General Terms and Conditions of SABIO Knowledge

1. Subject matter and scope of application of the present General Terms

1.1 The present General Terms and Conditions (hereinafter: "General Terms") govern the rights and obligations connected with the use of the knowledge management software "SABIO Knowledge" (hereinafter "Software") that is supplied to the user as a Software as a Service solution.

1.2 The General Terms of SABIO GmbH (hereinafter "SABIO") shall apply exclusively. SABIO objects to and rejects any opposing general terms or any of user’s general terms that differ from the present General Terms unless SABIO expressly agreed in writing or in text form to their application. The present General Terms shall apply even if SABIO, despite having knowledge of any opposing or different general terms of the user, provides its services to the user without reservation.

2. SABIO’s services

2.1 For the term of the contract, SABIO supplies the Software SABIO Knowledge in its current form to the user. The Software is used on a server-side infrastructure also provided by SABIO (hosting) for shared use within a professionally managed data center environment.

2.2 The Software’s scope of services results from the product description applicable at the time of the conclusion of contract and the availability of the Software as described in the present General Terms. SABIO is constantly advancing the Software. In that context, new functionalities may be added. If functionalities are removed, the users’ legitimate interest in maintaining functionalities will be taken into account.

2.3 SABIO grants its users a free test phase of 30 days. After the end of the test phase, the customer’s account is disabled. The relationship between the user and SABIO is not automatically converted into a fee-based user license agreement relating to the Software. The account data provided will be stored for up to four weeks from the end of the test phase. During such time, it is possible to conclude a fee-based user license agreement under no. 2.4 hereof via SABIO’s support division.

2.4 After the end of the test phase under No. 2.3 hereof, the customer is given the possibility to enter into a fee-based license user agreement relating to the Software with SABIO. This requires providing the company name, the billing address, and valid credit card information. The exact payment terms are specified under no. 12 hereof.

3. Rights of use

3.1 SABIO grants the user an ordinary, non-exclusive right that is not transferable to third parties to use the Software within the agreed scope for the term of the contract. Ownership of the Software itself, and of any copies of related materials, shall remain with SABIO.

3.2 The user’s indispensable statutory rights (including the right of reproduction for private and other personal uses under Sect.53 UrhG) shall not be affected.

3.3 SABIO will maintain and service the Software during the term of the contract and will provide the user online with released new versions, patches, and updates, free of any additional charge.

4. Warranty

4.1 SABIO warrants that the Software features the properties specified under No. 2 hereof and that the availability promised under No. 7 hereof will be complied with.

4.2 In the event that availability falls short of that provided for under No. 7, the fee will be reduced by 1/30 of the monthly basic fee per calendar day, or part thereof, from the date of non-availability. Scheduled maintenance work and downtimes due to force majeure are excluded.

4.3 In the case of defects of the Software, SABIO will remove them within a reasonable period of time. 4.4 If SABIO is unable to remove a defect in title or in quality within a reasonable period of time, the user is entitled in the case of defects that are not merely insignificant to terminate the contract without notice for an important cause, provided the user previously requested SABIO in text form to remove the defect within a set period of time threatening to terminate the contract in the event that the period of time set for removal expires to no avail.

4.5 Additional statutory claims and rights the user may have in the case of defects in title or in quality shall not be affected.

4.6 The user’s warranty claims shall be limited to one year from the date the application is made available online.

5. Third party property rights

5.1 SABIO indemnifies and holds free the user from all and any claims a third party may allege to have against the user on the grounds of an infringement of industrial property rights to the Software provided in its contractual form.

5.2 SABIO is entitled to make necessary changes to the Software at its own expense in the event that a third party claims that its industrial property rights are infringed.

6. Limitations of liability

6.1 SABIO shall be liable in cases of wilful intent or gross negligence for all damage SABIO causes in connection with the performance of the contractual services.

6.2 In cases of slight negligence, SABIO shall be liable without limitation for death, physical injury and damage to health.

6.3 For the rest, SABIO shall be liable only if SABIO breached an essential contractual obligation. Essential contractual obligations in an abstract sense means obligations the performance of which is conditio sine qua non for the proper performance of the contract and upon the fulfilment of which the user may regularly rely. In such cases, liability is limited to the type of foreseeable damage that typically occurs. The contracting parties mutually agree that the recognised amount of damage is limited to the net fee for 24 months that the user would have to pay to SABIO for using the Software.

6.4 If SABIO’s liability is excluded or limited under the foregoing provisions, the limitation or exclusion shall apply likewise to the liability of SABIO’s auxiliary agents.

6.5 Liability under the German Product Liability Act, the Produkthaftungsgesetz, shall not be affected.

7. Maintenance

7.1 Within its area of responsibility, SABIO guarantees an average monthly availability of 99.5 %. The calculation of availability does not include regular SABIO maintenance windows that amount to 4 hours per week and generally take place between 00:00 h and 06:00 h Central European Time.

7.2 In the case of any other scheduled maintenance work, SABIO will, if reasonably possible, inform users of fee-based services in advance in text form.

8. Data backups, data safety

8.1 SABIO will make state-of-the-art backups of the data processed for the user. To this end, an incremental backup will be conducted daily and a full backup will be conducted weekly.

9. Responsibility for content

9.1 SABIO grants users the right to make content available to third parties via the Internet using the Software. The user is fully responsible for any content the user posts on the Internet. SABIO assumes no responsibility whatsoever for monitoring such content for completeness, accuracy, lawfulness, timeliness, quality, and suitability for a particular purpose.

9.2 The user declares and warrants vis-à-vis SABIO that the user is the sole holder of all and any rights to the content that the user makes accessible to any third party via the Software or is authorised otherwise (e.g. by effective permission by the holder of the right) to make such content available via the Software.

9.3 SABIO reserves the right to refuse to post content, and/or to edit, block, or remove content already posted, without prior notice if posting such content, or the posted content itself, has resulted in a violation of the present General Terms or if there is specific evidence that posting such content, or the posted content itself, will result in a severe violation of the present General Terms.

10. Blocking

10.1 SABIO may fully or partly block the services to be provided under the present contract if the user is in arrears on payment. Blocking on those grounds, however, may only take place 10 business days following a corresponding warning in text form (e.g. email).

10.2 Furthermore, SABIO may block the services to be provided without observing the period of time specified herein-above if:

· there is a reason for termination without notice and such termination has been declared.

· if the systems or services provided by SABIO, in particular, the transmission network, are in danger of considerable damage or impairment or in the case of danger of considerable damage to the general public.

· If content infringes laws or brand, patent, or other rights of a third party, provided SABIO gave the user written notice of such infringement and the user failed to remedy such infringement immediately upon receiving such notice.

Suspending/blocking its services on the part of SABIO for any of the reasons set forth herein-above does not entitle the user to suspend the user’s payments. In the event of blocking for any of the reasons set forth hereinabove, the user may not raise damages claims against SABIO.

11. Fee / payment terms

11.1 The amount of the fee results from the product the user booked and from the terms and conditions stated there.

11.2 The customer may choose between monthly and annual settlement. The settlement period starts on the date a fee-based order for the Software is placed under no. 2.4. All payments are due payable in advance by credit card. In the case of monthly settlement, SABIO provides a downloadable invoice in electronic form to the customer in the customer’s profile and in addition sends it to the customer by email. In the case of annual settlement, the customer is sent an invoice covering 12 months by email.

12. Term and termination of the contract

12.1 In the case of contracts with monthly settlement, a minimum contract term of one month applies. After the end of the minimum contract term, the user license agreement is extended automatically by extension periods of one month each time, unless the customer terminates the contract prior to the beginning of the extension period.

12.2 In the case of contracts with annual settlement, a minimum contract period of one year applies. After the end of the minimum contract period, the user license agreement is extended automatically by one year each time, unless the customer terminates the contract prior to the beginning of the extension period.

12.3 The user terminates the contract by initiating the deletion of the user’s account in the user’s personal setting or by sending a notice of termination to SABIO in text form (e.g. email). In the event that notice of termination is given prior to the end of the settlement period, the customer shall not be entitled to any (proportional) refund of any advance payment already effected.

12.4 SABIO may terminate the user license relationship at any time and without providing reasons in text form (e.g. email), observing a notice period of 24 months.

12.5 The parties’ right of extraordinary termination shall not be affected. An extraordinary termination right on the part of SABIO exists if the user wilfully breached provisions stipulated in the present General Terms and/or wilfully or negligently committed prohibited acts. SABIO will ensure that on termination of the hosting services, the user has access to all information stored on the servers made available to the user and will then delete them on all its systems.

13. Data protection

13.1 SABIO undertakes to comply with the applicable provisions of the Federal Republic of Germany’s data protection laws, as amended, where they are relevant to the performance of SABIO’s contractual services. SABIO will notify the user forthwith of any suspected data privacy violations.

13.2 SABIO shall ensure that users’ personal data are only collected, stored, and processed where and inasmuch as necessary to properly perform the contractual services and as permitted by law or ordered by the legislator. SABIO will treat personal data confidentially and will not pass them on to any third party unless necessary to fulfil its contractual obligations and/or unless it is obliged to pass them on to third parties.

13.3 In the event that, within the context of using SABIO’s services, the user’s consent in terms of data protection law is requested, the user is herewith informed that such consent may be revoked at any time with effect for the future.

13.4 Further information on data protection and the purpose, nature, and scope of the collection, processing and use of personal data can be obtained from the data privacy statement that can be downloaded at any time under the link "Data Privacy".

13.5 To perform its customer support, SABIO uses the software system of a third party provider who may store customer data in the U.S., also. SABIO will ensure that the statutory requirements for processing personal data outside the European Union are observed in this respect.

14. Alterations of the General Terms

14.1 SABIO reserves the right to change the present General Terms at any time, even within already existing contractual relationships. SABIO will notify the user of such changes at least 6 weeks before the scheduled entry into force of the changes. If the user fails to object within 6 weeks from receiving such notification and continues to use the services after the end of the objection period, such alterations shall be deemed effectively and mutually agreed from the end of the objection period. In the alteration notification, SABIO will notify the user of the user’s right to object and the consequences of such objection. In the case of objection, the SABIO is entitled to terminate the contractual relationship with the user with effect from the scheduled date of the entry into force of the alterations.

15. Final provisions

15.1 The laws of the Federal Republic of Germany shall apply; the United Nations Convention on Contracts on the International Sale of Goods are excluded.

15.2 If the user is a merchant, legal person under public law or special fund under public law, the exclusive place of jurisdiction for all disputes arising from the contractual relationship shall be at SABIO’s registered offices.

15.3 In the event that individual provisions of the present General Terms are or become invalid, the validity of the remaining provisions shall not be affected.

As of: 12 January 2017