General Terms and Licensing Conditions of Klebstoff Ventures. UG (Spotter)

General Terms and Licensing Conditions Version: Feb 1, 2018


1. Subject

1.1. These terms and conditions (the “Terms”) govern, in conjunction with the terms and conditions of any applicable Order Form and, if applicable, any addendums (collectively with the Terms, the “Agreement”), Customer’s use of the platform services (“Services”) provided by Klebstoff Ventures UG, Pappelalle 78/79, 10437 Berlin (Spotter).

1.2. Upon acceptance of an Order Form by Klebstoff Ventures (Spotter) and/or the activation of an user account for the Services by Spotter an Agreement shall be concluded between the company or the company that customer represents (“Customer”) as licensee and Spotter as licensor. In the event of any inconsistencies between the documents named in Clause 1.1 the conditions as agreed upon in the Order Form shall prevail.

1.3. Spotter offers its Services solely to entrepreneurs according to § 14 German Civil Code (“Unternehmer”), meaning all natural or legal persons or partnerships with legal personality who or which, when entering into a legal transaction, act in exercise of his or its trade, business or profession. Consumers as to § 13 German Civil Code (“Verbraucher”), meaning every natural person who enters into a legal transaction for purposes that predominantly are outside his trade, business or profession, are ex- cluded from the use of the Services.

2. Interpretation and Definitions

2.1. Any use of the term “including” in the Agreement will mean “including, but not limited to.” The following capitalized terms will have the associated meanings for purposes of the Agreement. Any definitions included in these Terms or any related Order Forms will have the same meaning throughout the Agreement.
2.1.1.“Free” means any Service feature that is identified by Spotter as “Free”, “Beta” “Alpha”, “Experimental”, “Limited Release” or “Pre-Release” or that is otherwise identified by Spotter as unsupported.
2.1.2.“Confidential Information” means information that one party (or an affiliate) discloses to the other party under the Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. It does not include information that is independently developed by the recipient, is lawfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient.
2.1.3.“Data” means data derived from Customer’s use of the Services.
2.1.4.“Intellectual Property Rights” means all copyrights, moral rights, patent rights, trademarks, rights in or relating to Confidential Information and any other intellectual property or similar rights (registered or unregistered) throughout the world.
2.1.5.“In writing” or "written" covers both written form (Schriftform) and text form (Textform) and in both cases it is sufficient that the counterparts are exchanged by way of telecommunications (e.g. as PDF copy).
2.1.6.“Order Form” means an order form (no matter if in writing or electronically), schedule or other (even individual) agreement between Customer and Spotter that is subject to these Terms and for instance sets forth pricing and other terms with respect to the Services offered by Spotter to Customer. All order forms are governed by the Terms contained herein, whereas any written individual stipulations in Order Forms shall prevail.
2.1.7.“Service Fees” mean the service, transaction, product and other fees set out in the respective Order Form or in any applicable user interface for a Service.

3. Obligations; Prohibited Acts

3.1. Spotter will:
3.1.1.provide the applicable Services as basically described in Feature Overview or at Spotter’s service platform or in the Order Form entered into by Customer;
3.1.2.use current industry-standard security measures in connection with its provision of Services;

3.2. Customer will:
3.2.1.use the Services in compliance with these Terms and all applicable laws;
3.2.2.use the Services in compliance with all applicable policies by Spotter (if any, as such policies may be updated from time to time as far as such modifications are reasonable towards Customer) and at all times Customer will bear the burden of proof in establishing such compliance;
3.2.3.be solely responsible for the use of Services;
3.2.4.obtain all rights necessary to use, and necessary to permit Customer or Spotter, as the case may be, to use the Data under the terms of the Agreement;
3.2.5.will not transfer it to third parties or allow third parties access to it;
3.2.6.on its own behalf and self-responsibly ensures that any and all Data will be saved in an appropriate way by regularly using the function “Export as ZIP” and/or “Download Images” as offered by Spotter.

3.3. Customer will not, and will not assist or knowingly permit any third party to:
3.3.1.misappropriate any part of a Service;
3.3.2.modify, disassemble, decompile, reverse engineer, copy, reproduce or create derivative works from or in respect to Services or any part of a Service (except to the extent that such prohibition is not permitted by law);
3.3.3.damage or tamper with any part of a Service;
3.3.4.knowingly breach any Service security measure.

4. Use and Provision of Services

4.1. Any use of Spotter’s Services is made online via Internet webbrowser and/or via mobile devices via the installed Spotter Android App, by means of an (electronical or other) Order Form or by acceptance of an individual offer by Spotter. For the sake of clarification Spotter’s Services are made online only via particular Internet webbrowsers (namely “Chrome” latest versions supported only; access and/or full functionality via any other browser used by Customer can not be guaranteed) and/or mobile devices (namely “Google Android”, latest versions supported only;) via the in- stalled Spotter Android App. Requests for use by Customers are binding upon re- ceipt by Spotter. The request for use shall contain the requested start date, the term and the extent of use (number of users, etc.) as described in the Order Form or during the booking process at Spotter’s website. As far as no deviating written agreement has been concluded, the Agreement will be made at the then valid scheduled price list of Spotter.

4.2. The Services of Spotter shall be provided to Customer “as is” and as specified by Spotter. The Services shall substantially conform with the functions and character- istics as described by Spotter. Deviations and amendments which extend the func- tions of the Services or do not substantially impair its usability shall be regarded as in accordance with the Agreement.

4.3. Spotter does not warrant that Spotter’s Services will be constantly accessible and will at any time work error free. In particular, Spotter shall not be responsible for failures or limitations of the usability by circumstances eluding any reasonable control. Such circumstances include for instance cases of force majeure, attacks on the service platform as well as interruptions of telecommunications equipment or interruptions of electrical power supply. However, Spotter shall inform Customer about all foreseeable limitations of the usability (for instance planned inspection win- dows etc.) in advance via email or by a notification within the Services. However, the availability of the Services has an annual average of 97,5 %. The connection of the Customers side to the online and/or devices offered by Spotter remains their own responsibility.

4.4. In order to being able to fully use the functions of the Services, Customer shall com- ply with the system requirements as described on the platform or app market places (e.g., Google Play TM, App Store (iOS)). Limitations of usability caused by failing to meet these requirements do not constitute a defect.

4.5. The request for use of the Services shall only apply to Customers mentioned therein. The use of the Services by other persons than Customer requires the prior written approval by Spotter. Even in this case Customer shall remain responsible for the use by any such third party to the same extent as for its own use. In particular, Cus- tomer shall pay the license fee and ensure compliance by such third party with all terms of use.

5. Use of the Services

5.1. Customer shall exclusively use the Services via the website by using supported browsers and Google Android Versions as to Clause 4.1, the provided apps for mo- bile end devices and only by means of the user accounts assigned to Customer. The temporary or permanent assignment of user accounts or the joint use of user ac- counts shall not be admissible.

5.2. Customer shall keep its login details a secret and protect them against unauthorized access. Thus, Customer shall be responsible for providing and administering usernames and passwords for all users (as “Log-In-Information”). Each Customer must have a valid username and password for the purpose of accessing the Ser- vices. The Customer must keep all Log-In-Information strictly confidential. Log-In- Information may be used only by the assigned Customer and may not be shared or transferred without Customer’s consent and control.

5.3. Customer shall solely be responsible for all activities occurring under its account. Customer shall immediately notify Spotter, if it detects or suspects an unauthorized access to its user accounts. Customer represents and warrants that Customer has all necessary authorization to use the Services of Spotter.

5.4. Customer agrees to provide the necessary electric service, wiring, computer equip- ment and communication line access for access and use to the Services. Customer agrees to provide, install and maintain, at Customer’s expense, data communication lines therefore, all pursuant to minimum specifications prescribed by Spotter from time to time. Customer shall be responsible for ongoing charges for Customer’s own use of such data communication lines.

5.5. Spotter shall not be obliged to control the accuracy of Customer Data, but may conduct controls of the use, if there are evidence-based indications for a behavior which is illegal or contrary to the Agreement and/or any legal requirements

5.6. Customer shall comply with these Terms and all laws applicable to Customer during the use.

5.7. With regard to the relationship between Spotter and Customer all rights, titles and claims relating to Customer Data solely rest with Customer. The Service is not suita- ble for the storage, processing or use of Customer Data which are particularly pro- tected beyond general data protection laws. If Customer transfers such data to Spotter, it agrees that Spotter processes and uses these data in accordance with the conditions agreed upon.

5.8. The data gathered, created and processed by using the Services is stored on serv- ers operated by Spotter and/or respective subcontractors. The Customer can at any time, especially in case of termination of the Agreement by himself effect the transfer of particular or of the total Data. For the sake of clarification: Each transfer of Data will be done by Customer on its own electronically through the aforementioned measures issued by Spotter at the service platform. The Customer carries the whole responsibility for the admissibility, processing and using of the Data, as well as protecting the rights of the concerned parties (providing of information, usage, rights, blocking, erasing).

6. Payments

6.1. For each applicable Service, Spotter will invoice Customer for Service Fees, if applicable, in the month following the calendar month in which the Service Fees are incurred; however, any individual agreements in the Order Form shall prevail. Customer will pay Spotter the Service Fees (other than any Service Fees disputed in good faith) and other invoiced amounts (if any) by the payment due date set forth here (in the currency and at the exchange rate (if any) specified or and by electronic transfer to the account notified to it by Spotter or such other means expressly agreed to in writing by the parties. Unless otherwise expressly agreed, Service Fees payable under an Order Form are additional to Service Fees payable under other Order Forms.):

6.2. The license fee shall be invoiced for a term of 12 months in advance and shall be due within 14 days from the date of the invoice without deduction. The license fee shall thereupon be due at the end of each calendar month. A full or partial repayment of the license fee will only occur in cases regulated by law. Customer shall be responsible to provide Spotter with full and accurate contact and billing details and to update these in case of changes without any request.

6.3. Upon 5 days’ prior notice to Customer, Spotter may, in its sole discretion if Spotter determines that there is any credit risk associated with Customer, require Customer to prepay Spotter an amount equal to not more than 2 months of reasonably anticipated or actual Service Fees under the applicable Order Form.

6.4. Spotter may charge the default statutory interest on all late payments by Customer. Customer will pay reasonable expenses and legal fees Spotter incurs in collecting late payments.

6.5. The Service Fees are exclusive of taxes. Customer will pay all taxes and other government charges related to or arising from use of the Services (except for taxes on Spotter’s net income).

6.6. If Customer fails to pay Service Fees invoiced by Spotter (other than Service Fees disputed in good faith) within 5 days following the Payment Due Date, Spotter may suspend each applicable Service (for which the Service Fees are overdue) after 5 days’ notice to Customer.

6.7. In addition to other rights and remedies Spotter may have, Spotter may offset the Service Fees payable by Customer under the Agreement against any payment obligations to Customer that Spotter may incur under the Agreement.

6.8. Any account and related billing and payment information which Customer provides to Spotter may be shared with third parties solely for the purposes of performing credit checks, effecting payment to Spotter or servicing Customer's account.

7. License of Intellectual Property Rights

7.1. Upon conclusion of the Agreement Customer shall be granted a non-exclusive, non- transferable and non-sublicensable right to use the Services in accordance with the- se Terms for own, internal business purposes during the term. The extent of use (number of users, etc.) shall comply with the stipulations within the Order Form.

7.2. Customer shall not be granted rights beyond those exclusively granted herein. In particular, Spotter shall be entitled to all rights, titles and claims with regard to improvements of the Services as well as know-how, such as updates, upgrades or other modifications or extensions, even if those originate from proposals by Customer.

7.3. Customer shall not (a) modify or copy the Services or make adaptations therefrom, (b) make available or mirror the content belonging to or contained within the Services elsewhere (not even by means of so-called framing), unless it occurs in own internal Customer networks or in another manner for own internal business purposes and does not lead to an exceedance of the extent of use (number of users, etc.) as agreed upon, (c) reversely engineer the Services (Reverse Engineering) and (d) access the Services in order to produce competing products or services or to copy or imitate ideas, functions, characteristics or graphic elements of the Services.

7.4. Each Party shall be entitled to use the name and the logo of the other Party in its customer and seller lists (also on their websites), but shall comply with the logo and/or trademark guidelines of the other Party. Other references to the other Party require its prior written approval.

7.5. Except to the extent expressly stated otherwise in the Agreement, neither party will acquire any right, title or interest in any right belonging to the other party, or to the other party’s licensors.

8. Confidentiality

The receiving party will not disclose the Confidential Information of the disclosing party, except to affiliates, employees, agents or professional advisors of the receiving party who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The receiving party will ensure that those people and entities use the Confidential Information of the disclosing party only to exercise rights and fulfill obligations under the Agreement, and that they keep it confidential. The receiving party may also disclose Confidential Information when required by law after giving reasonable notice to the disclosing party, if permitted by law. For purposes of clarification, Data is considered Confidential Information under the Agreement and further shall be processed strictly in accordance with all relevant data protection laws.

9. Warranties (Gewährleistungen)

Each party warrants (gewährleistet) that it will use reasonable care and skill in complying with its obligations under this Agreement. Customer warrants (gewährleistet) that it has all necessary rights and authority to (i) enter into the Terms and each Order Form and (ii) perform its obligations hereunder. The warranty period is one year.

10. Disclaimers

No conditions, warranties or other terms apply to any Services or to any other goods or services supplied by Spotter under the Agreement unless expressly set out in the Agreement.

11. Free Features

Subject to Clause 13.1 Spotter will have no liability under the Agreement (including any indemnification obligations) arising out of or related to any use of Free Features by Customer, its affiliates, or its or their clients or partners. Any use of Free Features will be solely at Customer’s own risk and may be subject to additional requirements as specified by Spotter. Spotter is not obligated to provide support for Free Features and Spotter may cease providing Free Features as part of any Services.

12. Indemnification

12.1. Spotter will indemnify Customer against:
12.1.1. all damages and costs finally awarded against Customer in relation to a claim filed by an unaffiliated third party before a court or government tribunal that the software and other technology used by Spotter to provide the Services infringes any trademark, trade secret, copyright, or patent of that third party (a “Customer Claim”);
12.1.2. settlement costs in relation to that Customer Claim;
12.1.3. reasonable legal fees and disbursements necessarily incurred by Customer in relation to that Customer Claim on the basis of RVG.

12.2. Customer will indemnify Spotter and its affiliates against:
12.2.1. all damages and costs finally awarded against Spotter or any of its affiliates in relation to a claim filed by an unaffiliated third party before a court or government tribunal:
12.2.1.1. that the creative, technology, data or other materials provided by Customer or any affiliate of Customer to Spotter or otherwise provided and utilized by Customer, any affiliate of Customer in connection with the Services (“Customer Materials”) infringes any trademark, trade secret, copyright, or patent of that third party;
12.2.1.2. arising out of or related to (a) any company content or company brand features; (b) any use of, or access to, the Services, including Results, by any company partner (in each case a “Spotter Claim”);
12.2.2. settlement costs in relation to that Spotter Claim;
12.2.3. reasonable legal fees and disbursements necessarily incurred by Spotter or any of its affiliates in relation to that Spotter Claim; and

12.3. Each party will:
12.3.1. notify the other of a Customer Claim or a Spotter Claim (each a “Third Party Claim”) promptly after becoming aware of it;
12.3.2. provide the other with reasonable information, assistance and cooperation in responding to and, where applicable, defending that Third Party Claim; and
12.3.3. give the other sole control over the defense and settlement of that Third Party Claim subject to the indemnified party’s right to join in the defense with non- controlling counsel of its choice at its own expense.

12.4. The indemnifying party may enter into a settlement only if it: (a) involves only the payment of money damages by the indemnifying party; and (b) includes a complete release of the indemnified party. Any other settlement will be subject to the written consent of the indemnified party (not to be unreasonably withheld or delayed).
12.4.1. The indemnifying party will have no obligation or liability under this Clause 12 in relation to any Third Party Claim arising from the indemnified party’s breach of the Agreement.

12.5. If any Services become, or in Spotter’s reasonable opinion are likely to become, the subject of an Intellectual Property Rights infringement claim, then Spotter will promptly notify Customer and, at Spotter’s sole option and expense, may: (a) procure the right to continue providing the Services as contemplated by the Agreement; (b) modify the Services to render them non-infringing (if modification does not adversely affect use of the Services); or (c) replace the Services with functionally equivalent, non-infringing services. If none of the foregoing options is commercially practicable, then each party will have the right to terminate the Order Form.

12.6. Without affecting either party’s termination rights, this Clause 12 states the parties’ only rights and obligations in connection with this Agreement for any third party Intellectual Property Rights allegations and Third-Party Claims.

13. Limitation of Liability

13.1. Nothing in the Agreement will exclude or limit either party’s liability:
13.1.1. in the event of intent or gross negligence, also by its representatives and vicarious agents (Erfüllungsgehilfen);
13.1.2. or culpably caused damages resulting from an injury to life, body or health, in the event of damages resulting from a violation of a guarantee as to quality (Beschaffenheitsgarantie), as well as in the event of fraud or defaults concealed fraudulently (arglistig verschwiegene Mängel).

13.2. Subject to Clause 11 (Beta Features), nothing in the Agreement will exclude or limit either party’s liability under the indemnities given under this Agreement, including the indemnities given in Clauses 12.1 or 12.2 (Indemnities).

13.3. In the event of damages to property and financial damages (Sach- und Vermögensschäden) caused by slight negligence of either party, its representatives or vicarious agents, such party will be liable only in the event of a violation of a contractual core duty (wesentliche Vertragspflicht), however limited to the amount of the damage which was foreseeable at the time of conclusion of the contract and typical taking into account the nature of the contract (vorhersehbarer und vertragstypischer Schaden). Contractual core duties are such duties whose accomplishment enables proper fulfilment of an agreement and whose observance the contracting parties may regularly rely on.

13.4. Liability based on the German Product Liability Act (Produkthaftungsgesetz) will remain unaffected.

13.5. Any further liability of either party other than set out above is excluded.

14. Term; Termination; and Suspension

14.1. Term. The term of the Agreement is as set out in an applicable Order Form, unless earlier terminated in accordance with the Agreement. In general, the minimum term is 12 month if not agreed otherwise in the Order Form. The Agreement always automatically continues for another month in case there is no written notice of termination.

14.2. Termination.
14.2.1. Either party may terminate an Order Form upon notice with immediate effect if the other party is in material breach of these Terms or the applicable Order Form:
14.2.1.1. where the breach is incapable of remedy;
14.2.1.2. where the breach is capable of remedy and the party in breach fails to remedy that breach within 30 days after receiving notice from the other party; or
14.2.1.3. more than twice even if the previous breaches were remedied.
14.2.2. If Spotter is unable to provide a Service due to any changes in applicable law or regulations, Spotter may terminate the applicable Order Form related to such Service upon notice to Customer.
14.2.3. Upon the expiration or termination of the Agreement for any reason:
14.2.3.1. all rights and licenses granted by each party will cease immediately; and
14.2.3.2. if requested, each party will use commercially reasonable endeavors to promptly return to the other party, or destroy and certify the destruction of, all Confidential Information (excluding Data) disclosed to it by the other party.

14.3. Suspension. If Customer is in violation (or if Spotter reasonably suspects a violation) of these Terms, then Spotter may immediately suspend or terminate Customer use of all or any part of the applicable Services.

15. Changes to the Agreement and/or Services

15.1. Spotter may make commercially reasonable changes to these Terms from time to time. If Spotter makes a material adverse change to these Terms, Spotter will inform Customer by either (a) sending an email to the email address of Customer’s business or billing contact or (b) alerting Customer via the user interface of the Services, including the information to which Customer has the right to object as set out below. If Customer does not agree to the change, Customer must so notify Spotter by giving written notice within fourteen (14) days after receiving notice of the change, otherwise the modified Terms will become valid fourteen (14) days following the day Spotter informed Customer accordingly. If Customer notifies Spotter of its objection as required, then Customer will remain governed by the terms in effect immediately prior to the change until the end of the then-current Services term for the affected Services. If the affected Services are renewed in accordance with the Agreement (including if Customer allows for an automatic renewal), they will be renewed under Spotter's then current Terms. Any modifications to these Terms will be made available via email.

15.2. Spotter reserves the right to upgrade, modify, replace or reconfigure the Services at any time, provided that Customer will be provided at least fourteen (14) days’ advance notice for changes that materially and adversely affect any use of the Services. Spotter may also change the fee schedule, support terms, and service level agreement for the Services subject to at least fourteen (14) days’ notice, except that the change will not apply for the remainder of the term of Service to the amount and type of Services Customer has contracted for under existing Order Forms. Any such notice may be given and shall be effective if sent by Spotter via email to Customer’s account representative, or if included in any amendment, extension or new version of the Agreement or any Order Form.

16. Miscellaneous

16.1. Assignment. Neither party may assign any part of the Agreement or any rights or obligations thereunder without the prior written consent of the other.

16.2. Entire Agreement. The Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter.

16.3. Force Majeure. Either party is released from its obligation of performance, as long and insofar as it is inhibited from the performance of service due to force majeure or other circumstances, which settling is impossible for it or cannot be expected of it economically.

16.4. Notices. Notices of termination or breach must be in writing, in German or English and addressed to the other party. The address for notices being sent to Spotter is Klebstoff Ventures. UG, Pappelallee 78/79 10437 or contact@Klebstoff Ventures.com or contact@spotterlabs.com . In the case of notices to Klebstoff Ventures (Spotter) and if such notice is not given via email, a copy of this notice has to be sent via email to the mentioned email address. All other notices must be in writing, in German or English and addressed to the other party’s primary contact.

16.5. No Agency or Corporate Relationship. The Agreement does not create any agency or corporate relationship between the parties. Neither party acquires a position as commercial agent of the other party.

16.6. No Third-Party Beneficiaries. Third parties will not acquire any rights under this Agreement unless this is expressly stated.

16.7. Severability. If any term (or part of a term) of the Agreement is invalid, illegal or unenforceable, the rest of the Agreement will remain in effect.

16.8. Governing Law. This Agreement is governed by German law under the exclusion of the CISG (United Nations Convention on Contracts for the International Sale of Goods). The parties agree upon the sole place of jurisdiction at the courts of Ilmenau in relation to any dispute (contractual or non-contractual including provisional measures) concerning this Agreement.

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