Terms & conditions – Complystation_Germany EN - Lisam

General Terms and Conditions for Software-as-a-Service

1. Applicability

a. Scope

These general terms and conditions for Software-as-a-Service (these “Terms”) govern the provision of the Software-as-a-Service offering (the “Services”) by LISAM Systems Deutschland GmbH (“LISAM”), having its registered office at: Holsteinische Straße 43, 10717 Berlin, represented by its Managing Director Michel Hemberg, to the party designated as “Customer” (“Customer”) in the “Contract Offer”. This Contract Offer is signed by the Customer and incorporates these Terms by reference (a “Contract Offer”), valid as of the “Effective Date” specified therein (the “Effective Date”). LISAM and the Customer are referred to herein jointly as the “Parties” or individually as a “Party”.

b. Entire Agreement

The Contract Offer, these Terms, as well as all further documents signed by both Parties that explicitly refer to these Terms by reference (“Addenda”) (collectively referred to as the “Agreement”), constitute the entire agreement between the Parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations, and warranties, as well as all communications in written or oral form. In the event of a conflict between these Terms, the Contract Offer, and any Addenda, the following order of precedence shall apply: 1) Contract Offer, 2) Addenda, 3) Terms.

c. Precedence

This Agreement takes precedence over any and all general terms and conditions of the Customer – regardless of whether or when the Customer has submitted an offer, a purchase order, or corresponding terms. The provision of Services to the Customer does not constitute acceptance of the Customer’s terms and does not lead to a modification or amendment of this Agreement.

2. Access and Use

a. Provision of Access

Subject to the payment of Fees by the Customer and compliance with all other conditions of this Agreement, LISAM hereby grants the Customer a non-exclusive, non-transferable right to access and use the Services during the Term – solely through Authorised Users and in accordance with the conditions set out herein. Use is restricted to the Customer’s internal purposes. LISAM shall provide the Customer with the necessary passwords as well as network connections or access points enabling access to the Services. The total number of Authorised Users may not exceed the number specified in the Contract Offer, unless the Parties have agreed otherwise in writing and the Fees have been adjusted accordingly.

b. Documentation Licence

Subject to the terms contained in this Agreement, LISAM hereby grants the Customer a non-exclusive, non-sublicensable, and non-transferable licence to use the Documentation during the Term – solely for the Customer’s internal business purposes in connection with the use of the Services.

“Documentation” means LISAM’s user manuals, guides, and instructions relating to the Services, which are made available to the Customer either in electronic form or as hard copies.

c. Use Restrictions

The Customer shall not use the Services beyond the scope granted in this Agreement. The Customer shall not, directly or indirectly – and shall not authorise any Authorised Users to – at any time:

1. copy, modify, or create derivative works of the Services or the Documentation, in whole or in part;
2. rent, lease, lend, sell, licence, sublicence, assign, distribute, publish, transfer, or otherwise make the Services or Documentation available to third parties;
3. reverse engineer, decompile, disassemble, decrypt, adapt, or otherwise attempt to analyse or access software components of the Services, in whole or in part;
4. remove proprietary notices from the Services or the Documentation; or
5. use the Services or the Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise impairs intellectual property rights or other rights of third parties, or violates applicable law.

d. Reservation of Rights

LISAM reserves all rights not expressly granted to the Customer in this Agreement. Except for the limited rights and licences expressly granted in this Agreement, no right, title, or interest in respect of intellectual property or other rights in the LISAM IP is granted to the Customer or third parties by implication, waiver, estoppel, or otherwise.

“LISAM IP” means the Services, the Documentation, and all intellectual property made available to the Customer or an Authorised User in connection with the foregoing.

e. Suspension

Notwithstanding any provision to the contrary in this Agreement, LISAM may temporarily suspend the access of the Customer and all Authorised Users to any or all Services if:

1. LISAM reasonably determines that
   1. there is a threat or attack on any of the LISAM IP;
   2. the use of the LISAM IP by the Customer or an Authorised User impairs the LISAM IP or other customers or suppliers of LISAM, or poses a security risk;
   3. the Customer or an Authorised User is using the LISAM IP for fraudulent or unlawful activities;
   4. subject to applicable laws, the Customer has ceased to conduct its business in the ordinary course, has made an assignment for the benefit of creditors or a similar transfer of assets, or has become the subject of insolvency, reorganisation, liquidation, dissolution, or similar proceedings; or
   5. the provision of the Services by LISAM to the Customer or an Authorised User violates applicable law;
2. a supplier of LISAM has suspended or terminated access to or use of third-party services or products required for the Customer’s access to the Services; or
3. in accordance with Clause 5(a)(iii).

(Any such suspension pursuant to sub-clauses (i), (ii), or (iii) shall be referred to as a “Service Suspension”.)

LISAM shall use commercially reasonable efforts to provide the Customer with written notice of a Service Suspension and to inform the Customer regarding the status of the resumption of access to the Services.

LISAM shall use commercially reasonable efforts to restore access to the Services as soon as possible once the cause of the suspension has been remedied.

LISAM shall not be liable for any damages, liabilities, losses (including loss of data or profit), or other consequences incurred by the Customer or an Authorised User as a result of a Service Suspension.

f. Aggregated Statistics

Notwithstanding any provision to the contrary in this Agreement, LISAM is entitled to monitor the Customer’s use of the Services and to collect and compile aggregated statistics. As between LISAM and the Customer, all rights, title, and interest in the aggregated statistics and all related intellectual property rights shall belong exclusively to LISAM.

The Customer acknowledges that LISAM may compile aggregated statistics based on the data entered into the Services by the Customer (“Customer Data”). The Customer agrees that LISAM may:

1. make aggregated statistics publicly available in compliance with applicable law; and
2. use these statistics to the extent and in the manner permitted by applicable law.

g. Upgrade Obligation

LISAM reserves the right to require the Customer to migrate to an updated version of the Services. LISAM shall notify the Customer in writing at least 30 days prior to the required migration date. Upon receipt of the migration notice, the Customer shall immediately commence migration to the updated version and complete the migration by the specified migration date. During the transition period, LISAM shall provide the Customer with reasonable support and assistance to facilitate the transition to the updated version. The scope and nature of this support shall be determined at LISAM’s sole discretion. After the migration date, LISAM may discontinue the provision of the previous version of the Services.

3. Customer Obligations

The Customer is responsible and liable for all uses of the Services and the Documentation resulting from access provided by the Customer, directly or indirectly, regardless of whether such access or use is in accordance with or in violation of this Agreement. Without limiting the generality of the foregoing, the Customer is responsible for all acts and omissions of Authorised Users, and any act or omission by an Authorised User that would constitute a breach of this Agreement if performed by the Customer shall be deemed a breach of this Agreement by the Customer.

The Customer shall use reasonable efforts to make all Authorised Users aware of the provisions of this Agreement applicable to their use of the Services and shall ensure that Authorised Users comply with these provisions.

4. Support

LISAM shall provide the Customer and Authorised Users with reasonable assistance and ongoing support to facilitate access to the licensed software. LISAM shall make its personnel available via email for feedback, problem resolution, or general queries between 09:00 and 17:00 Central European Time (Monday to Friday) and shall endeavour to acknowledge support requests within 24 business hours. Premium support services, if available, are subject to the service-specific conditions set out in the Contract Offer.

5. Fees

The Customer shall pay LISAM the fees (“Fees”) in accordance with the Contract Offer without deduction or set-off. The Customer shall make all payments under this Agreement in Euros by the due date specified in the Contract Offer. If the Customer fails to make a payment by the due date, without limiting LISAM’s other rights and remedies:

1. LISAM may charge interest on the overdue amount at the statutory default interest rate established under Section 288 of the German Civil Code (BGB), being 9 percentage points above the current base interest rate, calculated daily and compounded monthly;
2. the Customer shall indemnify LISAM for all costs incurred by LISAM in collecting overdue payments or interest, including legal fees, court costs, and debt collection agency fees; and
3. if such payment default continues for 30 (thirty) days or longer, LISAM may suspend the access of the Customer and its Authorised Users to any or all Services until the outstanding amounts have been paid in full.

All Fees and other amounts payable by the Customer under this Agreement are exclusive of taxes and similar levies. The Customer is responsible for all sales, use, and excise taxes, as well as all other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by the Customer under this Agreement, excluding taxes on LISAM’s income.

Important notice regarding pricing: The Fees for our SaaS services shall be adjusted annually by a fixed percentage of 3%. This adjustment takes place on 1 January of each calendar year and serves to offset increased operating costs and general inflation. The Customer shall be notified of this annual adjustment in writing in good time prior to its taking effect. By accepting these General Terms and Conditions, the Customer consents to the annual adjustment of Fees.

6. Confidential Information

During the Term of this Agreement, either Party may disclose or make available to the other Party information regarding its business operations, products, confidential intellectual property, trade secrets, confidential information of third parties, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, regardless of whether such information is marked, designated, or otherwise identified as “confidential” (collectively “Confidential Information”).

Confidential Information does not include information that, at the time of disclosure:

1. is publicly available;
2. is known to the receiving Party at the time of disclosure;
3. was lawfully obtained by the receiving Party on a non-confidential basis from a third party; or
4. was independently developed by the receiving Party.

The receiving Party shall not disclose the disclosing Party’s Confidential Information to third parties or other entities, except to the receiving Party’s employees who require such information for the exercise of their rights or the performance of their obligations under this Agreement. Notwithstanding the foregoing, either Party may disclose Confidential Information only to the limited extent required:

1. to comply with a court order or other official decree or otherwise to comply with applicable law, provided that the Party making the disclosure pursuant to the order has first given the other Party written notice and has endeavoured to obtain a protective order; or
2. to enforce the Party’s rights under this Agreement, including necessary court filings.

Upon expiry or termination of this Agreement, the receiving Party shall promptly return to the disclosing Party all copies of the disclosing Party’s Confidential Information, whether in written, electronic, or other form or media, or destroy all such copies and confirm in writing to the disclosing Party that such Confidential Information has been destroyed.

Each Party’s non-disclosure obligations with respect to Confidential Information shall apply from the Effective Date of this Agreement and expire five years after the initial disclosure to the receiving Party; however, with respect to Confidential Information constituting a trade secret (as determined under applicable law), these non-disclosure obligations shall survive the termination or expiry of this Agreement for as long as such Confidential Information continues to be subject to trade secret protection under applicable law.

7. Intellectual Property Ownership; Feedback

a. LISAM IP

The Customer acknowledges that, as between the Customer and LISAM, LISAM owns all rights, title, and interest, including all intellectual property rights, in and to the LISAM IP.

b. Customer Data

LISAM acknowledges that, as between LISAM and the Customer, the Customer owns all rights, title, and interest, including all intellectual property rights, in and to the Customer Data. The Customer hereby grants LISAM a non-exclusive, royalty-free, worldwide licence to reproduce, distribute, and otherwise use and display the Customer Data, and to perform all acts in connection with the Customer Data as may be necessary for LISAM to provide the Services to the Customer.

c. Feedback

If the Customer or any of its employees or contractors sends or transmits any communications or materials to LISAM, whether by post, email, telephone, or otherwise, suggesting or recommending changes to the LISAM IP, including but not limited to new features or functionality, or any comments, questions, suggestions, or the like (“Feedback”), LISAM shall be free to use such Feedback, notwithstanding any other obligations or restrictions between the Parties regarding such Feedback.

8. Warranty Disclaimer

1. LISAM shall be liable for material defects and defects in title of the supplied product in accordance with statutory provisions, unless otherwise specified below. The limitation period for claims for defects against Customers shall be one year from the time the product is made available.
2. Any further liability for material defects and defects in title is excluded, unless LISAM has fraudulently concealed the defect or has assumed a guarantee for the quality of the product. The Customer does not receive any guarantees in the legal sense from LISAM. Manufacturer warranties remain unaffected by this.

9. Limitation of Liability

1. LISAM shall be liable without limitation for damages arising from injury to life, limb, or health based on a wilful or negligent breach of duty by LISAM or its vicarious agents.
2. In all other respects, LISAM shall be liable only for damages based on a wilful or grossly negligent breach of duty, as well as for damages caused by the slightly negligent breach of material contractual obligations. Material contractual obligations are those obligations the fulfilment of which is essential for the proper performance of the Agreement and on the observance of which the Customer may regularly rely. In the latter case, however, LISAM’s liability shall be limited to the foreseeable damage typical for this type of contract.
3. Any further liability of LISAM is excluded. The limitations of liability also apply in favour of LISAM’s legal representatives and vicarious agents if claims are asserted directly against them.
4. The provisions of the German Product Liability Act remain unaffected.

10. Term and Termination

a. Term

The initial term of this Agreement commences on the Effective Date and, unless terminated earlier in accordance with the express provisions of this Agreement, remains in force until the date specified in the Contract Offer (the “Initial Term”). This Agreement shall automatically renew for successive one-year terms, unless terminated earlier in accordance with the express provisions of this Agreement or unless one of the Parties provides the other Party with written notice of non-renewal at least sixty (60) days prior to the expiry of the current term (each a “Renewal Term” and, together with the Initial Term, the “Term”).

b. Termination

The Agreement is initially concluded for a period of 12 months. It shall automatically extend by a further 12 months in each case if it is not terminated with a notice period of 3 months to the end of the respective term. Termination must be in writing (e.g. by email, fax, or letter).

Payments already made for periods subsequent to the termination taking effect shall be refunded on a pro-rata basis, provided that an advance payment has been made and no contractual minimum term prevents this.

In addition to other express termination rights set out in this Agreement:

1. LISAM may terminate this Agreement, effective upon written notice to the Customer, if the Customer:
   1. fails to pay any amount due hereunder, and such failure continues for more than thirty (30) days after LISAM’s written notice thereof; or
   2. breaches any of its obligations under Clause 3 or Clause 6;
2. Either Party may terminate this Agreement, effective upon written notice to the other Party, if the other Party commits a material breach of the Agreement and such breach:
   1. is not curable; or
   2. is curable but remains unremedied thirty (30) days after the non-breaching Party’s written notice of such breach;
3. Either Party may terminate this Agreement with immediate effect by written notice to the other Party, if the other Party:
   1. becomes insolvent or is generally unable to pay its debts, or fails to pay its debts as they fall due;
   2. files a petition for voluntary or involuntary insolvency or otherwise voluntarily or involuntarily enters into proceedings under any domestic or foreign insolvency law;
   3. makes or attempts to make a general assignment for the benefit of its creditors; or
   4. applies for the appointment of an administrator, trustee, receiver, or similar official, or if a court of competent jurisdiction appoints such an official to administer or sell a material part of its property or business.

c. Effects of Expiry or Termination

Upon the expiry or termination of this Agreement, the Customer shall immediately cease use of the LISAM IP and, without prejudice to the Customer’s obligations under Clause 6, delete, destroy, or return all copies of the LISAM IP and confirm in writing that the LISAM IP has been deleted or destroyed. Neither expiry nor termination shall affect the Customer’s obligation to pay all Fees that became due prior to the expiry or termination, nor shall it entitle the Customer to a refund.

d. Survival

This Clause 10(d) and Clauses 1, 5, 6, 7, 8, 9, and 11 shall survive any termination or expiry of this Agreement. No other provisions of this Agreement shall survive the expiry or early termination of this Agreement.

11. Miscellaneous

a. Entire Agreement

This Agreement, together with all other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding this subject matter.

b. Notices

All notices, requests, consents, claims, demands, waivers, and other communications (each a “Notice”) must be in writing and sent to the Customer’s email address specified in the Order Form if addressed to the Customer, and to Legal@lisam.com if addressed to LISAM.

c. Force Majeure

Under no circumstances shall LISAM be liable to the Customer or be deemed to be in default if a delay or failure in the performance of LISAM’s obligations under this Agreement is due to circumstances beyond LISAM’s reasonable control, including but not limited to force majeure, floods, fires, earthquakes, explosions, wars, terrorism, invasions, riots or other civil unrest, strikes, work stoppages or delays, industrial disputes, or legislative measures as well as acts of government or public authorities, including the imposition of an embargo.

d. Amendment and Modification; Waiver

No amendment or modification of this Agreement shall be effective unless it is in writing and signed by an authorised representative of each Party. No waiver by a Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party waiving the right. Unless otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege shall preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

e. Severability

If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement or invalidate or render unenforceable such provision in any other jurisdiction. If it is determined that any provision or other regulation is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

f. Governing Law; Jurisdiction

This Agreement shall be governed by the laws of the Federal Republic of Germany, without giving effect to any choice or conflict of law provision or rule that would cause or permit the application of the laws of any jurisdiction other than those of the Federal Republic of Germany. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licences granted hereunder shall be instituted exclusively in the federal courts of the Federal Republic of Germany, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. For all disputes arising out of or in connection with this Agreement, the place of jurisdiction shall be Berlin.

g. Assignment

The Customer may not assign or delegate any of its rights or obligations under this Agreement, whether voluntarily, involuntarily, by operation of law, or otherwise, without the prior written consent of LISAM. Any purported assignment or delegation in violation of this provision shall be null and void. No assignment or delegation shall relieve the assigning or delegating Party of any of its obligations under this Agreement. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

h. Export Regulations

The Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export licence or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the Federal Republic of Germany.

i. Equitable Relief

Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Clause 6 or, in the case of the Customer, Clause 3, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy, and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

j. Counterparts

This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.