Collax GENERAL CONDITIONS OF USE OF THE WEBSITE
1. Formation of the Contract, Scope: We, Collax GmbH, domiciled in Ismaning near Munich ("Collax" or "we"), provide the webpages under the URL www.collax.com ("Website") to you ("User" or "you") exclusively subject to the terms and conditions set forth below ("Conditions"). By accessing and browsing the Website you confirm your agreement to the Conditions and thereby consent to the conclusion of a binding agreement between yourself and Collax ("Contract") on the basis of the Conditions. The Contract is not recorded but you can print out the Conditions. If you do not agree to the Conditions you may not use the Website.
2. Downloads or Deliveries. These Conditions apply to use of the Website. If you order, download or access supplies or services through this Website, special terms and conditions ("Special Conditions") may apply to such supplies or services. Such applicable Special Conditions will be brought to your attention during the order or download process.
3. Definitions: As used herein:
3.1 “Consumers” – designates Users who are neither (a) natural persons, corporations or partnerships entering into the Contract for a purpose within the scope of their trade, business or independent profession, nor (b) public law corporations; nor (c) public law funds or trusts.
3.2 “EEA” – The European Economic Area.
4. Languages. These Conditions are available in German and English language. Vis-à-vis Users having their seat, domicile or permanent residence in Germany, Austria or Switzerland the German language version shall prevail, and vis-à-vis all other Users the English language version shall prevail.
5. Product Information and Product Offers, that may be published on the Website are neither binding on Collax nor do they constitute guarantees of certain properties and or any obligation of Collax to enter into a Contract. Such information shall be deemed a request for the user to submit a purchase offer.
6. Amendments, Modifications. Collax reserves the right to modify or discontinue the Website in whole or part or to exclude individual or all users from access to the Website at any time.
7. Property Rights. If any content of the Website or any content offered on or through the Website for use or download, including any computer software (“Software”) (collectively “Content”) is protected by intellectual property rights of Collax and/or of the provider of such Content, the following shall apply:
All rights in such Content are reserved. The user shall refrain from any use of the Content not specifically permitted in these Conditions.
The user shall be entitled to use and copy Content to the extent necessary for display on its computer screen. The user shall also be entitled to copy text documents published on the Website within reasonable limits for its own internal purposes and/or for the non-commercial information of third parties, provided that (i) each copy shall contain information on the source of such text and on the property rights of Collax and any other copyright notices shown on the original text on the Website; and (ii) the text is not modified or excerpted in a way that modifies its content; and (iii) it is not made available to third parties over a network. The foregoing license is expressly limited to text documents and does in particular not apply to any design, music, graphics, logos and/or the “look and feel” of the Website.
Web Analytics: This website uses Google Analytics, a web analytics service provided by Google, Inc. (“Google”). Google Analytics uses “cookies”, which are text files placed on your computer, to help the website analyze how users use the site. The information generated by the cookie about your use of the website will be transmitted to and stored by Google on servers in the United States .
In case IP-anonymisation is activated on this website, your IP address will be truncated within the area of Member States of the European Union or other parties to the Agreement on the European Economic Area. Only in exceptional cases the whole IP address will be first transfered to a Google server in the USA and truncated there. The IP-anonymisation is active on this website.
Google will use this information on behalf of the operator of this website for the purpose of evaluating your use of the website, compiling reports on website activity for website operators and providing them other services relating to website activity and internet usage.
Property Rights of Users. To the extent that the user submits Content through the Website to Collax and/or to other users, Collax and/or the other users are entitled to freely use, copy and distribute such Content for the contemplated purposes. Collax shall not be deemed obliged to treat such Content as confidential and/or to refrain from specific uses of such Content, unless the user has made an express reservation to that effect when submitting the Content. If a user publishes Content on the Website, the other users’ rights of use shall be limited as set forth in the proceeding Section 5. When submitting Content, the user guarantees to Collax that such Content (i) is in full compliance with applicable law, (ii) is complete and correct and (iii) does not infringe any third party rights, in particular that the owner of the property rights in such Content has consented to the uses contemplated herein. Collax expressly declines any warranty or liability to any user submitting Content for publication that the other users will refrain from infringing such user’s property rights in the published Content.
8. User Obligations. When using the Website, the user agrees to refrain from (i) inhibiting other users; (ii) accessing confidential information of other users; (iii) using the Website for any purpose other than the purposes contemplated in these Conditions; or (iv) using the Website in a way that may interfere with the services offered on the Website. Collax reserves the right to issue regulations of use for the Website.
Indemnification. The user guarantees to Collax that any use of the Website by the user is in full compliance with applicable law and with these Conditions and does not infringe any third party property rights. The user shall hold Collax harmless from any and all claims asserted by third parties (including public agencies), claiming that the user has violated (i) statutes of regulations applicable to its business, including but not limited to, statutes on unfair competition or data protection, (ii) any obligations, warranties or guarantees pursuant to these Conditions or (iii) any third party rights. It shall also indemnify Collax for all expenses incurred in connection with such claims including reasonable attorneys fees.
9. Hyperlinks. Collax agrees to hyperlink referrals to the Website by third parties (“Links”), generally only if and to the extent that (i) such Link does not incorrectly imply a business relationship between Collax and a third party and/or Collax approving of such third party’s supplies or services and (ii) the Website is depicted on the user’s screen in a new window in its entirety clearly marked as Content provided by Collax (no “frames”). Networks reserves the right to prohibit individual Links even if they comply with the foregoing requirements at any time and hereby expressly prohibits any Links that do not comply with the aforementioned requirements..
10. If Collax refers to a third party Website by way of a hyperlink, this shall not be deemed to constitute any approval of such Website and Collax shall not be deemed to have assumed any liability in respect of such Website.
11. Liability. Collax shall be liable in damages, whether based on contract or any other legal theory, only to the extent that the damage was caused by gross negligence or willful misconduct imputable to Collax. In the event of death of a natural person or personal injury to the latter, Collax shall be liable also for slight negligence. In addition, Collax shall also be liable for a slightly negligent violation of a fundamental duty under the Contract, but such liability shall be limited to such damage as Collax could have reasonably foreseen at the time of signing of the Contract.
Fundamental duties as used herein comprises all duties which must be fulfilled in order to enable consummation of the Contract and the achievement of its purposes and fulfillment of which the User may reasonably expect in view of the content and purposes of the Contract.
11.1 Collax’ liability shall not cover any damage caused by the loss of data to the extent such loss could have been avoided by daily, alternating back-up.
11.2 Limitations on Collax’ liability agreed in the Contract or these Conditions shall apply also to the personal liability of Collax’ officers, employees or agents.
11.3 Where Deliverables are provided free of cost, e.g. demo software, Collax’ liability shall be further limited, and Collax shall be liable for damages based on gross negligence or willful misconduct imputable to Collax and/or fraudulent concealment of defects only.
11.4. Any mandatory liability under the Product Liability Act and/or arising from a guarantee of properties shall remain unaffected.
12. In addition, Collax’ liability in connection with third party Content shall be limited and/or excluded to the utmost admissible legal extent in accordance with the German Teleservices Act.
13. Notices. Any notices, declarations or waivers which may be declared or made pursuant to the Contract or these Conditions shall be valid only if they are in text form.
14. No Assignment. The User shall not be entitled to assign its rights under the Contract - except for claims for payment - to any third party without Collax’ prior written consent, which consent shall not be unreasonably withheld.
15. Severability. Should one or more of the provisions of the Contract or these Conditions be or become invalid or unenforceable, the validity and enforceability of the other provisions hereof shall not be affected.
16. Place of performance shall be at Ismaning near Munich, Germany.
17. Governing Law. The Contract and these Conditions shall be subject to the laws of the Federal Republic of Germany with the exception of the UN Sales Convention (CISG).
In Contracts with Users who at the time the Contract is concluded are domiciled outside of Germany and enter into the Contract acting for purposes which are outside their trade, business or profession, for the supply of services to be provided in whole or part in such state or the supply of goods, mandatory statutory protective provisions of such state shall remain unaffected by such choice of law, if:
- the Contract was preceded by an invitation or advertising in such state, and the User took the steps necessary for the conclusion of the Contract in such state;
- Collax or a representative of Collax received the User’s order in such state.
18. Jurisdiction. All disputes arising under or in connection with Contract and/or these Conditions shall be submitted exclusively to the courts having general jurisdiction at the corporate seat of Collax to the extent that the User is a commercial entity or a public law corporation, or a public law fund or trust. The User hereby submits expressly to the jurisdiction of such courts.
The same shall apply if, at the time the claim is brought, the User’s domicile is not in Germany or not known, except where the User enters into the Contract acting for purposes which are outside his trade or profession and at the time the Contract is concluded:
a)is domiciled in a member state of the EEA other than Germany, in which Collax pursues commercial or professional activities or to which Collax, by any means, directs such activities, where the Contract falls within the scope of such activities
b)is domiciled in a member state of the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters done at Lugano on 16 September 1988 other than Germany, and (i) the Contract is for the supply of goods or services, (ii) the Contract was preceded by an invitation or advertising in such state, and (iii) the User took the steps necessary for the conclusion of the Contract in such state.
Collax shall in any event be entitled, at its discretion, alternatively to take legal action against the User in the courts having general personal jurisdiction over the User.
Ismaning near Munich, November 2012.
COLLAX GENERAL TERMS OF SALE
A GENERAL PROVISIONS
1 Scope. These Conditions shall apply to all supplies, services and licenses of any kind provided by Collax GmbH, domiciled in Ismaning near Munich, Germany ("Collax") to its customers. If Collax and the customer have entered into a contract of sale or a service, license or other agreement (hereafter collectively referred to as "Contract"), these Conditions shall apply except if and to the extent that the Contract provides otherwise. These Conditions presuppose that the customer is a corporation or a legal entity established under administrative law or any other entity ordering the products, rights or licenses supplied, or tangible or intangible works created by Collax ("Deliverables") as well as any other supplies and services provided by Collax for purposes within the scope of its trade, business or independent profession (collectively "Customer(s)"). Potential customers who are not eligible Customers as defined hereinbefore (Consumers) may not order any supplies, services or licenses from Collax except with Collax’ prior express written consent.
2 Languages. These Conditions are available in German and English language. If the Customer has received the Conditions in a single language only, that language version shall be binding, if the Customer has received both language versions, the following shall apply in the event of discrepancies: vis-à-vis Customers having their seat, domicile or permanent residence in Germany, Austria or Switzerland the German language version shall prevail, and vis-à-vis all other Customers the English language version shall prevail.
3 No Other Terms and Conditions. Collax does not accept any terms and conditions which deviate from these Conditions, except if such terms and conditions have been expressly accepted by Collax.
4 Any quotations which Collax may provide shall not be binding on Collax.
5 Confidentiality. The parties mutually agree to keep all technical and commercial information received from the respective other party strictly confidential and to refrain from using any such confidential information except as strictly required performing the Contract. Only information which the recipient can show was already published or known to it at the time of disclosure or that was published later without the fault of the recipient shall be exempted from this clause. The parties guarantee that their respective employees, consultants and subcontractors comply with the secrecy obligation under this clause during and after their relationship with the party concerned. The recipient shall notify the owner of any confidential information in the event that it becomes aware that information which the respective other party regards as confidential has become publicly known, or if notes or media containing such confidential information are lost, or if it deems itself legally obliged to provide confidential information to any third party, including courts of law or government entities. This confidentiality clause shall remain in force even after termination of the Contract.
6 Amendments of these Conditions or Recurrent Fees may be made by Collax unilaterally with proactive effect during the life of a Contract as follows:
6.1 Collax shall be entitled to amend these Conditions or any recurrent fees by unilateral notice with proactive effect, observing three months notice with effect to the end of an agreed minimum contract term or any other date on which Collax could alternatively terminate the Contract in accordance with its terms.
In such case the Customer shall have the right to withdraw from the Contract by unilateral notice, observing one month notice with effect to the effective date of the proposed amendment. Where Customer does not exercise this right, the amendment shall become effective.
The amendment shall apply to future supplies and services under Contracts providing for continuous or recurrent performance such as Support Contracts or limited term licenses only, pre-existing perpetual licenses shall not be affected by such amendment.
6.2 Notwithstanding Sec. 6.1, Collax shall also have the right to modify any recurrent fees agreed for the provision of Support or other services upon three months' notice with effect to the end of any calendar month, if and to the extent that the cost of Collax's staff in charge of providing such services and/or the costs of materials and services reflected in such fee increase. If the increase should be higher than 10% within one calendar year, the Customer shall be entitled to give notice of termination of the Contract providing for such recurrent fee, irrespective of any minimum term which may have been agreed, observing one month notice with effect to the effective date of the proposed amendment. Where Customer does not exercise this right, the amendment shall become effective.
7. Notices. Any notices, declarations or waivers which may be declared or made pursuant to the Contract or these Conditions shall be valid only if they are in text form.
8. No Assignment. The Customer shall not be entitled to assign its rights under the Contract - except for claims for payment - to any third party without Collax’ prior written consent, which consent shall not be unreasonably withheld.
9. Severability. Should one or more of the provisions of the Contract or these Conditions be or become invalid or unenforceable, the validity and enforceability of the other provisions hereof shall not be affected.
10. Place of performance shall be at Ismaning near Munich, Germany.
11. Governing Law. The Contract and these Conditions shall be subject to the laws of the Federal Republic of Germany with the exception of the UN Sales Convention (CISG).
12. Jurisdiction. All disputes arising under or in connection with Contract and/or these Conditions shall be submitted exclusively to the courts having general jurisdiction at the corporate seat of Collax to the extent that the Customer is a commercial entity or a public law corporation, or a public law fund or trust. The Customer hereby submits expressly to the jurisdiction of such courts. The same shall apply if, at the time the claim is brought, the Customer’s domicile is not in Germany or not known. Collax shall in any event be entitled, at its discretion, alternatively to take legal action against the Customer in the courts having general personal jurisdiction over the Customer.
b TERMS OF DELIVERY AND PAYMENT
13. Terms of Delivery. All Deliverables shall be delivered ex works Osterholz-Scharmbeck, Germany, Incoterms 2000. The prices quoted by Collax shall be deemed agreed on the same basis, and, unless otherwise agreed, Collax will arrange for shipping, packaging and insurance at the Customer's expense.
14. No delivery date shall be binding on Collax unless it has been expressly confirmed as "binding" and the Customer has complied fully with all of its responsibilities regarding the delivery. Time shall not be regarded to be of the essence except if expressly agreed.
15. Collax reserves the right to make partial deliveries.
16. Collax’ obligation to deliver any Deliverables shall be subject to the condition precedent that Collax shall have been supplied correctly and in due time by its suppliers.
17. Acceptance. Any Deliverables delivered and installed by Collax, and legally requiring acceptance under the Contract or statutory law, shall be accepted by the Customer within two weeks from installation in the presence of representatives of Collax, provided the Deliverable essentially complies with the specifications agreed between the parties. The Customer shall confirm the acceptance in writing. Prior to delivery of the acceptance certificate to Collax, the Customer shall refrain from using the Deliverable. In the event that the Customer uses the Deliverable prior to delivery of the acceptance certificate to Collax, such use shall be regarded as acceptance.
Collax is entitled to submit individual self-contained components or phases of Deliverables for separate, independent acceptance (acceptance in part). The complete Deliverable will then be deemed accepted after the last acceptance in part has taken place. In that case, no additional final acceptance for the complete Deliverable is required.
18. Terms of Payment. All invoices shall be paid upon receipt without any deduction, unless otherwise agreed. Customer will be deemed in default with a payment at the latest after expiry of two weeks from (i) the due date and (ii) receipt of Collax’ invoice.
19. Value Added Tax shall not be deemed included in the prices quoted by Collax, and, if applicable, it will be shown separately in the invoice at the rate prevailing on the date of the invoice and paid by the Customer.
20. Price List. Supplies and services not covered by the Contract shall be billed based on the price list prevailing at the time of receipt of the order.
21. The Customer shall not be entitled to set off any of its claims against claims of Collax, except where the Customer's claims are undisputed or have been confirmed by a final court judgment.
The foregoing shall also apply to any right of retention under civil or commercial law, and in particular to any deductions from recurrent payments to Collax based on supposed defects of Deliverables. This shall, however, not limit Customer’s claim for repayment of any amounts paid but not owed to Collax after such payment to Collax.
Collax reserves the right to retain or suspend any performance under the Contract where Customer has not fulfilled a legal obligation to Collax, in particular where it is late on payments, even where such obligation to Collax is not based on, or related to, the Contract.
22. Responsibilities of the Customer. It shall be the Customer's responsibility to comply with any technical guidelines, such as installation requirements, which the manufacturer may have issued, and to provide Collax with all information and assistance which Collax may reasonably require. In the event that Collax identifies to the Customer a third-party service provider, Collax shall not be deemed to have assumed any liability in respect of the performance of such third-party service provider.
23. Retention of Title. Until payment in full of the purchase price by the Customer, Collax shall retain title to the Deliverables. The Customer shall advise Collax without any delay of any attachments of any such Deliverables, in particular of any judicial execution measures or any other seizures, as well as of any damage suffered by such Deliverables. In the event that any Deliverable is shipped to or used in a country where this Retention of Title Clause is not fully valid and enforceable, the Customer shall provide Collax with equivalent security.
C. PROPERTY RIGHTS
24. Property Rights. The Customer's right to use any Deliverables supplied by Collax which are protected by intellectual property rights, shall be strictly limited to internal business purposes and otherwise as provided in the Contract and in these Conditions. All other rights are reserved. The source code of the Software will not be delivered unless expressly agreed.
25. Derivative Works, New Materials. All right and title worldwide, including any right of use or exploitation, in or to any (a) modifications, alterations or derivate works of a Deliverable, even if discovered, developed or created by or for Customer, and (b) Deliverables or other works or results discovered, developed or created by Collax or Collax’s agents – whether or not in cooperation with the Customer - in connection with the Contract shall exclusively be owned by Collax. The Customer hereby transfers such right and title to Collax who accepts such transfer.
For the avoidance of doubt, Collax’s right or title shall not extend to any improvements independently developed by Customer to the extent that such improvements are separable, i.e. can be exploited without infringing upon Collax’s rights in the Deliverable.
Where an assignment is not legally possible, Customer guarantees that Collax will receive a fully paid, exclusive, perpetual, worldwide, transferable and sublicensable license for all known methods of use. The Customer hereby grants such license to Collax who accepts such license. Where such development is part of Collax’s services to the Customer, Customer shall receive a simple non-exclusive license in such derivative works, works or results in accordance with the Contract and/or these Conditions.
D. WARRANTY AND LIABILITY
26. Limited Remedies for Defects (Warranty). Where Customer has acquired the Product from a reseller, remedies for defects of the Product shall exclusively be asserted vis-à-vis such reseller in accordance with the terms of the agreement between Customer and reseller. In all other cases, the following shall apply:
26.1 Any statutory remedies (“Warranty Claims”) for defects of a Deliverable, including any deviation from agreed specifications and/or any violation of rights of third parties (collectively “Defects”) shall be excluded unless the Defect in question substantially limits the suitability of the Deliverable for the agreed purpose.
26.2 The Customer shall inspect any Deliverables and notify Collax of any defects or deviations thereof immediately after delivery. In the absence of such immediate notice, the Customer shall be deemed to have consented to any deviations of the Deliverables that could have been detected, in particular, without limitation, (a) defects, or (b) delivery of (i) a quantity or (ii) a product other than agreed. The notice shall in particular not be deemed immediate if it is received more than 14 days after delivery.
26.3 Collax reserves the right to decide whether to repair or to replace any Deliverable which should prove to be defective. If Collax fails to exercise such right within a reasonable time limit set by Customer, such right shall pass to Customer. Collax reserves – also in work contracts - at least two attempts at such repair or replacement, except where this should unduly prejudice Customer in individual cases.
26.4 Furthermore any Warranty Claims shall be excluded to the extent that the Customer (a) uses the Deliverable for any purpose other than the contractual purpose or in violation of the relevant statutory requirements and/or any guidelines issued by the manufacturer; or (b) either (i) modifies the Deliverable or (ii) uses of the Deliverable in connection with any hardware or software not approved by the manufacturer of the Deliverable for such purpose, unless, in each case, the Customer has obtained Collax’ prior written consent, and except, in each case, where the foregoing circumstances did not cause the Defect.
26.5 Furthermore any Warranty Claims for violation of thirdparty rights shall be excluded unless such third-party rights are valid within the European Economic Area or Switzerland and the Customer enables Collax to conduct the defense alone without any restriction and grants to Collax the necessary powers.
26.6 The deliverables are exclusively intended for business use and therefore any statutory right of recourse against Collax shall be excluded except if and to the extent that delivery to Consumers has separately been agreed in writing. In any event, the Customer’s right of recourse shall be deemed excluded unless the Customer has notified Collax of the assertion of any warranty claims in text form within five days. In which case the Customer shall be indemnified for expenses in accordance with statutory law only by credits against further deliveries, he shall not be entitled to claim payment in cash.
27. Collax shall not be deemed to have guaranteed certain properties of the Deliverables except if it has expressly confirmed such guarantee. The manufacturer's warranty issued with any Deliverable shall not be deemed a guarantee of certain properties unless it expressly states otherwise.
28. Liability. Collax shall be liable in damages, whether based on contract or any other legal theory, only to the extent that the damage was caused by gross negligence or willful misconduct imputable to Collax. In the event of death of a natural person or personal injury to the latter, Collax shall be liable also for slight negligence. In addition, Collax shall also be liable for a slightly negligent violation of a fundamental duty under the Contract, but such liability shall be limited to such damage as Collax could have reasonably foreseen at the time of signing of the Contract.
Fundamental duties as used herein comprises all duties which must be fulfilled in order to enable consummation of the Contract and the achievement of its purposes and fulfillment of which the Customer may reasonably expect in view of the content and purposes of the Contract.
28.1 Collax’ liability shall cover neither damage caused by the loss of data to the extent such loss could have been avoided by daily, alternating back-up, nor damage caused by using any Deliverables which could have been prevented by examination of the work products of such Deliverable at regular intervals.
28.2 Limitations on Collax’ liability agreed in the Contract or these Conditions shall apply also to the personal liability of Collax’ officers, employees or agents.
28.3 Where Deliverables are provided free of cost, e.g. demo software, Collax’ liability shall be further limited, and Collax shall be liable for damages based on gross negligence or willful misconduct imputable to Collax and/or fraudulent concealment of defects only.
28.4 Any mandatory liability under the Product Liability Act and/or arising from a guarantee of properties shall remain unaffected.
29. Limitation Period. Customer’s remedies for Defects, including but not limited to (i) the right to withdraw from the Contract and (ii) claims for indemnification or damages, in particular incidental or consequential damages, based on Defect, shall be subject to a limitation period of twelve months for newly manufactured Deliverables and six months for used Deliverables.
However, all remedies based on:
- fraudulent concealment of defects or
- Deliverables designed to be incorporated into a building, so incorporated and having caused such building to be defective or
- gross negligence, willful misconduct or the death of a natural person or personal injury to the latter, caused by negligence or willful misconduct
- based on guarantees of properties and/or
the statutory recourse and the right to withdraw from the Contract based on a breach imputable to Collax other than a Defect shall be subject to the applicable statutory limitation periods.
The limitation periods shall begin on the date specified by the statute.
Where Collax repairs or replaces a Deliverable or attempts to do so, such repair or replacement shall not effect a renewal of the limitation period for the Customer’s Warranty Claims with respect to the repaired Deliverable (including spare parts or units used for the repair) or a replacement product. Notwithstanding the repair or replacement, such Warranty Claims shall be subject to a limitation period equivalent to the remaining limitation period applicable to the original Deliverable, except that such limitation period shall not expire earlier than three months after the conclusion of the repair or replacement or Collax’s refusal to undertake further attempts at such repair or replacement.
E. SPECIAL PROVISIONS FOR SOFTWARE RESELLERS
If Customer is a reseller ("Reseller") intending to provide the software delivered by Collax ("Collax Software") to third party licensees ("End User(s)"), the following provisions shall apply in addition to all other Conditions:
30. Scope of Use. The Reseller may provide copies of the Collax Software to End Users or allow End Users to access the Collax Software, only to the extent that such End User has executed a valid license agreement which limits use of the Collax Software in accordance with the respective provisions of the Collax End User License as amended; and (b) the Customer implements appropriate procedures to supervise and enforce End User compliance with such restrictions.
Reseller agrees to (a) indemnify Collax for any damage or loss suffered in connection with the infringement of Collax’ property rights in such Collax Software by an End User and (b) hold Collax harmless from any claims asserted by End Users in connection with the use of, or access to, the Collax Software and not caused by Collax’ breach of the Contract.
31. Subscription Licenses grant the right to use the Collax Software for a limited term only. The term of the subscription, and thereby of the right to use the Collax Software, is subject to automatic renewal in accordance with Sec.33.
Collax will maintain the subscribed Collax Software in usable state during the term of the subscription. The Reseller shall test the Collax Software and its work products upon installation and thereafter regularly and shall promptly notify Collax of any Defects or deviations thereof. In the absence of such testing and/or prompt notice, the Reseller shall be deemed to have consented to any Defects or deviations of the Collax Software that have been or could have been detected. The notice shall in particular not be deemed immediate if it is received more than 14 days after the Defect or deviation has been or could have been detected. The End User shall be deemed the Reseller's agent with respect to the responsibilities under this Sec., and the End User's acts and omissions shall be imputed to the Reseller accordingly. In addition, Chapter D of these Conditions shall also apply to subscription licenses.
32. Collax Maintenance for Perpetual Licenses offers the Reseller the right to obtain free updates, upgrades or new versions of the Collax Software during the maintenance period. Collax Maintenance comprises only the delivery of standard software and does not include software development or customization, End User support and/or problem analysis, workaround or solution. These may be available as a separate product. Collax Maintenance is available only for a continuous term from the first registration of the Collax Software and only for all End Users of a single license. The term of the Collax Maintenance is subject to automatic renewal in accordance with Sec.33.
33. Subscription Licenses and Collax Maintenance for Perpetual Licenses are available with different fixed terms. The subscription term or maintenance period is set forth on the license certificate or Collax Maintenance certificate accompanying the Collax Software. The term or period agreed therein commences on the date of registration of the Collax Software by the End User and expires on the first anniversary of the registration date after expiry of the number of years constituting the subscription term or maintenance period set forth in the license certificate or Collax Maintenance certificate, i.e. the first anniversary if the term/period is one year, the third if it is three years etc. (the "End Date").
The Reseller's subscription or maintenance coverage will automatically renew for consecutive one year terms unless it is terminated by Collax or the Reseller observing a notice period of three months with effect to the End Date. If the subscription is renewed, the End User's right to use the Collax Software is extended accordingly. If the maintenance term is renewed, the Reseller's entitlement to Collax Maintenance is extended accordingly.
Upon renewal of the subscription or maintenance coverage, the Reseller shall be obligated to pay to Collax the respective annual fee. Unless otherwise agreed, the last agreed annual fee shall apply and shall be invoiced for each contract year in advance. Collax reserves the right to adjust the fees and/or terms in accordance with these Conditions.
The Reseller is responsible to effect a renewal of its corresponding subscription or maintenance agreement with the End User and to invoice its own fees to the End User timely prior to the End Date based on the information in the registration database.
34. Audit: The Reseller shall keep, maintain and preserve accurate records relating to the sale of the Collax Software and the Reseller’s obligations under the Contract and/or these Conditions. Such records shall be maintained as confidential, but Collax shall be entitled to request at any time that an independent auditor, obliged not to disclose the identity of the End Users to Collax, examine Customer’s relevant records for the purpose of verifying Customer’s compliance with its obligations under the Contract and/or these Conditions. Collax shall pay the fees and expenses of the auditor for the examination, unless such examination should disclose a breach of contract by Customer or a shortfall in payments to Collax greater than five percent (5%) for the period being audited, in which case Customer shall pay the reasonable fees and expenses of the auditor for that examination.
F. DATA PROTECTION
35. Collax acting as Data Processor: If Collax has access to personal data or other data which is subject to special statutory or professional confidentiality obligations in the context of software support or other services, of if such access cannot be excluded, Collax will exclusively employ personnel for such services which have been instructed on relevant statutory provisions and have undertaken in writing to respect the confidentiality and secrecy of such data. Such data may be used only for the agreed services and in compliance with the Customer’s instructions and, after completion thereof, shall be deleted or limited to archiving purposes. Collax may not subcontract such services except with the Customer’s prior written consent. Collax will supervise its personnel’s compliance with data protection statutes and will implement effective technical and organizational means to ensure the protection of such data against abuse, loss or corruption. Customer may have Collax’ use of such data independently audited where such audits are required by statutory regulations for Customer’s business or profession.
36. Collax acting as Controller: If Collax collects personal data as a controller of such data, such data is collected for internal purposes, i.e. the provision of the supplies or services to the Customer, only. Any personal data will be processed exclusively in compliance with the applicable German and European statutes and regulations on the protection of personal data. Collax will at all times respect the confidentiality of personal data. Collax currently processes personal data exclusively on servers located in the European Economic Area. Collax reserves the right to share personal data with third parties employed by Collax as subcontractors or agents. Collax will require such third parties to agree to the aforementioned limitations before sharing the data. When submitting personal data to Collax, the Customer guarantees to Collax that the data subject has consented to the submission of such data and to its processing or use as contemplated in these Conditions.
Ismaning near Munich, October 2009.