General Terms and Conditions of C4B for Up2Date-Services

C4B COM For Business AG, Untere Point 8, 82110 Germering, Germany (hereinafter: C4B) provides certain Up2Date services (hereinafter: Up2Date) in regards to software products that are manufactured and distributed by C4B under its own trade marks (hereinafter: Proprietary Software) to business persons and companies in the sense of Section 14 of the German Civil Code (hereinafter: Customer) on the basis of the below stipulated general terms and conditions (hereinafter: GTC), unless C4B and the Customer have explicitly agreed otherwise on a case to case basis by way of an offer made in writing or by e-mail (hereinafter: Text Form) and its acceptance in Text Form (hereinafter: Individual Contract).

1. Scope of these GTC and Subject Matter of Up2Date

a. These GTC shall apply for (i) Customers who make use of the Up2Date for their own purposes (hereinafter: End User) as well as (ii) Customers who act as resellers of the Up2Date to third parties (hereinafter: Partner), unless these GTC or the relevant Individual Contract provide otherwise.

b. Offers regarding Up2Date refer exclusively to the entire Proprietary Software currently available to the End User for the purpose of permanent use, not to individual products/parts/modules or versions of the Proprietary Software used by him, unless the offer expressly provides otherwise.

c. Up2Date does not include installation support, analysis, software adaptation or customizing services of C4B. C4B offers such services on the basis of separate Individual Contracts in accordance with the then most current version of its General Terms and Conditions for Professional Services.

d. The parties can agree individually in the Individual Contract to what extent and against which remuneration C4B also provides maintenance services for third-party software (any software that is not Proprietary Software). The scope of these services depends on the respective service offer of the third-party supplier.

e. After the conclusion of an Individual Contract for Up2Date, these GTC also apply to all further future business relationships with the Customer for such services, without the need for a new express reference.

2. Conclusion of Individual Contracts

a. No conflicting or other conditions, notably Customer’s general terms and conditions do apply, even where C4B has performed a contract without expressly rejecting any such terms and conditions of Customer.

b. All offers of C4B relating to Up2Date are non-binding, unless C4B explicitly identifies the offer as binding for C4B. C4B may accept incoming offers of the Customer within two weeks following the receipt of such offer.

c. Each offer and each confirmation of such offer shall be in Text Form. In addition, side letters, supplementary agreements, specifications, warranties, guarantees, representation and other agreements between the parties shall be valid only if expressly incorporated in the Individual Contract. With respect to any guaranties or equivalent covenants the additional requirements as per Section 3. lit. b. of C4B’s then current General Terms and Conditions for the Provision of XPhone Software for On-Premises Use shall apply.

d. In case C4B offers to provide Customer various services or items with a different scope and separate prices (e.g. Up2Date, Professional Services), irrespective if offered in one single quote or by separate quotes, each agreement on one the items or service shall form and be deemed a separate Individual Contract, unless explicitly stated otherwise. The fact that the offers identifies an overall price for the separate items or services shall not be construed as an offer of C4B to conclude one single Individual Contract for all items or services.

3. Term and Extension of Up2Date

a. C4B offers Up2Date only for annual terms of one, two, three, four or five years which term needs to be specified in the Individual Contract. In case the Individual Contract fails to explicitly specify the applicable term, the one year term shall apply. Up2Date will commence upon delivery of the Proprietary Software or, in case the use of the Proprietary Software requires an activation through an access code, upon activation of such access code, however, latest three months following C4B´s invoicing as per Sect. 6 of these GTC. Up2Date ends at the last day of the calendar month during which the applicable agreed annual term expires.

b. Individual Contracts for Up2Date are automatically extended for a further year at the end of the applicable term, unless the Individual Contract expressly excludes an extension or one of the parties objects in Text Form to an automatic extension at least two months before the next extension takes effect.

c. Neither party may terminate Up2Date during the term applicable as per Sect.. 3 lit. a. and b . above. Either party´s right to terminate Up2Date for cause as per § 314 German Civil Code (BGB) or as per Sect. 5 lit. b. of these GTC remains unaffected.

d. Any termination and objection against an extension must be in Text Form to be valid.

e. If C4B provides the Customer with additional Proprietary Software for permanent use during the term of an Individual Contract on Up2Date, the Customer shall extend Up2Date accordingly. C4B will either offer the necessary extension of Up2Date in the offer regarding the permanent licensing of additional Proprietary Software or point out the necessary extension of Up2Date in this offer. In the latter case, the Customer will receive a supplementary offer from C4B for the Up2Date in Text Form in accordance with these GTC. The Customer is obliged to accept such a supplementary offer without delay.

4. Up2Date-Services

a. Against payment of the Service fee set out in Section 6 of these GTC, C4B will render the following Up2Date services:

- provision of patches, updates and upgrades (hereinafter together: Releases) as per Section 4 lit. b., to the extent such Release has been released to the public by C4B or its licensors.

- provision of updates of the documentation accompanying the Software as per Section 4 lit. c. below.;

Up2Date does not include the provision of new or additional software products. For the term of the Individual Contract Up2date is only available in relation to the most current version that has been made available to Customer. In case Customer does not use e.g available Upgrades for certain licenses or portions of the Proprietary Software, then Up2Date will not further be rendered or be available for these licenses or portions of Proprietary Software.

b. Any Release will be provided for download on C4B’s website www.c4b.com (hereinafter: Website); C4B shall inform the Customer regarding the availability of Releases via the above mentioned Website. All terms and conditions applicable to the maintained Software will also apply to any subsequent Release, specifically those terms regarding the license terms and regarding the access code. If and to the extent no such terms apply, the then current terms of C4B’s General Terms and Conditions for the Provision of XPhone Software for On-Premises Use shall apply.

c. In case a Release leads to a material change in the functionalities or the usability of the Proprietary Software, C4B will provide Customer either, to C4B’s sole discretion, with a new documentation or an amendment thereto, in the format agreed for the initial version of the affected documentation.

5. Scope Restrictions and End-of-Sale-Notification

a. C4B may, at any time during the term of the Individual Contract

- without prior notice, reduce or change Up2Date, unless such reduction or change would materially affect the agreed scope of Up2Date or such reduction or change affects unreasonably the Customer (e.g. by deleting material functionalities or supported environment of the Software, material restrictions in the agreed usage rights of Customer).

- inform the Customer of an imminent partial discontinuation of the Up2Date, including with regard to essential functions, in particular as a result of a product or service cancellation by a supplier of C4B or a supplier for the target environment, in text form or by corresponding publication on the C4B website (end-of-sale notification).

b. In case Customer can substantiate that the reduction or end-of-sale notification is unreasonable or in case C4B announces to materially reduce the Up2Date on its website, Customer may terminate the affected Individual Contract with immediate effect as per Sect. 3 lit. b of these GTC with effect to the end of the month in which the reduction or change falls. Such termination right ceases to exist three months following the date the Customer became aware (or could have become aware) of the relevant reduction or change.

6. Fees and Payment Terms

a. C4B offers Up2Date against payment of a flat service fee, which is due and payable upfront for the whole agreed Up2Date term (one to 5 years) and which will be invoiced by C4B following the effective date of the Individual Contract. The Up2Date fee is calculated on the basis of a yearly fee which is based on the relevant then applicable percentage rate (of the Software standard license fee), as published on the Website at the time C4B has offered the Up2Date to Customer.

b. In cases where Customer has purchased additional or supplementary Proprietary Software licenses for which Up2Date will apply as per Section 3 lit. d above, the therefore payable Up2date fee will be calculated on the basis of the Software license fees as published on the Website at the time the additional or supplementary Software has been purchased.

c. All prices and fees - as well as set out in the price list and Individual Contracts - are in Euro and exclusive of any sales and any other tax.

d. Unless agreed otherwise in writing between, C4B will invoice the payable amount following effective date of the Individual Contract and any amounts shall be due and payable without deduction with receipt of the invoice.

e. Extension of the Up2Date coverage may be ordered by Customer only before but not after Up2Date expiration or termination. If Up2Date coverage has already expired or terminated, a OneTime upgrade must be purchased by Customer in order to allow a new Up2Date coverage to be ordered.

7. Customer’s Cooperation Duties

a. Customer shall use employees sufficiently experienced with using the Software when notifying and describing issues with the Software and follow all related instructions of C4B.

b. Customer will install any Releases made available by C4B to Customer as per Sect. 4 lit. b. above without undue delay, provided the Release is required to rectify or circumvent any defects of the Software or in order to prevent C4B from damages.

8. Liability

a. C4B’s warranty obligations for defects as to the quality of a Release or accompanying documentation are limited to C4B’s duties as described in Section 4. lit. b above. In case third parties assert claims against Customer for the alleged infringement of intellectual property rights by Releases or the accompanying documentation, the relevant stipulations set out by C4B’s General Terms and Conditions for the Licensing of the Software on a Perpetual Basis will apply exclusively.

b. Any liability of C4B for a loss of data is limited to the effort typically required for recovering data that has been protected against loss by regular backups.

9. Confidentiality Obligation, Data Protection and Reference Advertising

a. Each party undertakes to keep the content of each Individual Contract and the data communicated or made accessible to it by the other party - in whatever form - before or during the Individual Contract, in particular prices, technical know-how or other information, regardless of content, secret from third parties, to use it only for the purposes of the Individual Contract concerned and to utilise it - neither in whole nor in part - for its own purposes without the express written consent of the other party and to oblige its employees and other third parties coming into contact with it to do so.

b. The above letter a. shall not apply as long as and insofar as such confidential information (i) was already known to the respective recipient beforehand without an obligation of confidentiality or (ii) is or becomes generally known without the respective recipient being responsible for this or (iii) is communicated or provided to the respective recipient by a third party without an obligation of confidentiality or (iv) has demonstrably been developed independently by the recipient or (v) must be made accessible to authorities due to legal regulations or (vi) has been released in writing by the providing party for disclosure.

c. The parties undertake to comply with applicable data protection law. In particular, the Customer itself is responsible for checking the permissibility of its planned use of the Cloud Software and for complying with the data protection requirements applicable to the provision of the Cloud Software to its users (e.g. information obligations). To the extent required by law, the parties shall conclude a separate written agreement on the processing of personal data on behalf of the Customer.

d. C4B is authorized to publicly name the Customer as a reference Customer on standard marketing media (website, brochures). If the Customer's brands or logos are used, this requires the Customer's prior approval.

10. Miscellaneous

a. The Individual Contract, its conclusion and construction shall be governed by the laws of Germany, without recourse to its conflict of Laws provisions. The provisions of the United Nations Convention on the Sale of Goods (CISG) are not applicable.

b. In case a provision of these GTC is or becomes invalid or unenforceable, the effectiveness of the remaining provisions shall not be affected. The parties shall replace the invalid or unenforceable provision by such valid and enforceable provision as comes closest to the parties’ intention at the time of the conclusion of the Individual Contract.

c. Customer will respect all applicable export or import regulations, especially the laws of the USA, Germany and the European Union. All costs and levies resulting from cross-border deliveries, especially customs duties, taxes, tolls or other charges are on Customer’s expenses. Customer is solely responsible for the organization and handling of all administrative procedures concerning cross-border deliveries unless expressly agreed otherwise in the Individual Contract.

d. Alterations or modifications of the Individual Contract shall only be valid if agreed upon in Text Form. The same shall apply for any alteration of this lit. d.

e. The Individual Contract constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all previous communications, representations, understanding and agreements, either oral or written, between the parties with respect to such subject matter hereof.

f. Exclusive legal venue for all disputes arising in connection with or as a result of these GTCs and each Individual Contract shall, for Customer, be the courts competent for the seat of C4B. C4B may, at its sole discretion, choose to bring proceedings at another venue permitted by applicable laws, provided Customer is a business person, a legal entity under public law (“juristische Person des öffentlichen Rechts”) or a public law special funds (“öffentlich-rechtliches Sondervermögen”). C4B may, at its sole discretion, choose to bring proceedings at another venue permitted by applicable laws.