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Terms & Conditions - Netbiscuits Service2009/03/22 Contracting PartiesAs a party (hereinafter, Licensee) to a contract, you are entering into a contract (hereinafter, Contract) with Netbiscuits GmbH (hereinafter, Netbiscuits) Conclusion of the ContractThe www.netbiscuits.com website is not a binding offer. Only by filling out the form on the webpage of www.netbiscuits.com and clicking the “Upgrade Now” button the Licensee sends a binding offer to enter into this Contract. Such offer is accepted after payment details validation of the Licensee by Netbiscuits by displaying an information page confirming that Netbiscuits has entered into the agreement. Netbiscuits only accepts offers from companies within the meaning of § 14 BGB (German Civil Code), i.e. from individuals and legal entities, which enter into this contract in connection with their business or self-employed activity. Netbiscuits does not enter into contracts with consumers within the meaning of § 13 BGB. Netbiscuits will store the contract and the general terms and conditions mentioned below. The Licensee can access them at any time by clicking on a link provided at www.netbiscuits.com. Prior to proving an offer for closing this contract, the Licensee may review its data and, if necessary, change them by using the usual PC keyboard functions. The contract language of this contract is English. A German version of this Contract is also available and can be accessed at www.netbiscuits.com. By entering into this Contract, the Licensee obtains the right to use this software according to the features described under www.netbiscuits.com/editions used for fee for a certain period of time and within certain limits and under the terms and conditions described in sections A and B as follows:
A. General Provisions1.Preamble1.1 Section A contains general provisions concerning this Agreement. Section B contains provisions on the Software and related Services provided by Netbiscuits to Licensee. 1.2 Netbiscuits offers an open and standardized software framework (“Software”) in a “Software as a Service” (SaaS) business model. The framework is comprised of a Software Development Kit (SDK) to create mobile websites, a web-based Publishing-API to serve content, ads and mobile websites optimized to any mobile device as well as a web platform to manage and report on performance mobile website, marketing campaigns, rich media content, advertising, commerce, community and mapping features. A detailed description of the Software can be found under www.netbiscuits.com 1.3 Licensee desires access to the Software and Netbiscuits is willing to provide the Software as set forth herein. 2. Confidentiality2.1 During the term of this Agreement and for a period of two (2) years thereafter, the Parties undertake to maintain confidentiality of all documents, information and data, which are marked as "confidential” by the disclosing party or otherwise recognizable as a trade or business secret, which became available to the Parties due to their cooperation (hereinafter “Confidential Information”). 2.2 Disclosure of Confidential Information of the disclosing party by the receiving party to third parties requires a prior written or e-mail consent of the disclosing party. The receiving party shall also commit to the agreed obligations to maintain confidentiality to all persons and companies that receive Confidential Information of the disclosing party. 2.3 The obligation to maintain the confidentiality of Confidential Information of the disclosing party does not cover information, which became known to a party publicly without a breach of confidentiality, or which must be made available to third parties pursuant to legal, judicial or public orders. 2.4 A Party receiving Confidential Information of the disclosing party acknowledges that any violation of the obligation to maintain the confidentiality of the Confidential Information of the disclosing party as provided for in this Section A.2 shall result in significant harm to the disclosing party, which harm will not be possible to quantify or measure. Accordingly, the parties agree that a breach of the obligation provided for in this Section A.2 shall entitle the injured party to recover liquidated damages for each occurrence or breach thereof. 3. Changes to the Agreement3.1 Changes to Services provided under this Agreement shall be agreed upon by obtaining an offer from Netbiscuits and an acceptance of that offer by Licensee. The offer from Netbiscuits shall be made by providing notice of the Service changes either in writing or per e-mail. If Licensee does not reject the offer in writing or per e-mail within two (2) weeks, the offer shall be deemed to have been accepted. In such case, the respective change shall become valid one (1) month following the receipt of the offer by Licensee. If Licensee rejects the offer, then Netbiscuits is entitled, at its sole option, to terminate this Agreement. Until such termination right has been exercised, the relationship between Netbiscuits and Licensee shall be governed by the terms of this Agreement. 4. Advertising4.1 For the duration of this Agreement Licensee hereby grants to Netbiscuits the right to use the name and trademark or logo of Licensee for advertising or marketing purposes, in press releases and websites operated by Netbiscuits after prior written consent. Netbiscuits hereby grants the corresponding rights of use to Netbiscuits' name and trademark or logo. 5. Liability and Period of Limitation5.1 Netbiscuits is fully liable for damages (a) with respect to injury to health, body or life caused by Netbiscuits, Netbiscuits’ representatives and persons employed by Netbiscuits in the performance of Netbiscuits contractual obligations under this Agreement, and (b) resulting from the absence of a quality which was guaranteed by Netbiscuits or from fraudulent intention. 5.2 Netbiscuits is fully liable for damages caused by the gross negligence or intentional misconduct of Netbiscuits, Netbiscuits’ representatives and persons employed by Netbiscuits in the performance of the contractual obligations. 5.3 In case of Netbiscuits' breach of any material obligations, by negligence or cause other than those cases listed in Sections A.5.1 and A.5.5, Netbiscuits shall be liable up to maximum the amount of the value of this Agreement. 5.4 If there is a violation of any network operator regulation or country law in conjunction with telecommunication services such as messaging, content delivery or premium billing services, Netbiscuits' liability to Licensee is limited in case of gross negligence or intentional misconduct to the maximum amount of Euro 10.000 (Ten Thousand Euros) for each case of breach, and to any other affected persons to the maximum amount of Euro 1,000.00 (One Thousand Euros) per damage causing event. If the damage compensation, which is to be paid to several persons based on the same event, exceeds in the latter case the said upper limit, then the damage compensation shall be reduced in the proportion of the ratio of the sum total of all damage compensation claims to the upper limit. Netbiscuits’ liability for intentional damages is not limited. 5.6 Any possible contributory negligence of Licensee remains unaffected by these provisions, including, without limitation, any loss arising from Licensee's failure to regularly backup its systems and data. 5.7 Netbiscuits shall not be liable for (a) any incidental interruption in availability of software or server systems that are provided according to the Agreement; or (b) incidental interruption in availability is not caused by Netbiscuits or its legal representatives or subcontractors. 5.8 These liability limitations are conclusive. Netbiscuits does not make or assume any further express or implied guarantee for the Software and the same are hereby expressly disclaimed. 5.9 The period of limitation for commencing any damage or compensation claims against Netbiscuits shall, except in the cases listed in Sections A.5.1, A.5.2 and A.5.5, be twelve (12) months from the earlier of the date such claim arises or the date of the delivery of the Software or Services. 6. Privacy and Data Protection6.1 The Privacy Policies of Netbiscuits can be found at www.netbiscuits.com/privacy_policy. Licensee shall at all times comply with Netbiscuits’ Privacy Policy. 6.2 With respect to the protection of personal data, the parties agree to comply with the provisions of applicable local country data protection laws, including those that impose the corresponding obligations on their service providers, employees and business partners. 6.3 If Licensee stores personal data on a Netbiscuits’ server, it constitutes a case of commissioned personal data processing. In such case, Licensee is responsible for compliance with the data protection provisions. Netbiscuits shall save and process the data only within the scope of the instructions provided by Licensee. If Netbiscuits believes that instructions given by Licensee violate the data protection provisions, Netbiscuits shall promptly inform Licensee thereof. 7. Miscellaneous Provisions7.1 This Agreement is governed exclusively by the laws of Germany, excluding the provisions of the Private International Law and the United Nations Convention on Agreements for the International Sale of Goods. 7.2 The venue for all disputes arising out of this Agreement shall be in a court of applicable jurisdiction located Kaiserslautern, Germany. 7.3 If a provision of this Agreement is or becomes invalid, fully or partially, this shall not affect the validity of the other provisions. 7.4 Any general terms and conditions supplied by Licensee as a part of any order, invoice or demand, do not apply and are hereby rejected by Netbiscuits. 7.5 Licensee may not transfer its rights and duties under this Agreement, either temporarily or permanently, to a third party, including by operation of law or the sale of all or any part of the equity or assets of Licensee, without Netbiscuits’ prior written consent, which consent shall not be unreasonably withheld or delayed. 7.6 Netbiscuits may hire subcontractors to provide the Services stipulated in the Agreement, in which event Netbiscuits shall be responsible for insuring the performance of such subcontractors in accordance with the terms of this Agreement. 7.8 Each party agrees to at all times comply with all applicable laws, rules and regulations of the country of Germany ("Applicable Laws") in the performance of their obligations under this Agreement. B. Software and Service Provisioning1. Software Description1.1 The Software is provided in a “Software as a Service” (SaaS) business model and is comprised of a Software Development Kit (or “SDK”) to develop mobile websites, a web-based Publishing-API to adapt, transcode, host and serve content, ads and mobile websites optimized to mobile devices and a web platform to provide management and reporting on mobile websites, marketing campaigns, rich media content, advertising, commerce, community and mapping features. A detailed description of the Software can be found under www.netbiscuits.com 1.2 The Software is provided in the following Access Models. 1.2.1 Custom API Model In this Access Model Licensee accesses the Software via a web-based publishing API of Netbiscuits (“Server System”). Upon a request by a mobile device to the Server System the Server System forwards the request to the Licensee's systems. This triggers a request of the Application on the Licensees system to deliver the application code and included content back to the Server System. There the application code and the content are converted by the Software, transferred to the Server System and delivered back to the requesting mobile device in an optimized format. The technical details of this Access Model are described under www.netbiscuits.com and apply. 1.2.1.1 Netbiscuits shall provide the Licensee with the Software and user documentation, as well as Software Development Kits (“SDK”) for use by downloading from the Server System for the duration of this Agreement. 1.2.1.2 To convert an application and/or content to mobile, it is required that the Licensee connects the Application and its Content to the Software by using the SDK or a software development kit of third parties and implements a connection to the Server System. 1.2.1.3 Netbiscuits is only obligated to provide the Licensee with the then latest version of the Software. The Licensee is not entitled to obtain access to older versions of the Software. 1.2.2 Standard Hosted Model 1.2.2.1 In this Access Model Licensee accesses the Software via the web interface of the Server System provided under www.netbiscuits.com (“Website”). Upon a request by a mobile device to the Server System the Application and its Content are converted by the Software, transferred to the Server System and delivered to the requesting mobile device in an optimized format. The technical details of this Access Model are described under www.netbiscuits.com and apply. 1.2.2.2 The Licensee must upload the application and content which is to be converted to the Server System, where they will be stored for the duration of this Agreement and a maximum of 3 months after termination of this Agreement by either Party. 1.3 In order to use the Software the Licensee must have Internet access and be able to access the Software and the Server System. The Licensee is solely responsible for the functioning of its Internet access and of the computer, which it uses, as well as of other computer programs it uses for access. 2. Software Service Levels2.1 Netbiscuits guarantees the Availability of its Software of 99.75% during a calendar month at the Server System Service Transfer Point. 2.2 The Licensee shall inform Netbiscuits if the Software is not available about all defective functions of the Server System or defective conversion of applications and/or content promptly upon discovery, per e-mail or telephone. 2.3 Netbiscuits will inform the Licensee on all schedules interruptions and restrictions of the Availability (such as Server System maintenance) at least one (1) week in advance through www.netbiscuits.com and arrange that these interruptions will take place outside the main Software access hours. 2.4 If the Availability is not achieved (“Service Outage”), the Licensee will receive credits for the Service Outage for the respective month, which will be credited on the invoice of the month following month. Credits are calculated in percent of the total monthly fees the Licensee would need to pay to Netbiscuits according to the table below:
2.4 If the Licensee endangers the security, integrity or availability of networks, the Server System or the Software, or if Netbiscuits has an objective reason to suspect so, then Netbiscuits may temporarily suspend the Licensee’s access to the Server System and interrupt access to the Software. In case of deliberate actions by the Licensee, Netbiscuits may terminate the contract with immediate effect:
3. Support3.1 Netbiscuits provides support to the Licensee according to the Support Packages included in the Edition the Licensee purchased. 3.2 The support packages are described under http://www.netbiscuits.com/services. 3.3For classification of problems with the Software the following problem classification table applies:
3.4 Upon discovery of a problem both Parties shall promptly inform each other on discovery of the problem according to the classifications above. 3.5 The following table specifies the reaction steps, which must be performed by Netbiscuits and by which Netbiscuits deals with the specific problem reports:
Both parties shall inform each other regularly on the status of the error. 3.7 Support Contacts Licensee can request a direct phone number of the support hotline will be provided to the Licensee upon entering into the Agreement, if he purchased a support package including Active Support. 3.8 Worldwide Mobile Device Support 3.8.1 Netbiscuits core software is comprised of a web content adaptation API which is comprised of a device detection database, content/media transcoding and mobile web front-end rendering module. 3.8.2 The device detection database currently holds 6,000+ mobile device profiles which have been tested in-house by Netbiscuits in an internal test-lab with a proprietary Netbiscuits test-suite for + 800 mobile device parameters. Currently the database holds device profiles from North- and South America, Eastern- and Western Europe, Scandinavia, Africa, Asia and Australia/New Zealand. 3.8.3 Netbiscuits tests in average approx. 30-50 new mobile devices worldwide each month with approx. 800 individual device parameters ranging from screen size to video player format and browser capabilities and delivers them as daily live updates to the database to all Netbiscuits customers. 3.8.4 To achieve nearly 100% global geographic device coverage Netbiscuits utilizes the following automated software procedures to identify devices and deliver optimized content:
3.8.5 Both parties agree that a 100% global mobile content delivery guarantee is not possible due to various factors, which cannot be technically solved by Netbiscuits or limitations imposed by third parties, such as carrier network restrictions for media delivery. 4. Fees4.1 Netbiscuits offers the Software in service packages (“Editions”) as described under www.netbiscuits.com/editions. 4.2 Netbiscuits provides software and hosting infrastructure for mobile websites in a “Software as a Services” business model. Since delivery of mobile websites in contrast to PC websites requires an on-the-fly optimization (adaption/transcoding of content/ads) with each page request, Netbiscuits charges a transactional software license fee for content/ad adaption/transcoding for each mobile page served to a mobile electronic device, which is measured in mobile pages per month. In addition Netbiscuits charges for hosting, serving of the content/ads and the maintenance/support of the software in GB Served outbound Datatraffic and GB Diskstorage for transcoded Content. If the Licensee chooses to activate the Messaging component of the Software, Netbiscuits charges for each text message send to an End-User. Mobile Pages are defined as either:
Mobile pages consist of content and/or AJAX elements and/or ads which might or might not be transcoded and converted dynamically or statically for optimal display on electronic devices. Rich media URLs require media to be transcoded to an optimized form before being loaded to the electronic device and can be, but is not limited to Ringtones, Games, Wallpapers, Flash, Audio or Video files. 4.3 To use the Software, the Licensee can register a Free-Trial for Netbiscuits over the Internet at www.netbiscuits.com. After the registration, Netbiscuits will provide the personal login data to the Licensee that will allow access to the Software and the Licensee’s personal restricted user area (“Dashboard”). The Free Trial period is 30 days. In the Dashboard, the Licensee is able to make settings regarding the Software and Applications, change available support packages, editions, payment modes and, if applicable, the use of additional services. 4.4 After or before the end of the Free-Trial period Licensee has to choose to upgrade to a paid Edition (Basic, Premium, Enterprise, Custom) with the features as described under www.netbiscuits.com/editions. The Licensee can conduct the upgrade online or by contacting Netbiscuits sales. 4.5 Alternatively the Licensee can choose to upgrade to Developer Edition of Netbiscuits. The Netbiscuits Developer Edition is free of charge, but limited in delivery of maximum 1000 Mobile Pages per month, is not allowed for use in a commercial environment and Netbiscuits holds the right to include a promotional message or an advertising in the footer of each Mobile Page without the Licensee’s prior written approval. The Licensee hereby accepts these limitations. If the Licensee does use Developer Edition to provide commercial solutions without notifying Netbiscuits in advance, Netbiscuits is entitled to liquidated damages. 4.6 By upgrading to a paid edition Licensee shall pay to Netbiscuits a monthly subscription fee plus applicable volume fees according to the selected Edition and respective fees as described in Annex 2. 4.7 The monthly subscription fee becomes payable for the first time at the time of entering into the Agreement pro rata to the remaining portion of the month in advance. The monthly subscription fee for the subsequent months, as well as the volume fees for the respective preceding months, are payable by the 1st day of the month. The volume fees for the preceding month will thus be settled up to the 1st day of the subsequent month. The Licensee shall accept electronic billing. The fees (subscription and volume fee) will be charged per invoice and are due upon receipt of the invoice. 4.8 Payments will be made either by credit card, for which the Licensee must provide the necessary card details to Netbiscuits during the registration process and within the Dashboard, or alternatively, with Netbiscuits written approval, the Licensee may pay via bank transfer to the following bank account of Netbiscuits: Netbiscuits GmbH Routing number: 54050110 Payments are due upon receipt of Netbiscuits’ invoice. If Licensee does not provide payment within fourteen (14) calendar days after receipt of Netbiscuits’ invoice, at the option of Netbiscuits, Licensee shall be in deemed to be in default. Overdue amounts under this Agreement shall bear interest at the rate of 5% per month. 4.9 Licensee may not set off amounts owing to Netbiscuits hereunder against any other obligation owing from Netbiscuits or any third party. 4.10 All fees are exclusive of any applicable taxes. 5. Term of the Agreement5.1 The initial term of the Agreement is one (1) month. 5.2 The Agreement shall automatically extend for additional one (1) months periods, unless terminated in writing or per e-mail by either Netbiscuits or Licensee at least thirty (30) days prior to the then current period. 5.3 The right of the parties to terminate the Agreement due to a material breach by the other party remains unaffected. A material breach is deemed to exist if a party materially violates the obligations expressly provided for by this Agreement, and also if an insolvency procedure is initiated with respect to the other party’s assets. 5.4 Upon expiration or termination of this Agreement, Netbiscuits shall, in its discretion, either delete the data (including any applications and/or Content) stored by Licensee on any Netbiscuits server or system, if any, or return it to Licensee. 6. Indemnification6.1 Licensee is solely responsible for insuring that his Applications and/or Content created, provided, transmitted to, saved on or served by the Server System do not violate the rights of third parties, including, without limitation, any third party intellectual property or proprietary rights. Notwithstanding the foregoing, Netbiscuits may remove any Application or Content from the Server System, with or without prior notice to Licensee, if Netbiscuits has a reasonable basis to believe such Application or Content may violate or infringe upon the rights of any third party. 6.2 If a claim is brought against Netbiscuits due to a violation of the rights of third parties or a violation of the obligations listed in Sections 6.1, 7.3, 7.4, 7.5 or 9 then Licensee shall defend, indemnify Netbiscuits and hold Netbiscuits harmless, any of its affiliates, employees, agents or service providers, from all loss and liability (including reasonable attorneys' fees) arising from or related to such claims. 7. Further obligations of Licensee7.1 Licensee shall maintain confidentiality of all access data to its personal customer account and shall not disclose the same to any third parties. Licensee shall promptly give notice to Netbiscuits and change all passwords if Licensee reasonably suspects that any unauthorized third party has obtained information about the access data or passwords for the Software. 7.2 Licensee shall promptly notify Netbiscuits on each change of its name or company name, its residence or business address, its billing address, legal form or banking particulars. The notice must be made in writing or by e-mail. 7.3 Licensee shall not transmit, store or save any Applications and/or Content on the Server System which violate applicable laws or infringe upon the intellectual property or proprietary rights of third parties. In the event of any intentional actions or gross negligence by Licensee resulting in any claim with respect to of the foregoing, or in the event Licensee fails to promptly remedy any claim or allegation with respect to the foregoing, Netbiscuits may terminate the Agreement with immediate effect. 7.4 In addition Licensee represents and warrants that his Applications and Content:
7.5 If Licensee adds any new Application or Content under this Agreement, then it shall provide information as to whether such Application or Content contains any materials, which may not be released without age restriction or may not be released to children under applicable laws. It remains Licensee’s sole responsibility to comply with the applicable provisions of applicable laws. 8. Intellectual Property Rights8.1 For the duration of this agreement and subject to the terms and conditions of the Agreement, Netbiscuits grants Licensee a limited, nonexclusive, nontransferable, nonsublicensable right and license to use to the Software in its then latest version. The right and license granted herein shall expire automatically upon the expiration or termination of this Agreement. 8.2 Licensee covenants and agrees that it shall not:
8.3 For provision of services under this Agreement, the Licensee shall grant Netbiscuits the required use and exploitation rights for the sole purpose to authorize Netbiscuits to arrange the application and/or content, to convert them into a different format and use type specifically for mobile devices, to make them accessible and available to third parties, or to grant these use and utilization rights to the application and/or content to third parties. 8.4 Netbiscuits is not obligated to provide to Licensee any source or object code for the Software or any corresponding development documentation. 8.5 For the Custom API Model, the following terms additionally apply: 8.5.1 The Software may be used for the benefit of Licensee and its end users only. 8.5.2 Licensee may use the SDK provided by Netbiscuits under www.Netbiscuits.com on the hardware available to Licensee. 8.5.3 If Licensee has used an SDK provided by Netbiscuits, then it shall completely delete such SDK upon the expiration of this Agreement. 9. Provisioning of Mobile Messaging, Mobile Billing and Mobile Ad-Serving9.1 Netbiscuits enables Licensee to bill mobile subscribers ("End User(s)”) for accessing Application and Content via WAP-Billing, Premium-SMS-Billing or Credit-Card-Billing (“Mobile Billing”). In addition Netbiscuits enables the Licensee to send text or WAP-Push messages to End Users (“Mobile Messaging”). Furthermore Netbiscuits enables the Licensee to serve ads to mobile via mobile ad networks (“Mobile Ad-Serving”). 9.2 The services for Applications and Content on the Server System are performed by third parties ("Aggregator(s)"). Netbiscuits provides a technical interface to these Aggregators within the Software. 9.3 The Licensee warrants that prior to using any such services Licensee has a valid contract with an Aggregator to provide Mobile Billing, Mobile Messaging and/or Mobile Ad-Serving services. 9.4 Netbiscuits allows Licensee to configure the Mobile Billing, Mobile Messaging and Mobile Ad-Serving services in the Dashboard. 9.5 Licensee solely assumes the risk of the proper payment of fees by End Users. Netbiscuits and the respective Aggregator shall not be responsible for collection of payments by End Users or the telecommunication service provider of an End User. 9.6 Netbiscuits and the respective Aggregator shall not be liable for network outages of the telecommunication service provider or other defects, which fall under the responsibility of the telecommunication service provider and were caused by the latter or its subcontractors. 9.7 Licensee represents and warrants the Mobile Billing, Mobile Messaging and Mobile Ad-Serving services of Applications and Content provisioned on the Server System:
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