1. Appli­ca­tion

1.1 These license condi­tions apply between BSI Busi­ness Systems Inte­gra­tion Deutsch­land GmbH, Darm­stadt, Germany (herein­after referred to as Mikogo) and any physical person or legal entity that procures and/or uses the Mikogo soft­ware (herein­after referred to as Soft­ware) on a char­ge­able or non-char­ge­able basis (herein­after referred to as Customer).

1.2. In the event that the Soft­ware is procured in return for payment, the Customer accepts these license condi­tions in rela­tion with Mikogo or upon conclu­sion or exten­sion of the lease agree­ment. Other­wise, the Customer accepts these condi­tions with the first down­load of the Soft­ware, upon star­ting to use the Soft­ware, or upon regis­tra­tion of a user account. In any event, Mikogo does not require the Customer’s decla­ra­tion of accep­t­ance to be received at its premises.

1.3. The conti­nuing appli­ca­bi­lity of this license agree­ment is depen­dent upon the conti­nua­tion of the under­lying lease agree­ment (except in the event of use for free) and will share its fate insofar as it will cease to be valid on the same date that the latter ceases to be valid (if such is the case) (e.g. upon revo­ca­tion by the consumer pursuant to section 312 g of the German Civil Code [BGB]).

1.4. The product descrip­tion of the respec­tive licensed soft­ware also forms part of the license conditions.

1.5. Mikogo is a regis­tered trade­mark of BSI Busi­ness Systems Inte­gra­tion Deutsch­land GmbH, Darm­stadt, Germany.

2. Appli­cable Law, Jurisdiction

2.1. The laws of the Federal Repu­blic of Germany are appli­cable for this contract, to the exclu­sion of the United Nations Conven­tion on the Inter­na­tional Sale of Goods.

2.2. Darm­stadt, Germany shall be stipu­lated as the exclu­sive place of juris­dic­tion for disputes resul­ting from or rela­ting to this contract insofar as the Customer has a general place of juris­dic­tion in Germany and is a busi­nessman, corpo­rate entity opera­ting under public law or a public sepa­rate-assets firm.

2.3. This place of juris­dic­tion also applies if the Customer has no general place of juris­dic­tion (i.e. resi­dence) in Germany and is not a user who falls under the general juris­dic­tion of the Euro­pean Union, Norway, Iceland, or Switzerland.

2.4 In principle the place of juris­dic­tion for obli­ga­tions arising from this agree­ment is Darm­stadt, Germany. Statu­tory regu­la­tions on juris­dic­tion are not affected.

3. Func­tio­n­a­lity

3.1. The Soft­ware enables the Customer to send their computer-screen display via the Internet to the computer screens of persons who they select them­selves (herein­after referred to as Parti­ci­pants) and display infor­ma­tion on those screens (in what is herein­after referred to as a Session). Further speci­fi­ca­tions are to be found in the rele­vant product description.

3.2. The Soft­ware consists of a server soft­ware package that is provided by Mikogo, a client soft­ware package for use on the sending Customer’s computer, which has access to the server soft­ware, and an execu­table file for use by the Parti­ci­pants (connec­tion program).

3.3. The point of transfer for server-based services provided to the Customer is the outgoing server of the Mikogo system.

4. Licensed Product

4.1. The Customer shall receive autho­riz­a­tion for a limited period of time for the joint use of the server soft­ware, and for the use of the client soft­ware and the execu­table file (license). If the soft­ware is procured in return for payment, the Customer will be sent a license code with which, following regis­tra­tion, they can acti­vate the agreed soft­ware func­tions in accordance with the product descrip­tion in the user account management.

4.2. Usage rights shall only be granted to one natural person who must be speci­fied by name upon regis­tra­tion of the user account in the user account manage­ment and who need not be the Customer him or herself. The product version deter­mines the maximum possible number of recei­ving Parti­ci­pants for a session and the avail­able features in the software.

4.3. The client soft­ware may be installed on up to three (3) Customer compu­ters. Indi­vi­duals from compa­nies that are affi­liated to the Customer’s company are not autho­rized for use.

4.4. The Customer will be provided with access autho­riz­a­tion to the server Soft­ware with an average annual avai­la­bi­lity rate of 99%. Should the Customer achieve a higher rate of avai­la­bi­lity during use, Mikogo shall grant this to them for free.

4.5. The Customer is not autho­rized to transfer or lease usage rights or to relin­quish the soft­ware or their server access to third parties with the excep­tion of Parti­ci­pant use in accordance with the contrac­tual terms. Compa­nies asso­ciated with the Customer concerned are also consi­dered third parties.

4.6. The source code for any Mikogo soft­ware or its disclo­sure or instal­la­tion, Customer or Parti­ci­pant trai­ning Sessions, or any warranty of the Software’s suita­bi­lity for the purposes intended by the Customer are not contrac­tual items and are also not the subject of any other kind of obli­ga­tion of Mikogo.

4.7. The Customer is not autho­rized to edit or repro­gram or modify any part of the soft­ware, or to rework it or reinstall it in another place.

4.8. Tech­nical infor­ma­tion, descrip­tions and inst­ruc­tions for use are provided to the Customer in elec­tronic form on the Mikogo websites, where the client soft­ware and the execu­table file (both in object code only) are also avail­able for downloading.

5. Use for Free

After setting up a user account (inclu­ding under a pseud­onym) the Customer is permitted to use the soft­ware to a reduced extent for free and thus to lead Sessions. For the recei­ving Parti­ci­pant, use is always for free. Mikogo reserves the right to termi­nate such use for free at any time, or to modify or suspend functionality.

6. LIABILITY FOR DEFECTS

MIKOGO IS LIABLE FOR ANY SOFTWARE DEFECTS PURSUANT TO THE LEGAL REGULATIONS, WITH THE RESTRICTION THAT NO-FAULT LIABILITY FOR DAMAGE COMPENSATION FOR DEFECTS EXISTING AT THE TIME OF CONTRACT CONCLUSION PURSUANT TO SECTION 536A OF THE GERMAN CIVIL CODE (BGB) SHALL BE EXCLUDED. OTHER GROUNDS FOR LIABILITY SHALL REMAIN UNAFFECTED.

THE RIGHT TO SUBSTITUTE PERFORMANCE IS EXCLUDED. IN ALL OTHER RESPECTS, THE STATUTORY PROVISIONS SHALL APPLY WITH REGARD TO CLAIMS FOR DEFECTS.

7. LIABILITY FOR DAMAGES

7.1. MIKOGO’S LIABILITY FOR INFRINGEMENTS OF CONTRACTUAL OBLIGATIONS AND IN TORT IS LIMITED TO WILLFUL INTENT AND GROSS NEGLIGENCE.

7.2. THIS IS NOT APPLICABLE TO INJURY TO LIFE, LIMB OR HEALTH, CLAIMS DUE TO THE BREACH OF CARDINAL OBLIGATIONS OR COMPENSATION FOR DAMAGES DUE TO DELAY (SECTION 286 OF THE GERMAN CIVIL CODE [BGB]). IN THIS RESPECT, MIKOGO IS LIABLE FOR EVERY DEGREE OF FAULT. CARDINAL OBLIGATIONS ARE THOSE FUNDAMENTAL RIGHTS AND OBLIGATIONS THAT RESULT FROM THE NATURE OF THE CONTRACT AND WHOSE DAMNIFICATION WOULD ENDANGER THE PURPOSE OF THE CONTRACT AND ON WHOSE ADHERENCE THE CONTRACTUAL PARTIES MAY REGULARLY RELY ON. LIABILITY FOR BREACH OF CARDINAL OBLIGATIONS ON THE BASIS OF ORDINARY NEGLIGENCE IS LIMITED TO FORESEEABLE AND TYPICALLY ARISING DAMAGE.

7.3. IN ADDITION, IN THE EVENT OF USE OF THE SOFTWARE FOR FREE, MIKOGO IS LIABLE FOR DAMAGE ARISING AS A RESULT OF A SOFTWARE DEFECT ONLY IF THE DEFECT IN QUESTION HAS BEEN DELIBERATELY CONCEALED BY MIKOGO.

7.4. INSOFAR AS LIABILITY IS NOT EXCLUDED FOR DAMAGES DUE TO SLIGHT NEGLIGENCE THAT DO NOT INVOLVE INJURY TO THE CUSTOMER’S LIFE, LIMB OR HEALTH, OR FOR SLIGHT NEGLIGENCE, OR FOR BREACH OF CARDINAL OBLIGATIONS, SUCH CLAIMS EXPIRE ONE YEAR FROM THE INITIATION OF THE CLAIM.

7.5. INSOFAR AS LIABILITY FOR DAMAGES IS EXCLUDED OR LIMITED FOR MIKOGO, THIS APPLIES ALSO IN RESPECT OF PERSONAL LIABILITY FOR DAMAGE COMPENSATION FOR MIKOGO EMPLOYEES, REPRESENTATIVES, AND AGENTS.

7.6. LIABILITY ARISING FROM THE GERMAN PRODUCT LIABILITY ACT REMAINS UNAFFECTED IN ALL CASES.

8. Customer Obli­ga­tions and Contrac­tual Penalties

8.1 For each case of infrin­ge­ment of an agree­ment as detailed in items 4.2, 4.3 and 4.5, the Customer who is not a consumer is obliged to pay Mikogo a contrac­tual penalty sum of EUR 35,000 (in words: thirty-five thousand).

8.2 The Customer must observe legal regu­la­tions when using Mikogo Soft­ware and in parti­cular must refrain from sending unlawful content.

8.3 The Customer holding a lease license is obliged, on receipt of the license code, immedia­tely to perform the instal­la­tion indi­cated in the docu­men­ta­tion and a func­tional test, and to set up a user account with their personal details (first name and last name, company name, address, email address), to specify the autho­rized persons pursuant to 4.2 (first name and last name) and to choose a new secure pass­word and subse­quently change this on a regular basis.

8.4 The Customer must provide the hard­ware and soft­ware envi­ron­ments indi­cated in the product speci­fi­ca­tions as well as ensure that the Parti­ci­pant is also equipped with the suffi­cient requirements.

8.5. When using the Soft­ware and after the use of the Soft­ware, the Customer intends to carry out timely and adequate back-up and storage of all data under their own respon­si­bi­lity and at their own cost, and where appro­priate to ensure that this is also done at the premises of the Parti­ci­pants. Simi­larly, they must under their own respon­si­bi­lity secure their data against unaut­ho­rized access.

8.6 The Customer is obliged to treat the server resources with care and to log out correctly when ending a Session or in the event of long inter­mis­sions between data transmission.

8.7 The Customer is obliged to install updates and upgrades provided by Mikogo for the client soft­ware and the execu­table file.

8.8 The Customer must inform Mikogo in due time of any changes of data that are important for the license agreement.

8.9 The Customer indem­ni­fies Mikogo from all third-party claims arising from Soft­ware use that is not in accordance with the contract.

8.10 The Customer must delete all Mikogo Soft­ware enti­rely from their compu­ters, servers, and storage media upon contract expi­ra­tion and submit a cancel­la­tion deed upon request.

9. Limi­ta­tion of Claims, Offsetting

9.1. By way of devia­tion from section 195 of the German Civil Code (BGB), Mikogo’s claims to payment expire after five (5) years have elapsed. Section 199 of the German Civil Code (BGB) applies with regard to the start of the expi­ra­tion period.

9.2. Offset­ting rights of the Customer apply only if their claims are the subject of a final and conclu­sive judgment, or are uncon­tested, or have been acknow­ledged by Mikogo.

10. Refe­rence Listing

Mikogo shall be granted the right to iden­tify the Customer who is not a consumer as a refe­rence Customer for the purpose of adver­ti­sing Mikogo soft­ware, by provi­ding that Customer’s company name, brand or company logo as well as their URL (e.g. iden­ti­fi­ca­tion on website and on printed adver­ti­sing mate­rial). The Customer may revoke his or her consent for the future by provi­ding written notification.

11. Infrin­ge­ment When Using Mikogo Software

In the event of strong suspi­cion that infrin­ge­ments are arising during Customer access to Mikogo servers, Mikogo reserves the right to suspend its func­tio­n­a­lity. The Customer shall immedia­tely be informed thereof.

12. Data Protection

Both Mikogo and the Customer are obli­gated to adhere to data privacy regu­la­tions. In accordance with the data protec­tion decla­ra­tion, Customer data will be used exclu­si­vely for the purpose of the conclu­sion and perfor­mance of the contract and for customer infor­ma­tion and market analysis and will be treated confi­den­ti­ally. They shall only be poten­ti­ally passed on to third parties within this frame­work, who shall also be bound to confi­den­tia­lity by Mikogo.

13. Agents

Mikogo is autho­rized to employ third parties of its choice in order to fulfill its contrac­tual obligations.

14. Written Form

Legally binding decla­ra­tions or noti­fi­ca­tions that the Customer must submit to Mikogo or a third party must be provided in writing; this shall not apply to the cases envi­saged in section 312 g of the German Civil Code (BGB) (consumer revocation).

15. Force Majeure

Neither of the parties is obli­gated to fulfill contrac­tual obli­ga­tions in the event of and for the dura­tion of any hindrance due to force majeure. The following circum­s­tances shall be parti­cu­larly consi­dered as force majeure: tech­nical Internet problems that a party cannot control, explosion/fire/flooding beyond the party’s reason­able control, war, mutiny, blockade, embargo, or a labor dispute lasting for more than six (6) weeks and which is not caused by the party. Each contrac­ting party must immedia­tely inform the other of such an occur­rence in the event of force majeure in written form, insofar as this is possible.

Date: 2022-08-05