License Conditions (EULA)
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.
3.1. 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.
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.