General Terms and Conditions for Software Subscription
I General provisions
(1) These General Terms and Conditions Software Subscription (hereinafter referred to as “Terms and Conditions”) govern all subscriptions to “WAVE” (as defined below) and the provision of “Professional Services” (as defined below) by 5Flow GmbH, Nikolaus-Otto-Str. 18, D-52428 Jülich, Germany (hereinafter referred to as “5Flow”).
(2) These Terms and Conditions together with the Customer’s “Order” (as defined below) contain the entire understanding of the parties relating to the subject matter and supersedes all earlier agreements, understandings, proposals, discussions, negotiations, representations and warranties, both written and oral, regarding the subject matter. Any terms or conditions in Customer’s purchase order or any other related documentation submitted by or on behalf of Customer to 5Flow do not form part of this Agreement and are void, unless otherwise expressly agreed in writing and signed by both Customer and 5Flow in the Customer’s Order. (3) The Customer’s Order shall take precedence over these Terms and Conditions. The foregoing notwithstanding the terms of any third-party license conditions or open-source software (OSS) licenses shall take precedence over the provisions of these Terms and Conditions, an Order or any individual agreement between 5Flow and Customer. 5Flow will inform the Customer about the content of the license terms upon request. (4) Offers of 5Flow are non-binding. Unless otherwise specified in the applicable offer, offers in this respect have a validity of four (4) weeks. (5) A subscription to WAVE or a commitment by 5Flow to perform Professional Services shall only be completed by the written or electronic execution of an order issued by 5Flow (an “Order”). (6) Customer shall be assigned a regional 5Flow customer support center based upon Customer’s location. 5Flow shall perform all services from its regional office assigned to Customer. If Customer is in in Europe (excluding United Kingdom), Africa or the Middle East, Customer shall use 5Flow’s Central European support center in Jülich, Germany, and Central European Time shall apply to all time information in these Terms and Conditions. If Customer is in the United Kingdom, Customer shall use 5Flow’s UK support center in Leeds, United Kingdom, and British Time shall apply to all time information in these Terms and Conditions. If Customer is in Asia, Australia, or Oceania, Customer shall use 5Flow’s India support center in Chennai, India, and India Time shall apply to all time information in these Terms and Conditions. If Customer is in North America or South America, Customer shall use 5Flow’s North America support center in Pittsburgh, Pennsylvania, USA, and Eastern time shall apply to all time information in these Terms and Conditions.
(7) All offers and price lists are non-binding unless specified in Customer’s Order.
II Subject matter of the contract
(1) 5Flow has developed certain software which provides a web frontend for controlling the Design Lifecycle Workflow (product name WAVE hereinafter referred to as “WAVE”). The Customer may use WAVE to control its internal business processes as part of its design lifecycle management process from ideation to the finished print product. The user enters projects in WAVE and applies predefined workflows to these projects. In the process, project-relevant data is uploaded to the system and made available for an approval process. 5Flow license model is based on number of Project Items (as defined below) that the Customer processes through WAVE each year. The Customer’s maximum annual number of Project Items is specified in Customer’s Order. The end-to-end execution of a single project under one WAVE ID through a predefined workflow in WAVE is deemed one (1) project item (“Project Item”). The number of users is not limited and is included in the license fee. 5Flow also offers optional extended modules to enhance the functionality of WAVE. Any extended modules to which Customer subscribes during the term of this Agreement shall be described in Customer’s Order. 5Flow hereby grants to Customer, subject to the terms of this Agreement, the right to use WAVE and each extended module listed in Customer’s Order (including, at no additional charge, all releases and enhancements made available to 5Flow’s customers during the subscription term set forth in Customer’s Order (the “Subscription Term”); provided, however, that Customer shall be responsible for the cost of any Professional Services (as defined below) related to the configuration of a new release or enhancement. Customer does not receive any further rights in or to WAVE or any extended modules, the software application, or the operating software. (2) All text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content and material, in any format, provided by Customer that reside in, or run on or through, the WAVE (the “Customer Data”) are owned solely by Customer. Subject to the terms of this Agreement, Customer hereby grants to 5Flow a non-exclusive, non-transferable, worldwide, royalty-free right during an active Subscription Term to operate, copy, store, transmit, modify, create derivative works of, and display the Customer Data to the extent necessary to provide WAVE to Customer. Customer shall use WAVE in accordance with the design document agreed to by 5Flow and Customer and any applicable 5Flow user manuals that 5Flow may make available to Customer (the “User Manual”).
(3) WAVE is deemed to be provisioned for production use when 5Flow notifies the Customer that the Customer’s access to the functional WAVE portal has been activated and that WAVE is functioning in accordance with Customer’s functional specifications detailed in the applicable workflow design document agreed to by Customer and 5Flow. Prior to confirming WAVE activation, 5Flow and Customer shall carry out a system acceptance test and record any deviations in a system acceptance report. Customer’s continued production use of WAVE following the system acceptance test will serve as Customer’s acceptance of WAVE.
(4) 5Flow is not obliged to offer or implement custom adaptations of WAVE core code or implement custom functionality adaptations requested by Customer. Any adaptation of WAVE at the request of Customer shall be covered by configuration and always be based on a separate Professional Services Order. (5) Subject to Customer timely paying all fees specified in the applicable Order, 5Flow may render services to Customer which may include installation, training, integration of WAVE with Customer data sources or systems, and WAVE hosting services (“Professional Services”). Professional Services may include configuration adjustments and technical service on WAVE following an Update (as defined below). The Professional Services 5Flow shall provide to Customer shall be specified in Customer’s Order. Professional Services do not include maintenance, technical support and other assistance known as “key user support hours”. 5Flow shall use all commercially reasonable efforts to ensure that Professional Services rendered will be completed in a timely manner. 5Flow grants Customer a non-exclusive, non-sublicensable and non-transferable license to use the materials developed and provided to Customer by 5Flow in performing the Professional Services (“Deliverables”) solely in connection with use of WAVE for Customer’s direct beneficial business purposes during the Subscription Term. 5Flow retains all rights, title and interest (including intellectual property rights) in and to the Deliverables. To the extent that Customer participates in the creation or modification of any 5Flow technology or Deliverables, Customer irrevocably assigns to 5Flow all right, title and interest (including intellectual property rights) in the technology or Deliverables.
(6) Customer agrees that 5Flow may use subcontractors in the performance of its services for Customer. Where 5Flow subcontracts any of its obligations concerning the services, 5Flow will not be relieved of its obligations to Customer under these Terms and Conditions. (7) 5Flow warrants that during the Subscription Term, WAVE will substantially conform in all material respects with the User Manual. 5Flow’s sole obligation for material non-conformity with this warranty shall be, in 5Flow’s sole discretion, to use commercially reasonable efforts: (a) to provide Customer with an error-correction or workaround to the reported non-conformity; (b) to replace the non-conforming portions of WAVE with conforming items; or (c) if 5Flow reasonably determines it cannot provide such remedies within a reasonable period of time, to terminate the Order and these Terms and Conditions and refund any prepaid Fees relating to the remainder of the then current Subscription Term. The above warranty will not apply: (a) if WAVE is not used in compliance with the User Manual; (b) if any unauthorized modifications are made to WAVE by Customer or any third party; (c) to the use of versions of WAVE that are not the current release, or the two most recent versions prior to the current release; or (d) to defects due to accident, abuse, or improper use by. 5Flow further warrants that, during the Subscription Term: (i) 5Flow shall take all commercially reasonable efforts to ensure that the Solutions do not contain any malware, trojans, viruses, contamination, destructive features or disabling code (“Malware”) and (ii) 5Flow shall have no knowledge of any Malware in the Solutions. (8) To the maximum extent permitted by law and except for the express warranties in these Terms and Conditions, 5Flow provides WAVE and Professional Services on an “as-is” basis. 5Flow and its affiliates disclaim and make no other representation or warranty of any kind, express, implied or statutory, including representations, guarantees or warranties of merchantability, fitness for a particular purpose, title, non-infringement, or accuracy. Customer acknowledges that (A) neither 5Flow nor its Affiliates controls Customer equipment or the transfer of data over communications facilities (including the Internet) outside of 5Flow; and (B) WAVE may be subject to limitations, interruptions, delays, cancellations, and other problems inherent in the use of the communications facilities (including search engines and social media channels). 5Flow and its Affiliates are not responsible for any interruptions, delays, cancellations, delivery failures, data loss, content corruption, packet loss, or other damage resulting from these problems outside of 5Flow.
III Customer Restrictions and Responsibilities (1) Customer shall not, or cause or permit others to: a) manipulate or attempt to manipulate WAVE in any manner which would conceal or obfuscate Customer’s actual usage of WAVE, including, but not limited to, (i) using a single WAVE workflow to process multiple jobs/lifecycles, (ii) maintaining open WAVE workflows longer than necessary to resolve a job, (iii) not timely archiving workflows to resolve a job, (iv) submitting more than the number of Project Items specified in the Order through a single WAVE workflow, (v) combining several SKUs within a single Project Item or workflow, (vi) routing approval documents with multiple Products or SKUs through a single WAVE workflow, and (vii) exceeding an average of 50MB data volume per project item; b) remove or modify any program markings or any notice of 5Flow or its licensors’ proprietary rights. c) make WAVE, the User Manual, or materials resulting from the WAVE (excluding Customer Data) available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted for the specific Services and documented in the applicable Order); d) modify, make derivative works of, disassemble, decompile, or reverse engineer any part of the WAVE or the User Manual, or access or use WAVE in order to build or support, and/or assist a third party in building or supporting, products or services competitive to 5Flow; e) perform or disclose any benchmark or performance tests of WAVE or 5Flow’s services without 5Flow’s prior written consent; f) perform or disclose any of the following security testing of WAVE or associated infrastructure without 5Flow’s prior written consent: network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing; g) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make WAVE or the User Manual available, to any third party, other than as expressly permitted under the terms of the applicable Order; and h) copy, reproduce, distribute, republish, download, display, post or transmit any part of WAVE or the User Manual in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means. (2) Customer is responsible for managing users of WAVE. Customer shall enter each of its authorized users onto its user list within WAVE. Customer is responsible for obtaining all necessary consents and permissions and complying with all applicable laws regarding its users’ use of WAVE. Customer is solely responsible for all actions taken in its user accounts. In the event Customer becomes aware of any unauthorized access to WAVE, the Customer shall immediately provide 5Flow with all information about the unauthorized access which 5Flow may request. (3) Customer shall not and shall cause its users of WAVE not to use or permit use of WAVE for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. (4) 5Flow may temporarily suspend Customer’s or a user’s password, account, and access to or use of WAVE if Customer: a) fails to pay any invoice within ninety (90) days after such invoice is due, b) violates any provision of these Terms and Conditions or the applicable Order, or c) if in 5Flow’s reasonable judgment, WAVE or any component thereof are about to suffer a significant threat to security or functionality. 5Flow will provide advance notice to Customer of any such suspension in 5Flow’s reasonable discretion based on the nature of the circumstances giving rise to the suspension. 5Flow will use reasonable efforts to re-establish WAVE promptly after 5Flow determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured. Customer shall cooperate reasonably and in good faith with 5Flow’s efforts to re-establish WAVE.
(5) The Customer is responsible for determining which users can access WAVE and the scope of their user rights. Customer shall: a) ensure that the WAVE user management system it adopts complies with all applicable laws, rules, and regulations and current best practices for user management, b) protect the usage and access authorizations as well as identification and authentication safeguards assigned to it or the authorized users, if any, from access by third parties and not pass them on to unauthorized users, c) ensure that the system environment required for the use of WAVE is always kept up to date, d) ensure that the security settings of Customer’s network are sufficient to enable Customer to connect to and access WAVE and that the adjustments have to be made again in case of an update of the browsers, and e) obtain the required consent of the respective data subject, insofar as it processes personal data within the scope of the use of WAVE and the hosted server and no statutory permissive circumstance intervenes.
IV Data security and data protection
(1) In making WAVE available to Customer, 5Flow will (i) store, process and access Customer Data only to the extent reasonably necessary to provide WAVE to Customer; and (ii) implement and maintain appropriate and commercially reasonable technical and organizational measures, given the nature of the Customer Data, designed to protect the security, confidentiality and integrity of Customer Data hosted by 5Flow or 5Flow’s authorized third party service providers from unauthorized access, use, alteration or disclosure. Both parties shall observe the applicable data protection provisions and shall contractually obligate the employees used in connection with these Terms and Conditions and the applicable Order to maintain confidentiality and to comply with the obligation under the GDPR, unless they are already generally obligated accordingly. The parties shall enter into a separate mutually agreeable Data Processing Agreement which set forth parties’ obligations regarding the processing of personal data.
(2) Unless required by applicable law, the Customer shall have no right to access the physical premises of 5Flow or its subcontractors or subprocesses. Upon written request of the Customer, 5Flow will cooperate and respond to Customer’s reasonable and customary security questionnaires; provided, however, that 5Flow may satisfy this obligation by providing to Customer upon Customer’s written request not more than once each year: (a) 5Flow’s current report on compliance with ISO 27001 and (b) any Service Organization Control (SOC) I or II (or both) or other recognized industry security practices reports or certifications (each a “Security Report”) for any cloud service provider engaged by 5Flow.
V Direct marketing and log and analysis data
(1) 5Flow may use business e-mail addresses of Customer personnel provided in the Order for purposes of electronic communication regarding product information. Customer is responsible for informing its users that they may object to the use of the e-mail addresses for purposes of receiving product information at any time. Customer shall also inform the affected e-mail recipients that their right to object to the use of their e-mail will not limit 5Flow’s right to provide them with electronic communications relating directly to Customer’s business relationship with 5Flow.
(2) Consent to Log and Analytics Data: 5Flow and its third-party service providers may collect and use logs for purposes of facilitating the Services, including securing, managing, measuring and improving the Services. Such logs may only be used in aggregate, summary form. 5Flow may also collection and process customer-specific log data in support cases or warranty claims.
VI Confidentiality (1) Each party (“Receiving Party”) will maintain in confidence, during the Subscription Term and for three (3) years following the expiration or earlier termination of the Subscription Term, all Confidential Information of the other party (“Disclosing Party”) and will not use such Confidential Information except as expressly permitted in these Terms and Conditions; provided that information which qualifies as a trade secret shall be kept confidential unless and until it no longer qualifies as a trade secret under applicable law. The Receiving Party will use the same degree of care in protecting the Confidential Information of the Disclosing Party as the Receiving Party uses to protect its own confidential and proprietary information from unauthorized use or disclosure, but in no event less than reasonable care. Confidential Information of the Disclosing Party will be used by the Receiving Party solely for the purpose of carrying out the Receiving Party’s obligations under these Terms and Conditions, and the Receiving Party will only disclose Confidential Information of the Disclosing Party to its directors, officers, employees, Affiliates, and/or contractors who have a need to know such Confidential Information in order to assist the Receiving Party in performing its duties under these Terms and Conditions but only if such directors, officers, employees, Affiliates, and/or contractors have executed a non-disclosure agreement with the Receiving Party with terms no less restrictive than those contained in these Terms and Conditions. However, each Party may disclose the terms and conditions of these Terms and Conditions: (i) to legal counsel of such Party; (ii) to such Party’s accountants, banks, financing sources and their advisors; (iii) in connection with the enforcement of its rights under this Agreement; or (iv) in connection with an actual or proposed merger, acquisition, or similar transaction. (2) Confidential Information will not include information that: (i) is in or enters the public domain through no fault of the Receiving Party; (ii) the Receiving Party can reasonably demonstrate by contemporaneous documentation was in its possession prior to first receiving it from the Disclosing Party; (iii) the Receiving Party can demonstrate by contemporaneous documentation 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 such third party’s nondisclosure obligation. In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party that the Receiving Party is required to disclose by law, or by a subpoena or order issued by a court of competent jurisdiction (each, an “Court Order”), provided that the Receiving Party shall: (a) give the Disclosing Party written notice of the Court Order promptly after receiving it; and (b) cooperate fully with the Disclosing Party to provide the Disclosing Party with the opportunity to interpose any objections it may have to disclosure of the information required by the Court Order and to seek a protective order or other appropriate relief, and (c) disclose no more than the minimum amount of the Disclosing Party’s Confidential Information necessary to comply with the Court Order. In the event of any dispute between the Parties as to whether specific information is within one or more of the exceptions set forth in clauses (i) – (iv) of this Section VI(2), Receiving Party will bear the burden of proof, by clear and convincing evidence, that such information is within the claimed exception(s). (3) The Receiving Party acknowledges that any unauthorized disclosure of the Disclosing Party’s Confidential Information will result in irreparable injury to the Disclosing Party that would not be adequately compensated by the payment of money damages. In addition to any other legal and equitable remedies that may be available, the Disclosing Party will be entitled to seek injunctive relief against any breach or threatened breach by the Receiving Party of the confidentiality obligations hereunder, from any court of competent jurisdiction, without being required to show any actual damage or irreparable harm, to prove the inadequacy of its legal remedies, or to post any bond or other security. (4) Unless otherwise specified in the Order, Customer hereby consents to 5Flow using Customer’s name, trade names, logo, trademarks, service marks, and/or logos in its marketing and promotional materials.
VII Maintenance
(1) 5Flow shall provide ongoing maintenance services for WAVE during the Subscription Term. 5Flow will install available patches, updates, and enhancements for WAVE released to all WAVE customers (each an “Update”), but any assistance with the configuration of WAVE or technical service following and Update shall be the subject of a separate Professional Services Order.
(2) 5Flow shall have a time window of four (4) hours per month available for maintenance work, which it may plan freely (“Planned Downtime”). Maintenance work shall, as far as possible, be carried out outside the Base Period (as defined in Section IX(1) below) unless it has to be carried out immediately, e.g. for the purpose of an emergent security threat or vulnerability or for fault clearance (“Emergency Downtime”). 5Flow will use all reasonable efforts to inform Customer in advance of Planned Downtime.
VIII Support Services
(1) Subject to Customer’s payment of the related fees, 5Flow shall provide maintenance and consultancy to assist Customer in resolving issues in the performance of WAVE, including the verification, diagnosis and correction of bugs or material errors and defects in WAVE, which cause WAVE not to function as described in the User Manual; (“Support Services”). 5Flow shall maintain an online ticketing system for requests for Support Services. Support Services requests shall be received at Customer’s designated regional support center from Monday to Friday from 8 a.m. to 5 p.m. local time, except on holidays (the “Support Services Window”). All requests for Support Services shall be handled in only the English language or (for Customers assigned to 5Flow’s Jülich, Germany support center) the German language).
(2) Inquiries as well as fault reports are immediately classified as provided in Section X(2) and forwarded to the respective responsible departments within the organization of 5Flow. (Response Time)
(3) Customer shall designate up to two (2) key users who shall be Customer’s authorized support contacts, Only the Customer’s authorized support contacts are permitted to contact 5Flow for support. Unless otherwise specified in Customer’s Order, Customer shall be entitled to six (6) hours per month of “Key User Support Services”. Key User Support Services are to provide, training and guidance to Customer’s key users on the functionality of WAVE and 5Flow’s customer support processes. Customer may not rollover or defer unused key support hours in one month to a subsequent month. Additional assistance to key users for wider training or configuration and technical services on WAVE as well as configuration adjustments, integration of WAVE with Customer data sources or systems will constitute extended support and be separately billable as Professional Services pursuant to a separate Order.
IX Availability (SLA)
(1) 5Flow agrees that WAVE shall be available (as defined below) to Customer 24 hours 365 days a year at an availability percentage of least 99% WAVE Platform Availability (as defined below) on an annual average during the hours of 00:00 – 24:00 Monday through Sunday (the “base period”). “WAVE Platform Availability” means the following criteria are satisfied: Accessibility: A monitored technical user can access WAVE through a web browser without encountering connectivity issues or authentication problems attributed to 5Flow. Data Availability: WAVE data is accessible ensuring that Customer’s users can retrieve and interact with Customer’s information as intended. (data base connectivity) Response Time: Monitored requests responds quickly with minimal latency, ensuring a smooth user experience. (monitored request response time) User specific system unavailability is covered by service request and not part of the SLA measurement criteria.
The measurement period is determined according to the following formula:
WAVE Platform Availability= MinIST / MinBASE x 100
Where:
· MinIST = The number of minutes of WAVE Platform Availability, plus downtime where WAVE Platform Availability is not achieved due to Force Majeure Events, 5Flow vendors, defects caused by Customer, third party services or equipment, software and technology not under 5Flow’s control, factors outside of 5Flow’s reasonable control, Planned Downtime, Emergency Downtime and downtime due Updates or services requested by Customer.
· MinBASE = 525.600 minutes in a year = The number of minutes of the base period in a year.
(2) For each minute that 5Flow fails to comply with the guaranteed availability within the base period, it shall owe Customer a credit in the amount of Customer’s annual fees for WAVE as specified in the Order / 525600, but not more than one-twelfth of the annual remuneration pursuant to Section XI per year. No credit shall be provided in an amount less than one dollar USD $1. The billing/settlement shall take place annually on the anniversary of the start of the Subscription Period. The credit cannot be demanded if the customer is then in breach of these Terms and Conditions or the applicable Order. This shall apply in particular if the customer violates the duties to cooperate pursuant to Section X. Credits shall be offset against the customer’s claims for damages.
(3) 5Flow shall report the percentage of WAVE Platform Availability to Customer in writing on a quarterly basis. 5Flow’s report of WAVE Platform Availability shall be final and binding on the parties.
X Troubleshooting
(1) If Customer believes WAVE is failing to perform in accordance with the User Manual (a “Problem”), then Customer’s key users shall report the Problem through the 5Flow online ticketing system along with all information known to it regarding the Problem (“Service Request”). Upon request by 5Flow, the Customer shall assist 5Flow in replicating and diagnosing the Problem by cooperating with 5Flow to take measures within Customer’s sphere of responsibility to enable the identification and analysis of the Problem, e.g. provide necessary individual technical information from Customer’s sphere of responsibility.
(2) If 5Flow is able to replicate the Problem, the Problem shall be categorized by 5Flow immediately after the receipt of Customer’s Service Request as follows.
· Priority Level 1 – A disruption that prevents all operation of WAVE and no alternative solution (“workaround”) is available.
· Priority Level 2 – A malfunction that obstructs significant functionality of WAVE or for which a workaround is available.
· Priority Level 3 – A slight disturbance is present if the use of WAVE is possible without or with insignificant restrictions.
(3) In the event of Problems, the following response times and recovery time targets shall be agreed.

Malfunction	Response Time	Targeted Resolution Time
Priority Level 1	2 hours	24 hours
Priority Level 2	4 hours	100 hours
Priority Level 3	24 hours	200 hours
5Flow will use reasonable efforts to acknowledge receipt of Customer’s Service Requests received during the Support Services Window within the Response Time. For Service Requests received outside of Customer’s Support Services Window, the response and recovery time objectives set forth above shall commence upon the start of Customer’s next Support Services Window. If 5Flow is able to replicate the Problem, 5Flow will use commercially reasonable efforts to diagnose the Problem and provide a remedy that could take the form of eliminating the Problem, providing updates, or demonstrating how to avoid the effects of the Problem using a commercially reasonable level of effort. 5Flow shall not be responsible to resolve any Problem which it is unable to replicate after reasonable efforts. Despite 5Flow’s exercise of reasonable efforts, not all Problems may be solvable. The targeted resolution time will start from the date and time when 5Flow acknowledges receipt of the Service Request. If the Service Request cannot be solved within a commercially reasonable timeframe, the Service Request may be escalated within the 5Flow organization. Customer’s designated technical contacts must be available to work with 5Flow while 5Flow is in the process of resolving the Service Request. XI Remuneration and terms of payment
(1) The annual subscription fees for the use of WAVE and fees for Professional Services or other services (“Fees”) are specified in the Order. For Subscription Terms longer than twelve months, 5Flow reserves the right to increase the annual subscription Fees by payable by Customer annually; provided, that if the increase amounts to more than five percent (5%) of the then current annual fees, the Customer shall have the right to terminate the Subscription Term. An increase shall be announced to the Customer and shall become effective at the earliest three (3) months after receipt of the notification. If Customer’s payment of Fees is past due or delinquent and Customer fails to pay the Fees after receipt of 5Flow’s notice to Customer of such delinquency, then such non-payment will be considered a material breach by Customer of this Agreement. No refunds or credits for paid Fees will be issued to Customer.
(2) The stated prices of 5Flow are net prices and are exclusive of the statutory value added tax or withholding tax and other duties, if relevant. Customer is responsible for paying all taxes associated with its subscription to WAVE or any services provided under these Terms and Conditions (other than any taxes which may be assessed on or in respect of 5Flow’s income).
(3) Unless otherwise stated in the applicable Order, Fees for Customer’s WAVE subscription is due annually in advance. Fees for Professional Services or other services shall be payable as provided in the applicable Order. Unless otherwise stated in the order confirmation, the invoice shall be due for payment net without deduction within thirty (30) days from the invoice date. If circumstances exist which indicate a significant deterioration of Customer’s assets, 5Flow shall be entitled to demand advance payments or securities and to refuse the performance of 5Flow’s obligations until reasonable advance payment or securities are provided at Customer’s expense. The right to refuse performance shall remain unaffected. In case of default of payment 5Flow shall furthermore be entitled to default interest in the amount of ten percent (10%) above the respective base interest rate, or the maximum interest allowable by law, whichever is lower. Further rights of 5Flow shall remain unaffected.
(4) If Customer’s usage of WAVE exceeds the usage purchased under an Order (a “True-Up”), 5Flow shall provide written notice that a True-Up may be required and, if Customer does not reduce its usage of WAVE the Solutions to the level purchased under the Order within ten (10) days after the date of such notice, 5Flow has the right to invoice Customer for the incremental Fees associated with such True-Up (retroactive to the date of 5Flow’s True-Up Notice) on (i) a pro rata basis at the price per unit specified in the applicable Order for the remaining period of such Subscription Term and/or (ii) the overages for usage for the relevant period at the price per unit specified in the applicable Order.
(5) A payment shall be deemed received as soon as the equivalent amount has been irrevocably credited to one of 5Flow’s accounts. Unless a direct debit procedure has been agreed, the invoice amount must be credited to the account specified in the invoice no later than on the fifteenth (15th) day after receipt of the invoice.
XII Intellectual Property
(1) As between the Parties: a) Customer reserves all right, title, and interest in and to Customer Data and all patents, copyrights, moral rights, trademarks, trade secrets, and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing (“Intellectual Property Rights”) embodied in Customer Data; b) 5Flow reserves all right, title, and interest in and to WAVE (and any and all modifications to or derivative works of WAVE), User Manual, Deliverables, and any and all Intellectual Property Rights embodied in such. (2) Each Party reserves all rights not expressly granted in these Terms and Conditions, and no licenses are granted by one Party to the other Party under these Terms and Conditions and the applicable Order, whether by implication, estoppel or otherwise, except as expressly set forth in these Terms and Conditions. (3) 5Flow will at its cost and expense: a) defend any claim asserted by a third party against Customer and Customer’s directors, officers, employees, contractors, agents, or other authorized representatives (“Customer Indemnitees”) to the extent alleging that Customer’s use of WAVE in accordance with this Agreement and the User Manual infringes or misappropriates a third party’s valid Intellectual Property Rights (“IP Claims”); and (b) pay and indemnify any losses, damages, liabilities, deficiencies, judgments, interest, awards, penalties, fines, costs (including reasonable attorneys’ fees), or expenses of whatever kind, that are agreed to in a settlement by 5Flow or are finally awarded by a court of competent jurisdiction as a result of the IP Claims (collectively, “Losses”). In the event of an IP Claim pursuant to this Section XII(3), 5Flow may, at 5Flow’s option and at 5Flow’s expense: (i) obtain for Customer, the right to continue to use WAVE under the subscription granted to Customer under these Terms and Conditions; (ii) substitute the allegedly infringing component for an equivalent non-infringing component; or (iii) modify WAVE to make it non-infringing; provided that any such modifications under this clause (iii) shall provide equivalent functionality and security as the allegedly infringing WAVE. If the options set forth in Section XII(3) (i), (ii), or (iii) are not obtainable on commercially reasonable terms, 5Flow may terminate these Terms and Conditions and the applicable Order and will refund to Customer all prepaid applicable for WAVE attributable to the remainder of the Subscription Term (as outlined in the applicable Order) following the termination of this Agreement. (4) 5Flow’s indemnification obligations do not extend to IP Claims or Losses arising from or relating to: (a) any act or omission of any Customer Indemnitees in breach of these Terms and Conditions or the Order; (b) any combination of WAVE (or any portion thereof) by any Customer Indemnitees or any third party with any equipment, software, data, or any other materials where the infringement would not have occurred but for such combination; (c) any IP Claims related to OSS; (d) any modification to WAVE by any Customer Indemnitees or any third party where the infringement would not have occurred but for such modification; (e) the use of WAVE by any Customer Indemnitees or any third party in a manner contrary to the terms of this these Terms and Conditions and the Order where the infringement would not have occurred but for such use; or (f) the continued use of WAVE after 5Flow has provided an substantially equivalent non-infringing software or service. (5) Customer will at its cost and expense defend any claim asserted by a third party against 5Flow and its affiliates and their respective directors, officers, employees, contractors, agents, or other authorized representatives (“5Flow Indemnitees”) to the extent arising from (a) Customer’s use of WAVE in breach of these Terms and Conditions or the Order; (b) Customer’s unauthorized use of any third party intellectual property (other than IP Claims); or (c) Customer’s breach of the Restrictions (“5Flow Indemnity Claims”); and (ii) pay and indemnify any losses, damages, liabilities, deficiencies, judgments, interest, awards, penalties, fines, costs (including reasonable attorneys’ fees), or expenses of whatever kind, that are agreed to in a settlement by Customer or are finally awarded by a court of competent jurisdiction as a result of the 5Flow Indemnity Claims. (6) The indemnifying Party’s indemnification obligations under this Section XII for any claim covered under Sections XII (3) or (4) (“Claim”) are conditioned upon the indemnified Party: (a) giving prompt written notice of the Claim to the indemnifying Party once the indemnified Party becomes aware of the Claim (provided that failure to provide prompt written notice to the indemnifying Party will not alleviate an indemnifying Party’s obligations under this Section XII to the extent any associated delay does not materially prejudice or impair the defense of the related Claims); (b) granting the indemnifying Party the option to take sole control of the defense (including granting the indemnifying Party the right to select and use counsel of its own choosing) and settlement of the Claim (except that the indemnified Party’s prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of the indemnified Party or which contains an admission of fault or wrongdoing by the indemnified Party or its respective Indemnitees); and (c) providing reasonable cooperation to the indemnifying Party and, at the indemnifying Party’s request and expense, assistance in the defense or settlement of the IP Claim or 5Flow Indemnity Claim, as the case may be.
XIII Limitation on Liability
(1) 5Flow shall perform the contractual services owed with professional due diligence and skill. 5Flow does not guarantee and specific outcome or result from Customer’s use of WAVE.
(2) 5Flow and its affiliates shall only be liable in accordance with the statutory provisions in cases of wilful misconduct or gross negligence; in case of slight negligence, however, 5Flow shall only be liable in cases involving injury to life, body and health.
(3) The maximum cumulative liability of 5Flow and its affiliates to Customer under these Terms and Conditions shall be limited to the lesser of (a) 50% of the annual Fees payable for the disputed service as specified in the Order and (b) €500,000. In case of loss of data resulting from problems outside of 5Flow, 5Flow’s liability shall be limited to providing the backups then available. Compensation for data loss not covered by the backup is excluded.
(4) In no event with 5Flow or any of its affiliates be liable for any consequential, indirect, exemplary, special, or incidental damages, including any lost data, lost profits or cost of procurement of substitute services arising from or relating to these Terms and Conditions even if 5Flow has been advised on the possibility of such damages.
XIV Force majeure
(1) Except for payments of Fees due, neither Party will be responsible for any failure to perform or delay attributable in whole or in part to any cause or event beyond its reasonable control, including but not limited to acts of God (e.g., fire, storm, floods, earthquakes, etc.), civil disturbances, disruption of telecommunications, disruption of power or other essential services, cyberattacks or other interruptions or terminations of service by or against any service providers used by 5Flow, labor disturbances, vandalism, cable cuts, or any malicious or unlawful acts of any third party.
(2) Each Contracting Party shall notify the other Contracting Party of the occurrence of a case of force majeure immediately and in writing.
XV Commencement and term of contract, termination
(1) The contractual relationship and the Subscription Term begins when both parties sign the Order and run for an initial contract period of thirty-six (36) months. Upon the expiration of the initial Subscription Term specified in the applicable Order, the Subscription Term shall automatically renew for additional periods of one (1) year unless Customer provides 5Flow with written notice of its election not to renew at least ninety (90) days prior to the expiration of the then-current Subscription Term. Subscription Fees for any renewal term shall be at 5Flow’s then current rates, subject to 5Flow’s rights under Section XI(1) above.
(2) If either party commits a material breach of these Terms and Conditions or the Order, the non-breaching party may give written notice describing the nature and basis of the breach to the breaching party. If the breach is not cured within thirty (30) days of the notice date, the non-breaching party may immediately terminate these Terms and Conditions and all Orders issued hereunder.
(3) All notices of termination must be in writing.
(4) Upon effectiveness of the termination or upon other termination of the contract, all rights of use granted on the basis of this contract shall expire.
(5) 5Flow shall have no obligation to store Customer Data longer than five (5) years after the date it was first submitted to WAVE. At any time up to sixty (60) days after termination of the Subscription Term Customer may request the return of the Customer Data then stored in WAVE in an orderly, digital form. Upon the Customer’s request, 5Flow shall immediately create corresponding data carriers and hand them over to the Customer or make the data available electronically (e.g. by download link). Expenses incurred by 5Flow for the first data handover shall be compensated by as specified in a separate Professional Services Order. Customer shall remunerate 5Flow for any further handover as agreed, provided that 5Flow is not responsible for the further request for handover. Following sixty (60) days after termination of the Subscription Term, 5Flow shall have no obligation to retain any Customer Data.
(6) 5Flow shall not be obliged to support the Client in transferring the contents and data to another system after termination of these Terms and Conditions. Any such transition services shall be provided in 5Flow’s sole discretion and documented in a separate Order.
XVI Final Provisions
(1) 5Flow shall be entitled to assign or delegate its rights or obligations under this contract in whole or in part to third parties.
(2) Customer may not assign or delegate any of its rights or obligations under this Agreement, in whole or in part, without 5Flow’s prior written consent, except that Customer may assign this Agreement in whole to an affiliate or successor in interest as part of a corporate reorganization, consolidation, merger or sale of all or substantially all of its assets; provided that the successor to Customer is not a direct competitor of 5Flow. Customer will notify 5Flow upon completion of any permitted assignment. Any attempted assignment in violation of the above provisions shall be invalid.
(3) Any notice given under these Terms and Conditions must be in writing by email to the addresses specified in the applicable Order (or addresses notified in writing by either Party).
(4) Except to the extent of any credits issued by 5Flow pursuant to Section IX(2) above, Customer’s liability to 5Flow under these Terms and Conditions or any Order is not subject to set-off for any amounts due Customer.
(5) Actual or threatened breach of certain sections of these Terms and Conditions (such as, without limitation, provisions on intellectual property (including ownership), license, privacy, data protection and confidentiality) may cause immediate, irreparable harm that is difficult to calculate and cannot be remedied by the payment of damages alone. Either party will be entitled to seek preliminary and permanent injunctive relief and other equitable relief for any such breach.
(6) If Customer is in in Europe (ex. United Kingdom), Africa or the Middle East, these Terms and Conditions shall be governed by the laws of Germany. If Customer is in the United Kingdom, Asia, Australia, or Oceania these Terms and Conditions shall be governed by the laws of England and Wales. If Customer is in North America or South America, these Terms and Conditions shall be governed by the laws of the Commonwealth of Pennsylvania and the federal laws of the United States of America. The applicability of the CISG is excluded. If these Terms and Conditions or an Order are translated into multiple languages than the German language version shall take precedence over the other translation. The parties irrevocably submit to the exclusive jurisdiction of the courts of competent jurisdiction in the location of the 5Flow regional Customer Support Center to which Customer is assigned, provided however, 5Flow will have the right to pursue claims against Customer in any other jurisdiction worldwide to enforce its rights under these Terms and Conditions or to enforce its intellectual property rights.
(7) Neither Party’s waiver of the breach of any provision constitutes a waiver of that provision in any other instance. This Agreement may not be modified nor any rights under it waived, in whole or in part, except in writing signed by the Parties.
(8) WAVE and all other products or services that 5Flow may provide or make available to Customer for use by Customer’s users are subject to U.S. export control and economic sanctions laws, including the Export Administration Regulations and trade and economic sanctions imposed by Office of Foreign Asset Control (“OFAC”). Customer agrees not to violate such laws and regulations as they relate to Customer’s access to and use of WAVE. Customer shall not access or use WAVE if Customer is located in any jurisdiction in which the provision of WAVE is prohibited under U.S. or other applicable laws or regulations, (each, a “Prohibited Jurisdiction”), and Customer agrees not to permit access to WAVE to any government, entity, or individual located in any Prohibited Jurisdiction, or to any person or entity currently included on the Specially Designated Nationals and Blocked Persons List or the Consolidated Sanctions List maintained by OFAC (“Prohibited Person”), or to any other person or entity in violation of any U.S. or other applicable export laws, regulations, embargoes, prohibitions, or restrictions. Customer agrees to comply with all applicable laws regarding the export or re-export of technology from the U.S. and the country in which Customer and users are located. Customer represents and warrants that neither Customer nor any of Customer’s affiliates is an entity that (i) is directly or indirectly owned or controlled by any person or entity currently included on the Specially Designated Nationals and Blocked Persons List or the Consolidated Sanctions List maintained by OFAC, or (ii) is located in, or is directly or indirectly owned or controlled by any entity or individual located in, any Prohibited Jurisdiction. (9) Neither Party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner or partner of the other Party, and the relationship between the Parties will only be that of independent contractors. Neither Party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether express or implied, or to bind the other Party in any respect whatsoever. (10) Should individually provisions of these Terms and Conditions be invalid, this shall not affect the validity of the remaining provisions. In this case, the parties shall cooperate to replace invalid provisions with provisions that correspond as closely as possible to the invalid provisions.