TECHNOLOGY SERVICES CONTRACT
This Agreement applies to the provision of website-based internet applications and services pertaining thereto (hereinafter called “Technology Services Agreement” or “Agreement”) offered by MaritzCX GmbH, Borselstrasse 18, 22765 Hamburg, Register Number HRB92708 (“MaritzCX”). Terms and Conditions of the Customer are not part of the agreement between MaritzCX and the ordering party (“Customer”). This also applies in the event that MaritzCX does not expressly object to these terms and conditions. Deviations from the General Terms and Conditions set down here are only effective if agreed in writing by the parties.
1. TECHNOLOGY SERVICES
1.1 Technology Services shall be supplied in accordance with the provisions of this TS Agreement, but on the provison of full and contractual requital of all due claims for payment in accordance with Section 5.2. Maritz CX shall supply the Technology Services as set out in the applicable proposal or statement of work to the extent there determined and at the price there agreed. Technology Services shall be primarily and mainly supplied via web applications, i.e. by using an internet site (see Section 2.6).
1.2 Notwithstanding any provisions to the contrary in this TS Agreement, MaritzCX hereby reserves the right to restrict the supply of Technology Services to provision of services to the Customer and to grant access to protected data and information only to the same.
“Affiliated Customer”: Companies affiliated with MaritzCX as defined in Section 15 of the German Joint Stock Companies Act (AktG).
“Confidential Information”: Data, information and identifications of Customer users, end users, Customer Data, and all business and technical information of a contracting party and the companies affiliated therewith which may be disclosed by way of this TS Agreement, which are not in the public domain, and which refer to the business of this party or affiliated Customer (particularly technical, business, operating and financial information), and which at the time of disclosure are designated as confidential or, given their nature, should fairly be treated as confidential.
“Customer Data”: All information and materials of a Customer and of companies affiliated therewith which may be supplied to MaritzCX in any form (including the Customer’s confidential information) and which pertain to the products, services, end customers, advisers and employees of the Customer, and all personal details which MaritzCX may receive in connection with its supply of Technology Services by way of this TS Agreement, or to which MaritzCX has access. The expression “customer data” shall cover all data which the Customer uploads onto the website or all survey results which the Customer receives from the website.
“Continued training and instruction courses”: All those Technology Services which conduce to the continued training or instruction of Customer users (see Section 2.1) (a) with reference to end customer, employee or supplier relations management or loyalty programs, or (b) which conduce to reporting at management board level. MaritzCX hereby reserves the right to restrict to the Customer any access to further training or instruction courses and protected contents.
“Rights to Intellectual Property”: shall stand, as regards Technology Services, for all rights of third parties, such as copyrights, rights to trademarks for goods or services, patents, business secrets, moral rights of authors, publication rights, authors’ rights, contractual rights and licenses, the goodwill associated with such rights, and all other rights to intellectual property which subsist as of the effective date and/or are created thereafter during the contractual term, further all prolongations and extensions thereof, irrespective of whether such rights are created under US law or the law of another state, country or jurisdiction.
1.4 Limitations on Services. MaritzCX shall have no duty to provide any services or perform any tasks not specifically set out in this Agreement or in another order or specification mutually agreed by and between the parties. In particular, it shall have no contractual obligation to provide the following: custom functionality to the services, (b) necessary modifications to third-party applications enabling them to function properly with updates, upgrades or modifications provided by MaritzCX, or (c) any new functionality or module which MaritzCX makes generally available as a separately priced offering. Moreover, MaritzCX shall have no duty under this Agreement to install, alter, modify or otherwise customize or configure any software or hardware on the Customer’s computer system(s) or network(s).
1.5 Alteration of Contractual Services. The parties may modify the Technology Services to include or delete services. It shall be a prior condition for the same that such a modification be agreed and issued in writing by the parties under an amendment order.
2. RIGHT OF USE, RESTRICTIONS AND LIMITATIONS
2.1 Customer’s Right of Use. MaritzCX hereby grants the Customer and entitled users appointed by the Customer (“Customer users” or “entitled users”) (a) a limited, non-exclusive, non-transferable and revocable right and license to use the Technology Services during the contractual term and to access the same, and (b) only with regard to protected contents, a limited, non-exclusive, non-transferable and revocable right and license to use, copy, duplicate and advertise these protected contents in connection with the Customer’s internal business processes. The parties hereby agree expressly that the Customer, an entitled user or Customer representative (cf. Definitions in Section 3.1 below) shall use, alter, duplicate, release, advertise or disclose protected contents solely in the way permitted expressly under this Agreement.
2.2 Use by End Users. During the term of this Agreement, the Customer’s employees, end customers, suppliers and other third parties (“End Users”) shall be entitled to access the Agreement website in order to communicate with the Customer and the Customer users in conformity with the terms and conditions of the Agreement.
2.3 Limitations. The Customer shall have a duty to refrain from (a) duplicating, downloading, altering or transmitting the totality or parts of the Technology Services, the computer software which MaritzCX installs or uses for hosting the Agreement website or for provision of Technology Services in any other way (“Software”), or intellectual property pertaining to these Technology Services or to the Software, (b) unless expressly permitted under applicable law, to reconvert (so-called reverse engineering), decompile or disassemble the software, (c) to market, distribute, sell or re-sell the Technology Services or a part thereof, (d) to use framing or other techniques in order to present the Technology Services or Agreement website (or a part thereof) on an internet website or internet domain belonging to the Customer or to a third party or controlled by the Customer or a third party, (e) to hire out or lease the Technology Services or software or to permit their use by third parties in any other way, (f) to use the Technology Services to supply services for third parties (e.g. as a service office), or (g) to evade or deactivate the security or other technical functions or precautionary arrangements of the Technology Services. The Customer hereby agrees not to remove from the Agreement website, without prior written permission by MaritzCX, the logos of MaritzCX, data protection declarations, trademarks, terms and conditions of use and similar material (or visible or printable output generated by the Agreement website or by Technology Services supplied thereunder). The Technology Services (and Agreement website) may only be used for legitimate purposes and in a legitimate way. The Customer shall comply with all statutory provisions, rules and regulations. The Customer shall also have a duty to impose the foregoing duties of conduct and refrainment on all Customer users before they are granted access to the Technology Services. Should the foregoing duties of conduct and refrainment be breached by a Customer user, the Customer shall be liable for a culpable action of the Customer user as for its own culpable action.
2.4 Authorized Users. The contractual use of the Technology Services shall be restricted to the customer, to users authorized by the Customer, and to end users as set out in Section 2.2.
2.5 Protection against unauthorized use. The Customer shall make every reasonable effort to prevent unauthorized use of the Technology Services and shall notify MaritzCX immediately and in writing of any unauthorized use of which it becomes cognizant. Should unauthorized use be made by someone who gained access to the Technology Services through the Customer, whether directly or indirectly, the Customer shall immediately take all measures necessary in accordance with reasonable judgement to end the said
unauthorized use. The Customer hereby agrees to support in a reasonable way such measures as MaritzCX may take to prevent or end any unauthorized use of the Technology Services. Insofar as the Customer is responsible for the unauthorized use, it shall pay the costs which MaritzCX incurs in connection with the end of the said unauthorized use, including any costs of legal prosecution.
2.6 Technology Services via the Agreement Website. MaritzCX shall provide the Customer with the Technology Services primarily via an internet website or internet domain (or portion of an internet website or internet domain) owned or controlled by MaritzCX (the “Website”). Subject to the Customer’s performance in full of its contractual duties, including timely payment of all fees and any other amounts due hereunder: (a) MaritzCX shall host, operate and maintain the website in a manner which permits the Customer and its Customer users to enjoy reasonable access and use of the website services in compliance with the terms and conditions of this Agreement and a general Specifications List, and (b) MaritzCX shall retain the sole and exclusive right to control or direct the manner or means by which the website is hosted, operated and maintained and the manner or means by which the Technology Services are supplied to the Customer and its end users.
2.7 Customer Content. Subject to the technical protocols and requirements of the Website and the Technology Services provided hereunder, the Customer shall be solely responsible for providing, updating, uploading and maintaining any and all of its information and/or materials on, within, displayed, linked or transmitted to, from or through the Customer’s subdomain (“customer content”). The Customer shall assume sole responsibility for the accuracy of its own content and ensure that its content is used legitimately, in particular that its content does not breach the rights of any third parties and that it is not libelous, harmful, false or misleading.
2.8 Reliance on the Customer’s information. In providing the Technology Services, MaritzCX shall be entitled to rely upon and act in accordance with any instructions, guidelines, data or information provided by the Customer or any Customer representative who has actual or apparent authority to provide such instructions, guidelines or information. MaritzCX shall undertake no liability insofar as the same may arise from fulfilment of instructions, guidelines, data and information which the Customer or its representatives may issue and which are used or implemented in connection with the supply of the Technology Services.
3. SECURITY, PASSWORDS
3.1 Collaboration. MaritzCX shall supply Technology Services based on the information and materials (including the customer content) which the Customer provides. The duty of performance of MaritzCX to supply Technology Services shall be subject to the condition precedent that the Customer has completely fulfilled its agreed duties of collaboration and gives notice thereof. The Customer shall appoint at least one person as a first personal contact (“Customer’s representative” or “Customer representative”) who is entitled to receive messages or other notifications in writing (including email) and verbally. The Customer shall supply MaritzCX with the contact details of the Customer representative(s), including their names, title(s), email address(es) and telephone numbers.
3.2 Passwords. MaritzCX shall establish a password for every Customer user or shall authorize an administrator of the Customer to do so. The Customer shall bear sole responsibility for taking adequate measures to keep secret the passwords which MaritzCX establishes for the Customer for purposes of access to or use of the Technology Services. The Customer shall be responsible for all authorized and non-authorized access to an account or password established by MaritzCX for the Customer. Should a password of the Customer be lost
or stolen, or should it no longer be possible to guarantee its security in any other way, the Customer shall notify MaritzCX thereof immediately, whereupon MaritzCX can block access to the Technology Services using this password and establish a replacement password for the Customer.
3.3 Customer Data. MaritzCX and the Customer hereby agree that the Customer shall be the legally responsible agent for all customer data which the Customer inputs, or causes to be input, into the Technology Services. MaritzCX is hereby instructed to access customer data only for purposes of support, administration and invoicing in connection with the use of the Technology Services by the Customer insofar as necessary for this purpose. MaritzCX hereby agrees not to edit or delete the content of customer data or to disclose it to third parties unless the Customer instructs MaritzCX to carry out such a data edit or MaritzCX has a duty under law to do so. Should MaritzCX be compelled under law to disclose the customer data, whether in whole or in part, Maritz CX shall notify the Customer thereof immediately.
4. PROVISION OF TECHNOLOGY SERVICES, EXCLUSION OF LIABILITY
MaritzCX shall supply the Technology Services via the Agreement website during the term of this Agreement around the clock (24 hours a day) and seven (7) days a week. The Customer hereby recognizes that the Technology Services may not be accessible or functional from time to time, due to system function breakdowns, regular maintenance, repairs or upgrades which Maritz may carry out from time to time, due to impairments of performance and causes which are out of such control as MaritzCX may reasonably be expected to enjoy, or which Maritz cannot reasonably be expected to foresee, including interruptions and breakdowns in the telecommunication link or digital transmission channels, delays or breakdowns which are caused by the Customer’s internet service-provider, hostile network attacks, network overloads or other breakdowns. The Customer hereby recognizes that MaritzCX cannot always guarantee the sustained stability and throughput rate of the internet or the unbroken availability of the Technology Services and to this extent hereby releases MaritzCX from any liability. Notwithstanding the cause of an interruption to the Technology Services, MaritzCX shall make every commercially feasible effort to restore the Technology Services immediately. The parties hereby agree that, in case of a longer interruption (of more than three (3) full business days) to the Technology Services, irrespective of the cause, the Customer shall enjoy a claim to reimbursement pro rata temporis of the contractual fees due for the period of performance failure.
5. REMUNERATION, TERMS AND CONDITIONS OF PAYMENT
5.1 Set-up Fee. As remuneration for the Technology Services to be supplied by MaritzCX, the Customer, following issue of this Agreement, shall pay a single fee, being the sum determined in the applicable proposal or Statement of Work (the “set-up fee”). Should the Customer decide during the term of this Agreement to avail itself of Technology Services which were not originally commissioned, additional set-up fees may be charged to an amount agreed by and between the parties.
5.2 Annual Fees. Along with the set-up fee, the Customer hereby agrees to pay annual fees to MaritzCX, being the sum determined in the applicable proposal (the “Annual Fee”, together with the set-up fees and any fees which are determined in a Statement of Work submitted under this Agreement, to be called the “Contractual Fees”). Should the Technology Services be supplemented by further functionalities, the parties hereby agree to negotiate in good faith an increase in the Contractual Fees, which shall enter into force at the agreed date. The Customer hereby recognizes that the Contractual Fees set out in the applicable proposal or Statement of Work, while they represent current prices, may in the course of time be amended unilaterally by MaritzCX and also raised. MaritzCX may not raise the fees for the Technology Services before the first anniversary of the date when this Agreement entered into force.
5.3 Payment of Contractual Fees. The Contractual Fees shall be invoiced in accordance with the applicable proposal or Statement of Work. Payments are due within thirty (30) days from date of invoice. To the said remuneration must be added the statutory Value Added Tax in force for the time being. Should travel expenses be incurred in the supply of the Technology Services, the Customer shall in addition reimburse MaritzCX for its appropriate expenditure.
6. DATA PROTECTION
The names, addresses and other details which can be traced to a particular Customer user or end user (including “personal details”) and which are generated by use of the Technology Services, and information relating to the way in which the Customer uses the Technology Services, shall be processed by MaritzCX as the mandated data processor only following instruction by the Customer and in conformity with the German Federal Data Protection Act. Notwithstanding the above, MaritzCX shall collect certain non-personal metadata in connection with the use of the Technology Services by the Customer users (“metadata”). The Customer hereby confirms that MaritzCX shall be the proprietor of all metadata and that the Customer shall not be awarded any license under this Agreement for the use of metadata.
7.1 Title. MaritzCX and the Customer hereby agree that (a) MaritzCX, both now and in the future, shall be the sole proprietor of the protectable works and results of the Technology Services, the software and the Agreement website, particularly of all intellectual property rights pertaining thereto, and that (b) the Customer, both now and in the future, shall be the sole proprietor of the customer contents and Customer data (cf. Definitions in Section 7.4 below), particularly of all intellectual property rights pertaining thereto. Title to the software and hardware which MaritzCX or its external suppliers now enjoy, which hardware and software are used to supply the Technology Services, shall remain the exclusive property of MaritzCX or its external suppliers and shall not be transferred to the Customer. The Customer hereby confirms that MaritzCX may use or disclose in aggregated form all data retrieved or collected on the part of the Customer in the course of using the Technology Services, to improve the appearance and presentation of the Technology Services in general, and to distribute, administrate, maintain or improve the products and services of MaritzCX in any other way, in order inter alia to develop and pass on benchmarks and similar reports and databases. It shall be a prior condition thereof that such aggregated data are not or cannot be traced back to the Customer, the Customer users or end users.
7.2 Reservation of Rights. Except for the express rights granted to the Customer under this Agreement, none of the provisions contained herein shall be so taken or interpreted as to mean that any further rights or licenses are granted to the Technology Services, the software, the Agreement website, or the usage information and statistics. MaritzCX shall retain all such rights to the Technology Services as are not expressly granted in compliance with this Agreement.
7.3 Customer Data. The expression “Customer data” shall mean recorded personal information which, irrespective of the form or method by which it is recorded, can be traced to particular end users, is transmitted in connection with the Technology Services directly from the end users, and is saved or maintained on one or more data servers or other storage media which belong to MaritzCX or are controlled by MaritzCX.
7.4 Usage information and statistics. The expression “usage information and statistics” shall mean all information about the interaction of end users or Customer users with the Technology Services, protected content or Agreement website and use of the same which MaritzCX is allowed to collect. This information, however, must not be traceable by means of the name to a particular end user or Customer user.
8. WARRANTY, LIABILITY
8.1 Warranty. Excepting provisions in this TS Agreement to the contrary, MaritzCX hereby warrants that it shall maintain the Technology Services professionally and in conformity with the standards of care in force in Germany and enable the Customer to enjoy the use of the Technology Services. Excepting the restricted warranty set out in this Section 8.1, the Technology Services shall be supplied “as they are”, i.e. without any verbal, written, statutory, express or tacit guarantee, particularly for their performance results, for their non-infringement of protective rights of third parties, for their commercial viability, or for their suitability for a particular purpose, apart from their contractual usage.
8.2 Liability for defects. Should the Technology Services supplied by MaritzCX be defective because their fitness for contractual use is impaired in more than a merely minor way, MaritzCX shall be liable in accordance with statutory regulations for material defects and defects of title. The Customer must notify MaritzCX of any defect immediately. Defect claims shall expire in one year.
8.3 Measure and Limitation of Liability. MaritzCX shall be liable for deliberate intention and gross negligence in accordance with statutory regulations. For minor negligence MaritzCX shall be liable only in case of a breach of an essential contractual duty (cardinal duty) and in case of loss arising from damage to life, limb or health. MaritzCX shall be liable thereby only for foreseeable loss, the emergence of which is to be expected. In case of minor negligence, liability shall be restricted in amount to the sum which MaritzCX receives from the Customer pursuant to the current List of Specifications. Liability on the part of MaritzCX for the Customer’s loss of profit is hereby excluded.
8.4 Indemnification. The Customer shall hold MaritzCX, its affiliated companies, its employees, managers, representatives, licensors, legal successors and assignees harmless against all loss and liabilities, including reasonable legal fees incurred in consequence of a breach by the Customer of its contractual duties, as a consequence of negligent or deliberate actions by the Customer, or in consequence of a breach of the intellectual-property rights or personal rights of third parties. The duty of the Customer to pay damages set out in this provision shall also apply even after termination of this Agreement.
9. TERM OF AGREEMENT AND TERMINATION
9.1 Term of Agreement. This TS Agreement is valid for the duration of the performance as agreed upon by the parties, unless terminated prior thereto in conformity with the terms and conditions of the Agreement.
9.2 Termination of the Agreement for breach of cardinal duty. Should one party be in default of fulfilment of a cardinal contractual duty, the non-defaulting party must notify the said default in writing and describe it in sufficient detail. Should the defaulting party fail to rectify such a cardinal default within thirty (30) days following receipt of this written notification, the non-defaulting party, apart from all other legal remedies which it enjoys by law, shall be entitled to terminate this Agreement.
9.3 Continued duty to pay compensation. Should MaritzCX exercise the rights of termination set out in this section, the Customer shall enjoy no claim to reimbursement or exemption from a duty of payment of any portion of the contractual fees payable to MaritzCX under this Agreement.
9.4 Effect of contractual termination. Should this Agreement be terminated, (a) the Customer shall pay to MaritzCX all annual fees or other sums incurred prior to the effective date of the termination, (b) all payables accrued prior to the effective date of the termination shall continue to subsist, (c) the Customer shall submit to MaritzCX a written confirmation, signed by an authorized representative of the Customer, under which all and every use of the Technology Services on the part of the Customer has been discontinued, (d) MaritzCX shall be entitled to charge the Customer a separate set-up fee should it wish to adopt the Technology Services again at a later time, and (e) Sections 5, 6, 7, 8, 9 and 10 shall retain their validity even after the said termination of the Agreement.
10. GENERAL PROVISIONS
10.1 Notifications. All notifications which are required or permitted under this Agreement must be in writing.
10.2 Copies, electronic transmission. This Agreement may be issued in multiple copies. Each copy shall be deemed to be an original copy, but all together shall represent one and the same deed. One or more contracting parties may issue facsimiles or other duplicates of this Agreement. A copy of this Agreement may be delivered to one of more contracting parties by means of fax transmission or a similar electronic transmission system, enabling transmission to be made of the signature of this party or of signature in the name of this party. Such a copy and delivery shall be deemed to be valid, binding and legally effective for all purposes. Should a contracting party so wish, all contracting parties shall agree to issue an original text of this Agreement and a facsimile or other duplicate thereof.
10.3 Headings. The headings in this Agreement shall serve solely as reference and cannot be adduced in the interpretation of this Agreement.
10.4 Entire Agreement. This Agreement and the Annexes pertaining thereto represent the entire agreement between MaritzCX and the Customer with respect to the subject thereof. Supplements and amendments to this Agreement, and any legal waiver or release under this Agreement, must be in writing and signed by both contracting parties. This Agreement hereby expressly replaces all previous agreements between the Customer and MaritzCX. Existing rights under non-disclosure agreements which the parties have concluded prior to the effective date of this Agreement, however, shall in no way be affected or ended thereby. Every new item of confidential information exchanged between the parties moreover shall be subject to the conditions of non-disclosure contained herein.
10.5 Independent Contractors. Each party is acting as an independent trader. The parties shall have no entitlement to bind, represent or obligate the other party. None of the provisions contained in this Agreement can be so construed as to mean that a joint-venture, a corporate partnership or a representation is being established between the parties. The parties hereby agree that no Customer user shall have or obtain any rights as a beneficiary or in any other way in connection with this Agreement.
10.6 Subcontractors. MaritzCX shall be entitled to commission subcontractors or other third parties to fulfil its contractual duties. MaritzCX shall continue to be liable thereby for the fulfilment of all its contractual duties.
10.7 Priority of conditions. In case of collision between this Agreement and any other agreement between the parties, the terms and conditions of this Agreement shall have priority over any other agreement governing the Technology Services, the Agreement website, and the intellectual property rights. In case of collision between this Agreement and its Annexes, this Agreement shall have priority over said Annexes.
10.8 Severability. If any part of this Agreement is found to be invalid or unfeasible, the validity of the remaining provisions shall not be affected thereby and such a provision shall be replaced by another provision representing the purpose and intention of this Agreement.
10.9 Force Majeure. Should one party, due to an event which is beyond such control of this party as may reasonably be expected and is not caused by its culpability or negligence, be prevented from fulfilling any part of this Agreement – excepting payment of fees on the part of the Customer – should it be in arrears thereof, or should fulfilment be rendered impossible for it in any other way, this party shall be released therefrom to the extent to which it is prevented from or impeded in its said fulfilment by such causes.
10.10 Assignment and Transfer. This Agreement and the rights and duties contained therein may not be assigned or transferred by the Customer, whether wholly or in part, whether voluntarily or by operation of law, or in any other way. This Agreement and the rights and duties of MaritzCX contained therein may, without the Customer’s permission, be assigned and/or transferred by MaritzCX to the following recipients: (i) to a corporation which is a 100% subsidiary or parent Customer of MaritzCX; to a corporation which, following a merger in which MaritzCX is a participant, continues in existence; or to a corporation which acquires a significant part of the assets of MaritzCX or any significant part of the participations of MaritzCX in the product suite containing the contractual services, and (ii) to the Customer or companies and/or third parties (subcontractors and vendors) affiliated with MaritzCX. Such a transfer pursuant to Section 10.10 (ii), however, shall not release MaritzCX from its liability or its duties under this Agreement. Subject to the foregoing, this Agreement shall be binding on the contracting parties and each of their approved legal successors and assignees or shall be effective in their favor.
10.11 Applicable law and place of jurisdiction. This Agreement shall be governed by German law, excepting the provisions of international private law and UN purchase law. The sole place of jurisdiction for all disputes arising, whether directly or indirectly, from this Agreement is hereby agreed to be Hamburg.