations thereunder may be assigned by either Party without the other Party’s prior written consent, and any such assignment shall be void. Notwithstanding the foregoing, Comindware may, without the consent of Licensee, assign this Agreement and any of its rights and/or obligations thereunder upon written notice to Licensee, to any of its affiliates or to an entity with or into which it is merged or consolidated or to which it sells all or substantially all its capital stock or assets associated with the operations related to this Agreement.
(2) This Agreement shall be governed by the laws of Germany with the exception of its conflict of laws rules. The rights and obligations of the Parties under this Agreement shall not be governed by the UN Convention on contracts for the International Sale of Goods. All disputes arising hereunder which cannot be settled amicably by the Parties shall be submitted to the courts of Munich, Germany.
(3) If any provision of this Agreement is or will be found invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of the agreement will remain in full force.
(4) This Agreement, and any exhibits thereof, form the complete agreement between the Parties with respect to the subject matter hereof, superseding and replacing any and all prior agreements, communications, and understandings (both written and oral) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both Parties.