I.          Information on distance selling and on conclusion of contracts in electronic commerce

1.         Parties

 As a party to a contract, you (hereinafter, Party) are entering into a trial contract (hereinafter, Contract) with

            Netbiscuits GmbH
            Luxemburger Strasse 2
            67657 Kaiserslautern
            GERMANY

            (hereinafter, Netbiscuits)

2.         Conclusion of the Contract in electronic commerce

2.1       The 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 “Send” button the Party sends a binding offer to enter into this Contract. Such offer is accepted by Netbiscuits by sending an e-mail expressly stating that the Contract has been entered into. The Party to the contract can activate its account and access the restricted user area by clicking the activation link provided to the Party per e-mail.        

2.2       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.

2.3        Netbiscuits will store the contract and the general terms and conditions mentioned below. The Party can access them at any time by clicking on a link provided at www.netbiscuits.com.

2.4        Prior to proving an offer for closing this contract, the Party may review its data and, if necessary, change them by using the usual PC keyboard functions.

2.5       The original language of this contract is German. A German version of this Contract is also available and can be accessed at www.netbiscuits.com.
 
3.         Description of service
 
Netbiscuits is a company that has developed a software called “Netbiscuits“, which as so-called middleware software  allows development of various applications and  sending their content automatically and optimized to a number of various mobile devices in order to show it on their displays (see Chapter II.).

For this Software, Netbiscuits offers this free 30-day Contract, which is the subject of the General Terms and Conditions below (see Chapter II.). This Contract allows free use of the Software limited to a 30-day period and with features as described under www.netbiscuits.com/editions.

II.         General Terms and Conditions of Netbiscuits for provision of the Netbiscuits software free of charge under this Contract

Preamble

The General Terms and Conditions (hereinafter, GTC) of Netbiscuits govern the provision of the Netbiscuits software (hereinafter, the Software), free of charge and for a limited period of time of 30 days under this Contract for development of applications and conversion of content for optimized display of such content on mobile devices.

1.         Description of services

1.1       As a so-called middleware software, the Software can automatically convert various applications and/or content for a number of various mobile devices to be and show it / them on their displays. For technical details of all available software functions and conversion procedure please visit www.netbiscuits.com/editions.
 
1.2       The Software can be provided in one of the following ways, which the Party selects at the conclusion of the Contract:

Custom API web applications
Access is granted over the Netbiscuits Content transcoding program interface (Netbiscuits API, the so-called API model). Upon request for Party´s applications and/or content of a mobile device, such request is forwarded to the Party's IT system via the Netbiscuits' server system (hereinafter, the Server System). There the application and/or the content are converted by the Software, transferred to the Server System and delivered to the requesting mobile device. For technical details of such access procedure please visit www.netbiscuits.com.

or

Standard Hosted web applications:
Netbiscuits grants the Party access to the Software only via the Netbiscuits’ Server System for use over the Internet at the access point of the Netbiscuits’ IT center (hereinafter, the Service Transfer Point, the so-called hosted model). The Software can be accessed via the www.netbiscuits.com website. For technical details of such access procedure please visit www.netbiscuits.com.

The provisions of these GTC apply to both access procedures, unless these GTC differentiate expressly between both access methods. In such case, the respective provision shall only apply to the access procedure, which is expressly mentioned.

 
1.3       If the Party has selected the API model, then the following clauses apply additionally:

1.3.1    Netbiscuits shall provide the Party with the Software and user documentation, as well as one of several software development kits (hereinafter, the SDK) for use for a limited period of time by downloading from the Server System.

1.3.2    To convert an application and/or content, it is required that the Party connects the application and/or content to the Software by using the SDK or a software development kit of another company and to develop a connection to the Netbiscuits API.

1.4       If the Party has selected the Hosted model, then the following clauses apply additionally: The Party must upload the application and/or content, which are to be converted, into the Server System, where they will be saved until the end of the Contract. When a corresponding request is made from a mobile device, the application and/or content are converted by the Software and delivered to the mobile device over the Server System.

1.5       The services provided by Netbiscuits under this Contract are limited in time and in their scope. The Party may see the exact scope of services of this Contract under the price and service overview - Price Packages section at www.netbiscuits.com/editions.

1.6       To use the Software for the first time, the Party must register with Netbiscuits over the Internet at www.netbiscuits.com. After the registration, Netbiscuits provides the personal login data to the Party that would allow access to the Software and the Party’s personal restricted user area and opens a separate customer account.

1.7       In order to use the Software and the conversion services, the Party must have an Internet access and be able to access the Software and the Server System respectively. The Party 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 such access.

 
2.         Availability of the Software
 
2.1       The Party 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.

2.2       To the extent possible, Netbiscuits will inform the Party on all necessary interruptions and restrictions of the availability (for example, for maintenance works on the Server System) at least one week in advance through www.netbiscuits.com and arrange that these interruptions will take place outside the main Software access hours.

2.3       If the Party 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 Party’s access to the Server System and/or interrupt the conversion services. The parties understand that this provision also applies to the so-called Denial of Service attacks (hereinafter, DoS attacks), which the Party performs over the Server System. In case of deliberate actions on behalf of the Party, Netbiscuits may terminate the contract with immediate effect:

• If the Server System becomes an object of DoS attacks, Netbiscuits may terminate the contract with immediate effect upon a notice, if Netbiscuits has no feasible opportunity to stop the imminent future DoS attacks or their effects to a third party server.
• If the Party is responsible for sending spam mails over the Server System, then Netbiscuits may temporarily suspend the Party’s access to the Server System and/or interrupt the conversion services and/or terminate the contract with immediate effect.
• The Party may not save content on the Server System, which violates any laws or infringes on rights of third parties in any way. In case of intentional actions or gross negligence of the Party in this respect, Netbiscuits may terminate the contract with immediate effect.

3.         Support

3.1       Unless agreed to the contrary in this Contract, the use of the Software is governed by the laws applicable to lending. If the Party has selected the API model and uses the SDK provided by Netbiscuits, then the use of the SDK is also governed by the laws applicable to lending. Therefore, Netbiscuits is not bound by a guarantee obligation.

3.2       However, Netbiscuits shall support the Party in using the Software. Within the scope of the Contract, only standard support is available to the Party. Within the scope of the standard support, Netbiscuits answers the Party’s questions in an Internet forum maintained by Netbiscuits or per e-mail.

4.         Compensation
 
Under this Contract, the Software is provided free of charge for a limited period of time and under the definitions to be found under www.netbiscuits.com/editions.

5.         Term of the contract

5.1       The term of the Contract is limited to 30 days. The Contract may not be extended.

5.2       The Contract shall end automatically, once its term expires. It shall not be automatically converted into a regular Software use contract. To enter into such contract, a new contract with Netbiscuits is required.

5.3       The right of the parties to termination due to important reason remains unaffected. An important reason is especially deemed to exist, if one of the parties grossly violates the obligations expressly governed by these GTC, and also if an insolvency procedure is initiated with respect to the other party’s assets.

5.4       Upon the end of the Contract, Netbiscuits shall, in its discretion, either delete the data stored by the Party, if any, or hand it back to the Party.

6.         Liability and period of limitation

6.1       Netbiscuits shall only be liable for violation of the service obligations and service related protection obligations in case of intentional actions. The service obligations represent important contractual obligations, i.e. the provision of the Software free of charge. The service related protection obligations are all obligations of Netbiscuits, which are immediately related to the contractual obligations and enable them.

6.2       In case of violation of other obligations, i.e. those unrelated to service obligations, Netbiscuits shall be liable as follows:

6.2.1    For damages with respect to injury to health, body or life caused by Netbiscuits, Netbiscuits’ representatives and persons employed by Netbiscuits in the performance of the contractual obligations, Netbiscuits is fully liable. The same applies to damages which result from the absence of a quality which was guaranteed by Netbiscuits.

6.2.2    Netbiscuits is fully liable for damages caused willfully or by gross negligence by Netbiscuits, Netbiscuits’ representatives and persons employed by Netbiscuits in the performance of the contractual obligations.

6.2.3    If the telecommunication services are affected, except for the cases listed in Clause 6.2.1, Netbiscuits' liability towards the Party is limited in case of gross negligence to the maximum amount of 12,500 EUR, and towards all affected persons to the maximum amount of 10,000,000 EUR per damage causing event. If the damage compensation, which is to be paid to several persons based on the same event, exceeds in the last 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.

6.3       The liability under the Product Liability Act (Produkthaftungsgesetz) remains unaffected.

6.4       Any possible contributory negligence of the Party remains unaffected by these provisions, especially, if the Party does not regularly backup its important data.

6.5       Netbiscuits shall not be liable for an incidental interruption in availability of the Software or the Server System that is not caused by Netbiscuits or its legal representative or subcontractor.

6.6       These liability provisions are exclusive. Netbiscuits does not assume any further express or implied liability for the Software.

6.7       The period of limitation for damage compensation claims and defect claims against Netbiscuits shall constitute, except in the cases listed in Clauses 6.2.1, 6.2.2 and 6.3, twelve months starting from the occurrence of the damage causing event.

7.         Data protection

7.1       Netbiscuits takes the protection of the Party’s personal data very seriously. Further information of the steps taken by Netbiscuits may be obtained at www.netbiscuits.com by downloading the Privacy Policy.

7.2       With respect to the personal data protection, the parties to the contract agree to comply with the provisions of the data protection laws, especially with those of the Federal Data Protection Law (Bundesdatenschutzgesetz), Telecommunication Law (Telekommunikationsgesetz) and the Telemedia Law (Telemediengesetz), and especially to impose the corresponding obligations on their service providers, employees and business partners.

7.3       If the Party stores personal data on Netbiscuits’ server, it constitutes a case of commissioned personal data processing. In such case, the Party 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 the Party. If Netbiscuits believes that instructions given by the Party violate the data protection provisions, Netbiscuits shall promptly inform the Party thereon.
 
8.         Release

8.1       The Party is solely responsible for making sure that the applications and/or content created or provided by the Party or saved on the Netbiscuits server do not violate any rights of third parties, especially the protection rights. Netbiscuits will only control the issue in case of grounded suspicion.

8.2       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 Clauses 9.2 and 9.3 by the applications and/or content produced or provided by the Party or saved by the Party on the Netbiscuits’ Server, then the Party shall indemnify Netbiscuits in full, including the legal costs, for such claims.           
 
9.         Further obligations of the Party

9.1       The Party shall maintain confidentiality of all access data to its personal customer account with respect to third persons and shall promptly change all passwords, if it suspects that unauthorized third parties have obtained information about the access data or passwords. If the access data is lost or obtained by an unauthorized third party, the Party shall promptly notify Netbiscuits thereon.

9.2       The Party does not have the right to save applications and/or content on the Server System, which violate laws or infringe on rights of third parties in any way. In case of intentional actions or gross negligence on behalf of the Party in this respect, Netbiscuits may terminate the contract with immediate effect.

9.3       The Party guarantees that the applications and/or content, which it has produced or provided or saved on the Netbiscuits’ server,

·         do not violate the applicable laws, especially the data protection provisions,

·         are not connected in any way to theft, deceit, drug trafficking, money laundering and/or terrorism

·         do not promote violence, sadism, mishandling or racial hate,

·         do not promote prostitution or pedophilia,

·         do not contain any defamatory, pornographic, obscene, immoral, offensive, indecent or threatening materials,

·         are not known or intended to be infected with viruses,

·          are not used to send unsolicited e-mails or SMS (spam)

·          do not limit other users in using the Software in an unacceptable way.

 
9.4       If the Party installs a new application and/or content, then it shall provide information as to whether they contain any materials, which were not released without age restriction or were not released for children under the Youth Protection Law (JuSchG). Such information is only intended for Netbiscuits' internal use. Netbiscuits uses such information to identify any possible violations of Clause 9.3 by conducting random sampling. Generally, it remains the Party’s responsibility to comply with the applicable provisions of the Youth Protection Law.

10.       Use rights
 
10.1     For the term of the Contract, Netbiscuits grants the Party a simple, non-exclusive, non-transferable, timely limited right to use to the Software with respect to its then latest version. The right to use shall expire automatically upon the expiration of this Contract.

10.2     The Party is especially not entitled:

·         to remove or modify copyright statements, serial numbers and other marks intended to identify the program. Same applies to suppressing the screen related marks;

·         to grant access to the Software to third parties, other than the Party’s employees,

·         to use the Software for purposes other than provided by the current business purpose of the Contract;

·          to perform back translation of the provided programming code into other coding forms (decompilation) and other types of reconstruction of various production phases of the Software (reverse engineering);

·          to remove copy protection or other protection mechanisms;

·          to further license, lease, sell, transfer or otherwise distribute the Software.

 
10.3     For provision of services under this Contract, the Party 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.

10.4     Netbiscuits is not obligated to provide the source code for the Software, including the corresponding development documentation.

10.5     If the Party has selected the API model, then the following regulations apply additionally:

10.5.1  The Software may be used for the benefit of the Party, as well as for the benefit of its end users.

10.5.2  The Party may use the SDK software on the hardware available to the Party.

10.5.3  The provisions of Clause 10 also apply to the SDK provided by Netbiscuits at www.netbiscuits.com.

10.5.4  If the Party has used an SDK provided by Netbiscuits, then it shall completely delete such SDK upon the expiration of this Contract.
 
11.       Confidentiality

11.1     During the term of this Contract and two years upon its expiration, 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 collaboration (hereinafter, the confidential information).

11.2     Disclose of the confidential information to third parties requires a prior written or e-mail consent of the other party. The parties shall also impose the undertaken obligations to maintain confidentiality onto all persons and companies, whose confidential information or service under this contract was disclosed.

11.3     The obligation to maintain confidentiality 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.

11.4     A violation against the obligation to maintain confidentiality entitles the injured party to claiming liquidated damages in the amount of 50,000.00 EUR.

12.       No assignment

The Party may not transfer its rights and duties under this Contract, either temporarily or permanently, to a third party without Netbiscuits’ prior written or e-mail consent.

13.       Final provisions
13.1     This Contract is governed exclusively by the laws of the Federal Republic of Germany, excluding the provisions of the Private International Law and the United Nations Convention on Contracts for the International Sale of Goods.

13.2     The venue for all disputes arising out of this Contract shall be Kaiserslautern, Germany.

13.3     There are no auxiliary agreements. Changes to this Contract shall be made in writing.

13.4     If a provision of these GTC is or becomes invalid, fully or partially, this shall not affect the validity of the other provisions.

13.5     General terms and conditions of the Party do not apply.