Visit4me UG (haftungsbeschränkt) | Visit4me End User License Terms
1. GENERAL| SCOPE
1.1 These Visit4me End User License Terms(“Terms”) apply to all contracts between Visit4me UG (haftungsbeschränkt), Gasteiner Straße 13, Berlin, Germany (“Visit4me”) and its customers which are business owners (Unternehmern) within the meaning of sec. 14 of the German Civil Code (“Customers”) to whom Visit4me provides access to its Services.
1.2 These Terms shall govern each ordering document or any online, e-mail or in-app ordering process that references these Terms (each an “Order”).The terms of each Order shall incorporate these Terms and shall form a separate services contract with respect to the Services under that Order (a “Services Contract”).
1.3 These Terms shall also apply as a framework agreement for future contracts with the same Customer without Visit4me being required to refer to them in each individual case. These Terms shall be deemed to be confirmed by Customer at the latest when Visit4me provides theServices.
1.4 These Terms apply to the exclusion of all others. Different, conflicting or supplementary standard terms of business of Customer shall only become part of the contract if and to the extent that Visit4me has consented to their application in writing.
1.5 Individual agreements made in writing with Customer in specific cases (including ancillary agreements, supplementary agreements and amendments) shall take priority over these Terms.
1.6 Where these Terms mention the terms ‘written’, ‘in writing’, ‘written form’ or similar, this shall refer to ‘inwriting’ in the sense of section 126 German Civil Code. The electronic exchange of copies of signed documents shall suffice in this regard whereas the exchange of simple e-mails shall not be sufficient.
1.7 References herein to the application of statutory provisions shall be for clarification purposes only. Consequently, statutory provisions shall apply even without such clarification provided that they are not directly amended by or expressly excluded in these Terms.
2.1 Subject to the terms and conditions of the Services Contract, Visit4me grants to Customer, during the InitialService Term and any Renewal Service Term, a non-exclusive, non-transferable, non-sublicensable world-wide right and license to use the Visit4me software as software-as-a-service and to access and use Visit4me related websites, spaces, services and applications as designated in the Order (collectively the “Services”) for internal business purposes only (“License”). The number of Licenses is stated in the Order. The Services are offered as prescribed by the Visit4me documentation located at an URL further specified by Visit4me or attached as an exhibit to the Order (as it may be updated from time to time, the “Documentation”).
2.2 Customer may permit its employees, its Affiliates (and employees thereof) and its third party outsource service providers, consultants and contractors to use the Services (collectively “Permitted Users” and any individual using the Services a “User”)provided that (A) the Customer has obtained a License for each such User; (B) Customer shall procure that such Users comply with these Terms and Customer shall remain responsible and liable towards Visit4me for all acts and omissions of suchUsers; and (C) the Services are used solely for the benefit of Customer or any of Customer’s Affiliates. “Affiliate”means any entity that directly or indirectly controls, is controlled by, or is under direct or indirect common control with Customer or Visit4me respectively, or which is a wholly owned subsidiary of Customer or Visit4me respectively, whereby ‘control’ means owning, directly or indirectly, at least fifty-one percent (51%) of the equity securities or equity interests of such entity.
3.1 Customer shall not (and shall not permit any third party to) directly or indirectly: (A) sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, make any external commercial use of, outsource, use on a timeshare or service bureau basis, or use in an application service provider or managed service provider environment, or otherwise generate income from the Services; (B) copy the Services onto any public or distributed network, (C) decompile, reverse engineer or disassemble any portion of the Services, or otherwise attempt to discover any source code, object code or underlying structure, ideas, know-how or algorithms or other operational mechanisms of the Services, in each case, unless permitted by mandatory statutory law; (D) modify, adapt, translate or create derivative works based on all or any part of the Services (except to the extent expressly permitted by Visit4me or authorized within the Services); (E) modify any proprietary rights notices that appear in the Services or components thereof;(F) use any Services in violation of any applicable laws and regulations(including any export laws, restrictions, national security controls and regulations) or outside of the license scope set forth in Clause 2; (G)configure the Services to collect (i) any data that is defined as sensitive personal data or ‘special categories of data’ within the meaning of the EUGeneral Data Protection Regulation or any applicable national data protection law or regulation; (ii) passwords or other authentication credentials, (iii)any payment or other financial data, biometric data or genetic data; or (iv)any data relating to a person under the age of 16 years old (collectively, “Prohibited Data”); or (H) use theServices to (i) store, download or transmit infringing, libelous, or otherwise unlawful or tortious material, or malicious code or malware, or (ii) engage inphishing, spamming, denial-of-service attacks or other fraudulent or criminalactivity, (iii) interfere with or disrupt the integrity or performance of third party systems, or the services or data contained therein, (iv) attempt to gain unauthorized access to the Services or Visit4me’s systems or networks, or (v)perform, or engage any third party to perform, authenticated or unauthenti catedpenetration testing, vulnerability assessments or other security assessments.
3.2 Customer shall not export orre-export, directly or indirectly, any Services or technical data or any copy, portions or direct product thereof in breach of any applicable laws andregulations. In particular, Customer and its Affiliates shall comply with thes anctions imposed by the Federal Republic of Germany, the European Union, theUnited Nations and with the applicable federal laws of the United States ofAmerica, in each case, insofar as they do not result in a violation of or aconflict with section 7 of the German Foreign Trade and Payments Ordinance (Außenwirtschaftsverordnung) or a similar applicable anti-boycott statute. Customer shall, at its own expense, obtain all necessary customs, import, or other governmental authorizations and approvals.
3.3 The Services may only be used by Customeras prescribed in the Documentation.
3.4 Although Visit4me has no obligationto monitor Customer’s use of the Services, Visit4me UG (haftungsbeschränkt) maydo so and may prohibit any use of the Services it believes may be (or allegedto be) in violation of the foregoing.
4. TRIAL USE
If Customer accesses the Services as part of atrial evaluation (“Trial Use”), the License is granted for the period enabled for the Services provided by Visit4me.Visit4me shall have the right to downgrade, limit or otherwise modify theServices provided for Trial Use at any time without notice, and no guarantee, indemnity, Maintenance or Support obligations of Visit4me shall apply to Trial Use. Visit4me has the right to immediately revoke and terminate any Trial Useat any time. Trial Use is not a guarantee of future product features and should not be relied upon in making any purchasing decisions.
5. CUSTOMER’S RESPONSIBILITIES
5.1 Customer represents and warrants thatCustomer and its Permitted Users shall use the Services only in full compliance with all applicable laws and regulations.
5.2 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems and networking (collectively “Equipment”).Customer shall also be responsible for maintaining the security of theEquipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
5.3 Customer shall be solely responsible for the content of all visual, written or audible communications, files, documents, videos, recordings, and any other material (“Content”) displayed, posted, uploaded, stored, exchanged or transmitted on or through the Services.
5.4 Visit4me cannot control the information submitted by Customer or Users during their use of the Services and cannot guarantee the accuracy of any information submitted. Visit4me may, without notice or liability, investigate any complaints or suspected violations of the Contract that come to its attention and may take any action that it believes is appropriate, including, but not limited to, rejecting, refusing to post, or removing any Content, or other data, or restricting, suspending, or terminating Customer’s or any User’s access to the Services.
5.5 Customer shall notify Visit4me promptly of any unauthorized use of any password or account or any other known or suspected breach of security or misuse of the Services.
6. MAINTENANCEAND SUPPORT
6.1 Subject to Customer’s payment of theService Fees set forth in the applicable Order, Visit4me shall provideMaintenance and Support for the Services to the extent specified in the Order.“Support” is defined as Visit4me obligations to respond to support requests of Customer with regard to theServices by documenting and troubleshooting issues and providing technical and non-technical assistance. “Maintenance”or “Maintain” means Visit4me’s obligations with regard to the Services related to error resolution, bug fixes and the provision of updates and upgrades made generally commercially available by Visit4me in its sole discretion.
6.2 Support is provided via e-mail through firstname.lastname@example.org Monday to Friday 9:00 am to 5:00 pm (CET), excluding public holidays in the State of Berlin, Germany.
6.3 Visit4me shall use reasonable efforts consistent with prevailing industry standards to Maintain the Services in amanner which minimizes errors and interruptions in the Services. The period of scheduled unavailability due to Maintenance shall be Friday to Sundays from 10:00 pm to2:00 am (CET).
6.5 There action time begins with receipt of the error notification by Visit4me. The reaction time shall only run from Monday to Friday 9:00 am to 5:00 pm(CET), excluding public holidays in the State of Berlin, Germany, and shall be deemed to have been observed if Visit4me initiates measures to rectify the notified error during the reaction time period.
6.6 If Visit4me analysis shows that an error notified by Customer has actually not occurred or is not attributable to the Services, Visit4me may charge Customer for the costs demonstrably incurred by Visit4me in connection with such analysis.
6.7 The fees for Maintenance and Supportare included in the Service Fees.
7. AVAILABILITY OF THE SERVICES
7.1 Subject to Customer’s payment of theService Fees set forth in the applicable Order, Visit4me shall make theServices available to Customer in accordance with this Clause
7.2 Visit4me shall use reason able endeavors to ensure, that the Services are available to Customer over the internet, however no less than 99.6% per year (based on twenty-four (24) hours a day and seven (7) days a week) excluding any temporary unavailability for scheduled or for unscheduled Maintenance, either by Visit4me or by third-party providers, or unavailability for causes beyond Visit4me´s reasonable control. Visit4me shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
7.3 Customer is aware and acknowledges that Customer’s access to the internet cannot be guaranteed and that Visit4me shallnever be liable for deficiencies in Customer’s own internet connections or equipment.
8.1 Subject to the terms hereof(including payment of any applicable Service Fees set forth in the Order),Visit4me shall provide additional professional services if so described in anOrder (“Professional Services”).
8.2 The Professional Services shall be rendered on a one-time fee or a time and materials basis. If the ProfessionalServices purchased have been consumed, Visit4me shall stop the ProfessionalServices until additional Professional Services have been purchased.
8.3 Customer agrees to provide reasonable cooperation and information as necessary to permit Visit4me to perform theProfessional Services. With respect to Visit4me´s staff providing ProfessionalServices to Customer no lease of personnel (Arbeitnehmerüberlassung)shall take place. Instructions to Visit4me’s staff must not be given by Customer’s staff or representatives but only by Visit4me’s representatives. Issues arising with Visit4me’ staff which affect Customer and/or the Professional Services tobe provided must be addressed by the relevant Customer’s contact person to the relevant Visit4me’s contact person. Visit4me’s staff shall not be integrated into the operational organization of Customer. Visit4me shall in its solediscretion decide how and where to utilize its resources (including Visit4me’s staff) and plan its performances under the Services Contract (and the relatedOrder) in accordance with the contents and the agreed limits of theProfessional Services.
8.4 When providing Professional Services,Visit4me does not owe and shall not be liable for any specific outcome or result vis-à-vis Customer (sec. 611 German Civil Code).
8.5 Customer shall reimburse Visit4me fortravel and expenses (at cost) incurred in connection with the ProfessionalServices (if any).
8.6 Professional Services shall be performed on business days (a business day means Monday through Friday, excluding national holidays, during working hours, in the location where theProfessional Services are provided).
8.7 The cooperation of the Parties here under, in particular with regard to Professional Services, builds up on mutual trust between Visit4me and Customer. Therefore, during the InitialService Term and any Renewal Service Term, and in each case for a period oft welve (12) months thereafter, without Visit4me’s prior written approval, Customer shall not solicit for employment or consultancy any of Visit4me’s employees who participated in the performance of Professional Services.
9. CONFIDENTIALITY| CUSTOMER DATA
9.1 Customer and Visit4me understand that they have or may disclose to each other business, technical or financial information relating to their business (the “Confidential Information”). Confidential Information of Visit4me includes but is not limited to non-public information regarding features, functionality and performance of the Services. Confidential Information of Customer includes non-public data provided by Customer to Visit4me to enable the provision of the Services or during the use of the Services (“Customer Data”).
9.2 Customer and Visit4me shall take reasonable precautions to protect each other’s Confidential Information, and not to use (except in performance of the Services or as otherwise permittedhere in) or divulge to any third person any such Confidential Information. This shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that Customer or Visit4me respectively can document (A) is or becomes generally available to the public, or (B) was in Customer’s or Visit4me’s respective possession or known by the prior to receipt, or (C) was rightfully disclosed to Customer or Visit4me respectively without restriction by a third party, or (D) was independently developed without use of any Confidential Information or (E) is required to be disclosed by law.
9.3 Customer shall own all right, titleand interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data. Visit4me shall have no liability for anyCustomer Data.
9.4 Notwithstanding anything to the contrary, Visit4me shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning the Customer Data and data derivedthere from), and Visit4me shall be free (during and after the term hereof) to(A) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with theServices and other Visit4me offerings, and (B) disclose such data solely inaggregate or other de-identified form in connection with its business.
10. PROPRIETARY RIGHTS | TRADE NAMES AND LOGOS
10.1 Visit4me and its suppliers own and shall retain all proprietary rights, including all copyright, database rights, patent, trade secret, trademark and all other intellectual property rights and technical solutions, in and to the Services. Customer acknowledges that the rights granted under the Services Contract do not provide Customer with title to or ownership of the Services.
10.2 Visit4me reserves the right to implement new versions and upgrades of the Services including, but not limited to, changes that effect modifications to the design, operational method, technical specifications, systems, and other functions, etc. of the Services, at any time without prior notice.
10.3 Customer agrees that Visit4me may refer to Customer by its trade names and logos, and may briefly describe the Customer’s business, in Visit4me’s marketing materials and website.
Customer and Visit4me shall at all times comply with the requirements of any applicable privacy and data protection legislation. In particular, where reasonably required by Customer, Visit4me shall enter into a written data processing agreement with Customer.
12. PAYMENTOF FEES
12.1 Customer shall pay Visit4me the feesdescribed in the Order for the Services and Professional Services in accordancewith the terms therein (the “ServiceFees”).
12.2 If Customer’s use of the Servicesexceeds the capacity set forth in the Order (the “Service Capacity”) or otherwise requires the payment of additionalfees per the terms of the Services Contract, Customer shall be billed for suchusage and Customer agrees to pay the additional fees in the manner providedherein.
12.3 Visit4me reserves the right to changethe Service Fees for the following Renewal Service Term upon at least sixty(60) days prior to the end of the Initial Service Term or the end of the thencurrent Renewal Service Term.
12.4 Unless otherwise specified, Visit4me requires Customer to make all payments via credit card. Visit4me shall provide a secure link to Customer where they can upload credit card information that shall be processed at time of billing. Visit4me may offer Customer to make payments via bank wire using the payment details provided by Visit4me. Visit4me may also choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Visit4me fourteen (14)days after the mailing date of the invoice.
12.5 Following notice in textform under sec. 126b German Civil Code (simple email sufficient), Visit4me shall been titled to suspend Customer’s access to the Services if payments are not received within fourteen (14) days of the due date.
12.6 Where a monthly billing model is agreed upon, Customer’s subscription shall automatically update at the beginning of every billing cycle to reflect the current number of Licenses present in Customer’s Visit4me account. Where a multiple-month billing model is agreed upon, once a month Visit4me will calculate how many Licenses are present in Customer’s account.
12.7 In the event Customer’s Visit4me account conta ins more Licenses than Customer had initially ordered for the then-currentInitial Service Term or Renewal Service Term, Customer shall be charged for these Licenses for the remainder of the then-current term. In the eventCustomer removes Licenses which have been added to Customer’s Visit4me account after an initial order of fewer Licenses and Customer has already been charged for these removed Licenses, Visit4me shall issue a corresponding credit which can be applied to the following Renewal Service Term.
12.8 In the event the amount of Licenses in Customer’s Visit4me account falls below the amount initially ordered for the then-current Initial Service Term or Renewal Service Term, Customer shall remain obliged to pay the full amount of the corresponding Service Fees for theLicenses initially ordered for the then-current term.
12.9 All Service Fees are exclusive of, and Customer shall pay, all taxes, duties, and assessments, however designated, which are levied or imposed upon such Service Fees, excluding only taxes based on Visit4me net income.
13. TERM| TERMINATION
13.1 Subject to earlier termination as provided below, the Services Contract begins on the date specified in the Order(“Effective Date”) and shall remain in effect for an initial term as specified in the Order (“Initial Service Term”). The Initial Service Term shall automatically and continuously renew for additional periods, each of which correspond with the Initial Service Term (“RenewalService Term”), unless either party requests termination at least thirty(30) days prior to the end of then-current term.
13.2 Neither Customer nor Visit4me shall be entitled to terminate the Services Contract for convenience with effect prior to the end of the Initial Service Term or any Renewal Service Term (Ausschluss der ordentlichen Kündigung).Customer’s and Visit4me’s right to immediately terminate the Services Contract for good cause (außerordentliche Kündigung aus wichtigem Grund) shall remain unaffected. Such good cause shall inparticular exist, (A) if the a party commits a material breach of the ServicesContract, and such breach has not been cured within thirty (30) days after receipt of written notice thereof, (B) Customer is in default of payment by more than forty-five (45) days, (C) Customer breaching the use restrictions under Clause 3, or (D) Customer ceases its due payments or suffers a significant deterioration in its asset situation.
13.3 After termination of the ServicesContract or lapse of its Initial or Renewal Service Term and upon Customer’s request, Visit4me shall provide Customer with access to Customer’s content (if any) in the possession of Visit4me for a period of thirty (30) days, in then-current standard export format or another industry-standard format mutually agreed by Customer and Visit4me, after which such Content will be deleted.
14.1 Customer has checked that the specification of the Services as described in the Documentation meets his needs and wishes. Customer is aware of the essential functionalities and features of the Services. The extent, nature and quality of the goods and services to be delivered by Visit4me are determined by these Terms, the Order, and theDocumentation. Any other information or requirements do only form part of theServices Contract if Customer and Visit4me so agree in writing or if Visit4me so confirms in writing. Product descriptions, illustrations, test programs ,etc. represent mere service specifications but do not constitute guarantees (Garantien) or agreements on certain specifications (Beschaffenheitsvereinbarungen).In order to be valid, an agreement on a guarantee requires the written confirmation from a director of Visit4me.
14.2 Visit4me warrants (gewährleistet) that the Services will, in all material respects, conform to the functionality described in then-current Documentation for the applicable Services version. In case of a breach of this warranty Visit4me shall be required to use commercially reasonable efforts to modify the Services to conform in all material respects to the Documentation, and if Visit4me is unable to materially restore such functionality within thirty (30) days from the date of written notice of said breach, Customer shall be entitled to terminate the Services Contract upon written notice and receive a pro-rata refund of the unused Services Fees which have been paid in advance (if any) for unused access to the Services. Customer must notify Visit4me in writing of any warranty breaches and Customer must have installed and configured the Services in accordance with the Documentation tobe eligible for the foregoing remedy. Visit4me is not liable for the existence of initial errors (anfängliche Mängel) under sec. 536a German Civil Code. Customer’s claims for damages for a breach of this warranty are subject to the limitations set forth in Clause 16.1.3.
14.3 Under no circumstances shall Customer be entitled to obtain the source code of the Services.
15.1 Without prejudice to any other liability of Customer under contract or statutory law, Customer shall defend, indemnify and hold harmless, at its expense, Visit4me and its Affiliates, its suppliers and resellers against any third party claim to the extent such claim arises from or is made in connection with: Customer’s breach of Clause 3 or other wise from Customer’s use of Services, and Customer shall pay all costs and damages finally awarded against Visit4me by a court of competent jurisdiction as a result of any such claim.
15.2 In connection with any claim for indemnity under this Clause 15, Visit4me must promptly provide Customer with notice of any claim that Visit4me believes is within the scope of the obligation to indemnify, provided, however, that the failure to provide such notice shall not relieve Customer of its obligations under this Clause 15, except to the extent that such failure materially prejudices Customer’s defense of such claim. Visit4me may, at its own expense, assist in the defense if it so chooses, but Customer shall control the defense and all negotiations related to the settlement of any such claim. Any such settlement intended to bind Customer party shall not be final without Visit4me’s written consent, which consent shall not be unreasonably withheld, conditioned or delayed.
15.3 Visit4me agrees at its expense to defend Customer against (or, at Visit4me option, settle) any third-party claim to the extent such claim alleges that the Services infringe or misappropriate any patent, copyright, trademark or trade secret of a third party, and Visit4me shall pay all costs and damages finally awarded against Customer by a court of competent jurisdiction as a result of any such claim. In the event that the use of the Services is, or in Visit4me’s sole opinion is likely to become, subject to such a claim, Visit4me, at its option and expense, may (A) replace the applicableServices with functionally equivalent non-infringing technology, (B) obtain a license for Customer’s continued use of the applicable Service, or (C)terminate the license and provide a pro-rata refund of the Service Fees that have been paid in advance for the applicable Services (beginning on the date oftermination). The foregoing indemnity obligation of Visit4me shall not apply: (i)if the Services are modified by Customer or its agent; (ii) if the Services are combined with other non- Visit4me products, applications, or processes, but solely to the extent the alleged infringement is caused by such combination; or(iii) to any unauthorized use of the Services. The foregoing shall beCustomer’s sole remedy with respect to any claim of infringement of third party intellectual property rights.
16. LIMITATION OF LIABILITY
16.1 Visit4me shall be unrestrictedly liable for (A) injury to life, body or health caused by Visit4me, its legal representatives (gesetzliche Vertreter)or assistants in performance (Erfüllungsgehilfen);(B) damage caused intentionally (vorsätzlich)or with gross negligence (grob fahrlässig)by Visit4me, its legal representatives or executive staff; (C) damage cause dintentionally by Visit4me’s assistants in performance not mentioned in (B); (D)damage resulting from the absence of any guaranteed (garantiert) characteristics; and (E) claims under the GermanProduct Liability Act (Produkthaftungsgesetz).
16.2 Visit4me shall be liable for damage resulting from the breach of its primary obligations (Kardinalpflichten) hereunder by Visit4me, its legal representatives, senior executives or assistants in performance. Primary obligations are such basic duties which form the essence of the ServicesContract, which were decisive for the conclusion of the Services Contract andon the performance of which Customer may rely. If the breach of such primary obligation was caused (A) through simple negligence by Visit4me, its legalr epresentatives or executive staff or (B) through simple or gross negligence byVisit4me’s assistants in performance not mentioned in (A), then Visit4me’ sensuing liability shall be limited to the amount which was foreseeable by Visit4meat the time the respective Service was performed.
16.3 Subject always to Clauses 16.1 and 16.2, Visit4me shall not be liable for damage resulting from the breach of non-primary obligations through (A) simple negligence of Visit4me, its legal representatives or executive staff or (B) simple or gross negligence of Visit4me´s Assistants in performance not mentioned in (A).
16.4 Visit4me shall not be liable for any loss, damage or harm suffered by Customer that is directly or indirectly caused by Customer’s unauthorized use of the Services to process Prohibited Data.
16.5 Visit4me shall be liable for loss of data only up to the amount of typical recovery costs which would have arisen had proper and regular data backup measures been taken.
16.6 Subject always to Clause 16.1, the total liability of Visit4me arising out of or in connection with the ServicesContract, whether in contract or tort or otherwise shall in no circum stancesexceed a sum equal to 150 % of the total Service Fees paid (plus ServiceFees payable) by Customer in the twelve (12) months immediately preceding the event which gave rise to the liability.
16.7 Any other liability of Visit4me not covered by this Clause 16 is excluded on the merits.
17.1 Customer shall ensure that User identities, passwords, and equivalent obtained by Customer in conjunction with registration for the Services are stored and used in a secure manner and cannot be accessed and thereby used by third parties. Customer shall be liable for any unauthorized use of the Services.
17.2 Where it is suspected that any unauthorized person has become aware of a User identity and/or password, Customer shall immediately inform Visit4me thereof and also change such User identity and/or password.
17.3 Customer shall be liable for losses or damage incurred by Visit4me where Customer intentionally or negligently reveals a user identity/password to a third party or where a user identity and password otherwise become known to an unauthorized party, unless Customer notifies Visit4me immediately upon suspicion that such has occurred.
18. NOSET-OFF | LIMITATION OF RIGHT OF RETENTION
Customer may only invoke a right to set-off and assert a right of retention to the extent that its claims have been (A) finally established by a court of law, (B) are uncontested, (C) or have been acknowledged by Visit4me.2.
19. ASSIGNMENT| NOVATION
19.1 Customer may not assign (übertragen) the Services Contract without the prior written approval of Visit4me and any purported assignment in breach of this Clause 19 shall bevoid. Visit4me may at its discretion assign, transfer, subcontract or novate the Services Contract and/or any associated rights to assign the ServicesContract in whole or in part.
19.2 Customer shall, at Visit4me’s request, promptly, and in any event within fifteen (15) days, enter into an ovation agreement in such form as Visit4me shall reasonably specify in order to enable Visit4me to exercise its rights pursuant to this Clause 19.
Should any provision of the Services Contract including the Order and these Terms be or become ineffective orin valid in whole or in part, the effectiveness and validity of the other provisions shall not be affected. Such ineffective or invalid provision shall be replaced by a provision which comes as close as legally possible to what theParties would have agreed, pursuant to the meaning and purpose of the original provision and of the Services Contract if they had recognized thein effectiveness or invalidity of the original provision. If the in effectivenessor invalidity of a provision is based on the determination of a certain level of performance or a certain time (deadline or fixed date), such ineffective orin valid level or time shall be replaced by the level or time which comes as close as legally possible to the original level or time. The foregoing shall also apply to any possible omission in the Services Contract including theOrder and these Terms that was not intended by the Parties. It is the express intention of the Parties that this savings clause does not just have the effect of shifting the burden of proof but that sec. 139 German Civil Code is entirely dispensed with
21. ENTIRE AGREEMENT | CHANGES
21.1 The Services Contract including theOrder and these Terms represent the entire agreement between Customer and Visit4me in respect of its subject matter and supersede and extinguish all prior negotiations, arrangements, understanding, course of dealings or agreements made between the Parties in relation to its subject matter, whether written or oral.
21.2 Valid amendments or supplements to these Terms must be made in writing. The same shall apply to any agreement todeviate from or cancel this requirement of written form.
21.3 Visit4me may amend and/or update these Terms with future effect from time to time and as necessary for technical, economic or legal reasons.Any revision of these Terms shall be announced to Customer in text form (simple email shall suffice) no later than six (6) weeks before their propose deffective date. Customer may either approve or object to the revision before their proposed effective date. The revision shall be deemed approved by Customer, unless Customer objects to the revision before their proposed effective date. Visit4me shall expressly inform Customer thereof in the respective announcement.
22. GOVERNINGLAW | JURISDICTION
22.1 The Services Contract and any issues, disputes or claims (whether contractual or non-contractual) arising out of orin connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of the Federal Republic of Germany. The United Nations Convention on Services Contracts for the International Sale of Goods (CISG) shall not apply.
22.2 The parties agree that the courts ofBerlin (Germany) shall have exclusive jurisdiction to settle any dispute or claim (whether contractual or non-contractual) that arises out of or in connection with the Services Contract or its subject matter or formation.
23.1 The person signing or other wise accepting the Order and these Terms for Customer represents that it is duly authorized by all necessary and appropriate corporate action to enter theServices Contract on behalf of Customer.
23.2 Visit4me shall be entitled to retain subcontractors, including third party software suppliers, for the performance of any of its obligations in accordance with the Services Contract.
23.3 Customer shall only be entitled to offset with claims vis-à-vis Visit4me claims or exercise a right of retention if the claims or the right of retention of Customer have been determined with legal effect or are not disputed by Visit4me.
23.4 Customer shall not assign (abtreten) any of its rights or obligations under any Order and these Terms without the prior written consent of Visit4me.
23.5 No agency, partnership, jointventure, or employment is created as a result of the Services Contract and Customer does not have any authority of any kind to bind Visit4me in any respect whatsoever.
Visit4me UG (haftungsbeschränkt)
District Court of Berlin Charlottenburg, Germany HRB 172016