General Terms and Conditions for Using the Usercentrics Software until September 2023

1. Scope and Subject Matter of the Contract

1.1. Usercentrics GmbH, Sendlinger Str. 7, 80331 Munich (hereinafter referred to as ”Usercentrics”) provides all services to its customers on the basis of these general terms and conditions (hereinafter referred to as “GTC”), unless otherwise agreed in the respective contract. “Customer” within the meaning of these General Terms and Conditions are companies, legal entities under public law and special funds under public law.

1.2. These GTC apply to Usercentrics services. Usercentrics services within the meaning of these GTC include the provided software and provided Usercentrics-codes for integration into Customer domains/apps.

1.3. These GTC apply exclusively; conflicting or differing general terms and conditions of the Customer do not apply, unless Usercentrics has expressly agreed to their application in writing. Differing general terms and conditions of the Customer shall not become part of the contract. If, in addition to the actual conclusion of the contract, the Customer requires to issue a separate order for its internal processing, any of the Customer’s General Terms and Conditions listed therein shall not apply.

1.4. Our services are directed exclusively at Business to Business customers in the meaning of § 14 BGB (German Civil Code).

2. Conclusion, Duration and Termination of Contract

2.1. The contract is concluded upon signature by both parties.

2.2. The term of the contract and, accordingly, the billing shall begin upon the date defined in the contract offer.

2.3. This Agreement shall commence on the Effective Date and shall remain in effect for an initial period of twelve (12) months unless a longer term has been contractually agreed on (“Regular Contract Term”); thereafter, this Agreement shall be extended for one or more additional periods of 12 months each (a “Renewal Term”), unless either party notifies the other party thirty (30) days prior to the expiration of the then-current term that it does not wish to renew this Agreement. The termination does not require any justification and must be declared in writing to the other party. (Each Regular Contract Term and Renewal Term is referred to herein as a “Term”).

2.4. Either party may terminate this Agreement at any time by giving written notice to the other party if: (i) the other party breaches a material provision of this Agreement and fails to cure the breach within thirty (30) days after being given written notice thereof; (ii) the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party; or any petition by or on behalf of such party is filed under any bankruptcy or similar laws.

2.5. Usercentrics is entitled to irrevocably delete all data stored during the term of the contract after termination of the contract. At the request of the Customer, a data export can be made according to the specifications of Usercentrics. In this case, the Customer is responsible for storing their data on their local system in good time. In so far, as this concerns personal data, the provisions of the Data Processing Agreement (DPA) take precedence.

2.6. Upon termination of the contract, the Customer is obligated to delete without request all reproductions of the provided software and the Usercentrics-code. If the Usercentrics-code is not or not completely removed from the Customer’s domains/apps immediately after the end of the contract, Usercentrics is entitled to demand the fee agreed with the Customer for the duration and until the Usercentrics-code is completely removed from the Customer’s domains/apps. The removal of the Usercentrics-code is to be regarded as incomplete, among other things, if data is still transmitted from the Customer’s domains/apps to the Usercentrics servers.

2.7. In case Usercentrics offers a free trial, the Customer can use it in full scope and free of charge during the free trial period. In case a free trial is offered, it is granted only once per Customer. In case the Customer converts to a fully paid plan, the provisions set out above apply.

2.7.1. In case a trial without automatic renewal is offered, then the customer will have the option to buy a full version of the service during this time. After the end of the 30-day trial the access to the functions of the Usercentrics Systems are blocked. The user has the option, within another 30 days, to buy a full version of the service to the currently applicable conditions. Otherwise the access and configurations will be deleted.

2.7.2. In case a trial with automatic renewal is offered and If the Customer decides against the further use of the services provided by Usercentrics, the Customer has the right to cancel the free-trial by contacting support@usercentrics.com. The cancellation needs to occur on or before the 30-day trial ends. If the free trial is not canceled on time or the Customer wishes to continue using the service, the free trial will automatically convert to a fully paid 12 months Advanced plan starting on the first day after the end of the free-trial-phase.

3. Prices and Term of Payment

3.1. The prices for the services used by the Customer are determined by the signed contract offer or completed online contract offer. Unless otherwise stated, the prices are annual net prices in Euro and are additional to any applicable statutory sales tax.

3.2. The calculation of the base fee to be paid by the customer results from the contract offer or completed online contract offer.

3.2.1. The basis for the calculation of the base fee is the total number of sessions per year (Sessions contain all measurable and trackable site-interactions, including human and Bot (non-human) induced traffic) for customer domains and the monthly average DAU (daily active users) for apps, as described in the contract offer for the usage of the Consent Management Platform. For the Preference Management solution the basis for the calculation of the base fee is the total number of unique users that save their consent and preference choices with UC Preference Manager solution per year. At the time the contract is concluded, the expected number of sessions/DAU is estimated. The Customer shall provide Usercentrics with the information necessary for calculating the base fee. Usercentrics reserves the right to check the Customer’s information on the sessions/DAU and, in the event of deviations, to use the measured sessions/DAU as the basis for calculating the base fee. The verification shall be carried out by counting the sessions/DAU by querying the Settings ID.

3.2.2. The resulting base fee, for the entire contract term, is payable in advance. Payment must be made within 30 days of the invoice date. Usercentrics reserves the right to change the customer to the corresponding higher package if the sessions / DAU / number of unique users on the domains / apps specified at the beginning of the contract are exceeded by at least 10% during three consecutive months. The price difference resulting in comparison to the original contract offer may be invoiced by Usercentrics for the remaining contract term. Payment must be made within 30 days of the invoice date.

3.2.3. The fee for each Renewal Term shall increase by seven percent (7%) above the Base Fee applicable in the immediately preceding Term. The change of the price occurs regardless of the change to a higher package.

3.3. Unless otherwise agreed, invoicing shall be done for the entire contract term in advance. Invoices for managed services are sent after service has been provided. Usercentrics is entitled to send the invoice in the form of an email.

3.4. Payment is due 30 days after the invoice date. The invoice amount must therefore be credited to the Usercentrics account within 30 days of the invoice date. Late payment fees shall be charged at a rate of 3%. The right to claim higher damages for late payment remains reserved.

3.5. Customers may only offset with counterclaims that have not been contradicted or that have been recognized by a court.

3.6. A change within the packages offered by Usercentrics with a higher annual fee is possible at any time. The desired change must be indicated informally and requires confirmation by Usercentrics in order to be effective. The change of the package is binding. A new Regular Contract Term does not begin with the change of the package. The price difference resulting in comparison to the original package may be invoiced by Usercentrics for the remaining contract term. Payment must be made within 30 days of the invoice date.

4. Warranty

4.1. The nature of the Usercentrics services is conclusively regulated in the contract and the documentation of the Usercentrics services. A material defect shall only be given if a deviation from the documentation of the Usercentrics Services or contractually agreed quality differs significantly. A further quality agreement requires explicit written confirmation. A particular quality cannot be derived from advertising materials or public statements if the specific content has not been expressly confirmed in writing by Usercentrics. The assumption of a guarantee is only valid if Usercentrics explicitly confirms it in writing.

4.2. Insofar as the Customer can assert claims for defects against Usercentrics, regarding Usercentrics’ services, through the course of providing a paid service (such as defects in the software or Usercentrics-code provided), the defects shall be eliminated by Usercentrics, at Usercentrics’ option. This shall be undertaken either by providing a modified version of the software or the Usercentrics-code (e.g. an update) or by providing the Customer with reasonable instructions for a workaround, provided that this does not unreasonably impair the usability of the Usercentrics Services.

4.3. In the case of a free service provision (Free Trial and Package “Free”) Usercentrics is not obliged to rectify defects.

4.4. Warranty claims of the Customer are limited to one year.

5. Customer’s Obligations to Cooperate

5.1. The Customer receives authentication tokens that identify and authorize them to access the APIs and other relevant components of the Usercentrics services, such as data storage or user interfaces. It is the Customer’s responsibility to ensure the secure retention of such authentication information and to prevent access of unauthorized third parties. The Customer provides Usercentrics with a list of IP addresses authorized to access the APIs and keeps Usercentrics informed of any changes relevant to the authorized IP addresses. The Customer will have access to the latest documentation for the API endpoints that are made available to the Customer for interaction with the service. The documentation may be provided in various formats, in particular via an online website with authentication mechanisms of Usercentrics and/or third parties.

5.2. The Customer must inform themselves about the essential functional features of the Usercentrics services and their technical requirements (e.g. with regard to hardware requirements, the operating system, databases, interfaces). It is the Customer’s responsibility to seek advice in case of doubts from Usercentrics or expert third parties before the conclusion of the contract. The Customer must ensure the technical requirements necessary for the error-free integration of the Usercentrics services in their domains/apps.

5.3. The Customer is solely responsible for checking whether the contractually agreed Usercentrics services meet the legal requirements that apply to the Customer. In particular, it is solely the Customer’s responsibility to choose a configuration of the Usercentrics services which complies with applicable data protection regulations. Usercentrics does not provide legal advice.

5.4. The Customer grants Usercentrics the right, which may be revoked at any time, to use the Customer’s name and logo as a reference for its own advertising purposes for the duration of the contract.

6. Grant of Rights

6.1. The Customer may only use the Usercentrics services if this is necessary for the contractual use. Usercentrics grants the Customer a simple, non-transferable right to use the Usercentrics Services, limited in time to the duration of the contract. All copyrights and other intellectual or industrial property and exclusive rights to services developed or made available in accordance with the contract, in particular software, databases or know-how, shall remain with Usercentrics or their Licensors.

6.2. The Customer is not permitted to modify or otherwise manipulate any software or Usercentrics-codes provided by Usercentrics. Furthermore, the Customer is not permitted to change or remove any marks, copyright notices and confidentiality notices in any software or other materials provided or made available by Usercentrics. Mandatory legal rights of the Customer according to §§ 69d f. Urheberrechtsgesetz (German Copyright Act) shall remain unaffected.

6.3. Usercentrics may assume that the Customer has all necessary rights of use to all software installed or operated by the Customer interacting with the Usercentrics services.

6.4. Usercentrics may, under the conditions set out in this section, create anonymised analyses of aggregated data for which (partially) Customers and information resulting from the Customer’s use of the Usercentrics services are used (“Analysis”). The data is anonymised and aggregated for analysis, so that it is impossible to draw conclusions about individual companies or individuals. The analytics data is used for product improvement, development of new products and services, resource and support improvement, product performance improvements, security and data integrity review, identification of industry trends and developments, creation of indices and anonymous benchmarking.

7. Data Protection and Confidentiality

7.1. For the processing of personal data on behalf of the Customer, the parties conclude a separate Data Processing Agreement. In the event of contradictions, their regulations precede these General Terms and Conditions.

7.2. Each party protects the confidential information of the other party from use or access by unauthorized individuals with reasonable care.

7.2.1. “Confidential Information” means (i) any information exchanged between the parties in the context of or in connection with this Agreement, either expressly marked in writing as “confidential” or in a similar manner, (ii) oral information expressly designated by the issuing party as confidential, and (iii) regardless of the above provisions, any information from which it is clear that they need to be kept confidential.

7.2.2. The obligation of confidentiality does not apply to information that is already generally known at the time of conclusion of the contract or which can verifiably become subsequently known without breach of the contractual obligations. The obligation of confidentiality also does not apply to confidential information to the extent that the disclosing party may prove to them that it (i) has obtained or received it lawfully from third parties; (ii) for the provision of contractual services to the other party, must be passed on to third parties legitimately engaged for this purpose; (iii) must be disclosed by law or by decision of a court or an order of an authority; or (iv) by professionally committed advisors and lawyers.

7.2.3. In the event that one of the parties has reason to believe that there has been an unauthorized loss, access or disclosure of the other party’s confidential information, it shall notify the other party without delay.

7.3. Nothing herein shall limit Usercentrics from disclosing the terms of this contract to potential financing sources, security holders, strategic partners and advisors.

8. Right of Modifications

8.1. Usercentrics provides the services according to the respective technological state of the art and in such a way that they are oriented to the interest of all Customers of Usercentrics. Usercentrics is entitled to adapt and change the range of services offered by Usercentrics to general technical progress. Usercentrics does not have to pay attention to possible downward compatibility with third-party software that is not up-to-date and/or to possible interoperability with third-party software; unless such interoperability is expressly agreed as a quality. Usercentrics will announce significant technical changes as far as possible and reasonable, in good time in advance. If a technical change in this sense represents an unacceptable change for the Customer, the Customer shall have a special right of termination.

8.2. Changes to these GTC will be offered by Usercentrics in text form no later than two months before the proposed date of their effective date. The contracting party shall be considered to have given its consent if it has not notified its rejection before the proposed date of effectiveness of the amendments. Usercentrics will specifically draw the Customer’s attention to this consent requirement.

9. Liability

9.1. Usercentrics is liable in accordance with the statutory provisions in the event of gross negligence, intentional action, malice or a guarantee as well as in the event of injury to life, body or health. Liability pursuant to product liability law also remains unaffected.

9.2. In all other cases, Usercentrics shall only be liable in the event of negligent breach of essential contractual obligations; thus an obligation which is essential for the achievement of the purpose of the contract (cardinal obligation). In the latter case, Usercentrics’ liability shall be limited to the amount of damage that is foreseeable and typical for the type of subject matter of the contract.

9.3. In the case of liability under Section 9.2, liability is limited to EUR 10,000.00.

9.4. Insofar as the liability of Usercentrics is excluded or limited, this also applies to the personal liability of the employees, other employees, institutions, representatives and vicarious agents of Usercentrics.

9.5. In the event of liability for intent, gross negligence, personal injury or in accordance with the Product Liability Act (German “Produkthaftungsgesetz”), the statutory limitation periods apply. Otherwise, a limitation period of one year applies to all claims for damages or compensation of futile expenses of the Customer in the event of contractual and non-contractual liability. The limitation period begins in accordance with the statutory provisions. However, it shall begin at the latest at the end of 5 years from the date on which the claim has amounted.

10. Miscellaneous

10.1. Usercentrics is entitled to use subcontractors in whole or in part for the services owed. Any deviating provisions of a separate Data Processing Agreement shall remain unaffected.

10.2. The contractual relationship between the contracting parties is exclusively subject to the law of the Federal Republic of Germany with the explicit exclusion of the UN Convention on Contracts for the Sale of Goods. The exclusive place of jurisdiction for all disputes arising out of and/or in connection with the contract between Usercentrics and the Customer is, to the extent permitted by law, Munich.

10.3. Amendments and additions to the contract as well as all declarations of intent relevant to the contract and declarations for the exercise of design rights, in particular terminations, reminders or deadlines, must be in writing, unless another form in the contract is expressly provided for. This also applies to the renunciation of the written form requirement.

10.4. Should one or more provisions of these General Terms and Conditions be ineffective, the remainder of the terms shall remain effective. The invalid provision shall be replaced by the relevant statutory provision.

Annex 1 – Special Provisions for Switzerland

This annex provides deviations from certain provisions in the above terms and conditions specific for clients with their company residence in Switzerland. In case of any deviations to the main terms and conditions above, this annex will prevail.

Clause 1.4 is amended as follows: Our services are directed exclusively at Business to Business customers.

Clause 3.1 is amended as follows: The prices for the services used by the customer result from the signed contract offer or the completed online contract offer. Unless otherwise stated, the prices are annual net prices in euros, are effectively payable in euros and are exclusive of any statutory value added tax that may be applicable.

Clause 9.1 is amended as follows: For direct or indirect damages, each party shall be liable to the other party only up to the amount of EUR 10.000. Liability for indirect or consequential damages is hereby excluded. Limitation of liability and exclusion of liability apply to both contractual and non-contractual or quasi-contractual claims.

Clause 9.2 is amended as follows: The liability of the parties for damages caused by intentional or grossly negligent conduct remains reserved. Claims arising from product liability are reserved.

Clause 9.3 is replaced by the old clause 9.4 and reads now as follows: Insofar as the liability of Usercentrics is excluded or limited, this also applies to the personal liability of the employees, other employees, institutions, representatives and vicarious agents of Usercentrics.

Clause 9.4 is deleted and replaced in clause 9.3.

Clause 9.5 is deleted without replacement and not applicable.

Clause 10.2 is amended as follows: The contractual relationship between the contracting parties is exclusively subject to Swiss law with the explicit exclusion of the conflict rules of Swiss international private law, and therefore the exclusion of the UN Convention on Contracts for the Sale of Goods. The parties agree that Munich shall be the exclusive place of jurisdiction for all disputes arising from and/or in connection with the contract between Usercentrics and the customer.