General Terms and Conditions for the Use of the Software Application emformx™ (Date: March 2020)
A. Scope of Application
§ 1 Applicability
(1) All offers made and services rendered by emformx GmbH (“emformx”) are governed exclusively by these General Terms and Conditions (“T&C”). They constitute an integral part of all contracts and agreements concluded between emformx and other businesses, public sector or financial institutions (“Client(s)”) relating to services offered by emformx; they apply equally to all future offers made or services rendered to Clients, even if no explicit agreement has been made on their applicability again.
(2) Terms and conditions of business of the Clients or other third parties shall be excluded and superseded by the T&C, even if no explicit rejection of such is made by emformx in an individual case. Equally, references made by emformx to correspondence sent by Clients or a third party containing the wording of Clients’ and/or other third party terms and conditions of business or referring to such, shall not be construed as acceptance of or agreement with the applicability of such Clients’ or third parties’ terms and conditions of business.
(3) emformx reserves the right to amend and modify these T&C as necessary. Any such changes, however, shall only be binding to Clients when and to the extent that the Client
- has been notified of the changes in writing and presented with a copy of the new T&C highlighting the amended sections (“Change Notice”);
- has not objected to the changes in writing within a period of one (1) month after receipt of the Change Notice and the modified T&C; and
- was informed in writing at the time of presenting the Change Notice as to the expiry of the objection right after conclusion of the one-month objection period set forth in lit. b) above, and that a failure to respond is deemed acceptance of the modified T&C.
(4) emformx reserves the right to implement additional licensing conditions supplementary to these T&C for the use of certain content, functions and/or services, including, but not limited to content, functions and/or services provided by third parties (“Third Party Services”), as well as access to certain market data (collectively “Supplemental Services“). The additional licensing conditions are provided to Clients prior to the initial use of the Supplemental Services and enter into force only if the Client has been informed of the additional licensing conditions, or had this information made available, and accepts their applicability. In the case of non-acceptance, emformx reserves the right to refuse to provide the use of the Supplemental Services to the Client.
§ 2 Performance
(1) emformx offers Clients commercial licenses for the use of and access to emformx’s software applications, in particular the interactive financial risk technology (the “Software Application“). In addition, emformx enables selected third party service providers to offer integrated Third Party Services through the Software Application. The Software Application is a system for analysis and optimization of financial management for businesses, public sector institutions, consultants and other professionals and/or financial sector users.
(2) In no cases should the Software Application be construed as an application that generates recommendations on the purchase and sale of financial instruments or other investment products, nor does it serve any other supporting or consultative functions in the context of investment decision-making or in relation to other Client transactions.
(3) Use of the Software Application necessitates entry of individualized data by Clients (“Client Data“), as well as any and all necessary authorizations (if required) to access certain Third Party Services. This may entail special obligations on the part of Clients as described under § 5 of these T&C in order to fully utilize all available software functions.
(4) The owner of all unlimited exclusive rights of use and exploitation of software content, in particular texts, graphics, logos, photographic images, audio clips, digital downloads and compiled data is – to the extent legally permissible – solely emformx or any other third party provider who makes available Third Party Services or the disseminator of market data and/or content (“Third Party Data“). All software content, in particular texts, graphics, logos, photographic im-ages, audio clips, digital downloads and compiled data enjoy full property right and copyright protection. This applies accordingly to all emformx software content, with the exception of Client Data. During and limited to the term of licensing, emformx grants the Client – to the extent necessary and legally permissible – a basic, nonexclusive, nontransferable and/or non-sublicensable right to the use of and access to the Software Application, including patented, copyrighted and/or otherwise protected content, without prejudice to § 5 (3) of these T&C.
(5) No content or content elements of the Software Application may be copied, altered, extracted, disclosed, used to create derivative works, imitated and/or otherwise used beyond the designated use of the Software Application without the prior written consent of emformx.
§ 3 Offer and Agreement
(1) All offers made by emformx are non-binding and subject to changes unless they are not expressly marked as binding or subjected to a defined term of acceptance. The acceptance of an offer by a Client after expiry of the term of acceptance shall be deemed as a new offer made by the Client.
(2) The legal relationship between emformx and the Client (“Parties”) is governed exclusively by the written license agreement (“Agreement”) and these T&C. These documents reflect any and all agreements between the Parties with regards to the use of and access to the Software Application. Verbal assurances by emformx prior to conclusion of the Agreement have no legally binding effect unless agreed otherwise between the Parties. Prior oral agreements between the Parties are superseded by the Agreement, unless exclusive language is included confirming that such oral agreements shall remain in effect.
(3) Any information about and descriptions of the Software Application made by emformx, as well as any drawings and diagrams referring to the Software Application are only binding to the extent that the necessary configuration for proper performance of the Agreement is identical to these descriptions and/or drawings. These do not constitute guaranteed features and functionalities of the Software Application, but rather serve to provide a general description or indication of its use. Customary deviations or deviations which become necessary due to mandatory legal provisions or which represent technical improvements as well as the substitution of functionalities with equivalent functionalities, are admissible, insofar as they do not impair the usability with regard to the intended contractual purpose.
(4) emformx unrestrictedly retains all property rights copyrights and/or exclusive rights of use and exploitation to any and all offers and quotes made, as well as any and all drawings, graphics, calculations, brochures, catalogs, models, users’ handbooks and other documentation or informational material made available to the Clients (“Application Materials”). Without the prior written consent of emformx, the Client is prohibited (i) from making available or disclosing the Application Materials or any content elements thereof to third parties, (ii) permitting their use or copying by third parties, or (iii) exploit or dublicate the Application Materials, neither by itself nor by any third party. Upon request by emformx, the Client shall be obliged to completely and promptly return any and all Application Materials and/or delete copies thereof, stored on electronic or other data media, as well as immediately destroying all copies made (whether in digital or other form), when no longer required for current business purposes or in the event that negotiations do not result in a conclusion of an Agreement between the Parties. The above shall also apply upon termination of any Agreement concluded.
B. Use of the Software Application
§ 4 Use of and Access to the Software Application
(1) Clients may access the Software Application via the website https://app.emformx.com. The Client also may store Client Data on the virtual data server set up by emformx, which can be accessed in connection with the use of the Software Application. emformx is only obliged to provide storage capacity for the use by the Client. Unless not mandatorily required by law or the Cleint Data is stored on the virtual data server set up and provided by emformx, emformx shall be under no obligation to store and/or to protect the Client Data submitted and processed by the Client.
(2) The use of and access to the Software Application is limited to the persons explicitly named in the Agreements (“Authorized Users“).
(3) The use of and access by Clients and Authorized Users to the Software Application is password-protected via remote data transmission and requires the entry of the user name as well as the passwort, initially assigned to each Authorized User by emformx and, as the case may be, amended by the Client (the “Login Data”).
(4) Training for Clients and/or Authorized Users can be arranged upon request by the Client, for a price to be negotiated separately between the Parties.
§ 5 Special Client Obligations
(1) The Client is responsible for obtaining and deploying the technical infrastructure for the use of and access to the Software Application, in particular with respect to the necessary hardware, internet connectivity and appropriate browser software. The Client bears all costs and telecommunication fees incurred in this context.
(2) Accessing and using the Software Application requires the correct entry of the Login Data assigned to the Client and/or the Authorized User respectively. The Client is obliged to keep safe the Login Data, and to prevent any and all misuse of and access to the Software Application by unauthorized third parties. The Client is prohibited from allowing and/or enabling the use of and the access to the Software Application by any persons and/or parties other than the Authorized Users. If the Client becomes aware of circumstances suggesting the unlawful and/or unauthorized use of the Login Data and/or misuse of the Software Application, it shall immediately notify emformx hereof, as well as supply emformx with all available information necessary to identify any such misuse. In the event of (i) an unlawful and/or unauthorized use of the assigned Login Data, (ii) the misuse of the Software Application and/or (iii) loss of the Login Data, emformx reserves the right to block the access of the Client to the Software Application, without this constituting a breach of its obligations under the Agreement or these T&C. emformx assumes no warranty and is not liable for any damages incurred by the Client arising from or in connection with (i) the unlawful and/or unauthorized use of the Login Data, (ii) a misuse of the Software Application, or (iii) the loss of the Login Data, unless emformx is responsible for such unlawful and/or unauthorized use, misue or loss. In addition, the Client bears any and all liability for damages incurred by emformx due to (i) the unlawful and/or unauthorized use of Login Data, (ii) misuse of Software Application, or (iii) loss of Login Data, for which the Client or Authorized User is at fault.
(3) The use of and access to some Third Party Data and/or Third Party Services through the Software Application (e.g. EURIBOR, EONIA, LIBOR rates) might require the Client to obtain an additional license from the owner of such Third Party Data or Third Party Services, or another third party named by the owner (“Third Party License“). The Client is obliged to obtain such necessary Third Party Licenses at its own cost and initiative if and to the extent the use of and/or access to the Third Party Data and/or Third Party Service require such Third Party License. If the Client is not in possession of the necessary Third Party License, emformx is entitled to block access to the Third Party Data and/or Third Party Service in question, without this constituting a breach of its obligations under the Agreement or these T&C. § 8 (4) of these T&C remains unaffected.
(4) The Client also ensures that it will observe and comply with any and all obligations imposed upon the Client by a Third Party License, such as, but not limited to, the use of Third Party Data only for its own purposes or within the scope of applicability defined in the Third Party License.
§ 6 Prices and Payment
(1) The Client pays a regularly recurring licensing fee for the use of the Software Application (“Licensing Fee“). The prices apply to the contractually agreed scope of performance of the Software Application. All prices are stated in euro (EUR), plus the relevant statutory value added tax (VAT) if not otherwise agreed or indicated. Prices for Supplemental Services (e.g. commercial provision of access to market data, Third Party Services, or provision of training on the use of the Software Application), as well as reimbursement of expenses incurred by emformx on behalf of the Client (e.g. obtaining necessary distribution licenses for the market data required by the Client) shall be negotiated separately between the Parties and paid for additionally.
(2) The Licensing Fee is payable for at least three (3) months in advance if nothing to the contrary is agreed between the Parties in the Agreement. Supplemental Services, as well as other expenses incurred by emformx, are invoiced separately. Amounts payable are due immediately and in full upon receipt of the invoice by the Client if not otherwise agreed in writing between the Parties.
(3) The date of payment is the date on which emformx has finally and unconditionally received the payment. In the event of past due payment, outstanding amounts incur interest of nine (9) percentage points above the relevant base interest rate p.a., commencing with the payment due date; this shall not affect emformx’s right to apply higher rates of interest and/or receive further compensation for damages incurred in the event of payment default.
(4) The Client may only offset with counterclaims or withhold payments because of such claims if the Client’s claims have already been found to be final and absolute by a competent court or if they have already been expressly recognized by emformx in writing.
(5) In the context of a continuing obligation or other agreement, the performance of which is executed more than four (4) months after conclusion of the Agreement, emformx reserves the right to increase the Licensing Fee by a maximum of up to ten (10) percent, in the event that (i) market conditions change in the period between the conclusion and execution of the Agreement, resulting in higher costs for emformx in obtaining Third Party Services necessary for emformx to perform its obligations under the Agreement, including higher wage and salary costs, (ii) higher prices for delivery of Third Party Data or (iii) general price inflation, as well as (iv) new and/or additional regulatory costs. If the increase in the Licensing Fee is of an amount that is unreasonable for the Client to accept, the latter has the right to terminate the Agreement with immediate effect by promptly notifying emformx in writing of its non-acceptance.
C. Third Party Data / Third Party Services / Market Data
§ 7 Entry of Client Data, Third Party Data and other Relevant Market Data as well as Utilization of Third Party Services
Calculation results generated by the Software Application are dependent on the correct and complete entry of Client Data, Third Party Data and other relevant market data as well as the proper application of Third Party Services. In the event that incorrect and/or incomplete Client Data, Third Party Data or other relevant market data is entered into the Software Application, or in case of the improper application of Third Party Services, the calculation results generated by the Software Application relying upon such entry and/or application, must also be incorrect and/or incomplete. emformx bears no responsibility for such calculation results and bears no liability for damages and/or other consequences suffered by the Client, unless emformx is responsible for such incorrect and/or incomplete calculation results. Likewise, emformx provides no warranty and/or bears no liability for the accuracy and/or completeness of Client Data exported from the Software Application by the Client.
§ 8 Dissemination of Market Data by emformx
(1) emformx endeavors consistently to obtain the most reliable and up-to-date Third Party Data, Third Party Services and relevant market data from market data providers and other third party providers (“Application Data”). However, emformx assumes no responsibility as to the accuracy or completeness of the Application Data accessed by the Software Application and/or that the Application Data will be of any use to the Client for any other than the contractually agreed purpose.
(2) Clients shall have no right to exercise warranty claims against emformx for content errors or incomplete Application Data, unless emformx is responsible for such content errors or incomplete Applcation Data.
(3) The Parties agree that the Licensing Fee as well as the scope of Application Data available via the Software Application, are determined in part by the statutory and/or regulatory guidelines applicable at the time of the conclusion of the Agreement. The Parties are aware that the statutory and/or regulatory environment is subject to changes that could potentially render it impossible or economically unreasonable for emformx to continue providing a specific Application Data available to the Client at the time of conclusion of the Agreement, or to continue to do so at the agreed amount of the Licensing Fee. For instance, Application Data previously available freely and at no cost could become subject to a Third Party License requirement or fees for access, or existing costs could rise significantly (“Regulatory Cost Factors“).
(4) If the Application Data falls under a Third Party License requirement, the Client has the option to obtain such Third Party License in order to continue the use of the Application Data in question. In this case, the Client is obliged to immediately notify emformx that the necessary Third Party License has been obtained. Likewise, the Client is obliged to inform emformx immediately of the decision against obtaining a necessary Third Party License following emformx’s notification of the Client that the continued use of the Application Data in question requires the Client to obtain a Third Party License. In this case, emformx is authorized to block access to and the use of the Application Data in question and being protected by a Third Party License requirement, without this constituting a breach of its obligations under the Agreement or these T&C.
(5) If the dissemination of certain Application Data by emformx through the Software Application becomes subject to costs or fees for access that have not existed at the time of conclusion of the Agreement, or if existing costs should rise significantly in the future compared to the costs at the time of conclusion of the Agreement, than emformx shall be entitled – without prejudice to its rights set forth in § 6 (5) above – to terminate the Agreement in writing, thereby observing a one (1) month termination period if and to the extent that the continued provision of the Application Data in question by emformx is economically unreasonable due to the inability on its part to recover the Regulatory Cost Factors in accordance with § 6 (5) above. A circumstance is deemed economically unreasonable in particular, but not limited to, when the costs for the continued provision of the Application Data in question, taking into account the Regulatory Cost Factors and other related implementation costs, exceed the Licensing Fee agreed upon between the Parties, including price adjustments pursuant to § 6 (5) above, for reasons outside the control of emformx.
§ 9 Warranty
(1) emformx does not assume any responsibility or liability for the commercial success or for reaching other purposes that may be expected by the Client when using the Software Application. In particular, emformx assumes no warranty regarding merchantability, fitness for a particular purpose, title, non-infringement, and freedom of computer viruses or other harmful codes.
(2) In the same way, emformx does not guarantee that the Client has the hard- and/or software necessary for using and/or accessing the Software Application. In addition, emformx makes no guarantee that the technical solutions it offers are compatible with the Clients’ IT components. Any responsibility of emformx for a GPS (Global Positioning System) or other data transmission network connection of the Client is excluded.
(3) If the Client uses and/or accesses Third Party Data and/or Third Party Services in connection with the use of the Software Application which require a Third Party License or other right of use, the Client hereby assures that it is in possession of any and all such Third Party Licenses and/or other rights for the use of the Third Party Data and/or Third Party Service, or has obtained the right, authorization, license or other permission for the use of and/or access to the Third Party Data and/or Third Party Services by emformx in conjunction with performance of the Agreement.
(4) The Client is obliged to immediately inform emformx if the use of and/or access to the Software Application should be stopped and/or the use of and/or access to protected Third Party Data and/or Third Party Services is to be blocked, in particular, but not limited to, if (i) the holder of the license to use and access the Software Application or the required Third Party License ceased to work for the Client, (ii) the assigned Login Data was lost or made available to unauthorized third persons or (iii) required Third Party Licenses or other rights of use are no longer held by the Client or have been revoked.
(5) Verbal information by emformx shall only be binding if and to the extent they have been confirmed by emformx in writing. In case, emformx presented the verbal information in writing, only the writing presentation shall be decisive. Verbal explanations and information from employees of emformx are always non-binding.
(6) The Client is obliged to fully indemnify and hold harmless emformx upon emformx’s first request against any and all claims asserted and/or enforced by third parties against emformx, resulting from and/or in connection with a violation of licensing conditions through the use of and/or access to Third Party Data and/or Third Party Services protected by a Third Party License or other authorization requirements by the Client, and to compensate emformx for all damages, costs, penalties, fines and other expenses incurred or impending in this context (including necessary and appropriate legal consultation and litigation costs), provided, however, that the Client is at fault. The Client retains the right to prove that emformx’s damages or costs and/or expenditures were less in amount. Furthermore, the Client is obliged to provide emformx with all information pertaining to or connected with third party claims relating to the use of Application Data protected by Third Party Licenses or other authorization requirements, and – to the extent reasonable and necessary – to support emformx at its own costs in the investigation of the circumstances, as well as with defense against the claims asserted by said third parties.
(7) The Parties are aware that the Software Application is provided via the internet and the domains administrated by emformx. In this respect, emformx consistently endeavors to ensure the uninterrupted availability of the Software Application and the correct transmissions of data. However, due to the nature of the internet, it is impossible to guarantee this at all times. emformx ensures a 95% rate of access to the Software Application seven (7) days a week, twenty-four (24) hours per day. Accordingly, total times of service access disruption are limited to 5%. This does not account for:
a) Non-availability caused by a lack of adequate technical infrastructure (hard- amd/or software) or access to the internet by the Client;
b) Non-availability caused by breakdowns and/or disruptions in the data transmission network, internet connection or other connectivity issue attributable to the telecommunication provider operating the transmission network;
c) Non-avaiability due to force majeure disruptions and other unforeseeable events within the meaning of § 11 (3) below;
d) Non-availability due to maintenance between the hours of 06:00 A.M. and 08:00 A.M. or between 08:00 P.M. and 11:00 P.M.;
e) Disruptions lasting for a period of fifteen (15) or fewer consecutive minutes.
(8) The Client is obliged to immediately notify emformx in writing (e-mail suffices to […]) as to any impairment of the Software Application’s functionalities – at the latest within forty-eight (48) hours of its occurrence, providing a description of said impairment. In the event of failure to carry out such notification within the above period, the Client forfeits all rights to exercise warranty claims, unless emformx’s acted deliberately.
(9) emformx ensures to rectify the impairment of functionalities within a reasonable period of time, at the latest, however, within eight (8) hours, following the receipt of the written notification and description from the Client in accordance with § 9 (8) above (“Rectification Period”). All Client rights to reduction of the Licensing Fee or termination of the Agreement are excluded during the Rectification Period. If the impairment of functionalities cannot be rectified within a period of one (1) week following the receipt of the Client’s notification and description of the impairment in accordance with § 9 (8) above, the Client has the right to either reasonably reduce the payment of the Licensing Fee or terminate the Agreement in writing and with immediate effect.
(10) All warranty claims are excluded if the impairment of the Software Application’s functionalities is attributable to circumstances caused by the Client or for which the Client is responsible, in particular, but not limited to, failure to perform the special client obligations set forth in § 5 above, improper use of the Software Application or entry of erroneous data.
§ 10 Copyrights and Related Rights
(1) All delivered data, Application Data, Application Materials and documentation are copyrighted materials.
(2) The Client acknowledges that the Software Application made available by emformx for the Client’s use is a database works within the meaning of sections 4 para (2) and 87a para (1) of the German Copyright and Related Rights Act (UrhG). Accordingly, the constituent computer programs are protected under sections 69a et seq. of the German Copyright and Related Rights Act.
(3) The Client is entitled to utilize the results of its calculations only for internal purposes. This provision shall remain in force even after expiry or termination of the Agreement. Use of the Software Application on behalf of third parties commercially or otherwise is permissible only after obtaining the express written consent from emformx.
(4) The Client ensures that it will refrain from copying, altering, using, disclosing, creating derivative works or imitating the Software Application beyond the designated use of the Software Application in the Agreement without obtaining the prior written consent of emformx or the third party holding the Third Party License.
§ 11 Liability Exclusions and Restrictions
(1) emformx bears no liability whatsoever for damages suffered by the Client resulting from the delayed notification of a lost or expired ThirdParty License, unless emformx is responsible for such loss or expiration.
(2) In addition, the liability of emformx for damages on whatever legal grounds, in particular due to impossibility, default, faulty or incorrect performance, breach of contract, violation of obligations during contract negotiations and tort, shall, as far as such liability depends on a proof of fault, be limited as specified in this § 11.
(3) Liability on the part of emformx in the event of a force majeure or other events unforeseeable at the time of the conclusion of the Agreement (e.g. war, warlike conditions, operational disruptions of all kinds, in particular disruptions regarding the availability of the internet or GPS, difficulties in the procurement of materials or energy, strikes, lawful lockouts, worker, energy or commodity shortages, difficulties in obtaining necessary regulatory authorizations or governmental orders) that are not under the control of emformx is excluded. To the extent that such conditions present a material obstacle for rendering the performance of emformx’s obligations under the Agreement impossible, and provided that these circumstances are not temporary in nature, emformx reserves the right to immediately terminate the Agreement. If it is unreasonable to expect acceptance by the Client as a result of such delays, the latter has the option to immediately terminate the Agreement through prompt written notification to emformx of the decision to terminate the Agreement. The Parties agree that the Client’s claims to performance are suspended for the duration of any force majeure or similar event disruption within the meaning of this § 11 (3) and are rendered void in the event that performance is or becomes impossible.
(4) In cases of simple negligence, the liability on the part of emformx, its institutions, legal representatives, employees and other vicarious agents is excluded, unless this does not result in a violation og essential contractual obligations. Essential shall be such contractual obligations, the fulfilment of which is a prerequisite for enabling the proper fulfilment of the Agreement in the first place and in which the Client may normally trust.
(5) To the extent that emformx is liable for damages on the merits in accordance with this § 11, the amount of such liability is limited to the damages that emformx foresaw as potential consequences following a breach of contractual obligations, or – taking into account the information about the circumstances known or available to emformx at the time of conclusion of the Agreement – should have foreseen through the exercise of reasonable due diligence, but in no event shall such amount exceed the value of the contractually agreed scope of performance. To the extent legally permissible, any and all liability of emformx is excluded for indirect, special, punitive, consequential or incidential damages, as well as for lost profits or other reputational damage. In the event of a data loss, emformx bears liability only for the work involved in restoring the data, provided the Client has carried out a proper data backup immediately prior to the action resulting in the data loss.
(6) In the event of a delay in performance, emformx’s liability is restricted to a maximum of 10% of the value of the functionality affected by the delay in performance on the part of emformx.
(7) Claims to compensation of the Client, to the extent not based on wilful misconduct, damages to life, limb or health, assumption of a guarantee or the provisions of the German Product Liability Act, shall become time-barred within eighteen (18) months following the origination of the claim and the Client obtaining the knowledge of or ought to be known of the facts on which the claim is based as well as the person of the debtor.
(8) If emformx provides technical information or consulting services, and such information or consultation is not covered by the scope of performance and obligations under the Agreement, such information or consulting is provided free of charge to the exclusion of any and all liability.
(9) The exemptions of or limitations from liability according to this § 11 shall not apply to the liability of emformx due to wilful misconduct or damages to life, limb or health. The same shall apply in case of emformx´s liability according to the assumption of a guarantee or the provisions of the German Product Liability Act.
§ 12 Term and Termination
(1) If nothing to the contrary has been agreed in writing between the Parties, the Agreement remains in full force and effect for a period of twelve (12) months, beginning with the delivery of the individual Login Data to the Client (“Initial Term“). Upon expiry of the Initial Term, the Agreement is extended automatically at each expiry date by an additional twelve (12) months period if not previously terminated by one of the Parties observing a period of three (3) months prior to the end of the Initial Term or the extended term respectively.
(2) Either Party has the right to immediately terminate the Agreement for good cause within the meaning of section 314 para. (1) of the German Civil Code (BGB). Such good cause shall be deemed to exist on emformx’s part in particular, but not limited to, if:
- the Client materially breaches its obligations under the Agreement or these T&C and this breach appears likely to entail significant commercial risks; or
- statutory and/or regulatory changes, or official orders result in a future licensing requirement for emformx, such as the need to obtain a banking license within the meaning of the German Banking Act (KWG) or according to comparable foreign and/or European legislation.
(3) This provision is without prejudice to any rights on the part of the terminating Party to claim damages.
(4) Any termination is legally valid only if in written form within the meaning of section 126 para. (1) of the German Civil Code (BGB).
§ 13 Confidentiality / Data Security
(1) The Parties are obliged to keep confidential all information relating to the other Party and not being generally accessible, which are disclosed or become known to the respective other Party prior or during the term of the Agreement (“Confidentiality Obligation”). No Party, either directly or indirectly, will provide such information to any third party or use such information for personal or other purposes. In addition, emformx ensures that it will treat all Client Data it receives in connection with use of the Software Application by the Client confidential, and to maintain compliance with all applicable laws, in particular laws of the Federal Republic of Germany concerning data security and data protection, including the German Federal Data Protection Act and the European General Data Protectin Regulation, the Telecommunications Act (TKG) and the Telemedia Act (TMG).
(2) Subject to the Confidentiality Obligation are in particular, but not limited to, without any restrictions, trade and business secrets of the respective other Party. Furthermore, the Confidentiality Obligation encompasses all information pertaining to the present, past and prospective businesses of the respective other Party, products, sources of supplies and materials, operating and other costs, data, customer lists, price lists and data relating to pricing of products and services of the respective other Party and which are incorporated in manuals, memorandums, forms, plans, drawings and drafts, specifications, data, sources of supplies, computer programs and documents and have been expressly or, for the receiving Party recognizably, being qualified as confidential information, respectively trade and business secrets, by the disclosing Party.(3) The Confidentiality Obligation remains in full force and effect even after expiry or termination of the Agreement. Upon request by the Client, emformx will save any and all Client Data against the payment of a fee onto transportable media delivered to the Client. After review of the stored Client Data by the Client and confirmation of its completeness, emformx will delete all Client Data, at the latest fourteen (14) days after delivery and/or transmission of the transportable media to the Client.
(3) Notwithstanding the confidentiality obligations agreed upon within this § 13, it is agreed and understood between the Parties that emformx shall be entitled to transmit Client Data to third party service providers if and to the extent such transmission is required for emformx to fulfill its contractual obligations arising from the Agreement and subject to the Client, having requested access to services and functions contained in such Third Party Services.
(4) The Client is obliged to create independently and on its own initiative a backup of the Client Data logged and stored in the Software Application prior to the expiry or the effective date of the termination of the Agreement. Notwithstanding § 13 (3) above, emformx is entitled to permanently delete Client Data from its servers within fourteen (14) days following the expiry and/or effective date of the termination of the Agreement.
(5) The Client acknowledges that emformx processes personal data to the extent received in connection with the services specified in the Agreement or embedded in the Login Data in accordance with the provisions of the European General Data Protection Regulation (DS-GVO) and the German Federal Data Protection Act (BDSG). In this respect, emformx reserves the right to transmit such personal data to third parties (e.g. insurers or, as the case may be, third party service providers) if and to the extent that such transfer is necessary for the performance of its obligations or execution of the Agreement, or in exercise of its contractual rights. This applies equally to temporary test access prior to conclusion of the Agreement. A more detailed description what kind of personal data is processed by emformx in which way can be found here [www.dataprotectioninformation.com/emformx].
§ 14 Miscellaneous
(1) Amendments of and supplements to the Agreement, as well as any ancillary agreements, are to be made in writing for purposes of proper documentation. This is without prejudice to the legal precedence of individual agreements pursuant to section 305b of the German Civil Code (BGB).
(2) The place of jurisdiction for any and all claims or disputes regarding or in conjunction with the Agreement (including disputes with respect to its scope of application or legal validity) and to the extent that an agreement on jurisdiction can validly be made is Frankfurt am Main. This is without prejudice to statutory requirements governing exclusive jurisdiction.
(3) All contracts and agreements between emformx and the Client are governed exclusively by the laws of Federal Republic of Germany, to the exclusion of the provisions of international private law and the UN Convention on Contracts for the International Sale of Goods.
(4) The place of performance for all obligations of emformx resulting from the Agreement and these T&C shall be the domicile of emformx, unless otherwise agreed upon in writing between the Parties.
(5) In the event that the Client violates one or more provision of these T&C or the Agreement and if such a violation is left unsanctioned by emformx, this shall not constitute a forfeiture of rights on the part of emformx to proper performance of the violated provision(s) by the Client, nor shall it result in the exclusion of the violated provision(s) on grounds of implied acceptance.
(6) emformx is entitled to transfer or assign all rights and obligations arising from or in connection with the Agreement and these T&C in whole or in part to any of its affiliated entities (within the meaning of sec. 15 et. seq. of the German Stock Corporation Act) or in connectin with a (forward/reserve triangular) merger, acquisition, restructuring, sale of assets, or change of control, by operation of law or otherwise. Other than this, the rights and obligations arising from the Agreement and these T&C may not be assigned, unless the respective other Party has given its express prior written consent.
(7) If individual provisions of these T&C and/or the Agreement are or should become void, invalid or unexecutable, in full or in part, this shall not affect the validity of the remaining provisions of these T&C and/or the Agreement. Application of section 139 of the German Civil Code (BGB) is herewith expressly excluded. The same shall apply to any gaps or omissions revealed in these T&C and/or the Agreement. If the void, invalid or unexecutable provision(s) fail(s) to protect the interests of one or the other Parties, the latter shall agree to replace said provision(s) with an appropriate provision that – to the extent legally permissible – serves the intended purpose of the Parties when agreeing on the original provision(s), or which best reflects the intent of these T&C and/or the Agreement had the void/invalid provision or gap been recognized. If the provision is made void/invalid or unexecutable by a measure of performance or time contained therein (response period or deadline), said invalid or unexecutable provision shall be executed at the next subsequent, legally valid point of performance or time measurement. Otherwise, the corresponding statutory rules shall apply in place of the void, invalid or unexecutable provision(s).