HomeMy WebLinkAboutIT16-277 - Original - Cleveridge AG - Lansweeper Premium Subscription - 06/20/2016 i
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CONTRACT COVER SHEET
This is, to be completed by the Contract Manager prior to submission
to City Clerks Office. All portions are to be completed.
If you have questions, please contact City Clerk's Office.
Vendor Name: Lansweeper c/o Cleveridge
Vendor Number: P-Card
]D Edwards Number
Contract Number: I`T-U-
This is assigned by City Clerk's Office
Project Name: Lansweeper Premium subscription
Description: . ❑ Interlocal Agreement ❑ Change Order ❑ Amendment ® Contract
❑ Other:
Contract Effective Date: 06/20/16 Termination Date: 06/20/17
Contract Renewal Notice (Days):
Number of days required notice for termination or renewal or amendment
Contract Manager: James Endicott Department: Information Technology
Contract Amount: $995.00
Approval Authority: (CIRCLE ONE Department Director r' Mayor City Council
Detail: (i.e. address, location, parcel number, tax id, etc.):
As of: 08/27/14
General Terms and Conditions of Business of cleverbridge AG
cleverbridge AG, Gereonstr.;43-65, 50670 Cologne (Germany), further referred to in brief as
"cleverbridge" is an ecommerce business that trades internationally.
1. Definitions
The following terms shall have the following meanings in the context of these General Terms and
Conditions of Business ("Ts&Cs"):
1.1 "Supplier"means any natural person or legal entity that provides, generates, manufactures or
delivers Products and Services within the meaning of Clause 1.2 to cleverbridge for the purpose
of resale to a Customer.
1.2 "cleverbridge Website" means any web page operated by cleverbridge for the sale of the
Products and Services that is identifiable from the Ts&Cs as well as cleverbridge's legal
information posted on it. Web pages operated by Suppliers are expressly not covered by this
definition.
1.3 "Products and Services" means(a) Software, (b) a decryption or authorization code, a series
or authorization number, a download link or similar code or mechanism, that gives the Customer
(as defined in Clause 2) access, first-time use or continued use of the Software or a Service, (c)
other(also physical) Products, or(d)Services sold by cleverbridge to the Customer.
1.4 "Security Code"means a numerical security feature embossed or printed on the front or back
of most Visa, MasterCard, Discover, American Express and other credit cards.
1.5 "Software"means all the Supplier's computer programs marketed in any form and through any
medium via cleverbridge's ecommerce site.
2. Subject Matter
These Ts&Cs regulate the legal relationship between cleverbridge and the Customer for the sale of
Products and Services via cleverbridge's retail channels. The following provisions are addressed
both to consumers and to businesses. Where reference is made to"Customers"this shall unless
otherwise specified mean both consumers and also businesses.A consumer is a natural person who
enters into a legal transaction for a purpose that cannot be attributed to that person's trade, business
or profession (Section 13 of the Federal Civil Code).A business is a natural person or legal entity or
partnership with legal capacity that enters into a legal transaction in the course of his/her/its trade,
business or profession (Section 14 of the Federal Civil Code).
3. Scope
3.1 These Ts&Cs apply to all offers, acceptances, deployments, deliveries of services and supplies
by cleverbridge or to the Customer in connection with the sale of Products and Services via a
cleverbridge Website and exclude the conditions of the Customer or third parties that depart
from the same; departing conditions shall require written acceptance by cleverbridge. These
Ts&Cs shall apply even where cleverbridge performs its contractual obligations without
reservation despite being aware that the Customer's conditions are inconsistent with the Ts&Cs.
Where the sale of Products and Services includes the delivery of Software or the provision of
Services or other performance by third parties, the particular licence and other conditions of the
third party shall apply above and beyond these Ts&Cs.
3.2 For Customers placing their order from the USA, the provisions of Clause 16 and Clause 18.1 of
these Ts&Cs shall not apply.
For Customers placing their order from a country other than the USA which is not a member of
the:European Union, the provisions of Clause 16 and Clause 18.2 of these Ts&Cs shall not
apply.
For Customers placing their order from a member state of the European Union, the provisions of
Clause 18.2 of these Ts&Cs shall not apply.
4. Entry into a Contract(Offer, Confirmation and Acceptance)
4.1 An order placed by the Customer represents an offer addressed to cleverbridge for the
purchase of Products and Services under these Ts&Cs.All orders placed by Customers require
subsequent acceptance by cleverbridge. The customer order is accepted through the download
authorization, the sending of the ordered goods or the provision of a Service. In principle this
only happens, and the Contract only comes into existence, when the payment by the Customer
for the Products and Services at the price applicable upon purchase has been credited to a
cleverbridge account or there has been successful authorization of the credit card or other form
of payment by the Customer accepted by cleverbridge. In the case of purchase on account or
purchase with grant of a direct debit authorization (where offered)the download authorization,
the provision of the Service or the sending of the ordered goods occurs without receipt of
payment in advance.
4.2 cleverbridge may, at its own discretion, use third parties to carry out its services.
5. Customer Warranties
5.1 The Customer warrants that all the information he/she/it provided when placing his/her/its order
was up-to-date and accurate in all material respects and that it is adequate for cleverbridge to
carry out the order. Additional costs, incurred by cleverbridge as a result of false or incomplete
information shall be for the account of the Customer.
5.2 To the extent that the Customer has access to a customer account with cleverbridge he/she/it is
him/her/itself responsible for looking after and immediately updating his/herlits account details in
terms of its accuracy and completeness; the Customer shall not on any account disclose the
password used to access the customer account.
5.3 The Customer shall be obliged to pay for all orders activated using his/her/its user name and
password. This payment obligation only lapses if the Customer is able to prove that he/she/it did
not negligently or deliberately facilitate an order using his/herlits user name and password. The
Customer shall otherwise be obliged to pay for an order made using his/herlits user name and
password unless the Customer has, prior to the relevant order, requested that cleverbridge
block his/her/its user access and password and between the arrival of the Customer's blocking
request and the arrival of the order cleverbridge has failed to block the user access and/or
password despite the lapse of a reasonable length of time.
6. Approvals, Exports, Customs Duties
6.1 To the extent that an approval or licence from the government or other authority is required for
the acquisition, transportation or use of Products and Services, the Customer shall be obliged to
obtain such approval or licence at his/her/its own cost and provide cleverbridge with evidence of
the same upon request. The fact that the Customer has yet to obtain an approval or licence
shall not entitle the Customer to withhold or delay payment.All costs and expenses incurred to
cleverbridge on the basis of such a failure to obtain an approval or licence or its being obtained
erroneously shall be for the account of the Customer. For consumers this shall not apply in
relation to an approval or other permit for transportation.
6.2 The Products and Services sold by cleverbridge and made available to the Customer
electronically or physically may give the Customer access to technologies and Software which
are subject to the export controls of the Federal Republic of Germany, the export controls of the
United States of America or those of the countries in which the Products and Services are being
marketed or in which they are being used. The Customer undertakes to observe these export
controls. cleverbridge shall be entitled to withdraw from the Contract where the Customer
breaches export controls.
6.3 Importing goods into the European Economic Area may, where specific goods values are
exceeded, lead to customs duties (e.g. where the value of the goods exceeds the Customer's
personal allowance). Upon the arrival of the goods at the place designated by the Customer the
latter may incur customs duties, import duties or taxes imposed by the relevant authorities. All
such additional costs shall be borne by the Customer as they are beyond cleverbridge's control
and the latter has no knowledge of them. More detailed information on customs regulations or
duties can be obtained by the Customer from the customs office responsible for his/her/its
jurisdiction.
7. Prices, Payment Conditions and Delay
7. Unless otherwise indicated, all prices specified by cleverbridge on the cleverbridge Website are
1 deemed to be in the currency quoted there.With respect to delivery and supply the prices
indicated at the time of the order shall apply. Unless otherwise indicated, the prices indicated are
understood as inclusive of VAT but do not include the costs of delivery or transportation to the
designated delivery point (delivery charges are listed separately on the cleverbridge Website and
on cleverbridge's invoices) or any(sur-)charges, fees or commissions charged by Customer's
bank, financial institution or credit card organization. The Customer states his/her/its agreement
to the order of the delivery or transportation costs for the Products and Services listed by
cleverbridge at the time of purchase.
7. The,payment of the purchase price falls due immediately upon entry into the contract and shall
2 take place in the manner specified on the cleverbridge Website. With the exception of purchases
on account payments shall take place prior to delivery. Where the Customer has purchased
Products or Services with recurring payment obligations (subscriptions)the prices are due at the
agreed interval(s) and the Customer shall pay these or make the corresponding purchase price
available using the payment option he/she/it has selected for debiting by cleverbridge. The
payr.nent obligation for such products or services will not recur if the customer makes a clear
declaration informing cleverbridge of his decision to terminate the contract. This will only be
effective if it is done prior to the end of the subscription period for the product or service and
within the announced termination notice period. In this case, any recurring opportunity or license
to use the products and services and/or other opportunity or license to use the products and
services mentioned in these Standard Terms of Business shall lapse.
7. If the Customer is not a consumer, the following provisions shall apply:
3 The Customer shall identify himself as a business when the order is placed, cleverbridge may
consider the address provided as Customer's place of business, unless indicated otherwise. If
Customer's VAT ID is registered to another place, cleverbridge may also employ that information
for tax purposes. If the Customer is required to pay or withhold any tax for payments made to
cleverbridge, cleverbridge remains entitled to the amount due under Clause 7.2 in full and free of
any deductions. The purchase price shall be increased by the amount of taxes paid or withheld
by the Customer(gross-up). The Customer will provide documentation to cleverbridge, which
certifies that all applicable taxes have been paid to the relevant tax authority within 30 days after
the date of payment of the purchase price. For purposes of this clause, taxes means any sales,
use, gross receipts, business, occupation, and other taxes (other than taxes on the income of
cleverbridge) and similar charges imposed by any government or other authority, with the
exception of VAT levied by a member of the European Union.
7. In case of any advance deliveries (purchase on account or purchase with grant of a direct debit
4 authorization) payments shall be made in full irrespective of any claims for short deliveries or
product defects. If payment is made with any one of the following payment methods, Customer
will have 35 days to complete the order by providing funds for the order: direct debit, wire
transfer, Boleto Bancario, Konbini, PayNearMe, PayPal. cleverbridge reserves the right to cancel
anyorder if payment has not been completed within 35 days.
7. Bills of exchange and cheques are only accepted as payment by cleverbridge to the extent these
5 are expressly offered by cleverbridge on the cleverbridge Website and are accepted for
processing;they shall count as payment only once they have been redeemed. Discount and
collection charges shall be for the Customer's account. cleverbridge shall not be liable for their
prompt submission.
7. To the extent that in case of purchase on account the invoice includes a payment deadline the
6 Customer shall be in arrears if the full purchase price payment is not credited to a cleverbridge
account or received by cleverbridge within such deadline. In the case of payment obligations on
the part of the Customer that the latter has to comply with in respect of cleverbridge by granting
a debit authorization or direct debit authorization (in particular also in cases of recurring payment
obligations) the Customer shall be in default if the payment method selected by him/her/it is, at
the time debited by cleverbridge, insufficient to cover the full amount,
7. Where the Customer defaults he/she/it shall pay cleverbridge late payment interest of five
7 percentage points (5%) over the base rate applicable at the time of the default. Where the
Customer is not a consumer the interest rate shall be nine percentage points (9%) over the base
rate. 'Base rate" means a variable interest rate set at half-yearly intervals by the German Central
Bank ('Bundesbank")which, increased by a fixed margin, gives the late-payment interest rate
�Yrnr . • ). The base rate is adjusted on 1 January and 1 July every year by the
percentage points by which the interest rate for the most recent main refinancing operations of
the European Central Bank has risen or fallen prior to the first calendar day of the relevant half-
year.
7. In case of default cleverbridge reserves the right to cancel the order and/or claim damages.
8
8. Payment by direct debit
8.1 cleverbridge offers the payment method of direct debit (grant of a direct debit authorization) only
for orders from Germany. As from 1 February 2014, payments shall be carried out by direct
debit method exclusively within the framework of the SEPA Core Direct Debit Scheme of the
Single Euro Payments Area("SEPA").
8.2 By sending his/her/its order, the Customer declares his/her/its agreement that the amount which
is debited from his/her/its bank account within the framework of the SEPA Core Direct Debit
Scheme (total order amount) is notified with a pre-notification ('Pre-Notification") already directly
after sending his/her/its order.
9. Payment by Credit Card
9.1 Where payment is made by credit card the Customer shall provide full credit card data
(cardholder name, card number, expiry date, security code) when placing the order and thereby
declares his/her/its agreement to cleverbridge's taking payment for the order via the relevant
credit card company, in particular in case of internet orders.
9.2 cleverbridge shall take all reasonable steps to protect the credit card data against unauthorized
access by third parties. The Customer is aware that in particular where such data is transferred
electronically the possibility of such data becoming known to unauthorized third parties cannot
be excluded.
10. Delivery, Delivery Period
10.1 The delivery of the ordered goods shall be carried out according to the delivery information on
the relevant cleverbridge Website, as amended from time to time.
10.2 The agreed delivery period shall begin upon receipt of payment in full by cleverbridge or
following express written acceptance of the order by cleverbridge. Where relevant it is
extended by such time as the Customer requires in order to supply the data necessary for the
processing of the order to cleverbridge or the cleverbridge payment services provider selected
by the Customer.
10.3 Delivery delays caused by statutory or official arrangements (e.g. import and export
restrictions) and that are not the fault of cleverbridge shall extend the delivery period for a time
equivalent to the duration of such obstacles. In important cases cleverbridge shall immediately
notify the Customer of their commencement and termination, to the extent cleverbridge is
aware of the same.
10.4 Digital Products and Services
10.4.1 Upon purchase of digital Products and Services the Customer receives, following the
order, access to a code for the activation of the Software, access to a Webpage with a
download link for the downloading of the Software, or the use of the digital Product or
Service is facilitated or provided in some other way. Upon purchase of digital Products
and Services with recurring payment obligations (subscriptions) the download shall
only be authorized, the Service supplied or the ordered goods dispatched in each
case after full receipt of payment for the period for which the recurring payment
obligation exists.
10.4.2 To the extent the Customer is offered digital Products and Services or parts thereof by
cleverbridge or third-party servers via the electronic transfer of a code, access to a
Website with a download link, or similar manner, an obligation is only to be performed
at the debtor's (cleverbridge's) place of business ("Holschuld"). Following access to
the required data the Customer alone shall decide if and when he/she/it will download
or activate the digital Products and Services from the servers of cleverbridge or a third
party, or when he/she/it will make use of the digital Products and Services.
10.5 Physical Products and Services
10.5.1 To the extent that the purchase of Products and Services includes the delivery of
physical Products, delivery shall be made to a valid address specified by the
Customer. The Customer shall be obliged to check the delivery address on all the
confirmations and acceptances issued by cleverbridge and immediately to notify
cleverbridge of any errors or omissions. The costs arising as a result of an
amendment to the delivery address undertaken by the Customer following the
submission of his/her/its order shall be borne by the Customer.
10.5.2 To the extent the Customer fails to accept the delivered Products, or to the extent
he/she/it rejects them, risk of damage or loss of the Product shall pass to the
Customer without prejudice to all other rights to which cleverbridge is entitled:
cleverbridge shall be entitled, at the Customer's risk and cost,to endeavour to have
the Product delivered by such means it deems suitable and reasonable and to put the
Product into storage at the Customer's risk and cost.
The Customer shall be obliged upon request to settle all reasonable storage costs as
well as all other reasonable costs in respect of the unsuccessful offer and retention of
the goods owed such as arise from the omission to accept or the rejection of the
goods.
10.5.3 cleverbridge shall be entitled to make part deliveries insofar as this is reasonable. To
the extent cleverbridge makes part deliveries each part delivery shall represent a
separate contract; this shall not apply to consumers. Customers that are businesses
shall, in case of defects in one or more part deliveries, not be entitled to cancel
subsequent part deliveries.
10.5.4 Where the Customer is a consumer the risk of accidental destruction and accidental
deterioration of the ordered Product shall pass to the Customer upon delivery of the
same. Where the Customer is a Business, the risk of accidental destruction and
accidental deterioration passes to the former as soon as the Product passes to the
person carrying out transportation but no later than upon entering the Customer's
possession.
71. Duty of Inspection and Notification
Where the Customer is a Business he/she/it shall be obliged to test the Products in normal operating
conditions immediately after delivery and to make sure that they are in perfect condition, match the
product:description and are complete. Claims may only be made in respect of rights based on
Product defects or a short delivery if the Customer notifies cleverbridge in writing or by email of the
Product defects or short delivery immediately and in any case no later than five days after receipt of
the Products or in the case of a hidden defect immediately after becoming aware of the same.
Section 377 of the German Commercial Code shall also apply.
12. Retention of Title
cleverbridge retains title to the Product until payment in full of all claims under the sales agreement
including secondary claims (e.g. costs of exchange, financing costs, interest etc.). Where the
Customer acts in breach of contract cleverbridge shall be entitled to demand the return of the
Product. Neither the retraction nor any seizure of the item to which title is retained shall amount to
rescission of the Contract.
13. Usage Rights, Licence
13.1 To the extent that the Products and Services delivered by cleverbridge consist of or include
Software or a Service, the Customer accepts that cleverbridge sells the Software or the
Service for the Suppliers of the same and that cleverbridge therefore grants the Customer no
rights to use the Software or the Service; any usage rights over the Software or the Service
(including any conditions or restrictions on such usage rights) shall be granted to the Customer
exclusively by the Supplier and not by cleverbridge.
13.2 The content and scope of any such usage rights are, to the extent granted by the Supplier,
described in the Supplier's licensing conditions and terms of use ("EULA") which the Customer
receives upon purchasing the Software or the Service, or which are enclosed with the
Software, or which are notified to the Customer before or during use of a Service. The
Customer acknowledges that the Software or Service may only be reproduced, adapted,
transmitted, made available, marketed, altered, disassembled, decompiled, re-transmitted or
combined with other Software or another Service as expressly permitted under the EULA or
the relevant statutes.
13.3 Where the Customer(a) does not receive the EULA prior to purchase of the relevant Software
or the relevant Service or the EULA are not enclosed with the Software and (b) does not use or
has not used the Software or the Service or(c) does not agree to the licensing conditions and
terms of use and does not wish to use the Software or the Service on the basis of these
licensing conditions and terms of use, the Customer may contact cleverbridge and request the
repayment of the amounts paid for the Software or the Service—where cleverbridge requests
in exchange for the return of the Software or Service to cleverbridge (where possible); in such
a case, however, the Customer shall have no rights whatsoever to use such Software or such
Service.
14. Data Protection
Customer data is subject to electronic data processing.Where necessary cleverbridge forwards
personal data to the Supplier of the Products and Services purchased by the Customer, service
partners or affiliated companies, some of which may be located outside the European Economic
Area, including the USA, subject to compliance with the appropriate security measures and
observance of the statutory provisions. cleverbridge's full data protection regulations can be viewed
under rCS. .r- v-r''.
15. Defects, Claims in respect of Defects and Exclusion of Liability
15.1 All information on cleverbridge's Products and Services is merely by way of description and
does not represent a guarantee.
15.2 Defective Products and Services
A Product is defective where it lacks the agreed quality, is not suitable for the agreed use or
appropriate for the customary use and does not demonstrate the quality usual for Products of
the same type and which the purchaser can expect of this type of Product. A Product is also
defective where it infringes industrial property rights, copyright or other third-party rights. The
technical and legal regulations applicable in Germany shall apply unless specifically agreed
otherwise.
Services or the provision of services are defective to the extent they do not comply with the
contractual agreements.
15.3 Period for Supplementary Performance
Where a defective Product has been delivered the Customer shall impose a reasonable
deadline on cleverbridge for supplementary performance. There is no need to set such a
deadline where this is unnecessary under Section 323 Subsection 2 of the Federal Civil Code,
in;particular to the extent cleverbridge seriously refuses supplementary performance once and
for all where, with regard to performance, time is of the essence or other circumstances exist
which, given the interests of both sides,justify an immediate rescission or immediate claim for
damages.
Where Services have not been performed in accordance with the contract the Customer shall
set a reasonable deadline for cleverbridge to perform the Service anew unless this is
unnecessary under Section 323 Subsection 2 of the Federal Civil Code.
15.4 Claims for Defects
15.4.1 Claims for Defects by Businesses
Where it has carried out or delivered defective Products and Services to a business
cleverbridge may choose whether to make good the defects by way of supplementary
performance or whether it will replace the defective Products and Services with a new
Product or Service free of defects.
Where the supplementary performance fails the business shall be entitled to bring a
claim in respect of its statutory warranty rights as follows:
The right to lower the relevant purchase price(price reduction) is excluded.
The right of cancellation shall be limited to the relevant order.
Where the business is entitled to claim damages instead of performance or to rescind
the contract or still to claim supplementary performance cleverbridge may require
him/her/it to exercise his/her/its rights within a reasonable period. The business shall
notify cleverbridge of his/her/its decision in this regard. Where the business fails to
exercise his/her/its rights within the deadline a claim may only be brought for
damages in lieu of performance or notice given of rescission where a new, reasonable
deadline for supplementary performance, to be specified by the business, has expired
unsuccessfully.
The limitation period for defects claims by businesses shall be twelve (12) months
from delivery of the Product.
15.4.2 Claims for Defects by Consumers
Where it has carried out or delivered defective Products and Services to a consumer
the latter shall be entitled without restriction to statutory warranty rights with the
exception of the damages limitation in Clause 15.6 of these Ts&Cs. In particular, the
consumer may choose whether cleverbridge should make good the defects by way of
supplementary performance or replace the defective Products and Services with a
new Product or Service free of defects. cleverbridge is, however, entitled to refuse the
selected form of supplementary performance where this is possible only at excessive
cost and the other form of supplementary performance is available without material
disadvantage to the consumer.
Where the supplementary performance fails it shall generally be at the Customer's
discretion to opt for a lowering of the purchase price (reduction)or to rescind the
contract.
The limitation period for defects claims by consumers shall be twenty-four(24)
months from delivery of the Product.
15.5 Legal Consequences of Rescission
Where the Customer exercises an existing right of rescission, the contractual parties shall
return the services received and surrender any use or enjoyment derived.At the same time,
the Customer's right to use the Products or Services shall cease. In the case of Software
previously purchased the Customer shall immediately remove this from all installations,
storage media and other files and shall destroy the physical components of the Products and
Services as well as any copies made of the Software. In addition, the Customer shall make a
separate written statement that it will undertake the actions set out above.
15.6 Disclaimer
15.6.1 ANY LIABILITY ON THE PART OF CLEVERBRIDGE FOR CONSEQUENCES THAT
HAVE ARISEN FROM ALTERATIONS MADE TO THE PRODUCTS AND SERVICES
BY THE CUSTOMER OR BY A THIRD PARTY OR THAT HAVE ARISEN THROUGH
THE MISHANDLING OR INCORRECT OPERATION OF THE PRODUCTS AND
SERVICES SHALL BE EXCLUDED.
15.6.2 ANY LIABILITY ON THE PART OF CLEVERBRIDGE FOR THE ADEQUACY OF
THE OPERATION OF THE PRODUCTS AND SERVICES FOR THE SPECIFIC
REQUIREMENTS OF THE CUSTOMER OR FOR THE COMPATIBILITY OF THE
PRODUCTS AND SERVICES WITH COMPONENTS WITHIN THE SPECIFIC
HARDWARE CONFIGURATION AT THE CUSTOMER'S PREMISES SHALL BE
EXCLUDED.
15.6.3 UNLESS OTHERWISE SPECIFIED IN THIS CLAUSE 15.6, LIABILITY ON THE
PART OF CLEVERBRIDGE FOR ACTS OR OMISSIONS ATTRIBUTABLE TO
SIMPLE NEGLIGENCE ON THE PART OF CLEVERBRIDGE SHALL BE STRICTLY
EXCLUDED.
15.6.4 WHERE CLEVERBRIDGE NEGLIGENTLY BREACHES A MAIN OBLIGATION THAT
IS MATERIAL TO THE CONTRACT(MATERIAL CONTRACTUAL OBLIGATION),
CLEVERBRIDGE'S LIABILITY FOR DAMAGES SHALL BE LIMITED TO
FORESEEABLE DAMAGE TYPICALLY ARISING IN SUCH CIRCUMSTANCES.
MATERIAL CONTRACTUAL OBLIGATIONS ARE THOSE THAT NEED TO BE
COMPLIED WITH IF THE PURPOSE OF THE CONTRACT IS TO BE ACHIEVED.
15.6.5 WHERE THE CUSTOMER BRINGS DAMAGES CLAIMS BASED ON
CLEVERBRIDGE'S DELIBERATE OR RECKLESS BREACH OR ON THE ABSENCE
OF A FEATURE GUARANTEED BY CLEVERBRIDGE, CLEVERBRIDGE SHALL
BEAR LIABILITY WITHIN THE STATUTORY LIMITS.
15.6.6 THIS SHALL BE WITHOUT PREJUDICE TO CLEVERBRIDGE'S LIABILITY FOR
CULPABLE LOSS OF LIFE, PERSONAL INJURY OR DAMAGE TO HEALTH. THE
SAME SHALL APPLY TO LIABILITY UNDER THE GERMAN PRODUCT LIABILITY
ACT.
15.6.7 WHERE CLEVERBRIDGE'S LIABILITY IS EXCLUDED OR LIMITED, THIS SHALL
ALSO APPLY TO THE PERSONAL LIABILITY OF CLEVERBRIDGE'S WORKERS,
EMPLOYEES, CO-WORKERS, LEGAL REPRESENTATIVES AND VICARIOUS
AGENTS.
16. Revocation Right for Consumers
The provisions of this section 16 shall only apply to customers who place an order from a member
state of the European Union:
16.1 Revocation
Customers who are consumers shall have the right to revoke this contract within fourteen (14)
days without stating a reason.
In the case of a contract for services or a contract for the delivery of individually acquired or
recurring digital content not installed on a physical data carrier, the revocation period shall be
fourteen days from the date the contract was concluded.
In the case of a purchase agreement for the delivery of goods (e.g. back-up CDs), the
revocation period shall be fourteen days from the date on which the consumer—or a third
party designated by the consumer who is not a freight carrier—takes possession of the goods.
To exercise the right of revocation, the consumer must inform cleverbridge (cleverbridge AG,
Gereonstr. 43-65, 50670 Cologne, Germany, tel: +49 221 -222 45—0, fax: +49 221 -222 45—
19 email: r,7) by making a clear declaration of his decision to revoke the
contract(e.g. by letter sent by regular mail, fax, or email.) The consumer can use the model
revocation form following these revocation instructions for this purpose, but it is not a
requirement.
To meet the revocation deadline, it is sufficient for the consumer to send notice that he is
exercising his right of revocation prior to the expiration of the revocation period.
16.2 Legal Consequences of Revocation
16.2.1 If the consumer revokes this contract, cleverbridge must promptly refund all of the
payments cleverbridge received from the consumer, including delivery costs, no later
than fourteen days from the date on which the notice of revocation of the contract was
received by cleverbridge (with the exception of additional costs incurred because the
consumer has chosen a different mode of delivery than the most cost-effective one,
i.e. the standard mode of delivery offered by cleverbridge). For this refund,
cleverbridge shall use the same means of payment that was used by the consumer in
the original transaction, unless otherwise expressly agreed with the consumer. In no
case shall the consumer be charged a fee for the refund.
16.2.2 In the case of a contract for services, the following shall apply: If the consumer
requested that the services commence during the revocation period, the consumer
shall pay cleverbridge a reasonable amount, which corresponds to the percentage of
services provided by the time the consumer informs cleverbridge of the exercise of his
right to revoke the contract, as compared to the total scope of the services
contemplated by the contract.
16.2.3 If there is a purchase agreement for the delivery of goods, the following shall apply:
cleverbridge can refuse to make a refund until it has received the goods back or until
the consumer proves that he has sent the goods back,whichever is earlier.
The consumer shall promptly return or send the goods to cleverbridge no later than
fourteen days from the date on which the consumer informed cleverbridge of the
revocation of the contract. The deadline is met if the consumer sends the goods
before the expiration of the fourteen-day period. The consumer shall bear the direct
costs of returning the goods.
The consumer must only pay for the diminished value of the goods if the diminished
value is attributable to his treating the goods in an unnecessary manner to examine
their quality, characteristics, and functionality. To "examine their quality,
characteristics, and functionality"means to test and try out the goods, as is possible
and usual in a shop. In other respects, the consumer can avoid the duty to pay
compensation for value lost through his use of the item for its intended purpose by not
treating the item as his own property, but avoiding anything that could impair its value.
16.2.4 Under Section 356 (5) of the German Civil Code[BGB], the right to revoke a contract
for the delivery of digital content not installed on a physical data carrier is extinguished
if the consumer expressly agrees that cleverbridge shall begin to execute the contract
before the expiration of the revocation period and confirms that he knows that he will
lose his right of revocation by consenting to commencement of the execution of the
contract before the expiration of the revocation period, and cleverbridge begins to
execute the contract.
16.2.5 The consumer expressly agrees that cleverbridge shall commence the execution of
this contract before the expiration of the revocation period, and he is aware that he
will lose his right of revocation when the execution of this contract commences.
16.2.6 Under Section 312g (2) BGB, the right of revocation does not arise or exist
o with respect to contracts for the delivery of goods if they are not ready-made but
were manufactured in accordance with an individual choice or determination of
the consumer or are clearly tailored to the personal needs of the consumer
(Section 312g (2) No. 1 BGB), and
c with respect to contracts for the delivery of audio and video recordings or
computer software in a sealed package if the seal was broken after delivery
(Section 312g (2) No. 6 BGB).
End of the revocation instructions
Model revocation form
(If you wish to revoke the contract, please fill out this form and send it back.)
To cleverbridge AG, Gereonstr. 43-65, 50670 Cologne, Germany, Fax +49 221 -222
45— 19, email m ,e h!
I/we hereby revoke(*) the contract for the purchase of the following goods (*)/the
provision of the following services (*) concluded by me/us
Ordered on (*)/received on ( )
Name of the consumer(s)
Address of the consumer(s)
Signature of the consumer(s) (only for notices in paper form)
Date
(*) Please delete what does not apply.
17. Place of Performance
In the case of contracts with traders, legal entities or public-law special funds the place of delivery
and payment shall be agreed as the place where cleverbridge has its offices i.e. Cologne.
18. Jurisdiction and Applicable Law
18.1 Jurisdiction and applicable law for Customers placing their order outside the USA
To initiate any dispute resolution, Customers placing their order from a member state of the
European Union may contact cleverbridge via email at s. General
information about online dispute resolution obligations and mechanisms is to be provided nc,,c.
In the case of contracts with consumers the general jurisdiction shall be determined on the
basis of the statutory regulations. According to the latter the courts of the place where the
Defendant has his/her offices or residence shall have jurisdiction. However, where the
consumer has no general legal domicile in the Federal Republic of Germany or should he/she
lose his/her domicile or habitual residence within the jurisdiction of the Federal Republic of
Germany after the contract has been entered into then the place of jurisdiction shall be the
registered offices of cleverbridge i.e. Cologne, Germany. This shall also apply where the
consumer's domicile or habitual residence are not known at the time the claim is initiated.
In the case of contracts with traders, legal entities or public-law special funds it is agreed that
the courts of the place where cleverbridge has its offices shall have jurisdiction i.e. those of
Cologne, Germany.
The law of the Federal Republic of Germany shall apply. With orders placed by consumers
who have their habitual residence outside the Federal Republic of Germany; mandatory
regulations and mandatory protections granted by judicial decision of the respective country of
residence shall remain in effect and shall apply accordingly. The provisions of the UN
Convention of 11 April 1980 on Contracts for the International Sale of Goods (the Vienna
Convention) shall not apply.
18.2 Jurisdiction and applicable law for Customers placing their order from within the USA (Dispute
Resolution by Binding Arbitration)
18.2.1 cleverbridge and the Customer agree to arbitrate all disputes and claims between the
two parties (the"Parties"), This agreement to arbitrate is intended to be broadly
interpreted. It includes, but is not limited to:
o Claims arising out of or relating to any aspect of the relationship between the
Parties, whether based in contract, tort, statute, fraud, misrepresentation or any
other legal theory;
o Claims that arose before this or any prior agreement between the Parties
(including, but not limited to, claims relating to advertising);
o Claims that are currently the subject of purported class action litigation in which
Customer is not a member of a certified class; and
o Claims that may arise after the termination of any agreement between the
Parties.
Notwithstanding the foregoing, either party may bring an individual action in small
claims court. Customer agrees that, by accepting these terms and conditions,
Customer and cleverbridge are each waiving the right to a trial by jury or to participate
in a class action. The transaction between the Parties evidences a transaction in
interstate commerce, and thus the Federal Arbitration Act governs the interpretation
and enforcement of this provision. This arbitration provision shall survive termination
of the agreement entered into by the Parties.
18.2.2 A party who intends to seek arbitration must first send to the other, by certified mail, a
written Notice of Dispute ("Notice"). The Notice to cleverbridge should be addressed
to: cleverbridge AG, Gereonstr. 43-65, 50670 Cologne, Germany, ("Notice Address").
The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set
forth the specific relief sought ("Demand"), If cleverbridge and Customer do not reach
an agreement to resolve the claim within thirty(30) days after the Notice is received,
Customer or cleverbridge may commence an arbitration proceeding. During the
arbitration, the amount of any settlement offer made by cleverbridge or Customer
shall not be disclosed to the arbitrator until after the arbitrator determines the amount,
if any, to which Customer or cleverbridge is entitled. Customer may download or copy
a kl-n P 4-e.
18.2.3 After cleverbridge receives notice at the Notice Address that Customer has
commenced arbitration, it will promptly reimburse Customer for Customer's payment
of the filing fee. If Customer is unable to pay this fee, cleverbridge will pay it directly
upon receiving a written request at the Notice Address. The arbitration will be
governed by the Commercial Dispute Resolution Procedures and the Supplementary
Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the
American Arbitration Association ("AAA"), as modified by these terms and conditions,
and will be administered by the AAA. The AAA Rules are available online at
www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice
Address.All issues are for the arbitrator to decide, including the scope of this
arbitration provision, but the arbitrator is bound by the terms of these terms and
conditions. Unless cleverbridge and Customer agree otherwise, any arbitration
hearings will take place in the county(or parish) of Customer's billing address. If
Customer's claim is for Ten Thousand U.S Dollars (US$10,000) or less, cleverbridge
agrees that Customer may choose whether the arbitration will be conducted solely on
the basis of documents submitted to the arbitrator through a telephonic hearing, or by
an in-person hearing as established by the AAA Rules. If Customer's claim exceeds
Ten Thousand U.S Dollars (US$10,000), the right to a hearing will be determined by
the AAA Rules. Except as otherwise provided for herein, cleverbridge will,pay all AAA
filing, administration, and arbitrator fees for any arbitration initiated in accordance with
the notice requirements above. If, however, the arbitrator finds that the substance of
Customer's claim or the relief sought in the Demand is frivolous or brought for an
improper purpose(as measured by the standards set forth in Federal Rule of Civil
Procedure 11(b)), then the payment of all such fees will be governed by the AAA
Rules. In such case, Customer agrees to reimburse cleverbridge for all monies
previously disbursed by it that are otherwise Customer's obligation to pay under the
AAA Rules.
18.2.4 If, after finding in Customer's favor in any respect on the merits of Customer's claim,
the arbitrator issues Customer an award that is:
o Equal to or less than the greater of(a)Two Thousand U.S. Dollars (US$2,000)
or(b)the maximum claim that may be brought in small claims court in the county
of your billing address, and
o Greater than the value of cleverbridge's last written settlement offer made before
an arbitrator was selected, then cleverbridge will:
o Pay Customer the greater of(a) Two Thousand U.S. Dollars (US$2,000) or(b)
the maximum claim that may be brought in small claims court in the county of
Customer's billing address ('the premium") instead of the arbitrator's award; and
o Pay Customer's attorney, if any, twice the amount of attorneys'fees, and
reimburse any expenses that Customer's attorney reasonably accrues for
investigating, preparing, and pursuing your claim in arbitration ("the attorney
premium").
If cleverbridge did not make a written offer to settle the dispute before an arbitrator
was selected, Customer and Customers attorney will be entitled to receive the
premium and the attorney premium, respectively, if the arbitrator awards Customer
any relief on the merits. The arbitrator may make rulings and resolve disputes as to
the payment and reimbursement of fees, expenses, and the premium and,the attorney
premium at any time during the proceedings and upon request form either party made
within fourteen (14) days of the arbitrator's ruling on the merits.
18.2.5 The right to attorneys' fees and expenses set forth in clause 18.2.4 supplements any
right to attorneys' fees and expenses Customer may have under applicable law. Thus,
if Customer would be entitled to a larger amount under the applicable law';this
provision does not preclude the arbitrator from awarding Customer that amount.
However, Customer may not recover duplicative awards of attorneys'fees or costs.
Although under some laws cleverbridge may have a right to an award of attorneys'
fees and expenses if it prevails in arbitration, cleverbridge agrees that it will not seek
such an award.
18.2.6 The arbitrator may award injunctive relief only in favor of the individual party seeking
relief and only to the extent necessary to provide relief warranted by that party's
individual claim. CUSTOMER AND CLEVERBRIDGE AGREE THAT EACH MAY
BRING CLAIMS AGAINST THE OTHER ONLY IN CUSTOMER'S OR ITS
INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY
PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both
Customer and cleverbridge agree otherwise, the arbitrator may not consolidate more
than one person's claims, and may not otherwise preside over any form of a
representative or class proceeding. If this specific provision is found to be
unenforceable, then the entirety of this arbitration provision shall be null and void.
18.23 This Agreement will be construed in accordance with and governed in all respects by
the laws of the State of Illinois, USA, without regard to any conflicts of law principles
that would result in application of laws of any other jurisdiction. The United Nations
Convention on Contracts for the International Sale of Goods will not apply to this
Agreement.
19. Entire Agreement
These Ts&Cs cover the entire agreement between the Parties in relation to the stated dealings and
replace any previous or simultaneous agreements, communications and arrangements between the
Parties (whether oral or in writing) in relation to the present subject matter. Amendments and
additions to these Ts&Cs shall be in writing. The written-form requirement may only be waived in
writing.
20. Validity
Should a provision of these terms and conditions of business or a provision within the context of any
other agreements be or become invalid then this shall not affect the validity of the other agreements
or provisions. The statutory regulation shall apply in place of the invalid provisions.
cleverbridge AG
Version: January 2016
Download this document by clicking the button:
advlancml� camiur+rer�
cleverbrldge AG-arabaoter Sir.2-4-50674 Cologne-Germany
City of Kent
James Endicott
220 4th Ave S
Kent, WA 98391
United States
RECEIPT
Reference number: 46083526 Invoice date: 6/7/ 070( (p
_(required fur ail inquiries)
Invoice number: AKD-73626288267
INVOICE INFORMATION
# Product name Delivery Unit price qty. Price
1 Lansweeper Premium Download $995,00 1 $995.00
Preml4m Subscription
Total: $995.00
Unless stated otherwise, the delivery date is Identical to the billing date.
PAYMENT DETAILS
Your credit card (xxxxxxxxxxxxx8501) has been successfully authorized. Please note that the charge on your
credit card will appear as Www.cleverbridge.net."
Chairman of Supervisory Board: Registry court: Local Court of Bank information:
Dr. Michael Inhester Cologne/ HRB 58900 Account holder: cieverbridge AG
Management: VAT ID: DE244822460 Account number: 2071645
Christian slu ne,Peter Blunck, Dr. Tax ID: 223/5803/3663 Bank identifier code: 3707QO60 '..
Oliver Breme, Martin Trzaskalik, Bank name: Deutsche Bank
Craig Vodnik IBAN: DE83370700600207164500
BIC (SWIFr): DEUTDEDKXXX
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