VF = Availability in % VZ = defined availability time in minutes (total time) AZ = Total downtimes within the defined availability time NV = Total of planned or excluded unavailability
5.2. InVision can adjust the Availability target by written statement to Client, with 90 days’ notice. In this case, Section 11.3 of the Agreement applies.
5.3. If InVision is responsible for not achieving the Availability agreed here, then Client can deduct from the subscription fees which would be payable for the year in question, 0.05% as lump-sum compensation for each 0.1% reduction in Availability. This deduction right shall be Client’s sole remedy with respect to InVision’s Availability covenant, absent InVision’s wilful misconduct or gross negligence.
§6 Rights of use
6.1. Client is entitled to the non-exclusive right, which cannot be sub-licensed, to use the Online Services and the user documentation during the term of the respective Agreement for its own business purposes. In particular, Client is not permitted to alter the Learn-Platform beyond the provided configuration options.
6.2. The right of use is neither transferable nor may the Learn-Platform be used, either fully or partially, by or for third parties. The renting out, hire or any other transfer of the rights of use, whether for payment or not, temporarily or permanently, to third parties or enabling the Learn-Platform to be used by third parties is expressly prohibited.
6.3. The Agreement will not grant Client any kind of rights of ownership or permanent rights of use, which go beyond the term of the Agreement and the purpose of the respective functionalities of the Online Service. All rights to the Online Services and the underlying software applications, in original, copy or modified form, remain with InVision.
§7 New versions of the Online Services
7.1. InVision may continue to develop the Learn-Platform and the Online Services and may introduce new versions at its sole and free discretion.
7.2. Absent a subsequently executed order, Client has no right to the introduction of new versions unless their use is absolutely compulsory as a result of changes in the law.
7.3. InVision is entitled to discontinue one or more functionalities of the Online Services with six months’ prior notice. In this case Section 11.3 of these GTCs applies.
8.1. InVision provides support services which serve to advise and support Client.
8.2. Client must notify InVision of any Faults. Notices may be made via the communication channels indicated on the Learn-Platform and during the hours of business indicated there. If the Learn-Platform is not available for this notification, then Client may notify InVision via the general support numbers of InVision.
§9 Material Faults of the Online Services
9.1. Client must notify InVision of any Faults that occur in the Online Services in accordance with Section 8.2.
9.2. Fault notifications from Client must demonstrate reproducibility, where possible and reasonable, quoting the program function and text of any error message, and must include a description of the effects of the Fault.
9.3. Client will grant InVision the necessary access to its data in order to analyse and address the Faults. If Client’s data required to analyse and address the Faults is not available on the Learn-Platform, Client will make this data available separately. Client will assist InVision free of charge by providing an adequate number of qualified operating personnel and all other assistance needed to analyse and address the Faults.
9.4. InVision will make available adequate resources for addressing the Fault, so that all efforts are made to rectify a Fault in a period of time appropriate to its severity level. InVision may supply a work-around or a resolution of such reported Faults.
9.5. InVision’s sole obligation, and Client’s sole remedy, with respect to any Fault is to use commercially reasonable professional efforts, consistent with best industry practices, to rectify such Fault and, if Availability is affected thereby, the provisions of Section 5 will apply.
§10 Client’s responsibilities
10.1. Client will obtain all approvals from third parties or authorities, relating to the use of the Online Services by Client other than the technical operation of the Learn-Platform.
10.2. Client shall be solely responsible for its data protection, data security and the protection of InVision’s know-how, its intellectual property rights and copyright vis-à-vis employees and third parties. Without limiting the foregoing, Client will ensure that its software, data and hardware are delivered to the Learn-Platform free from viruses and Client has full authority to acquire, use and process personal data.
10.3. Client is responsible for providing adequate Internet access and for compliance with other requirements of its systems. The corresponding specifications and system requirements are set forth in the Documentation. InVision may adjust the specifications upon 90 days prior notice to Client delivered via the Learn-Platform. In this event, Section 11.3 of these GTCs apply.
10.4. Client must not use the Online Services and the Learn-Platform for unauthorized or illegal acts or process illegal or unauthorized content with them. Client shall desist from all acts which may jeopardize the Online Services themselves, the use of the Online Services by third parties and/or the integrity of the data held on the Learn-Platform.
10.5. Client is responsible for all activities that take place within the scope of its user accounts and is liable for all employees and third parties, who, with or without Client‘s knowledge, have access to the Learn-Platform.
§11 Term of the Agreement and termination
11.1. The term of the Agreement commences and continues for the term stated in the respective individual order (the “Initial Term”), provided, however, unless notice of termination is delivered within 30 days before the stated end of the term. The Agreement will not terminate but will extend for equal successive terms (each a “Renewal Term” and collectively, the “Term”) until such notice is given or the Agreement is otherwise terminated as stated below.
11.2. Where these GTCs provide a right for InVision to alter the future service content or terms of these GTCs or of Online Services by unilateral announcement, then Client, if it does not agree to the alteration, is entitled to terminate the Agreement concerned, within one month of receipt of the notice of alteration, in accordance with the above rules. In the event of termination, the GTCs will remain in force until the Agreement expires.
11.3. Either party may terminate upon the other party’s material breach of the Agreement which is not cured within 15 days of notice thereof or upon the other party filing or becoming subject to a petition in bankruptcy or similar insolvency proceeding that is not dismissed or withdrawn within 30 days thereof.
11.4. Upon termination, Client will pay all amounts due on the effective date of termination and the provisions which by their nature should survive the termination shall so survive.
§12 Relationship with other agreements made between the parties
12.1. Additional work performance and/or services will be provided exclusively on the basis of an executed independent consultancy and service agreement. A separate agreement is required in particular to any Client-specific customization of an Online Service.
12.2. The parties will observe the statutory data protection clauses. As part of providing the services due under the Agreement, InVision will acquire, process and make use of, among other things, personal data of Client by way of contracted data processing that is subject to instructions; the rights and duties of the parties in this respect are contained in the separate contracted data processing agreement.
§13 Remuneration, ancillary costs, due dates
13.1. InVision offers both free and chargeable Online Services on the Learn-Platform. Chargeable services are clearly identified as such. The level of service charges and the service charge period are contained in the respective Individual Order.
13.2. The service charge is payable according to the respective Individual Order, with immediate effect when invoiced by InVision.
The Client will be in default 30 days after the due date without any further reminder from InVision. InVision preserves the right, in its sole discretion and with prior notice, to suspend Client’s right to use or access the Online Services and the Learn Platform, if and for as long as any payment due to InVision by Client is delinquent. Such right is in addition to, and not in lieu of, all other rights and remedies InVision may have at law or in equity, including the right to terminate this Agreement due to a monetary default.
13.3. InVision may adjust the level of the service charge after the Initial Term by no more than 5% per annum by giving three months’ written prior notice to the end of the service charge period.
13.4. All prices are exclusive of tax which are the responsibility of Client. Any itemized tax must accompany any payment by Client.
13.5. Payments shall be made to the account indicated on the invoice, in such a way that bank charges are charged to Client and the payment is available to InVision no later than the end of the payment period.
13.6. In the event of default, subject to the enforcement of any further compensation, a service fee of 25.00 USD plus interest of 1.5 percent per month will be charged on all overdue balances.
§14 Intellectual property rights
14.1. InVision represents that, to its knowledge, the Online Services are free from third party intellectual property rights, which exclude or restrict their use under the Agreement by Client.
14.2. If any infringement of intellectual property rights are claimed under Section 14.1 after the Agreement has been signed and if the contractual use of the Online Services is impaired or forbidden, then InVision is obliged, at its option, either to adjust or replace the Online Services in such a way that they no longer come under the intellectual property rights but nevertheless comply with the contractual provisions or to obtain the right that the Online Services can be used without restriction and without additional cost, in accordance with the Agreement.
14.3. Client is obliged to notify InVision immediately in writing if claims are made against it for infringement of intellectual property rights and, in the dispute with third parties, to act in agreement with InVision. InVision is particularly entitled and, where this is legally admissible, obliged to conduct any legal disputes, arising from these claims, at its own expense. InVision shall indemnify Client against all costs and claims, which are made against Client by way of third party claims for infringement of intellectual property rights. InVision’s obligations with respect to an infringement claim, and Client’s sole remedy is as set forth in this Section 14.
§15 Liability and compensation
15.1. Except as expressly set forth herein, InVision disclaims all representations, whether express or implied, including the warranty of merchantability and fitness for a particular purpose.
15.2. Notwithstanding anything to the contrary, neither party shall be liable hereunder to the other for any indirect, consequential or special damages, including lost profits, unless caused by wilful misconduct of such party.
15.3. InVision’s liability for any claim, expense, loss or damage hereunder shall be limited to the available coverage proceeds by the company third party liability policy, up to an amount of USD 500,000 or fees paid by Client over the past six months, whichever is greater.
§16 Limitation of actions
§17 Force Majeure
17.1. Cases of force majeure (these include circumstances and events which cannot be prevented by the due diligence of prudent business management) suspend the contractual obligations of the parties for the duration of the troubles and to the extent of their effect. If the resulting restrictions exceed the period of one week, then both parties to the Agreement are entitled to terminate the Agreement with respect to the Online Service concerned without observing any further period of notice. No rights to further claims exist.
17.2. Force majeure also includes consequences of a labor dispute at InVision or a third party, for which InVision is not to blame, to the extent that they affect the performance of InVision.
18.1. Both parties are obliged to treat with strict confidentiality, the information about secret know-how or internal company matters of the other party to the Agreement that is acquired before or after conclusion of the Agreement. This affects in particular, any information not accessible to the public about the Online Services of InVision, as well as the data of Client processed as part of the Online Services.
18.2. Both parties will commit their employees in writing (including part-time employees, interns etc.) and, if applicable, any subcontractors brought in during the course of the performance of the Agreement, to observe secrecy to the extent indicated and to hand over corresponding statements of commitment to the other party on request. The obligation to secrecy will also continue in full following termination of the Agreement.
18.3. InVision is entitled to disclose the execution of this Agreement as part of its press and public relations work.
19.1. Insofar as these GTCs do not provide any unilateral change or adjustment rights for InVision, amendments and supplements must be in writing in order to be valid and this requirement for the written form may likewise only be waived in writing. Amendments or supplements, as part of the amendment or adjustment rights provided by the Agreement, may also be notified electronically via the Learn-Platform and become effective, as soon as the attention of Client has been drawn to the amendment or supplement on next accessing the Learn-Platform and had the opportunity to take note of this and to print out the amendment / supplement.
19.2. If individual provisions of the Agreement including these GTCs are invalid, this will not affect the other provisions. In such case, the parties are obliged to replace any invalid clause by a valid one, which comes closest to the commercial purpose of the invalid one.
19.3. The Agreement shall be governed by the laws of the State of Illinois. The regulations of the “UN Convention on the International Sale of Goods“ (CISG) and references to foreign legal systems do not apply. InVision and Client agree that the provisions of the Uniform Computer Information Transaction Act (UCITA) or any version, adopted by any jurisdiction in any form shall not apply to the transactions between the parties. If applicable, the parties agree to waive and opt out of any purported application of the UCITA during the term hereof.
19.4. The exclusive legal venue and place of performance for all obligations under this Agreement are the federal or state courts located in the Counties of Cook or DuPage, State of Illinois. In an action to enforce one’s rights hereunder, the fees and expenses of the prevailing party shall be borne by the non prevailing party.