Terms of Use

Terms of Use

Quidtree - User Agreement [UA]

IMPORTANT – READ CAREFULLY: This is a legal agreement (“Agreement”) between you (“You” or “CUSTOMER”) and Quidtree UG (haftungsbschränkt) (“Quidtree”) – “the Parties”.

Quidtree offers a software as a services (SaaS) for Business Data Management, and/or Marketing Automation to corporations (“Quidtree”; only those aforementioned software products are hereinafter referred to as the “APPLICATION” that are explicitly agreed upon between the Parties for usage by CUSTOMER) available from the domain name “app.quidtree.com“ or from any other sub-domain. The terms and conditions of this Quidtree User Agreement (the “Agreement”) regulate the use of the APPLICATION. Quidtree provides the CUSTOMER with the right to use the software applications accessible with a web browser via the Internet as well as storage space for its DATA (as defined under § 2) upon the following terms of the Agreement. The contractual partner is Quidtree UG (haftungsbeschränkt), Schulinstraße 1, 97357, Prichsenstadt, a German corporation. You may, at any point in time, also after the formation of an Agreement, open, print, download or save this Agreement via the Link “Quidtree – Terms of Use” from “www.quidtree.com”.

 

§ 1 Object of the Agreement

(1) The object of this Agreement is the temporary provisioning of the APPLICATION by Quidtree to the CUSTOMER for the use of its functionalities, technically enabling the use of the APPLICATION and the grant of rights to use the APPLICATION as a service (hereinafter called “SERVICE”) provided by Quidtree to the CUSTOMER as well as for the provision of User-Support during the term of this Agreement in return for the payment of a fee. A perpetual license to use the APPLICATION beyond the term of the Agreement is explicitly not granted.

(2) This Agreement is subject to the additional terms of Quidtree’s Standard Agreement – Terms and Conditions.

 

§ 2 Provisioning of the SERVICE and storage space for CLIENT DATA

(1) Quidtree shall, immediately following the conclusion of the Agreement and corresponding payment, provide the SERVICE for the APPLICATION in the current version available to the CUSTOMER for use from a central data-processing system or multiple data-processing systems (hereinafter called “SERVER”) in accordance with the terms and conditions provided by this Agreement.

(2) The agreed features/functionality of the APPLICATION follows the functional specifications valid at the time the Agreement was concluded. The APPLICATION’S functional specification can be found on the Quidtree website from http://www.quidtree.com. These specifications are an integral part of this Agreement. Quidtree is allowed to change features/functionality of the APLICATION through updates (e.g. due to technical progress or performance optimization) as long as these changes don’t lead to a significant reduction in the scope of the service provided.

(3) The number of individuals permitted to access the SERVICE in accordance with § 11 is based on the number of “USERS” (i) registered for the trial version or later ordered during booking or (ii) requested and subsequently fully paid for by the CUSTOMER. A “USER” can be an individual, who is either (i) an employee of the CUSTOMER, (ii) an employee of a company within the CUSTOMER’S group of companies or (iii) someone, who is working under direction of the CUSTOMER or under direction of a company within the CUSTOMER’s group of companies based on a contractual agreement (e.g. external consultant, contractor). In the event that Quidtree sends credentials (e.g. user names, client certificates or passwords) to the CUSTOMER, which have been defined by Quidtree, these credentials shall then immediately be changed by the CUSTOMER into credentials known only to the CUSTOMER.

(4) Both Parties understand and agree that all data submitted by CUSTOMER to the database of the SERVICE and subsequently contained in any reports, spreadsheets or analysis of any kind generated by the APPLICATON, including all intellectual property rights therein and any enhancements, derivative works and improvements thereto (together “CLIENT DATA”) are the exclusive property of CUSTOMER. Quidtree shall only use CLIENT DATA for the benefit of CUSTOMER as required to fulfill its obligations under this Agreement or to conduct analyses of the APPLICATION for global product improvement.

(5) Upon commencement of the Agreement, Quidtree shall provide the CUSTOMER with USER documentation for the SERVICE in electronic form, in English, either by download or by making the documentation accessible online. If Quidtree provides an update to the APPLICATION or SERVICE in accordance with § 5, the USER Documentation shall be modified accordingly. This only applies, however, if the effects on the USER Documentation are substantial.

(6) The CUSTOMER shall be entitled to store and print out the documentation provided, and to duplicate the same in reasonable quantities for the purposes of this Agreement, subject to retaining all logos, ownership, confidentiality and other property right notices. In all other respects, the restrictions on use agreed of the APPLICATION or SERVICE under § 4 shall also apply to the corresponding documentation.

(7) The CLIENT DATA is backed up on the SERVER on a calendar-day basis.

(8) The transfer point of the SERVICE and the CLIENT DATA is the router exit of the data center of Quidtree.

(9) Both Parties agree that the APPLICATION, depending on the service and components selected, may provide the possibility to integrate additional services from third parties (which require an explicit prior activation by the CUSTOMER) into the website of Quidtree or into the APPLICATION. Those third-party services are not part of Quidtree’s service. Quidtree will point out such cases to the USER on the website or within the APPLICATION before allowing the activation of the corresponding functionality. The CUSTOMER solely decides whether or not they choose to activate such functionality. The contractual partner of the CUSTOMER for such services is exclusively the third party and in no case Quidtree. Only the terms of use and privacy policy of the respective third party apply for the third-party service. If such functions remain disabled based on the CUSTOMER’S decision, these services from the third parties will not be integrated into the website of Quidtree or within the APPLICATION. Quidtree reserves the right to remove any third-party service without notice at any time.

 

§ 3 Technical pre-requisites

(1) A pre-requisite for the use of the SERVICE by a USER is a computer capable of accessing the Internet, Internet access and also one of the Internet browsers specified in the APPLICATION’S functional specification according to § 2 (2) which supports the protocol TLS version 1.0 or greater and which is configured to accept cookies and pop-ups from the Quidtree domains related to the use of the SERVICE.

(2) Quidtree shall not be responsible for the condition or properties or performance of the necessary hardware and software required by the CUSTOMER or for the network link between the CUSTOMER and Quidtree’s transfer point.

(3) The file formats specified in the APPLICATION’S functional specification according to § 2 (2) can be manually exported/downloaded to the CUSTOMER’S systems locally from the SERVICE.

 

§ 4 Rights of use for the APPLICATION and SERVICE; Rights of Quidtree in the event of the authorizations for use being exceeded

(1) Rights of use for the APPLICATION and SERVICE and Documentation 
The CUSTOMER receives, with the full payment of the fee under § 7 a non-exclusive, non-perpetual, non-sublicensable and non-transferable right of use for the APPLICATION and the Documentation, limited to the term of this Agreement, in accordance with the following provisions. 
a) No conveyance of the APPLICATION to the CUSTOMER takes place. The CUSTOMER may only use the APPLICATION for its own commercial activities. 
b) The CUSTOMER shall be entitled to use the APPLICATION and SERVICE itself and through its employees or authorized agents in so far as these have been registered by it as authorized USERS. For the right of use the USER definition from § 2 (3) applies. The authorized USERS shall be uniquely named via the corresponding function within the APPLICATION. A replacement of authorized USERS with other USERS is possible at any time. The licensee vis-à-vis Quidtree is exclusively the CUSTOMER. Authorized USERS are not allowed to share their user name or passwords (or other login credentials) with others, either in the employment of the CUSTOMER or otherwise. 
c) The CUSTOMER shall not be entitled to make any changes to the APPLICATION or SERVICE. In particular, it shall not be entitled to investigate its mode of operation by way of so-called reverse engineering, to decompile or dismantle it in its parts and/or to use it as a basis for its own software programs. This shall not apply for changes which are necessary for the rectification of faults where Quidtree is unable to correct the fault, refuses to remedy the fault or is not in a position to remedy the fault due to insolvency proceedings. For the purpose of integration with an independently developed computer program, the required application programming interface (API) may be licensed from Quidtree for an additional license fee. 
d) If, during the term of the Agreement, Quidtree either voluntarily or due to an additional contractual agreement issues and delivers new versions, updates, upgrades or other new releases of the APPLICATION or SERVICE to the CUSTOMER, the above rights shall also apply. 
e) The CUSTOMER shall not be entitled to any additional rights which have not been expressly granted under this Agreement. This Agreement grants no ownership or intellectual property rights or any other comparable right for the APPLICATION. All intellectual property rights remain with Quidtree at all times. The CUSTOMER shall not be entitled to use the APPLICATION and SERVICE beyond the agreed scope or to make the APPLICATION or SERVICE accessible to third parties without the written approval of Quidtree and shall not be permitted to replicate or sell the SERVICE or convey the use of the same temporarily, in particular to hire it out or to lend it. 
f) All documents delivered to the CUSTOMER (the “Documentation”) are to be kept confidential unless otherwise publicly available. Their contents may not be disclosed to third parties without the prior written consent of Quidtree.

(2) Obligation of the CUSTOMER concerning secure use 
The CUSTOMER shall be liable for ensuring that the APPLICATION or SERVICE is not used for illegal purposes according to the laws within legal jurisdictions under which the CUSTOMER operates and that no such illegal data, in particular CLIENT DATA, is stored on the SERVER.

(3) Breach of the provisions under sections (1) and (2) by the CUSTOMER 
a) Should the CUSTOMER breach the provisions of sections (1) or (2) for reasons for which it is responsible, Quidtree may block the access of the CUSTOMER to the APPLICATION, SERVICE or to the CLIENT DATA with prior notice in writing if the breach can be reasonably stopped by these means. If these means (i) were legally required to satisfy a legal demand by a competent court of law or a government body; or (ii) serve to avert damage from Quidtree or Quidtree’s customers, notification concerning this access restriction may also take place in retrospect to the CUSTOMER. 
b) Should the CUSTOMER breach section (2), Quidtree shall be entitled to delete the CLIENT DATA with prior notice in writing if the breach can be reasonably stopped by these means. If these means (i) were legally required to satisfy a legal demand by a competent court of law or a government body; or (ii) serve to avert damage from Quidtree or Quidtree’s customers, notification concerning this deletion may also take place in retrospect to the CUSTOMER. 
c) Should the CUSTOMER breach the provisions of sections (1) or (2) for reasons for which it is responsible, and should the CUSTOMER continue to breach or repeatedly breach the provisions in sections (1) or (2) for a period of 2 (two) weeks after written notice is sent to the CUSTOMER by Quidtree, and if the CUSTOMER is responsible for the same, Quidtree may terminate the Agreement for cause without any period of notice. 
d) For each case in which the CUSTOMER culpably enables the APPLICATION to be used by third parties (or by individuals not named by the CUSTOMER), the CUSTOMER shall pay a penalty fee, immediately due, in the amount of two (2) times of the monthly fee per each unauthorized USER in accordance with § 7 (1). The right to assert claims for damages remains reserved; in this case, the penalty shall be set off against the claim to damages.

 

§ 5 Maintenance of the APPLICATION

A. Technical availability of the APPLICATION and of the access to the CLIENT DATA, Reaction and Recovery Time.

(1) Quidtree shall be responsible for ensuring the availability of the SERVICE and the CLIENT DATA at the transfer point (§ 2 (8), of this Agreement) in accordance with the terms of section 2 below. Under the term ‘Availability’ the Parties agree the technical usability of the APPLICATION and the CLIENT DATA at the transfer point for use by the CUSTOMER.

(2) The average SERVICE Availability per annum shall be no less than 99.6%, based on 24 (twenty-four) hours a day, 7 (seven) days a week. Scheduled Downtimes for maintenance and software updates, in particular the times of planned unavailability specified in section 7, and also times in which the SERVICE cannot be reached on account of technical or other problems which do not lie within the direct control of Quidtree such as force majeure, third party fault, etc. are excluded from the average availability calculation. Where Quidtree foresees that the consecutive downtime required for network, server or software maintenance exceeds 3 (three) hours in duration, Quidtree shall notify the CUSTOMER of such planned maintenance at least 3 (three) days in advance of commencing the respective work.

(3) Quidtree shall use commercially reasonable efforts to eliminate any faults or errors in the APPLICATION and the documentation, or the SERVICE, reported by the CUSTOMER within a reasonable period of time. Faults shall be classified by the Parties by mutual agreement as; (a) preventing operations, (b) impeding operations or (c) other faults. If the Parties fail to reach agreement, Quidtree shall decide on the classification, with reasonable regard to the CUSTOMER’S interests. If no fault classification is specifically reported by the CUSTOMER, the fault is by default classified as other faults. According to the classification of a fault, the following reaction and restoration times apply: 
Fault preventing CUSTOMER’S operations (reaction time not to exceed: 12 (twelve) hours, restoration time not to exceed: 36 (thirty-six) hours) 
Fault impeding CUSTOMER’S operations (reaction time not to exceed: 24 (twenty-four) hours, restoration time not to exceed: 52 (fifty-two) hours 
a) A fault preventing CUSTOMER’S operations is present if, for example, the use of the APPLICATION is not possible or is severely restricted due to reproducible malfunctions, causing false work results or response times caused by Quidtree and this fault cannot be circumvented using reasonable efforts on behalf of the CUSTOMER; 
b) A fault impeding CUSTOMER’S operations is present if, for example, the use of the APPLICATION is not possible or is restricted due to intermittent malfunctions, false work results or response times caused by Quidtree, but at the same time the restrictions of use are also not inconsiderable and cannot be circumvented using reasonable efforts on behalf of the CUSTOMER; 
c) The reaction and restoration time is calculated in hours from the receipt of the fault notification during the core working hours. For CUSTOMERS of Quidtree the core working hours are defined as Mondays to Fridays, in each case 9:00 am – 5:00 pm (CET or CEST during DST) except for statutory public holidays in Berlin, Germany.

(4) A Fault in the APPLICATION is present if (i) the APPLICATION, when used in accordance with the terms of the Agreement, fails to provide the documented functions or (ii) it is not suitable for the use specified under this Agreement. In particular, no fault within the meaning of this provision is present if any of the above-mentioned pre-requisites (i) or (ii) only has a minor effect on the use of the APPLICATION, or the failure was caused by improper use of the APPLICATION or SERVICE by the CUSTOMER.

(5) A fault in the Documentation is present if a competent USER equipped with basic knowledge and training in the use of the APPLICATION cannot understand the operation of individual functions with the aid of the documentation within a reasonable time and effort. Explicitly, the documentation is intended to assist the USERS in understanding how to use the APPLICATION, not to provide instructions on how to correctly model processes or decisions.

(6) The CUSTOMER shall be notified of any additional times of planned unavailability no less than 14 (fourteen) days in advance. Additional periods of planned unavailability may only be invoked for cogent reasons having reasonable regard to the legitimate interests of the CUSTOMERS.

(7) If and in so far as the CUSTOMER can use the SERVICE during times of planned unavailability, no legal claim hereto shall exist. If during any use of a SERVICE in times of planned unavailability a reduction or loss of performance arises, the CUSTOMER shall have no claim under liability for defects or any claim for damages.

B. User Support

(1) “User Support” includes end user support for the use of the APPLICATION and SERVICE, in particular troubleshooting any unintended use of the APPLICATION’s and SERVICE’s functionalities, providing assistance in solving company-specific issues regarding the use of the APPLICATION and SERVICE assuming the CUSTOMER’S users have been reasonably trained in the use of the APPLICATION and sharing of related tips and tricks for the APPLICATION and SERVICE.

(2) The CUSTOMER shall have the right to name 2 (two) APPLICATION Administrators to Quidtree who are eligible to receive support from Quidtree.

(3) Quidtree shall provide User Support to the group of individuals defined in section (2) above either by e-mail (info@quidtree.com). The User Support does not replace the Administrator or End USER training for the APPLICATION’s use by Quidtree.

(4) Quidtree is obligated to provide User Support to the group of individuals defined in section (2) above for CUSTOMERS of Quidtree in English only.

(5) Quidtree shall provide User Support to the group of individuals defined in section (2) above limited to the Support service hours. For CUSTOMERS of Quidtree the Support service hours are defined as Monday to Friday, 9:00 am – 6:00 pm (EST) except for statutory public holidays in Berlin, Germany.

C. Excluded Services

(1) The following services can be provided at an additional charge: 
a) User Support outside of the Support service hours (§ 5 B. (5)); b) Solving of problems which are caused by inappropriate usage of the APPLICATION; c) Recovery of data if Quidtree is not responsible for the loss of data; d) Restoration of backed up data if Quidtree is not responsible for the loss of data; e) Customized programming; f) On-site services; g) Trainings; h) User-Support regarding the interaction/integration of the SERVICE or APPLICATION with software of third parties that is not object of this Agreement; i) Development of CUSTOMER specific scripts; and j) Assistance regarding modeling questions.

(2) If the CUSTOMER requires any of the services listed in section (1), the Parties may separately agree on the definition and delivery of such services which are to be paid for separately.

 

§ 6 Responsibilities and Obligations of the CUSTOMER

The CUSTOMER shall fulfill all duties and obligations as necessary for the performance of the Agreement. It shall in particular:

(1) keep the authorizations of use and access credentials and rights allocated to it and/or to its USERS confidential, protect the SERVICE from access by third parties not specifically allowed under this Agreement and not pass on the same to unauthorized USERS. This authorization data and credentials are to be protected by appropriate and usual measures. The CUSTOMER shall immediately notify Quidtree if the suspicion exists that non-authorized individuals may have become aware of any USER’s access credentials or passwords, or have otherwise circumvented the provided USER authentication methods of the SERVICE; and

(2) comply with the restrictions/obligations in relation to the rights of use under § 4, in particular and: a) name all USERS intended to use the APPLICATION under § 4, and also any changes to the USERS and to keep all USER-relevant information up-to-date; b) put organizational directives into place so that multiple use of any USER accounts by different individuals is prevented. That is, all USER accounts must be specified by using a non-ambiguously assigned e-mail address (login name) for each authorized USER according to § 4. For the avoidance of doubt, the e-mail address used needs to be assigned to a uniquely identifiable individual. The use of e-mail distribution lists or generic user names or sharing of passwords to access the SERVICE is explicitly not allowed; c) not without authorization, extract any programs, components, information or data, or enable third parties to extract the same, or interfere with APPLICATIONS or SERVICES which are provided by Quidtree, or cause any such interferences to be made, or, not without authorization, to probe or penetrate data networks of Quidtree or promote any such penetrations; d) indemnify Quidtree from claims of any third parties which are based on any unlawful use of the APPLICATION or SERVICE by it or which arise from disputes relating to data protection, copyright or other legal disputes caused by the CUSTOMER which are associated with the use of the APPLICATION or SERVICE; e) obligate the authorized USERS that they will comply with all provisions of this Agreement applicable to them; f) The failure by CLIENT to report any such defects shall not be considered a breach of the Agreement, but shall relieve Quidtree of any liability arising out of any delay or failure by Quidtree to provide adequate USER SUPPORT to the extent such delay or failure could have been avoided but for CLIENT’S failure to reporting such defects. g) ensure that it observes (e.g. in the transmission of texts/data of third parties onto the SERVER of Quidtree) all rights of third parties in material used by it; h) obtain any necessary consent of the respective person affected, in so far as it collects, processes or uses any personal data in the use of the APPLICATION and insure that no statutory consent criteria apply; and i) in so far and to the extent that, by mutual agreement, the CUSTOMER has the option to regularly secure the CLIENT DATA stored on the SERVER through download; the obligation of Quidtree under § 2 (7), to create data back-ups remains unaffected hereby.

 

§ 7 Remuneration

(1) A fee will be charged for the services owed according to § 1. The amount of the fee shall depend upon the software products and their features chosen, the number of USERS, the number of imported rows within the Application, the components/options selected by the CUSTOMER and also the term of the Agreement. Pricing details are defined online by Quidtree under www.quidtree.com. (2) Additional services may be quoted by Quidtree according to then current rates for time and actual expenses incurred in the delivery of such services at a cost mutually agreed to in advance by the Parties. This shall apply in particular for the training of the CUSTOMER and/or USERS.

(3) The fee shall be owed with the addition of any applicable tax and shall be payable in advance of each subsequent term.

(4) If the CUSTOMER reduces its license volume (reduction in volume covered by the Agreement) at or before term renewal, all previously granted discounts become inapplicable. From the effective date of the reduction in license volume, the undiscounted list prices are instead applied without discount.

(5) All invoices shall be prepared and delivered in electronic form. Should the CUSTOMER wish to receive invoices by post, these shall be subject to an additional charge.

(6) Quidtree has the right to change the scope covered within a set price as well as the price itself. In this case Quidtree most notify the CUSTOMER of any future price changes at least 45 (forty-five) days in advance.

(7) The CUSTOMER can downgrade and upgrade the price and with it the appropriate scope of the Application at any time.

§ 8 Data Protection

(1) Both Quidtree and CUSTOMER shall observe the respectively applicable data protection provisions and impose an obligation on those employees and/or USERS assigned in connection with the Agreement and its implementation to preserve data security in accordance with such provisions in so far as they have not already generally been placed under a corresponding obligation.

(2) Where the CUSTOMER collects, processes or uses personal data, it shall be responsible for ensuring that it is entitled to do so in accordance with the applicable provisions, in particular data protection provisions, and shall, in the case of any breach, indemnify Quidtree from any claims of third parties.

(3) Quidtree shall take technical and organizational security precautions and measures in accordance with applicable data protection regulations. Quidtree shall in particular protect the services and systems lying within the sphere of its control and also the CLIENT DATA and, where appropriate, other data stored by the CUSTOMER or relating to the CUSTOMER on the SERVER against any unauthorized access, storage, modification or other non-authorized accesses or attacks – whether through technical measures, through viruses or other harmful programs or data or through physical access – by employees of Quidtree or third parties, quite regardless by which means such are made. Quidtree shall in this respect take the appropriate and usual measures which are necessary, in particular to provide virus protection and protection against similar harmful programs as well as other measures necessary in securing its facilities, including protection against burglary, fire or natural disasters according to current industry standards.

(4) Quidtree shall only collect and use personal data as required for the implementation and support of this Agreement. The CUSTOMER consents to the collection and use of such data solely for these purposes.

(5) The obligations under sections (1) to (3) shall exist as long as CLIENT DATA lie within the control of Quidtree, including beyond the end of the Agreement. The obligation under section (4) shall also continue beyond the end of the Agreement.

(6) All services which are part of this Agreement are provided by Quidtree as contracted data processing on behalf of the CUSTOMER. The CUSTOMER is the controller according to Art. 28 GDPR. That is, Quidtree is obligated by law to conceal any individual-related data processed on behalf of the CUSTOMER and only process this data based on the CUSTOMER’S guidance and instructions. All instructions need to be communicated to Quidtree in writing in sufficient time.

(7) If necessary, the Parties govern the contracted data processing in a separate Data Processing Agreement.

(8) The CUSTOMER is authorized to assure itself of the compliance with the requirements according to Art. 28 GDPR as well as of the compliance of the data handling in terms of other lawful and contractual agreements in relation to personal data, which is processed as part of the operations of the APPLICATION and the SERVICE in accordance with this Agreement. The date and details of such inspection needs to be agreed upon by the Parties separately.

(9) The Data Privacy terms & conditions are laid out within the Data Privacy Statement under www.quidtree.com/privacy

 

§ 9 Confidentiality

Confidentiality is defined in Quidtree’s Standard Agreement.

 

§ 10 LIABILITY; LIMITATION OF LIABILITY

(1) Liability is partially defined in Quidtree’s Standard Agreement.

(2) AS LONG AS QUIDTREE UG (HAFTUNGSBESCHRÄNKT) IS THE CONTRACTUAL PARTNER THE LIABILITY UNDER THE GERMAN PRODUCT LIABILITY ACT REMAINS UNAFFECTED.

(3) AS LONG AS QUIDTREE UG (HAFTUNGSBESCHRÄNKT) IS THE CONTRACTUAL PARTNER, PURSUANT TO § 536a BGB [German Civil Code], QUIDTREE EXPRESSLY DISCLAIMS ALL LIABILITY, IRRESPECTIVE OF FAULT, FOR DAMAGES ARISING OUT OF DEFECTS PRESENT AT THE TIME OF THE CONCLUSION OF THIS AGREEMENT, UNLESS THE CUSTOMER PROVIDES QUIDTREE WITH WRITTEN NOTICE OF COMPLAINT WITHIN NINETY (90) DAYS. SECTIONS (1) AND (2) SHALL REMAIN UNAFFECTED.

(4) QUIDTREE SHALL NOT BE LIABLE FOR ANY INTENTIONAL OR NEGLIGENT BREACH OF THE RIGHTS OF THIRD PARTIES BY THE CUSTOMER IN SO FAR AS AND TO THE EXTENT THAT THIS BREACH RESULTS FROM THE CUSTOMER HAVING EXCEEDED THE RIGHTS OF USE GRANTED UNDER THIS AGREEMENT. IN THIS CASE, THE CUSTOMER SHALL INDEMNIFY QUIDTREE UPON FIRST DEMAND FROM ALL CLAIMS OF THIRD PARTIES.

 

§ 11 Formation of the Agreement; Usage of the free tier version

(1) A pre-requisite of the use of the SERVICE and APPLICATION is registration by the CUSTOMER. Through successful registration, an individual USER account is opened on behalf of the CUSTOMER. At the registration and thereafter in the APPLICATION, the CUSTOMER may nominate further USERS to be specified by name. The CUSTOMER is obliged to provide the data requested at registration correctly and in full. The CUSTOMER is obliged to notify Quidtree without delay of any changes to its USER structure.

(2) The CUSTOMER must be a corporation or entrepreneur, that is a natural or juristic person or a nonincorporated firm having legal capacity, which at the time of formation of the Agreement, solely acts as part of their commercial function (compliant with the meaning of § 14 BGB (German Civil Code)).

(3) Prior to the use of the APPLICATION and the SERVICE subject to charge, Quidtree offers its CUSTOMERS the use of an evaluation version of the APPLICATION and the SERVICE free of charge for a limited period of time. The Agreement for the use of the evaluation version is established once the CUSTOMER completes the registration details at Quidtree and has declared its acceptance of this Agreement by clicking on the “Create Account”, “Create Profile” or “Register” button. Quidtree acknowledges it’s acceptance by an e-mail confirmation to the CUSTOMER. This e-mail also contains a hyperlink which the CUSTOMER uses to activate its USER account.

(4) The provisions of this Agreement shall also apply to the use of the tier version of the APPLICATION and SERVICE. The CUSTOMER accepts these terms by using the trial version.

(5) The Agreement concerning the use of the APPLICATION and SERVICE subject to charge is formed as follows: the submission of the invoicing details in full, as well as the selection by the CUSTOMER of the offer concerning the booking functionality within the APPLICATION through pressing the button “Subscribe” represents the binding request of the CUSTOMER to conclude the Agreement. The acceptance of the CUSTOMER’s request is made by an e-mail from Quidtree which confirms the receipt of the booking as well as the formation of the Agreement. Alternatively, Quidtree may provide the CUSTOMER with a written quotation to use the SERVICE upon the CUSTOMER’S request. This Agreement is concluded by acceptance of this quotation in writing by the CUSTOMER.

(6) The Quidtree websites themselves simply represent an invitation to submit requests.

 

§ 12 Term; Termination

(1) The CUSTOMER may at any time terminate the Agreement for the evaluation version of the SERVICE and APPLICATION.

(2) Unless otherwise agreed the minimum term shall be 1 (one) month and shall automatically be extended for an additional 1 (one) month if not cancelled by either Party with a notice period of 1 (one) day prior to the end of the term. This does not apply if the customer uses the free tier version of the Application. In this case Quidtree may terminate without complying with any period of notice.

(3) Either party may terminate the Agreement for the other party’s material breach of this Agreement; provided such material breach has not been cured within 30 (thirty) days of the non-breaching party’s notice thereof. Notwithstanding the foregoing, Quidtree may terminate this Agreement immediately if CUSTOMER (i) has deliberately provided false contact data, (ii) has deliberately provided false or invalid e-mail addresses, (iii) has deliberately provided false bank account details, (iv) has transferred its USER account to a third party or (v) tolerates the usage by a third party not previously authorized by Quidtree, specifically by not explicitly named individuals (multiple usage according to § 6 (2) b). Except for the reasons for material breach as described above in (i) to (vi), it is considered agreed for any other material breach, that the immediate termination must be preceded by a written reminder to the defaulting party with a deadline of 30 (thirty) working days.

(4) Notwithstanding the provisions in section (3), Quidtree may terminate the Agreement without complying with any period of notice if the CUSTOMER is in default for 2 (two) consecutive months or of a substantial part of the fee or, in a period of time covering more than two months, is in default with payment of the fee in an amount equivalent to two months of fees. Quidtree may in this case additionally demand liquidated damages, payable immediately in one sum, in the amount of one quarter of the remaining monthly lump sum fees calculated until the expiration of the Agreement term. The right is reserved to the CUSTOMER to prove that a lower amount of damage has been incurred.

(5) Notices of termination must be given in written form.

 

§ 13 Duties upon and following termination of the Agreement

(1) Following the ending of the contractual relationship and following the request of the CUSTOMER, Quidtree shall be obliged to provide the CUSTOMER with the CLIENT DATA stored by it in formats in accordance with § 3 (3) in the form of data transmission.

(2) Within 14 (fourteen) calendar days following termination without receiving a request of the CUSTOMER to deliver the CLIENT DATA to CUSTOMER, Quidtree is entitled to delete the CLIENT DATA and account information of the CUSTOMER.

 

§ 14 General Terms

(1) Quidtree reserves the right to change provisions of this Agreement. Such change requires the CUSTOMER’S approval. Quidtree will notify the CUSTOMER of such change by e-mail or in written form at least 30 (thirty) calendar days before coming into effect. The approval is given automatically if the CUSTOMER does not object the change via e-mail or in written form within 30 (thirty) calendar days of the receipt. If the CUSTOMER objects, the contractual relationship continues to be governed by the original Agreement terms.

(2) For CUSTOMERS of Quidtree the contractual relationship shall be governed by, subject to, and construed in accordance with the German law. For CUSTOMERS of Quidtree the exclusive jurisdiction and venue of any action with respect to the subject matter of this Agreement shall be the courts of Kitzingen and each of the Parties hereto submits itself to the exclusive jurisdiction and venue of such courts for the purpose of any such action.

(3) The Parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods.

(4) Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Any waiver of any provision of this Agreement will be effective only if in writing and signed by waiving party.

(5) The CUSTOMER is allowed to transfer this Agreement including all rights and obligations to an affiliated corporation. Affiliation means any entity which is controlled by, is in control of or under common control with the CUSTOMER. For purposes of this definition, “control” means the direct or indirect beneficial ownership of over fifty percent (50%) of the voting interests (representing the right to vote for the election of directors or other managing authority) in an entity. For CUSTOMERS of Quidtree the above definition of affiliated companies is to be understood in accordance with § 15 AktG [Aktiengesetz – Corporation Law]. The CUSTOMER shall inform Quidtree in writing about the new contractual partner within a period of thirty (30) calendar days before the effective date of the transfer.

(6) Quidtree is allowed to transfer this Agreement including all rights and obligations to a corporation of its choice. The transfer will come into effect 30 (thirty) calendar days after the receipt of the transfer notification sent by e-mail to the CUSTOMER. In case of a transfer of the Agreement, the CUSTOMER has the right for extraordinary termination of the Agreement, which needs to be exercised within 7 (seven) calendar days after receipt of the notification.

(7) Should individual provisions of this Agreement be adjudicated to be unenforceable, the effectiveness of the remainder of this Agreement shall remain unaffected thereby.

(8) Oral arrangements are only valid and applicable if confirmed by both Parties in writing.

Quidtree - Standard Agreement - Terms and Conditions [SATC]

§ 1 Applicability of the Agreement

(1) Quidtree’s Standard Agreement – Terms and Conditions (SATC) are applicable for all license related services and product sales of Quidtree. Any conflicting or deviating terms or conditions of the CUSTOMER are not applicable, as long as Quidtree does not explicitly accept them in writing.

(2) Depending on the product/service the “Quidtree User Agreement” is an integral part of this Agreement. It is available (i) below in the same file or (ii) on the same website this “Standard Agreement – Terms and Conditions” was provided to you.

(3) The CUSTOMER may, at any point in time, also after the formation of a contract, open, print, download or save these SATC via the Link www.quidtree.com/terms.

 

§ 2 Formation of the Agreement

(1) The formation of a service contract for services of Quidtree is triggered by; a) the receipt of the letter of acceptance for a written quotation of Quidtree, or b) the acceptance of the request via E-Mail by Quidtree, if the CUSTOMER has previously used the booking functionality of the respective APPLICATION or SERVICE of Quidtree by entering complete and correct invoicing information along with the selection of the offering to be purchased and by pressing the button “Subscribe”. The contract term for software subscriptions shall commence on the day of the license’s delivery respectively the license’s activation. Possible minimum terms shall commence on that day as well.

(2) The Quidtree websites solely represent a request to submit quotations.

(3) The CUSTOMER must be either a corporation or entrepreneur, that is a natural or juristic person or a non-incorporated firm having legal capacity, which at the time of formation of the Agreement, solely acts as part of their commercial function. For CUSTOMERS of Quidtree this means a CUSTOMER must be either a corporation or entrepreneur within the meaning of § 14 BGB (German Civil Code).

 

§ 3 Prices

(1) The prices for Quidtree’s products and services are based on the underlying pricing table given under www.quidtree.com/pricing.

(2) The remuneration shall become due for payment (i) in accordance with the agreed period of time in the written quotation or (ii) unless otherwise agreed, within 14 (fourteen) calendar days upon the rendering of the invoice for the entire contract term. The remuneration shall be payable for each calendar month commenced as from the provision of the use in operable condition. The CUSTOMER may settle the same by means of bank transfer or accepted credit cards. If the CUSTOMER has legitimately terminated the contract summarily, the remuneration is to be repaid pro rata temporis. In the case of default in payment, the statutory provisions shall apply.

(3) Quidtree shall be entitled to increase the remuneration for the first time after the expiration of 3 (three) months following the commencement of the Agreement upon written notice of 4 (four) weeks, with effect from the commencement of the month following thereon. The CUSTOMER shall have the right, within a period of 4 (four) weeks following receipt of the notice, to terminate the contractual relationship in writing. Quidtree shall draw the attention of the CUSTOMER to this right of termination with each notice of increase.

(4) The Fee for the products or services shall be owed with the addition of any applicable tax.

(5) Additional services may be delivered by Quidtree according to then current rates for time and actual expenses incurred in the delivery of such service at a cost mutually agreed to in advance by the Parties under a separate Statement of Work (SoW). This shall apply in particular for the training of CUSTOMERS and/or users.

(6) Changes related to invoice details (e.g. invoice address or order number) shall be communicated to Quidtree forthwith. If the rendering of an invoice is already completed by the time Quidtree becomes aware of such change, especially the Customer’s payment obligation at the original due date shall remain unaffected by the rendering of a new invoice and the associated delay.

 

§ 4 Confidentiality

(1) The Parties hereto shall maintain as confidential, all information which they receive from each other within the scope of this contractual relationship, and only use the same vis-à-vis third parties – irrespective for which purpose – with the previously obtained written consent of the respective other party. Companies affiliated with the respective party shall not be understood as third parties. Affiliation means any entity which is controlled by, is in control of or under common control with the party. For purposes of this definition, “control” means the direct or indirect beneficial ownership of over 50% (fifty percent) of the voting interests (representing the right to vote for the election of directors or other managing authority) in an entity. For CUSTOMERS of Quidtree the above definition of affiliated companies is to be understood in accordance with § 15 AktG [Aktiengesetz – Corporation Law]. Information to be treated confidentially shall only include information which is expressly designated as confidential by the party providing the information and such information whose confidential nature unequivocally derives from the circumstances of the provision of the same. In particular, the CLIENT DATA is to be treated confidentially by Quidtree, should Quidtree obtain knowledge of the same.

(2) The obligations under section (1) shall not apply for such information or any parts thereof in respect of which the recipient party proves that a) it had knowledge of the same or the information was generally accessible prior to the date of receipt, or b) the information was in the public domain or generally accessible prior to the date of receipt, or c) the information was in the public domain or generally accessible following the date of receipt without the party receiving the information being responsible therefore.

(3) The obligations under section (1) shall also continue in existence beyond the end of the Agreement for an indefinite period of time for as long as the criteria of exception under § 2 have not been proven.

(4) Only if the contractual partner is Quidtree, the liability of either Party for claims arising under this § 4 shall be limited by nothing in this Agreement.

(5) Quidtree is explicitly allowed to name the CUSTOMER as reference in publications on the Internet and print media. Aside from its company name the CUSTOMER designates for this purpose the advertising materials, logos, and agrees to grant all the necessary rights to use them. The CUSTOMER will inform Quidtree, without request, if specific policies (e.g. Corporate Identity) for the usage of such logo or reference naming exist. Furthermore, the CUSTOMER agrees to contribute a one-page success story and to participate in three reference customer visits per year of other Quidtree prospects upon request. A reference will be used only objectively in an appropriate way and shall be excluded, if obvious CUSTOMERS’ legitimate interests are in opposition to this use of reference. The CUSTOMER has always the possibility to reject in writing future use of reference, but the existing print media at the moment of the rejection can still be used. The CUSTOMER can be used as a reference until three years after the end of the contract.

 

§ 5 LIABILITY; LIMITATION OF LIABILITY

(1) THE PARTIES SHALL BE LIABLE TO EACH OTHER WITHOUT LIMITATION IN THE CASE OF DELIBERATE INTENT, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE FOR ALL DAMAGE CAUSED BY THEM OR THEIR STATUTORY REPRESENTATIVES OR VICARIOUS AGENTS.

(2) IN THE CASE OF ORDINARY NEGLIGENCE, THE PARTIES SHALL BE LIABLE WITHOUT LIMITATION ONLY IN THE CASE OF INJURY TO LIFE, LIMB OR HEALTH.

(3) EXCEPT AS EXPRESSLY PROVIDED HEREIN, A PARTY SHALL ONLY BE LIABLE FOR DAMAGES ARISING OUT OF THE MATERIAL BREACH OF THIS AGREEMENT. LIABILITY FOR A MATERIAL BREACH OF THIS AGREEMENT SHALL BE LIMITED TO THE REIMBURSEMENT OF THE DIRECT DAMAGES WHICH TYPICALLY RESULT FROM A MATERIAL BREACH IN SUCH CASE.

(4) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION (INCLUDING NEGLIGENCE OR STRICT LIABILITY), WHETHER OR NOT THE PARTY IS ADVISED OF OR MIGHT HAVE ANTICIPATED THE POSSIBILITY OF SUCH DAMAGES.

(5) EACH PARTY’S TOTAL LIABILITY SHALL BE LIMITED TO THE AMOUNT PAID OR PAYABLE BY THE CUSTOMER TO QUIDTREE FOR THE SERVICES PROVIDED UNDER THIS AGREEMENT, AND IN NO EVENT, SHALL EITHER PARTY’S LIABILITY EXCEED 50,000.00 €. SECTIONS (1) and (2) SHALL REMAIN UNAFFECTED HEREBY.

 

§ 6 Minimum wage

(1) Quidtree hereby assures that it complies with the applicable regulations for minimum wage (in case of the Federal Republic of Germany the MiLoG (German minimum wage Law)).

(2) Quidtree is also fully liable for its subcontractors, or any one of its subcontractors’ suppliers to comply with the applicable regulations for minimum wage.

(3) Quidtree fully indemnifies, holds harmless and defends the CUSTOMER against fines based on any claim concerning the applicable regulations for minimum wage (e.g. § 21 MiLoG (German minimum wage Law)) due to a breach of the same by Quidtree’s employees or employees of its subcontractors in the entire delivery/service chain.

 

§ 7 Insolvency or threatened insolvency of a party to the Agreement

Either party shall notify the other party without delay if a) it has made application for the opening of insolvency proceedings or intends to do so in the coming 14 (fourteen) calendar days, b) the opening of insolvency proceedings has been applied for by third parties, c) it must cease payments by reason of financial difficulties, d) in temporal connection with financial difficulties, measures have been taken against it for the satisfaction of claims of third party creditors, or e) in temporal connection with financial difficulties, it has consented to agreements for the satisfaction of claims of third party creditors.

 

§ 8 General Terms

(1) Quidtree reserves the right to change provisions of this Agreement. Such change requires the CUSTOMER’S approval. Quidtree will notify the CUSTOMER of such change by e-mail or in written form at least 30 (thirty) calendar days before coming into effect. The approval is given automatically if the CUSTOMER does not object the change via e-mail or in written form within 30 (thirty) calendar days of the receipt. If the CUSTOMER objects, the contractual relationship continues to be governed by the original Agreement terms.

(2) For CUSTOMERS of Quidtree the contractual relationship shall be governed, controlled, interpreted and defined by and under the laws of Germany. For CUSTOMERS of Quidtree the exclusive jurisdiction and venue of any action with respect to the subject matter of this Agreement shall be the courts of Kitzingen and each of the Parties hereto submits itself to the exclusive jurisdiction and venue of such courts for the purpose of any such action.

(3) The Parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods.

(4) Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Any waiver of any provision of this Agreement will be effective only if in writing and signed by waiving party.

(5) The CUSTOMER is allowed to transfer this Agreement including all rights and obligations to an affiliated corporation. Affiliation means any entity which is controlled by, is in control of or under common control with the CUSTOMER. For purposes of this definition, “control” means the direct or indirect beneficial ownership of over 50% (fifty percent) of the voting interests (representing the right to vote for the election of directors or other managing authority) in an entity. For CUSTOMERS of Quidtree GmbH the above definition of affiliated companies is to be understood in accordance with § 15 AktG [Aktiengesetz – Corporation Law]. The CUSTOMER shall inform Quidtree in writing about the new contractual partner within a period of 30 (thirty) calendar days before the effective date of the transfer.

(6) Quidtree is allowed to transfer this Agreement including all rights and obligations to a corporation of its choice. The transfer will come into effect 30 (thirty) calendar days after the receipt of the transfer notification sent by e-mail to the CUSTOMER. In case of a transfer of the Agreement, the CUSTOMER has the right for extraordinary termination of the Agreement, which needs to be exercised within 7 (seven) calendar days after receipt of the notification.

(7) Should individual provisions of this Agreement be adjudicated to be unenforceable, the effectiveness of the remainder of this Agreement shall remain unaffected thereby.

(8) Oral arrangements are only valid and applicable if confirmed by both Parties in writing.