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.

14. Offsetting

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.

18. Agents

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.

Date: 2022-08-05