General Terms of Service

General Terms of Service

1. Scope.

These General Terms of Service are an integral part of a contract (“Contract”) between VERSO GmbH (Supplier and hereinafter referred to as “Verso”), and a customer (“Customer”) in respect of the provision of the Verso Platform as well as, if agreed, support and other services.

2. Provision of the Verso Platform.

Verso shall provide the Customer with access to use the Verso Platform. The Customer shall have a right to use the Verso Platform in its internal operations. The Customer is responsible for acquiring and maintaining at its own expense equipment, connections, and software that are required to use the Verso Platform. The Verso Platform is available for use 24 hours a day and 365 days a year with a yearly annual average availability of at least 97% (hereinafter referred to as the “Service Level”). Verso will not be responsible for any downtime due to technical or other problems beyond Verso’s control (e.g. force majeure, fault of third parties etc.). Such downtime will not be taken into account in the Service Level. The entitlement of a Customer to use the Verso Platform is furthermore limited by the applicable state of the art. In this respect, it might be necessary for Verso to reduce its services temporarily, e.g. with regard to capacity limits, the security of the system, the integrity of the servers, or technical measures aimed at maintaining a proper functioning of the Verso Platform. To the extent possible, Verso will of course take the Customer’s legitimate interests into account. For instance, Verso will in principle announce extended planned downtimes (e.g. due to planned maintenance) in advance via e-mail.

3. Support and Other Services.

Verso shall provide the Customer with support on the use of the Verso Platform as set forth in the Contract. In addition, if agreed, Verso will provide the Customer with deployment work, training, and other professional services related to the Verso Platform according to a separate agreement.

4. Permitted Use of the Verso Platform.

The Customer’s employees and other representatives acting on the Customer’s behalf are entitled to use the Verso Platform for the Customer’s business during the term of the Contract. They shall also be entitled to use material generated through the Service on the basis of the Customer’s content also after the term of the Contract. The Customer is not entitled to resell or otherwise distribute the Verso Platform or the Customer’s log-in credentials to any third party unless otherwise agreed in writing with Verso.

5. Permitted Users.

The Customer shall be responsible for the use of the Verso Platform by its employees and other representatives in compliance with the Contract and any written user instructions. The Customer must promptly notify Verso if there is a reasonable suspicion that an unauthorized third party may have access to the Verso Platform.

6. Backup and Recovery.

Verso shall make back-up copies of the Customer’s content that is stored on the Verso Platform according to the terms and procedures set forth in the Service Description. If the Customer’s content has been destroyed or modified due to the Customer’s actions and the Customer requests Verso to restore the previous content, Verso shall be entitled to charge the Customer for the recovery of the content.

7. Changes to the Verso Platform.

Verso is entitled to develop and change the Verso Platform. In case of a material change in the existing functionalities, Verso will notify the Customer in advance. However, no advance notice is needed for critical corrections such as security updates.

8. Prices and Payment Terms.

The prices of the Verso Platform and payment terms are specified in the Contract or, as the case may be, in the offer itself. The prices of deployment work, training, and other professional services are according to Verso’s price list valid at the time such services are agreed. Verso will be entitled to adjust prices by notifying the Customer in writing at least three months before the price change becomes effective, in which case the Customer may terminate the Contract with a thirty days written notice if the Customer does not accept the price change. Unless otherwise specified, all prices are expressed and invoiced in EUR. Applicable value added tax and other duties will be added to the prices Interest on overdue payments is 12% p.a.

9. Privacy and Confidentiality.

Each party shall be responsible for its own compliance with applicable privacy and personal data legislation. Each party shall keep the other party’s confidential information as strictly confidential, shall not disclose it to any third party, and shall not use it for any unauthorized purposes. The obligations of confidentiality shall survive the termination of the Contract.

10. Intellectual Property Rights.

All intellectual property rights to the content uploaded onto the Verso Platform by or on behalf of the Customer shall remain the exclusive property of the Customer or its licensors. Verso shall be entitled to use the Customer’s content only for the purposes of the Contract. The Customer is responsible for its content and for ensuring that the content does not infringe any third party rights or violate any applicable laws. All intellectual property rights relating to the provision of the Verso Platform, including suggestions for improvements made by the Customer, shall remain the exclusive property of Verso or its licensors.

11. IPR Infringement.

Verso shall at its own expense indemnify the Customer against claims presented against the Customer that the use of the Verso Platform (as opposed to the content uploaded by the Customer) infringes third party copyrights at the seat of the Customer, provided that the Customer notifies Verso promptly in writing of the claim, allows Verso to defend or settle the claim, and at Verso’s expense provides information, assistance, and necessary authorisations requested by Verso. If the Customer has acted accordingly, Verso shall compensate the Customer for all damages awarded to the detriment of the Customer by a judgment or agreed to be paid to a third party under a settlement. If Verso reasonably considers that the use of the Verso Platform infringes third party intellectual property rights, Verso shall at its own expense either obtain rights which enable the Customer to continue the use of the Verso Platform or modify the Verso Platform so that it becomes non-infringing while remaining compliant with the specifications agreed between the Customer and Verso. If these options are not reasonably available, Verso may terminate the Contract and refund the Customer according to the Contract. However, Verso shall have no liability (and shall not have to indemnify the Customer or modify the Platform) if the claim is asserted by a company belonging to the same companies group with the Customer, or if the claim results from the use of the Verso Platform contrary to written user instruction. The duties set forth in this section define the exclusive remedies available for the Customer in case of an IPR infringement.

12. Responsibility for Content.

Verso does not accept any liability for content uploaded on the Verso Platform by users of its customers. In particular, Verso does not warrant that such content is true or serves a particular purpose.

13. No Warranty (“Garantie”).

Verso does not – explicitly or implicitly – give any guarantee regarding the Verso Platform.

14. Liability for Defects (“Gewährleistung”).

Unless agreed otherwise, access to the Verso Platform is provided on an “as is” and “as available” basis. Verso is not liable for the attainment of any economic objective pursued by the Customer. Verso is not liable for any limitation of the availability of the Verso Platform within the limits of the Service Level according to Section 2 above. Any liability for defects shall be time-barred after one year. Verso will carry out any implementation work, courses and other professional services linked to the Verso Platform professionally and carefully. At its choice, Verso will remedy any defects regarding these services promptly or re-render the defective service.

15. Limited Liability.

The liability of Verso (including its legal representatives and vicarious agents) shall be limited to gross negligence and willful misconduct. This limitation shall not apply if and to the extent (i) a warranty given by Verso applies, (ii) liability is incurred under the German product liability act (“Produktionshaftungsgesetz”), (iii) death or bodily harm has occurred, and/or (iv) a material obligation (“Kardinalpflichten”) was breached. Material obligations are contractual obligations which are recognisably relevant for the achievement of the purpose of the contract. If material obligations are breached with simple negligence, Verso’s liability is limited to forseeable damages (insofar as no warranty applies, no liability is incurred under the German product liability act, and no death or bodily harm has occurred).Contrary to Section 536a (1), first alternative, of the German Civil Code, Verso is not liable without fault for defects which existed prior to the conclusion of the Contract. Verso shall not be liable for any punitive damages under any circumstances. In order to be enforceable, all claims for damages must be made within three months from the date the damage was or should reasonably have been noticed by the Customer. This rule applies solely if the liability of Verso is restricted or excluded pursuant to this Section.

16. Assignment for Third Party Benefits.

Verso may use subcontractors. Verso may assign the Contract in whole or in part to third parties.

17. Temporary Suspension.

If the Customer, one of its employees or another person acting on behalf of the Customer has breached the provisions of the Contract or if Verso has justifiable reasons to believe such a breach exists, Verso may temporarily suspend the provision of the Verso Platform.

18. Termination for Cause.

Either party may terminate the Contract with immediate effect if the other party has materially breached the provisions of the Contract and has failed to rectify the breach within a thirty days period from the receipt of a written notice thereof.

19. Transition Services.

Verso will offer the Customer termination assistance services in order to enable the Customer to transfer its content to another service provider. The Customer must order the transition services before the termination of the Contract. Applicable prices are fixed individually depending on the project scope. Unless otherwise agreed or required by applicable laws, Verso shall be entitled to destroy the Customer’s content remaining in the Verso Platform after sixty days from the termination of the Contract.

20. Entire Agreement and Amendments.

The Contract constitutes the entire agreement and supersedes all previous commitments between the parties regarding the provision of the Verso Platform and complementary services. All amendments to the Contract, including to this Section, are valid only if made in writing.

21. Non-Waiver.

A party’s failure to enforce any provision of the Contract will not be deemed to constitute a present or future waiver of such provision. All waivers are valid only if made in writing.

22. Force Majeur.

Force Majeure is an event that prevents, or makes unduly difficult, the performance of the Verso Platform or related services, or the fulfilment of the provisions of the Contract, such as war, rebellion, natural catastrophe, general interruption in energy distribution or telecommunications, fire, strike, embargo, or another equally significant and unforeseen event independent of the parties. Each party shall be entitled to suspend its duties without liability thereof in case of Force Majeure affecting the party either directly or through its subcontractor.

23. Severability.

Should any provision of the Contract be invalid or unenforceable, the remaining provisions of the Contract will remain in full force and effect to the fullest extent permitted by law. The parties shall attempt through negotiation in good faith to replace the unenforceable provision with such provisions that correspond as closely as possible to the original intention of the parties.

24. Governing Law and Arbitration.

Any disputes arising out of or in connection with the Contract or its validity shall be finally settled by a Sole Arbitrator in accordance with the Arbitration Rules of the German Arbitration Institute (DIS) without recourse to the ordinary courts of law. The seat of the arbitration shall be Munich, Germany. The language of the arbitration shall be English. The rules of law applicable to the merits shall be German Law, excluding conflict of laws provisions.