General Terms & Conditions

General Terms & Conditions of ASP Service
("ASP Terms & Conditions")

Uniserv GmbH
Rastatter Straße 13
D-75179 Pforzheim

The provider, UNISERV, will enable the USER to utilise services (use of application services or "software applications") on the following ASP Terms & Conditions, whereby UNISERV shall provide the infrastructure, software and services in its own computer centre in order for the user to do this:

1. Purpose of Contract, Description of Services
1.1 The purpose of the contract is to grant the USER the ability to use UNISERV software by means of Internet access within the scope of ASP (Application Service Providing). UNISERV has stored the software application on its own computer, which is available to the USER throughout the term of contract. The USER may utilise this software in order to edit his data.
1.2 As far as copyright interests of UNISERV, as the provider, or of a third party be concerned, the USER shall be granted a single and non-transferable right of use (single-user licence) which is limited to the term of contract. No sub-licences are permitted.
1.3 UNISERV shall provide the USER with access data for identification and authentication purposes by e-mail generally within five working days after the contract has been signed.
1.4 The software application may only used by the USER specified in the ASP contract. All employees or other persons commissioned by the USER are authorised to use the software in accordance with the terms of the contract.

2. Execution of Contract
2.1 UNISERV enables the USER to use the application services usually seven days per week (24 hours). An exception to this rule is the time needed to conduct the necessary regular service and maintenance or the technical improvement of hardware and software (planned "downtime") as well as instances detailed in Section 12 below (force majeure and other impediments which have not been caused by UNISERV). The planned "downtimes" have already been taken into account in calculating the remuneration and do not constitute the USER to reduce the remuneration amount on account of planned "downtimes".
2.2 The software application is available 98 % of the year. This availability does not include planned "downtimes" or "downtimes" which have been agreed with the USER.
2.3 UNISERV will give the USER reasonable advanced warning (in writing/by e-mail) of any interruption to availability due to planned "downtimes ".

3. Further Developments/Amendments to Services
3.1 UNISERV reserves the right to amend its services following conclusion of contract (e.g. by using more recent or different technologies, systems, processes or standards) as a result of technical progress and an improvement to the service. In the event that significant changes to services are envisaged, UNISERV will give sufficient advanced warning to the USER. If the USER suffers considerable disadvantages as a result of these significant changes to the service, he is entitled to withdraw from this contract on exceptional grounds as from the time when the changes to services come into effect. The USER must serve notice within a period of fourteen days following notification of changes to service.
3.2 UNISERV may assign a third party, in part or in full, to undertake the application services. UNISERV has the right to make available the USER's documents, information and data – as deemed necessary – to third parties to which UNISERV has permissibly transferred the services. UNISERV is entitled to change at any stage the Internet infrastructure used and the third party assigned to carry out the service.

4. Services
UNISERV shall install a hotline which will accept telephone calls concerning problems encountered with the use of the software application during normal working hours (currently workdays from Monday – Friday between 8:00 am and 5.00 pm GMT + 1). UNISERV shall provide information concerning the application. No support concerning the application shall be provided which goes beyond a directly answerable enquiry.

5. User's Duty to Cooperate/Responsibility
The following, in particular, fall into the category of the USER's duty to cooperate in order to bring about effective application services:
- The creation of the prerequisites required to use the application services;
- Measures to safeguard his data and programmes (backup), in particular regular and backup copies to safeguard against risks;
- Using latest versions of virus programmes on his own computer.
The USER accepts sole responsibility for
- Selecting software applications as well as the results expected thereof;
- Information and data stemming from him;
- Equipment (hardware and software) used by him as well as their suitability for transmission of data with UNISERV;
- The functioning of his Internet access including transmission routes.

6. Contractual Obligations of the User
6.1 The USER shall undertake to notify UNISERV as soon as he is aware of any fault in the software application. The USER will adhere to all instructions given by UNISERV to retyping, isolating, detecting and notifying faults. The USER must specify his fault messages and questions and, if necessary, use competent staff to do so.
6.2 The USER undertakes to inform UNISERV as soon as any changes take place concerning the person (succession or other universal succession), address, name, company legal form.

7. Access Data
7.1 The USER undertakes to keep his entry data secret from any unauthorised persons, to keep them safe from falling into the hands of any unauthorised persons in order to prevent any improper use and loss.
7.2 The USER is generally responsible for paying all fees for the use of application services using his access code. If the USER raises any objection against his payment obligations on account of him asserting that unauthorised use of his access code has taken place, if it can be excluded that unauthorised parties beyond the USER's control were active - he is only eligible not to pay if he can prove that unauthorised use of the application service using his access code took place outside of his control.

8. Remuneration
8.1 UNISERV shall levy a fee for use of the software application ("ASP fee") in accordance with the ASP contract, which stipulates the accounting method and rates. UNISERV shall receive a fixed sum for providing the use of the software application, payable one year in advance, with which a specified number of transactions, as stipulated in the ASP contract is covered. The full fixed sum for providing the service shall be retained by UNISERV, subject to 13.3 below, even if the USER has not used up any or all of the transactions to which he is entitled during the course of the licence period. If the number of transactions exceed the amount agreed for the fixed sum, these shall be invoiced as follows: It shall be ascertained using the USER's access code how often the USER has used the software application. In terms of the transactions which exceed the number agreed on for the fix sum, the amount will be invoiced based on the actual amount used and invoiced at the rate stipulated in the ASP contract.
8.2 The USER may only make use of set-off rights if his counter claims are ascertained, unopposed or recognised in a court of law. The USER is only entitled to exercise his right to withhold in so far as his counterclaim is based on the same contractual relationship.

9. Warranty Claims
9.1 The USER is generally aware of the software application and what its operative capability. Under normal circumstances UNISERV has provided the USER with the opportunity to try out the software application for its own purpose in a trial phase. If no objection is made on the part of the USER following a trial phase, both Parties to Contract assume that the software application is to be used in accordance with the contract. A shortfall in the software application is only deemed as such if the use of the software application impedes the USER in an unreasonable manner.
9.2 The USER is aware that UNISERV does not operate its own network, and does not provide the USER with Internet access. Hence UNISERV does not assume responsibility for a smooth-running Internet access.
9.3 UNISERV's liability does not cover faults which occur as the result of the USER deviating from the terms of use as prescribed by UNISERV.
9.4 When checking addresses UNISERV relies on official data of the respective post office as well as other carefully selected suppliers of data. It is therefore dependant on this basic data in terms of the information being complete, up-to-date and free from errors. This also concerns the availability of the data as well as the date when it was last updated. UNISERV is therefore unable to guarantee that an incorrect and incomplete address is corrected and updated in the scope of the address check.
9.5 As far as the functions of the software application deviate and/or display shortfalls from what has been stated in the contract, these must be notified by the USER as soon as they are detected.
9.6 The USER may only enforce a reduction in the remuneration on account of shortfalls by subtracting it from the agreed fee if his claim is undisputed or has been recognised by UNISERV or ascertained as such in a court of law.
9.7 A right to withdraw from this contract on exceptional grounds is only possible if it is deemed that it is unreasonable to expect the contractual relationship to continue on account of these shortfalls or if a significant breach of contractual duty is still evident in spite of sending a warning or setting a deadline. It is not deemed necessary to send a warning if the breach of contractual duty is so serious that a warning does not seem capable of ending the breach of duty and/or regaining confidence. Prior to serving this type of notice on exceptional grounds UNISERV is entitled to have two attempts at rectifying the shortfall of the particular fault in question.

10. Liability
10.1 UNISERV is liable to pay compensation in accordance with legal provisions if features are missing which have been guaranteed, guarantees are not complied with and malice. Liability in respect of culpable injury to life, body or health remains unaffected; this also applies to compulsory liability in accordance with the product liability law.
10.2 Further, UNISERV accepts unlimited liability in respect of wilful misconduct. In case of gross negligence on the part of its legal representatives and executive staff UNISERV's liability for damages is limited to the predictable, typically arising damage. In case of gross negligence on the part of other vicarious agents liability is limited to the amount of the annual valid fixed sum excl. VAT at the time when the claim arose and limited to types of damage which can be typically expected to arise in the context of using the software application.
10.3 UNISERV is not liable for ordinary negligence on the part of its legal representatives, executive staff and other vicarious agents unless a breach of duty has taken place whereby adherence is of particular importance in order to achieve the purpose of the contract (cardinal duty). In case of ordinary negligence with regard to breach of a cardinal duty, the limitation of liability as per 10.2, second sentence, shall apply accordingly.
10.4 In terms of loss of data and recovery thereof, UNISERV is only liable in accordance with 10.1 to 10.3 if the loss caused by the USER undertaking the aforementioned data backup measures could not have been avoided.
10.5 Liability irrespective of fault for errors already present at the time of signing the contract are expressly exempt.

11. Data Protection
11.1 UNISERV provides the application services for the USER as a contract data processor in accordance with § 11 of the German Data Protection Act. The responsibility for the admissibility of processing and using as well as safeguarding the rights of those concerned (information, rectification, stopping, deleting) shall remain the responsibility of the USER, the data inventory of which is used by UNISERV in the context of address checks.
11.2 UNISERV shall observe the legal regulations governing data protection, especially the Germany Teleservices Data Protection Act, as well as the Federal Data Protection Act.
11.3 UNISERV hereby informs the USER, that UNISERV ascertains, processes and uses inventory, utilisation and accounting data in accordance with §§ 5 and 6 of the Germany Teleservices Data Protection Act (TDDSG) within the legal permissible limits without the express consent of the user.

12. Interruptions to service which have not been caused by Uniserv
12.1 Except in exceptional cases where UNISERV has assumed a supply risk or a guarantee, interruptions to service and delays caused by the following circumstances and impediments to service do not fall under the responsibility of UNISERV:
Circumstances caused by force majeure as well as impediments to service,
- which arise after the contract has been signed or which UNISERV becomes aware of after signing the contract through no fault of its own and
- on account of circumstances where evidence has been provided by UNISERV that it could not have foreseen and averted even with due diligence, and therefore no blame in respect of acceptance, precaution and application is given to UNISERV.
Under the aforementioned prerequisites – circumstances which arise or are made aware of after signing the contract, proven evidence that UNISERV did not foresee or could have averted – are the following, in particular:
Justified industrial disputes (strike and lockout); stoppages; power cuts (subject to standard security and emergency supply systems); interruptions or attacks on the Internet. UNISERV is exempt from the duty to provide a service for the duration of these circumstances and impediments to service. All compensation claims made by the USER in respect of the aforementioned cases are excluded.
12.2 In the event of an impediment to service in the context of that cited under 12.1, each party to contract is entitled to withdraw from the contract with immediate effect by serving notice on exceptional grounds.
12.3 UNISERV is entitled to serve immediate notice on exceptional grounds if the difficulty involved in providing a service is unreasonable.
12.4 If the software application cannot be used over a period lasting more than five consecutive working days, the USER is entitled to serve notice with immediate effect on exceptional grounds.
12.5 The right for each Party to Contract to serve notice on important grounds remains reserved.

13. Term of Contract and Period of Notice
13.1 The contract shall last for a period of one year (licence period). The contractual relationship commences as soon as the contract has been signed by both parties. The agreed software application is available for operation with effect from this day onwards.
13.2 The right of extraordinary dismissal remains reserved.
The right to serve immediate notice is given in the following instances, in particular,
- for each Party to Contract if the other party becomes insolvent, insolvency proceedings are opened against one party and are refused as unsubstantiated or insolvency proceedings are declined on account of no funds;
- for each Party to Contract if the other party breaches major contractual duties and does not refrain from doing so in spite of receiving a written warning from the other party and ceasing this within a reasonable period of time. A warning or deadline is not necessary in so far as continuation of the contractual relationship appears unreasonable due to the severity of the breach in question, no success is anticipated, or when weighing up the interests of both Parties to Contract notice with immediate effect seems to be justified;
- for each Party to Contract in accordance with 12.2;
- for the USER in accordance with 3.1, 9.7 and 12.4;
- for UNISERV in accordance with 12.3 and 14.2;
- for UNISERV, if the USER is in arrears with payment of at least € 2,000.00 for more than 30 days or is in arrears with more than 10 % of UNISERV's receivables in a period exceeding 60 days.
13.3 A pro-rata amount of the fixed service fee, which is proportionate to the actual number of transactions used within the agreed quota, shall only be reimbursed in instances where the quota has not been or only partially used by the USER at the time when the contract expires if the justified extraordinary withdrawal from contract on behalf of the USER as well as generally in cases where extraordinary notice is served on the grounds of 12.2 and 12.3 occurs.
13.4 In circumstances where notice is served on important grounds UNISERV is entitled to freeze access to the software application with immediate effect.

14. Ban, Penalty Clause
14.1 In the event that the USER defaults on payment exceeding € 1,000.00 over a period of more than 14 days, UNISERV is entitled to freeze the access authorisation. This does not affect any claims for payment made by UNISERV following access denial. Access will be restored immediately after all payment in arrears has been settled.
14.2 If the USER is found culpable of acting against his duty of not letting any unauthorised person use the software application, a penalty shall be levied which amounts to the annual service provision fee. Furthermore, UNISERV is entitled to cancel the contract immediately without serving a period of notice and to freeze access.
14.3 The pursuit of any further claims, such as those pursuant to copyright laws, as well as in particular other claims for compensation, remain reserved.

15. Place of Jurisdiction, applicable law, e-mail transmission, safe guarding clause
15.1 If the USER is a merchant in the sense of the German Commercial Code, a legal entity under public law or has special assets under public law, place of jurisdiction for all duties arising from this contractual relationship – including bills of exchange and cheques – is the headquarters of UNISERV, or if UNISERV prefers, the USER's headquarters. The aforementioned place of jurisdiction is also valid in respect of users with their headquarters located abroad.
15.2 The law of the Federal Republic of Germany shall apply in respect of all rights and duties arising from and related to this contract between UNISERV and the USER.
15.3 Notifications and statements by each party to contract, which are required in accordance with the regulations set out in this contract as well as in the course of daily business, may be generally transmitted to the e-mail address of the other party to be effective. Provided that nothing to the contrary has been arranged, these are valid as from the following working day upon receipt.
15.4 In the event that one provision contained in this contract be or become ineffective, this will have no effect on the validity of all other provisions contained herein.