Terms & Conditions
1. Scope of Application
These General Terms and Conditions apply to all contracts of BSI Business Systems Integration Deutschland GmbH, Darmstadt, Germany (hereinafter referred to as Mikogo) and its customer (hereinafter referred to as the Customer) on an exclusive basis. Customer terms that differ from or conflict with these General Terms and Conditions shall not be formally recognized. These Conditions shall also apply if Mikogo provides services in the knowledge of contrary or differing Customer General Terms and Conditions. For contracts with Mikogo, the Mikogo License Conditions (EULA) and Mikogo product specifications are also to be regarded as forming part of these General Terms and Conditions.
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.
3. Products of Mikogo
The software product Mikogo for online collaboration (hereinafter referred to as Software), is distributed or provided for use exclusively in accordance with the Mikogo License Conditions (EULA) and the relevant Mikogo product specifications. Mikogo is a registered trademark of BSI Business Systems Integration Deutschland GmbH, Darmstadt, Germany.
4. Place of Execution, General Matters
4.1. In principle, the place of execution and place of payment concerning all direct contractual relationships with Mikogo is Darmstadt, Germany. Statutory regulations concerning places of jurisdiction are not affected.
4.2. Information published or issued directly by Mikogo does not constitute a contractual offer and is non-binding.
4.3. Mikogo reserves all rights (especially proprietary rights, usage rights, and copyrights) to all information, software trials, and software trial accesses remaining from contractual negotiations.
4.4 Legally binding declarations or notifications that the Customer must submit to Mikogo or a third party must be provided in writing (except in case of revocation by a consumer).
5. Online Shops
5.1. The online shops at www.mikogo.de and www.mikogo.com are operated by Mikogo’s partner company, cleverbridge AG, Gereonstr. 43–65, 50670 Cologne, Germany, in its own name and on an entirely independent basis. Consequently, transactions with Cleverbridge are subject to the conditions and declarations of Cleverbridge.
5.2. Upon conclusion of a contract with Cleverbridge, the Customer agrees that the Mikogo License Conditions (EULA) and the relevant Mikogo product specification shall also apply.
6. Direct Procurement from Mikogo, Contractual Term, Termination
6.1. Outside the online shops, the Software license can also be procured directly from Mikogo after consulting with Mikogo. The Customer can procure a lease license.
6.2. Acceptance of contractual offers by Mikogo is only by express declaration or by the sending of a license code by email for access to the Software ordered.
6.3. Lease license.
6.3.1. With the lease license, the Customer acquires, for the duration of the lease relationship, a right of use of the software in accordance with the license conditions (EULA) and the relevant product specification.
6.3.2. The rental fee for the stipulated contractual period must be paid in full in advance and is due upon contract conclusion.
6.3.3. The lease will automatically be renewed at the end of the original concluded contractual period (contractual duration) by an additional lease with the same duration and terms, provided that the contract is not terminated in writing through the receipt of one (1) month written notice submitted before the end of the ongoing contractual period.
7. Use for Free
7.1. Mikogo allows its customers to use the Software for free, and to this end makes the client Software and executable file available for downloading under the Mikogo license conditions (EULA). The download offers represent offers to conclude an agreement according to these General Terms and Conditions and the Mikogo license conditions (EULA), which the Customer accepts by activating the download or starting to use the Software. Mikogo does not require access to this declaration of acceptance by the Customer.
7.2. Mikogo is entitled to terminate the contractual relationship at any time by suspending the functionality of the Software.
8. LIABILITY FOR DEFECTS
MIKOGO IS LIABLE FOR ANY SOFTWARE DEFECTS PURSUANT TO THE LEGAL REGULATIONS WITH THE FOLLOWING RESTRICTION: MIKOGO’S 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 BASES 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.
9. LIABILITY FOR DAMAGE
9.1. MIKOGO’S LIABILITY FOR INFRINGEMENTS OF CONTRACTUAL OBLIGATIONS AND IN TORT IS LIMITED TO WILLFUL INTENT AND GROSS NEGLIGENCE.
9.2. 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.
9.3. 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.
9.4. 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.
9.5. INSOFAR AS LIABILITY FOR DAMAGES IS EXCLUDED OR LIMITED FOR MIKOGO, IT IS ALSO APPLICABLE TO PERSONAL LIABILITY FOR DAMAGE COMPENSATION FOR MIKOGO EMPLOYEES, REPRESENTATIVES, AND AGENTS.
9.6. LIABILITY UNDER THE GERMAN PRODUCT LIABILITY ACT SHALL REMAIN UNAFFECTED.
10. Customer Obligations and Contractual Penalties
10.1. The Customer must observe the duties arising from the license conditions (EULA). In some instances, these duties are subject to a contractual penalty (8.1 of the license conditions).
10.2. In addition, the Customer is also under a contractual obligation to observe statutory conditions, and in particular undertakes not to transmit any unlawful content.
11. Fees and Payment Terms
11.1. In principle, advertised and agreed payments are understood as inclusive of VAT at the statutory rate as far as consumers are concerned, and exclusive of VAT at the statutory rate for businesses. For businesses, any customs or other public levies arising are also not included and are to be borne by the business in question.
11.2. Invoices from Mikogo must be settled within fourteen (14) days of receipt. Mikogo reserves the right to send invoices in electronic form.
12. Overdue Customer Payment
12.1. Should the Customer be late for an invoice payment or should a credit-card or a direct-debit charge fails for reasons for which the Customer is solely responsible (e.g. insufficient funds, incorrect data), Mikogo reserves the right to charge punitive damages for processing costs up to an amount of EUR 15. Provision of proof for higher or lower costs shall remain permissible for both sides.
12.2. Should the Customer be over three (3) months overdue in settling an invoice for a contractual period or for an important part thereof, Mikogo reserves the right to retain its services unpaid up to that point and to terminate the contract without prior notice after a warning has been issued.
13. Limitation of Mikogo Claims
Contrary to 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) is applicable from the start of the expiration period.
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.
15. Identification of References
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 their company name, brand or company logo as well as its 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.
16. 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.
17. Data Protection
Mikogo and the Customer agree on order processing according to Art. 28 GDPR. This order processing agreement is part of these General Terms and Conditions as Annex 1.
Mikogo is authorized to employ third parties of its choice in order to fulfill its contractual obligations.
19. Force Majeure
None of the parties is obligated to fulfill contractual obligations in the event of and for the duration of 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.