OX Cloud Terms of Service

 

 
1. Introduction

Company and the Customer agree upon the provision of the Service by executing an Order Form, each Party's rights and obligations regarding the provision of the Service are exclusively governed by the following OX Cloud Terms and Conditions (“General Terms”) and the accompanying Annexes listed below (“Services Terms”). The General Terms and the Service Terms only enter into effect once a corresponding Order Form has been executed by both Parties. The Order Form, the General Terms and the Service Terms shall together be referred to as the "Agreement". Please find the respective Service Terms under the links below:

2. Access to the Service; Modifications; Customer’ Partner; Restrictions and Changes

2.1. Access to the Service

Subject to the terms and conditions of the Agreement, during the Term, Customer has the right to (i) access and use the Service as defined in the Service Terms, (ii) provision or authorize third parties to provision Provisioned Accounts on the Service subject to pricing and limitations agreed upon in the Order Form to access and use the Service, and (iii) use the Service as necessary to provide support services. Customer may not transfer these rights except as permitted under the Agreement.

2.2. Service Details

The general specifications, technical requirements, organizational recommendations and functional capabilities of the Service are set forth in the Annex A – Product Definition. The scope of the provision of the Service to Customer is subject to the specific agreements set out in the Order Form. Company shall host the Service in the EEA.

2.3. Reporting

Company will make available to Customer metrics and reports about Customer's usage of the Service according to the capabilities and formats set out in the Annex A – Product Definition (altogether the "Usage Reports").

2.4. Restrictions of the Service

Except as expressly permitted in this Agreement, Customer shall not (and shall not allow or authorize any third party to): (i) decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of any portion of the Service that is provided to Customer in object code form (unless permitted by applicable law); (ii) use the Service for High Risk Activities; (iii) modify or create derivative works of the Service, in whole or in part, (iv) incorporate, embed or bundle the Service, in whole or in part, with or into another product or other computer software code or permit End Customers to use the Service  other than in connection with and as a part of the Customer’s Services, (v) copy or reproduce the Service, in whole or in part, other than a reasonable number of back-up copies (if applicable), (vi) access the Service in a manner intended to avoid incurring fees or exceed usage limits or quotas, (vii) remove, alter, cover or obscure any proprietary rights notice, copyright notice or any other notice or Company Mark that appears on or within the Service; (viii) disclose results of any benchmark tests without Company’s prior written consent; or (ix) process or store any End Customer or End User data that is subject to the International Traffic in Arms Regulations maintained by the Department of State.

 

3. Customer Obligations

3.1. Reporting

In the event that the Parties have agreed a Revenue Share in the Order Form, value added services, professional or advance packaging or any other type of pricing model, which allows Customer to offer access to the Service to End Customers as a part of paid service packages, Customer will deliver a written sales report to Company on a monthly basis summarizing in sufficient detail the number of Provisioned Users in the course of such sales activities in effect on the last day of each calendar month of the preceding month and a calculation of the Revenue Share or any other premium or additional service fees owed to Company as determined in accordance with the Order Form for this type of sales activities (“Sales Report”).

3.2. Notifications

Customer will notify Company promptly of:

  1. any unauthorized access, access attempts, or other abuse of the Service, such as but not limited to violations of the Acceptable Use Policy;
  2. a change of Customer’s contact details or any other information relevant for the performance of Company’s obligations under this Agreement;
  3. any unauthorized access, use, disclosure, modification, or destruction of Confidential Information or Customer Data or any interference with the Service or an attempt seriously capable of leading to the above; and / or
  4. any expected increase of the number of Provisioned Users or storage volume.

3.3. Compliance

Customer acknowledges that it is aware of all applicable legal requirements of each relevant jurisdiction related to the provision of Customer’s Services. Customer is responsible for compliance with such legal requirements. Customer acknowledges and agrees that the Service and other technical data provided hereunder may be subject to restrictions and controls imposed by the United States Export Administration Act of 1979, as amended and the regulations promulgated thereunder. 

3.4. Backup

Customer acknowledges that the Service does not produce regular backups of Customer Data. Thus, Customer is solely responsible for regular and sufficient backups of all Customer Data on an environment other than the Service.

3.5. Efforts/Pricing Freedom

During the Term, Customer shall use commercially reasonable efforts to market the Customer’s Services using the Service to its current and prospective End Customers. Customer is, and will remain, entirely free to determine its prices and fees at its own discretion.

 

4. Payment; Taxes

4.1. Order Form

Subject to the below, all fees and any deviations from the following standard payment terms are set forth in the Order Form.

4.2. Invoicing

Unless otherwise agreed in an Order Form, Company will invoice Customer the fees agreed to in the respective Order Form monthly in arrears and Customer will pay Company such fees in accordance with the terms set forth below. The invoicing is based on the number of Provisioned Users decreased by the number of Test Users.

4.3. Standard Payment Terms

Unless agreed to otherwise in the Order Form, Customer will pay Company all amounts shown in an invoice by the payment due date reflected in such invoice. If no payment term is defined in the Order Form or shown on the invoice, all payments shall be due within thirty (30) days from the date of invoice. All payments are due in the currency described in the invoice.

4.4. Taxes

Customer is responsible for any Taxes, and except stated otherwise under this Agreement, Customer will not deduct any taxes from the fees payable to Company under the Order Form. If Company is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customer provides Company with a timely and valid tax exemption certificate authorized by the appropriate taxing authority. In some states the sales tax is due on the total purchase price at the time of sale and must be invoiced and collected at the time of the sale. If Customer is required by law to withhold any Taxes from its payments to Company, Customer must provide Company with an official tax receipt or other appropriate documentation to support such withholding. If under the applicable tax legislation the Services are subject to local tax and the Customer is required to make a withholding of local tax from amounts payable to Company, the value of the Service calculated in accordance with the above procedure will be increased (grossed up) by the Customer for the respective amount of local tax and the grossed up amount will be regarded as a tax-inclusive price. Local tax amount withheld from the local tax-inclusive price will be remitted to the applicable local tax entity by the Customer and Customer will ensure that Company will receive payment for its services for the net amount as would otherwise be due (the tax-inclusive price less the local tax withheld and remitted to applicable tax authority) under the Order Form.

If required under applicable law, Customer will provide Company with applicable tax identification information that Company may require to ensure its compliance with applicable tax regulations and authorities in applicable jurisdictions. Customer will be liable to pay (or reimburse Company for) any taxes, interest, penalties or fines arising out of any mis-declaration by the Customer.

4.5. Invoicing Disputes

Any invoice disputes must be submitted prior to the payment due date.

4.6. Price Adjustments

  1. Alignment with Consumer Price IndexCustomer agrees that during the term Company may increase any recurring fees under this Agreement annually by the rate of inflation as reflected by the Consumer Price Index of the German Federal Statistical Office, 2005=100 reference base. Company will notify Customer about any increase with 60 days’ written notice.

  2. Price Adjustment with Termination Right: Additionally, Company may modify any recurring fees at any time in its sole discretion unless otherwise expressly agreed in an Order Form as follows: Company will notify Customer at least 60 days in advance of such price increases. If Company notifies Customer of any price increase for Services that Customer has used prior to receipt of such notification, Customer may terminate this Agreement on 30 days’ prior written notice to Company on condition that Customer provides such notice within 30 days of being informed of the respective price increases by Company. Customer’s payment commitments (if any) are not affected by such termination.

5. Marketing and Acknowledgements

5.1. Use of Customer’s Name 

Customer agrees that Company may (1) use Customer’s name and disclose that Customer is a customer of the Company in Company advertising, press, promotion and similar public disclosures; (2) publicly issue and distribute a case study relating to this Agreement and the Company’s services performed on behalf of Customer. Customer hereby grants Company a non-exclusive license during the Term of this Agreement to list Customer’s name and display Customer’s Marks on Company’s home page and in the “Partners”, “Customers” or similar sections of the Company’s website. Customer agrees to act as a “reference account” with respect to the Company’s marketing and promotional initiatives.

5.2. No Additional Representations or Warranties

Customer shall not make any representations, warranties, or other statements regarding the Service or OX Software to any third party other than those consistent with the rights, licenses, product definition, and Documentation supplied by Company together with the Service.

 

6. Suspensions; AUP Violation

6.1. Violation of AUP

In the event that Company becomes aware of any End Customer’s violation of Annex G – AUP or a violation of Annex G – AUP attributable to a Provisioned User, Company may immediately suspend such End Customer or the respective Provisioned User in accordance with the provisions set forth therein.

6.2. General Suspension Rights

Company has the right to immediately suspend Customer’s or its End Customers’ use of the Service (partially or in full) by deactivating a Provisioned User in the following further cases: (i) Suspected unauthorized third-party access to the Service; (ii) to comply with applicable law; or (iii) Customer’s breach of Section 2.4 (Restrictions) or of its material payment obligations. Company will notify Customer of the reason of the suspension without undue delay. This notification obligation shall not apply where such notification would/may violate any applicable laws or regulations. Suspension will be lifted at the time when the circumstances giving rise to the suspension have been resolved.

 

7. Modification and Deprecation of Services

7.1. Discontinuance of Service

Subject to Sections 7.2 and 7.3, Company may discontinue any of the Service feature or functionality for any reason at any time without liability to Customer.

7.2. Deprecation Announcement

In the event that Company intends to discontinue or make backwards incompatible changes to the Service, Company will notify Customer of such intention in advance. Company will then use commercially reasonable efforts to continue to operate those affected versions, features or functionalities without the noted changes for at least three months after that announcement, unless (as Company determines in its reasonable good faith judgment) (i) required by law or third-party relationship (including if there is a change in applicable law or relationship), or (ii) such continued operation could create a security risk or substantial economic or material technical burden.

7.3. Modification of the Service

In order to maintain a progressive and modern product experience and/or in order to keep up with good industry standards regarding security, reliability or regulatory compliance, Company reserves the right to make reasonable updates to the Service from time to time. Such updates may relate to any features or functionality and/or the limitations of the Service. If Company makes a material change to the Service, Company will inform Customer reasonably in advance, but no later than 30 days before such change becomes effective. This does not apply in cases where such changes are required in order to solve security issues or to address regulatory changes or changes of the law. 

 

8. Customer Records & Audits

8.1. Customer’s Records

Customer will maintain complete records, contracts and accounts regarding the sale of the Service to End Customers and the provision of the Service during the Term and for one year after the later of (1) the termination or expiration of this Agreement or (2) the last payment due under this Agreement has been received by Company.

8.2. Audit 

No more than once per 12‑months period, an independent certified public accountant selected by Company may, at Company’s sole expense, and upon 30 days’ advance written notice to Customer and during Customer’s normal business hours, inspect the records of Customer related to its activities under this Agreement. If, upon performing such audit, it is determined that Customer has underpaid Company by an amount greater than 5 percent (5%) of the payments due to Company in the period being audited, Customer will bear all reasonable expenses and costs of such audit in addition to its obligation to make full payment under this Agreement and the Order Form. Company shall use commercially reasonable efforts to minimize any interference with Customer’s business while such audit is conducted.

 

9. Consulting Services and Customer Success

9.1. Consulting and Customer Success Services Schedule

Customer may order Consulting Services and Customer Success Services from Company in accordance with the terms and conditions defined in the Annexes B and C at the fees set forth in the Order Form.

9.2. No Contingency

The Parties acknowledge and agree that there shall not be any contingency between the performance of the Consulting Services or the Customer Success Services and the payment obligations of Customer with regard to the access to the Service in accordance with Annex A.

 

10. Confidentiality

10.1. Confidential Information

"Confidential Information" means: (i) the non-public code portions of the Service, OX AppSuite and any accompanying Documentation; and (ii) any business, financial or technical information of either party communicated to the other in connection with this Agreement, including but not limited to any information relating to such party’s product plans, designs, costs, product prices and names, finances, marketing plans, business opportunities, personnel, research, including any information, data or statistics derived from the provision of the Service to Customer, as well as development or know-how.

10.2. Exceptions 

Confidential Information shall not include information that: (i) is in or enters the public domain without breach of this Agreement other than through the receiving party; (ii) the receiving party was demonstrably in possession of prior to first receiving it from the disclosing party; (iii) the receiving party can demonstrate by objective evidence was developed by the receiving party independently and without use of or reference to the disclosing party's Confidential Information; or (iv) the receiving party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation. 

10.3. Obligations 

Each Party will maintain the Confidential Information of the other Party in strict confidence and will exercise due care with respect to the handling and protection of such Confidential Information, consistent with its own policies concerning protection of its own Confidential Information of like importance (but in no event less than reasonable care).  Each Party will use and disclose the Confidential Information of the other Party only as expressly permitted herein and will disclose such Confidential Information only to its employees and consultants as is reasonably required in connection with the exercise of its rights and obligations under this Agreement. However, each Party may disclose Confidential Information of the other Party pursuant to the Order Form or requirement of a court, administrative agency, or other governmental body, provided that the receiving Party gives reasonable notice to the other Party to afford such Party an opportunity to intervene and contest such Order Form or requirement.  Any such disclosure by the receiving Party of the Confidential Information of the disclosing Party, will, in no way, be deemed to change, affect or diminish the confidential and proprietary status of such Confidential Information. The obligations of the Parties set forth in this Section 10shall survive the termination or expiration of this Agreement.

10.4. Termination

Within five (5) days of a termination or expiration of this Agreement, each Party will destroy all Confidential Information (and all copies and extracts thereof) of the other in its control or possession. Customer will certify to the Company that all copies of Confidential Information of the Company have been returned to the Company or destroyed, and the Company will certify to Customer that all copies of any Confidential Information of Customer have been returned to Customer or destroyed.

10.5. Injunctive Relief 

Each Party acknowledges that the unauthorized use or disclosure of the Confidential Information of the other Party would cause substantial harm to such other Party that could not be remedied by the payment of damages alone. Accordingly, the non-breaching Party will be entitled to seek preliminary and permanent injunctive relief and other equitable relief for any breach of this Section 10.

 

11. Proprietary Rights

11.1. Ownership

Company and its licensors shall be the sole and exclusive owner of all right, title and interest in and to the Service, including any information, data or statistics derived from the provision of the Service to Customer and Intellectual Property Rights therein and thereto („Company’s Technology”). All rights in the Service not expressly granted to Customer hereunder are reserved to the Company and its licensors. There are no implied rights.

11.2. Separate Licenses

The Service may contain third party technology (including open source software) (“Separately Licensed Third Party Software”), which is licensed under separate license terms (“Separate Terms”). As far as the Separate Terms supersede this Agreement, such Separate Terms will govern Customer’s use of that Separately Licensed Third Party Software. Separately Licensed Third Party Software and the corresponding Separate Terms are listed at https://www.open-xchange.com/licenses-ox-app-suite/.

11.3. Trademarks and Use of Brand Features

If Customer wants to display Company’s trademarks or brand features in connection with its use of the Service, Customer must obtain written permission from Company. Company may include Customer's name or brand features in a list of its customers, online or in promotional materials. Company may also verbally reference Customer as a customer of the Service. Neither party needs approval if it is repeating a public statement that is substantially similar to a previously approved public statement. Any use of a Party's trademark or brand features will inure to the benefit of the Party holding Intellectual Property Rights to thosetrademarks and brand features. A Party may revoke the other Party's right to use its trademarks and brand features under this Section with written notice to the other Party and a reasonable period to stop the use.

 

12. Indemnification

12.1. By Company

Company will defend and indemnify Customer against Indemnified Claims in any Third-Party Legal Proceeding to the extent arising solely from an Allegation that use of (a) Company’s Technology (except Separately Licensed Third Party Software) used to provide the Service; or (b) any of Company Marks infringes or misappropriates the third party’s patent, copyright, trade secret or trademark.

12.2. By Customer

Unless prohibited by applicable law, Customer will defend and indemnify Company against third party claims in any Third-Party Legal Proceeding to the extent arising from: (i) any Customer Data or Customer Marks; or (ii) Customer's, Customer Partners’ or End Customers’ use or any use through a Provisioned User of the Service in violation of Annex G - AUP as set forth therein.

12.3. Exclusions and Procedure

  1. Company shall have no liability for any claim or demand arising from (i) an Allegation that does not relate with specificity to Company’s Technology; (ii) the use or combination of Company’s Technology or any part thereof with software, hardware, or other materials not developed by Company where Company’s Technology or use thereof would not constitute infringement but for said combination; (iii) any modification of Company’s Technology by a party other than Company, where the use of unmodified Company’s Technology would not constitute infringement; or (iv) with regard to patent claims, an Allegation that Company’s Technology consists of a function, system or method that utilizes functionality that is in general use in the industry. Customer shall bring to Company’s attention any such prior or existing or known Intellectual Property Rights claims, demands or Allegations made on it that are material to this section, in writing, prior to the execution of this Agreement.
  2. The obligations under this Section 12 and any other indemnification obligations set forth in this Agreement shall be subject to the following conditions: (i) the indemnified Party shall notify the indemnifying Party in writing within ten (10) days of learning of any claim for which indemnification is sought, provided however, that any failure to provide such notice shall relieve the indemnifying Party of its indemnification obligations hereunder only to the extent of any demonstrable prejudice suffered by Company as a result of such failure; (ii) the indemnifying Party shall have sole control of the defense or settlement of such claim, provided that the indemnified Party shall have the right to participate in such defense or settlement with counsel of its selection and at its sole expense and provided further that the indemnifying Party shall not enter into any settlement of any claim without the indemnified Party’s prior, written approval, which approval shall not be unreasonably withheld, conditioned or delayed; and (iii) the indemnified party shall reasonably cooperate with the indemnifying Party in the defense and settlement of the claim, at the indemnifying Party’s expense.

12.4. Further Remedies

In the event that Company’s Technology is likely to become the subject of a claim described in Section 12.1, Company shall, in its sole discretion, either (i) modify or replace Company’s Technology without loss of significant functionality, or (ii) procure a license for the Customer to continue using Company’s Technology as licensed herein. If Company determines that neither of the foregoing is commercially or technically practicable, Company may terminate this Agreement by written notice to the Customer, and Customer will cease all use of the Service.  Company will have no liability to Customer as a result of such termination. 

12.5. Sole Rights and Obligations

Without prejudice to either Party’s termination rights, this Section 12 states the Parties’ sole rights and obligations under this Agreement for any third party’s Intellectual Property Rights Allegations and Third Party Legal Proceedings.

 

13. Warranty

13.1. General Representations

Each Party represents and warrants that: (a) it has full power and authority to enter into the Agreement; and (b) it will comply with all laws and regulations applicable to its provision, or use, of the Service, as applicable.

13.2. Functional Warranties

  1. Company warrants that the Service will substantially conform to this Agreement and to the provisions of the Annex D.
  2. If Company is in breach of Subsection 1, Company will remedy the breach upon written notice by Customer. If Company does not comply with such request in due time and subject to Subsection 3 and Section 14, further statutory rights remain unaffected.
  3. With the exception of the cases in Section 14.1, the remedies for any breach of the Service Levels according to the Annexes D are exclusively those described in the Annex D.
  4. With the exception of cases (a) of willful misconduct, (b) gross negligence or (c) where Company fraudulently conceals a breach of Section 13.1 above, Company dos not warrant for any features, functions, functionalities or Services designated alpha or beta and/or which are provided free of charge (such as Evaluation Software).
  5. Notwithstanding Section 14.1 the limitation period for all warranty claims is one year.
14. Limitation of Liability 

14.1.  Unlimited Liability

  1. For damages with respect to injury to health, body or life caused by Company, Company is fully liable.
  2. Company is fully liable for damages caused willfully or by the gross negligence by Company. The same applies to damages which result from the absence of a quality which was guaranteed by Company or to damages which result from malicious action by Company.
  3. Company’s liability based on the German Product Liability Act remains unaffected.

14.2. Limited Liability

  1. If damages, except for such cases covered by Section 14.1, with respect to a breach of a contractualcore duty are caused by slight negligence, Company is liable only for the amount of the damage which was typically foreseeable. Contractual core duties, abstractly, are such duties whose fulfillment enables proper performance of an agreement in the first place and whose performance a contractual party regularly may rely on.
  2. For the purposes of this Section, “foreseeable damages” shall mean an amount that does not exceed in the aggregate the amount payable to Company by the Customer in the 12 months period prior to the damage causing event.
  3. With the exception of cases (a) of willful misconduct, (b) gross negligence or (c) where Company fraudulently misrepresents the Services, Company is not liable for any features, functions, functionalities or Services designated alpha or beta and/or which are provided free of charge (such as Evaluation Software). Liability without fault for initial defects is excluded.
  4. Liability without fault for initial defects is excluded.
  5. Any further liability of Company is excluded.

14.3. Liability Period

The limitation period for claims for damages against Company expires after one (1) year, except for such cases covered by Sections 14.1.

 

15. Data Protection

Customer determines which types of data, including Personal Data within the meaning of the European Data Protection Regulation (Regulation 2016/679) (“GDPR”) exists on its systems or are processed by the Service.  To the extent that Company obtains Personal Data in connection with providing the Service and the GDPR is applicable in accordance with Art. 2 and 3 GDPR, Company will process such Personal Data pursuant to the GDPR and the Annex E – Data Processing Agreement.

 

16. Term and Termination

16.1. Term and Termination for Convenience

This Agreement shall be in force for an unlimited period of time, unless otherwise specified in the Order Form. The Term begins on the Effective Date or, in case the Effective Date is not the beginning of the calendar month, on the first day of the following calendar month. The Parties are entitled to terminate this Agreement at any time for any reason by giving at least thirty (30) days written notice. This Termination for Convenience Right shall not apply if the Parties have agreed upon a contractual term in the Order Form.

16.2. Extraordinary Termination

Either Party may terminate this Agreement for cause immediately by written notice upon the occurrence of any of the following events:

  1. if the other Party ceases to do business, or otherwise terminates its business operations;
  2. if the other Party is adjudicated as bankrupt, or if a petition in bankruptcy is filed against the other party and such petition is not discharged within sixty (60) days of such filing; or
  3. if the other Party breaches any material provision of this Agreement and fails to fully cure such breach within thirty (30) days of written notice describing such breach in sufficient detail.

16.3. Effect of Termination

  1. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Company prior to the effective date of termination. Upon termination or expiration of this Agreement, the rights granted to Customer hereunder shall automatically terminate.
  2. Termination of any Order Form will not have the effect of terminating the whole Agreement or any other Order Form, but termination of this Agreement will automatically terminate all Order Forms.

16.5. Separation Damages 

Upon expiration of this Agreement or its termination Customer shall not be entitled to any separation compensation or damages of any kind, including compensation, reimbursement, or damages for loss of prospective, goodwill or loss thereof, or expenditures, investments, leases, or any type of commitment made in reliance on the existence of this Agreement including, but not limited to advertising and promotion costs, costs of supplies, termination of employees, employee salaries, and other such costs and expenses.

16.6. Survival

Termination or expiration of this Agreement shall not relieve either Party of any payment or other obligation under this Agreement which was to have been performed by such Party prior to the termination.  All provisions of this Agreement which by their nature are intended to survive the termination or expiration of this Agreement including, without limitation, the provisions of the Order Form (Fees; Payment) and Sections 8 (Reports and Audits), 10 (Confidentiality), 11(Proprietary Rights), 12 (Indemnification), 14 (Limitation of Liability), 16.3 (Effect of Termination), 16.5 (Separation Damages), 16.6 (Survival) and 18 (General) will survive the termination of this Agreement.

 

17. Disputes

17.1. Choice of Law and Jurisdiction

This Agreement and any non-contractual obligations arising from or connected with it shall be governed by German law and this Agreement shall be construed in accordance with German law. In relation to any legal action or proceedings arising out of or in connection with this Agreement (whether arising out of or in connection with contractual or non-contractual obligations) (“Proceedings”), shall be finally settled in arbitration proceedings held under the Rules of Arbitration of the International Chamber of Commerce by a single arbitrator appointed in accordance with said Rules, whereas such arbitrator shall not be of the nationality of either of the Party.  Any threshold questions relating to the existence, validity, enforceability, or termination of this Agreement, or the arbitrability of any dispute between the Parties, will also be decided by the arbitrator. Arbitration hearings shall take place within 120 days of the appointment of the arbitrator and awards issued within 150 days of the appointment of the arbitrator, unless extended with the consent of both parties.  The arbitrator shall agree to these limits prior to accepting appointment. The place of arbitration shall be Cologne, Germany. The language of the arbitration shall be English. The arbitrator will award to the prevailing party all costs, reasonable attorneys’ and administrative fees, and expenses related to the arbitration, including reasonable fees and expenses of attorneys, accountants, expert witnesses and other professionals incurred by the prevailing party, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction over the relevant Party or its assets.

Notwithstanding the foregoing, either party may, without waiving any remedy under this Agreement, seek preliminary or interim injunctive relief in any court having jurisdiction thereof until a final award by the arbitrator is rendered.  

17.2. Dispute Resolution Procedure

The Parties agree that before filing a lawsuit according to Section 17.1 against the other Party relating to any dispute, such dispute shall be subject to the following Dispute Resolution Procedure: The Party raising a claim or dispute will notify the other Party in writing and, within ten (10) business days after the other Party receives such notice, the Parties’ respective director level officers will attempt to resolve such dispute. If the Parties’ director level officers are unable to resolve such dispute, the dispute will be submitted to the Parties’ respective vice president level officers for resolution. If the Parties’ vice president level officers are unable to resolve the dispute, the dispute will be submitted to each Party’s executive vice president (or other officer of comparable or higher seniority) for resolution (all together the “Dispute Resolution Procedure”). If the Parties’ Executive Vice Presidents (or other officers of comparable or higher seniority) are unable to resolve the dispute, then the Parties shall be free to pursue any right or remedy available to it under this Agreement. This Dispute Resolution Procedure obligation shall not limit either Party’s right to file urgent proceedings for equitable relief, pursuant to the lawsuit provision under Section 17.1.

 

18. General

18.1. Modifications to the Agreement

Company may make changes to this Agreement, including pricing (unless static pricing was agreed for the Term) from time to time. Unless noted otherwise, material changes to the Agreement will become effective 30 days after they are communicated to Customer. If the changes will apply to new features or functionalities, they will be effective immediately. In the event that Customer does not agree to the changes, the Agreement may be terminated with immediate effect. Section 16.3 will apply.

18.2. Assignment

Except the right to assign the agreement to either Party’s Affiliate neither Party may assign this Agreement, in whole or in part, without the other Party’s prior written consent. Any attempt to assign this Agreement without such consent will be null and void.  Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.

18.3. Notices

Unless agreed upon otherwise, any formal notice required or permitted by this Agreement shall be in writing and shall be either (a) personally delivered or (b) sent by prepaid registered or certified mail, return receipt requested, addressed to the other party at the address shown at the beginning of this Agreement or at such other address for which such party gives notice hereunder. Such notice shall be deemed to have been given upon delivery. Any notice in a signed document delivered as a digital copy via email to the relevant business point of contact (to be nominated from time to time) shall be deemed to have been given upon delivery.

18.4. Severability

If any provision of this Agreement is found by any court, tribunal or administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be severed from this Agreement and will be ineffective without, as far as is possible, modifying any other section or part of this Agreement, and the legality and enforceability of the other provisions of this Agreement will not be affected.

18.5. Waiver

No failure of either Party to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights. 

18.6. Independent Contractors 

The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency between the Parties. Neither Party will have the power to bind the other or incur obligations on the other’s behalf without the other Party’s prior written consent.

18.7. Entire Agreement

This Agreement (including all attachments and terms and conditions referenced above) contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the Parties relating thereto and is binding upon the Parties and their permitted successors and assigns.

18.8. Written Form; No Terms and Conditions

This Agreement may not be modified except by a written instrument which expressly amends this Agreement signed by an authorized representative of each Party. No purchase order, invoice or similar document will by its terms amend or supplement the terms and conditions of this Agreement, even if accepted or signed by the receiving Party.

18.9. Force Majeure 

Neither Party will be responsible for any failure to perform due to causes beyond its reasonable control, including, but not limited to, acts of God, war, riot, embargoes, acts of civil or military authorities, denial of or delays in processing of export license applications, fire, floods, earthquakes, accidents, strikes, epidemics, pandemics, or fuel crises, provided that such party gives prompt written notice thereof to the other Party.

18.10. Order of Precedence

In the event of any conflict or inconsistency between the provisions of the General Terms and the provisions of any Order Form or Service Terms, the provisions positioned higher in the following list shall take precedence only to the extent of any such conflict or inconsistency:

  • These General Terms
  • Specific Service Terms
    • Annex A – Product Definition – OX Cloud Easy or Annex A – Product Definition – OX Cloud Professional
    • Annex B – Consulting Services Schedule (if applicable)
    • Annex C – Customer Success Services (if applicable)
    • Annex D – Service Level Agreement
    • Annex E – Data Processing Agreement (if applicable)
    • Annex F – Obligations under Telecommunication Law
    • Annex G – Acceptable Use Policy (AUP)
  • Order Form

Deviations to these General Terms in an Order Form shall have precedence over the General Terms if the Parties have agreed expressly to such deviation in the specific Order Form referring the respective provision(s) in these General Terms. Any deviation(s) set forth in an Order Form shall apply to that particular Order only.

 

19. Reseller Provisions

The following provisions of Section 19 shall apply in cases where the Customer distributes the Service to Customer's Partner for further resale to third parties under the Order Form.

19.1 General

Customer may make the Service available to Customer Partner for further resale to third parties. Customer shall ensure that Customer Partner enter in an adequate agreement with Customer, which contains the obligation to forward acceptable use policies along the delivery chain. Customer may adapt the AUP in Annex G at its own discretion as long as Customer assures that End Users commit at least to the same level of stipulations as in the original AUP in Annex G.

19.2 Support

Customer’s right to actively market the OX Software according to Section 19.1 of this Agreement also contains the right to provide Software Support to Customers. The Support shall be limited to the Service, which are required to run the OX Software substantially in accordance with its then current documentation in all material respects and provide Customers the agreed service levels and only to an extent that does not interfere with the core features/functionalities of the OX Software. Customer shall provide 1st Level Support, as defined in Annex D, unless a deviating mutual agreement is made between the Parties, whereas Company shall provide 2nd and 3rd Level Support.

19.3 Resale Reporting

Customer shall communicate to Company each new Customer Partner, Customer has entered into an agreement via email. Customer shall provide Company with full details to each Customer Partner with address, telephone number, contact person and details.

19.4 Promotion of OX Software

Customer shall list the OX Software in its catalogue(s), on its web site and its marketing materials and use best efforts to advertise, promote and sell the OX Software in its hosting region as set forth above. Such promotion efforts shall also contain active participation of Customer in the major channel events within the Hostin Region and an active cooperation with Company with regard to such. Notwithstanding the foregoing, Customer can select the promotional activities in its sole discretion, as long as such activities do not harm or damage Company’s brand, name, market standing and/or any good will related to Company.

19.5 Technical Expertise

Customer and its personnel shall be conversant with the technical language used in connection with the OX Software, and shall develop sufficient knowledge of the industry, consistent with all relevant laws and regulations, of the OX Software and of competitive offerings (including specifications, features and benefits), so as to be able to explain in detail to Customer Partner or End Customers the differences between the OX Software and competitive offerings.

 

20. Evaluation Software Provisions

The following Section 21 shall apply to the provision of Evaluation Software to Customer under the Order Form.

20.1 Access to Evaluation Software

Customer intends to test the Service described in Annex A for the purpose of a Proof of Concept (POC) to evaluate whether the functionalities and capabilities of the Evaluation Software meet the general business requirements of Customer. Company provides Customer access to the Evaluation Software solely for these Evaluation Purposes. The Evaluation Software may be accessed, tested and evaluated solely by Customer and its employees.

20.2 Production Use Prohibited

Customer may only use the Evaluation Software internally and may not use the Evaluation Software to provide services to any third-party outside of the Purpose of this Order Form, or in any production environment or otherwise make commercial use of the Evaluation Software or any Documentation.  For purposes hereof, “Commercial Use” includes, without limitation, using the Evaluation Software on commercial, production environments; providing, or offering to provide, any service using the Evaluation Software; receiving compensation from others with respect to use of the Evaluation Software; hosting, or offering to host, the Evaluation Software, on any basis; receiving compensation for any service that uses the Evaluation Software, including support services. Company shall have the right to determine, in its sole discretion, whether a use is to be regarded a Commercial Use or internal, non-Commercial Use.

20.3 No Support and Maintenance

By way of derogation from Section 13 of this Agreement, Company shall have no obligation to provide Support to or Maintenance of the Evaluation Software. Further, Customer shall not be entitled to any custom development or other Consulting Services, unless separately defined in the Order Form.

20.4 Feedback and Know-How

Customer may provide suggestions, comments, or other feedback (collectively, "Feedback") to Company with respect to the Service.  Feedback is voluntary and Company is not required to hold it in confidence.  Company may use Feedback for any purpose without obligation of any kind. Company may use any skills, knowledge, experience, technical information, inventions, ideas or techniques of whatever nature utilized or gained by Company in the course of the Evaluation Term under this Order Form (collectively, “Know-How”) for its own benefit or the benefit of third parties. As far as such Feedback and/or Know-How contains any intellectual property rights of Customer, Customer grants Company a non-exclusive, irrevocable, perpetual, transferable, worldwide, royalty-free license to use such Feedback and/or Know-How for its own benefit, including enhancement of the Service.

21. US-related Provisions

To the extent that there are any discrepancies or inconsistencies between the terms and conditions of these General Terms and the specific terms and conditions for the provision of Services by Open-Xchange, Inc, 530 Lytton Avenue, 2nd Floor, Palo Alto, CA94301, USA in this Section 21, these jurisdiction-specific terms and conditions shall prevail, govern and control in the aforementioned constellations.

21.1 Hosting Region

In derogation of Section 2.2, Company shall host the Service in the USA.

21.2 Warranty Disclaimer

Company does not represent or warrant that: (i) the Service will meet Customer’s or its End Customers’ business requirements; (ii) the Service will be error-free or uninterrupted or that the results obtained from its use will be accurate or reliable; or (iii) all deficiencies in the Service can be found or corrected. Company is not responsible or liable for the deletion of or failure to store any Customer Data and other communications maintained or transmitted through the use of the service. Customer and its End Customers are solely responsible for securing and backing up its Customer Data.

21.3 Limitation of Liability

  1. Limitation of LiabilityExcept for amounts due hereunder, Customer’s use of the Service or OX Software, in whole or in part, outside of the scope of the Agreement, or a Party’s willful misconduct, to the maximum extent permitted by applicable law, in no event shall either Party's aggregate liability arising out of or related to this Agreement, whether in contract, tort or under any other theory of liability, exceed the fees actually paid by Customer under this Agreement during the twelve (12) months prior to the date on which such claim or cause of action arose.
  2. Exclusion of Consequential and Related Damages Except for fees payable under this Agreement, use by Customer of the Service or OX Software, in whole or in part, outside of the scope of the Agreement, product liability statutes, product related guarantees, a Party’s willful misconduct, as far as permitted by applicable law, in no event shall either Party or its employees or agents be liable to the other Party for any indirect, special, incidental, punitive or consequential damages of any kind, including without limitation damages due to loss of data, loss of profits, loss of revenue, loss of use costs of procurement of substitute goods or services,  or computer failure arising from this Agreement or the use of the Service , however caused and, whether in contract, tort or under any other theory of liability, whether or not the Party has been advised of the possibility of such damage notwithstanding the failure of the essential purpose of any remedy.  Some states and jurisdictions do not allow limitations on duration or the exclusion of an implied warranty, so the above limitation may not apply.
  3. Limitation of Action – Except for actions for non-payment and breach of either Party's Intellectual Property Rights, no action (regardless of its form or legal theory) arising out of this Agreement may be commenced by either Party more than one (1) year after the cause of action has accrued.

21.4 Governing Law

This Agreement will be governed by and construed in accordance with the laws of the State of New York without regard to conflicts of laws principles and specifically excluding the provisions of the United Nations Convention on the International Sale of Goods or the UCITA.

21.5 Arbitration

Any and all disputes, controversies or claims between the parties, including but not limited to disputes arising out of or in connection with this Agreement, the business relationship, or the use or disclosure of Confidential Information, which could not be resolved using the Dispute Resolution Procedure (Section 17.2), shall be finally settled in arbitration proceedings held under the Rules of Arbitration of the International Chamber of Commerce by a single arbitrator appointed in accordance with said Rules, whereas such arbitrator shall not be of the nationality of either of the Party.  Any threshold questions relating to the existence, validity, enforceability, or termination of this Agreement, or the arbitrability of any dispute between the Parties, will also be decided by the arbitrator. Arbitration hearings shall take place within 120 days of the appointment of the arbitrator and awards issued within 150 days of the appointment of the arbitrator, unless extended with the consent of both parties.  The arbitrator shall agree to these limits prior to accepting appointment.  Discovery shall be limited to that which is reasonably necessary for the expeditious and inexpensive resolution of the arbitration, and in no event, shall more than two (2) corporate depositions per party be permitted.  Any such depositions shall be conducted pursuant to Federal Rule of Civil Procedure 30(b)(6).  The place of arbitration shall be New York City, in the County and State of New York, United States of America. The language of the arbitration shall be English. The arbitrator will award to the prevailing party all costs, reasonable attorneys’ and administrative fees, and expenses related to the arbitration, including reasonable fees and expenses of attorneys, accountants, expert witnesses and other professionals incurred by the prevailing party, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction over the relevant Party or its assets.

Notwithstanding the foregoing, either party may, without waiving any remedy under this Agreement, seek preliminary or interim injunctive relief in any court having jurisdiction thereof until a final award by the arbitrator is rendered.  

 

22. Definitions

Unless otherwise defined herein, the following terms shall have the meaning set out below:

  • “Affiliate” means any entity which is controlling, controlled by or under common control with a Party
  • “Affiliate Adoption Agreement” shall mean a written legal instrument between Company and a third party introduced by Customer, binding such third party to the terms and conditions of this Agreement without limiting Customer’s obligations and responsibilities hereunder.
  • “Allegation”
  • Company Marks” means the trademarks, trade names, service marks, logos, and/or service names of the Company.
  • Customer Data” means any data or data files of any type that are uploaded by or on behalf of Customer, Customer Partner or End Customers to the Service.
  • Customer Marks” means the trademarks, trade names, service marks, logos, and/or service names of the Customer.
  • Customer Partner” means any reseller of Customer that is authorized hereunder to provide the Service to its own End Users and End Customers.
  • “Customer’s Services” means Customer’s or Customer’s Partner’s commercial offering targeting End Customers to subscribe to a product or a product bundle containing at least one Provisioned User within the Service.
  • Documentation” means the documentation for the OX Software generally supplied by the Company to assist Customer in the use of the OX Software and which includes user and functional reference manuals and other written materials, including application notes.
  • „High Risk Activities" means activities where the use or failure of the the Service could lead to death, personal injury, or environmental damage (such as operation of nuclear facilities, emergency lines, air traffic control, life support systems, or weaponry).
  • “Incident” means any event, which is not part of the standard operation of a service in Company’s or Customer’s environment which causes an interruption to or a reduction of the quality of this service.

  • "Indemnified Claims" means any (i) settlement amounts approved by the indemnifying party; and (ii) damages and costs finally awarded against the indemnified party and its Affiliates by a court of competent jurisdiction.

  • Intellectual Property Rights” means intellectual property or proprietary rights, including but not limited to copyright rights (including rights in audiovisual works), moral rights, patent rights (including patent applications and disclosures), know-how, rights of priority, trademark rights, and trade secret rights recognized in any country or jurisdiction in the world.
  • Initial Term” means a period of three years from the Effective Date.
  • End Customer” means an end customer (which may be an individual or entity) who subscribes to the Service through Customer’s Services and who is then entitled to use the Service for his or her own internal purposes and who does not further distribute, resell, license, sublicense or otherwise convey the Service or any rights in the Service to any other person or entity in whole or partially.
  • “the Service” or “Service” means Company’s managed service that allows Customer to provide a messaging and collaboration service to their End Customers as described in Annex A. the Service is a platform containing all OX Software, which is required in order to make the Service technically available to the Customer and its End Customers .
  • “OX Software” means all of Company’s software with all its features and functionalities, as defined in Annex A, which are or will be delivered by Company to Customer or used to provide the Service. OX Software also includes all and any Documentation made available to Customer hereunder.
  • “Person Day” means the efforts of one of Company’s employees conducted within 8 (eight) hours.
  • SLA” means the Service level agreement as described in Annex D.
  • SOW” means a statement of work referencing this Agreement, separately signed by both parties, that sets forth professional services to be provided by the Company and certain other terms related thereto that are agreed upon between the parties.
  • “Suspend” or “Suspension” shall mean Company’s right to act in accordance with Section 6.
  • “Term” means the period in time during which the Agreement is in effect, subject to the provisions under Section 16.
  • Terms of Use” means an agreement directly between Customer or Customer Partner and an End Customer that governs the End Customer’s use of the Service, binding such End Customer to the limitations set forth under Annex G.
  • "Third-Party Legal Proceeding" means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding) in the European Union/European Economic Area, the United Kingdom or the United States of America.
  • Usage Report” shall have the meaning set out in Section 3.
  • Provisioned User” or “End User” means each OX App Suite email account (username and password) assigned to an individual End Customer which is deployed in the system and can be used by the End Customer. If multiple accounts are used by the same person or if accounts are not associated with a natural person (such as, but not limited to email aliases, mailing lists, bounce addresses) these accounts will also be defined as a Provisioned/End User belonging to the End Customer. For avoidance of doubt, an End Customer can be one Provisioned/End User or have multiple Provisioned/End Users.
  • Revenue Share” means a portion of the fees charged by Customer for the provision of Customer’s Services to End Customers or any other permitted third party. Such portion is to paid to Company if agreed upon between the Parties in writing.