Terms and Conditions

1. Subject matter of the contract, scope of application

1. 1. The following terms and conditions (GTC) apply to
      1. the provision of software from Flicono LLC (hereinafter referred to as the “Flicono”) for Transport Management (hereinafter including all bug fixes, enhancements, updates and new releases provided under the contractual agreements. “Software”) and storage space (collectively, the “Service(s)”) for Customer’s use of the Service over the Internet; and
      2. the temporary provision of the software to the customer; and related services and support.

1. 1. Conflicting contractual conditions of the customers are only valid if Flicono expressly confirms them in writing.
   2. The following terms and conditions shall also apply to all future transactions in the event of ongoing business relations.

2. OFFERS, CONCLUSION OF CONTRACT

Flicono’s offers are subject to change without notice, unless they are expressly stated to be bindingly designated or agreed. The customer is bound to his offer for 14 days. A contract is only concluded upon written confirmation of the order received by Flicono, at the latest, however, upon acceptance of the delivery.

3. SERVICES

The following provisions apply to Services:

1. 1. Flicono provides the services to the customer as described in the offer of Flicono (hereinafter referred to as “offer”) subject to the availability determined below on a central data processing system or several data processing systems ([also in the case of plural] hereinafter referred to as “system”). Server”) for a period of time defined in the Offer, a number of users (“Named Users”) and a number of virtual workspaces (“Workspaces”) defined in the Offer for access by means of a browser and an Internet connection.
   2. Unless otherwise specified in the offer, the availability of the service is 99.6% on a monthly average.
   3. Flicono provides storage space on the server for the data generated by the customer through the use of the services and/or the data required for the use of the services (hereinafter referred to as “customer data”) for a contractually defined period of time. The capacity of the storage space is determined in the offer.
   4. The Customer is entitled to access the Services through the number of users specified in the Offer (“Named Users”), subject to the availability specified in the Offer, by means of a browser and an Internet connection. The service is handed over at the router exit of the data center where the server is located. The customer is responsible for the Internet connection between the customer and the data center and the necessary hardware and software (e.g. PC, network connection, browser). The use is limited to the number of virtual workspaces (“Workspace”) specified in the offer. The customer is not permitted to use more than this.
   5. Flicono shall provide the customer with the data for access to the server, in particular the agreed number of user names and passwords. If the customer acquires a paid service, the customer does not receive access before payment of the fees due for the period of use. Flicono is entitled to withhold the transmission of user names and passwords until the fees have been paid in full. All user names and passwords must be changed immediately by the customer to names and passwords known only to him and, if applicable, to third parties authorized to use the service. Flicono is entitled to change the access data at any time with reasonable notice.
   6. The customer’s authorization to use the services begins with the provision of the software and the storage space on the server and the transfer of the access data to the customer. It shall expire at the earliest upon expiration of the term specified in the offer and shall be automatically extended by terms of the same length if the contract is not terminated in writing no later than one month prior to expiration of the respective term. The rights of termination pursuant to Section 8.7 and Section 11 of these GTC shall remain unaffected.
   7. The customer grants Flicono the non-exclusive right to use the customer data and other data stored by authorized users on the server for the purpose of fulfilling Flicono’s obligations under this contract, in particular to reproduce this data itself or through a subcontractor for the purpose of providing the services on the server, to view it and to make it available to authorized users.
   8. The Customer shall, if and to the extent that it is mutually agreed that it has the technical possibility to do so, back up the Customer Data stored on the server on a regular basis and in accordance with the significance of the data and shall create its own back-up copies in order to enable the reconstruction of such data in the event of its loss.
   9. When using the Services, the Customer shall comply with the applicable data protection laws, in particular obtain the required consent of the respective data subject, insofar as the Customer collects, processes or uses personal data when using the Services and no statutory permissible circumstance applies.
   10. The customer shall ensure that (e.g. when transmitting texts/data of third parties to the server) he observes all rights of third parties to material used by him.
   11. Before sending customer data to the server, the customer shall check them for viruses and use state-of-the-art virus protection programs.
   12. The customer will not misuse the service or allow it to be misused, in particular will not use on the server any illegal or immoral content and / or such content that serves to incite the people, incite to criminal acts or glorify or trivialize violence, are sexually offensive or pornographic, are capable of seriously endangering children or young people morally or impairing their well-being or can damage the reputation of Flicono, and will not refer to such content.
   13. The Customer shall take reasonable precautions to prevent unauthorized access to the Services, in particular to protect the Services from unauthorized use. The customer is obliged to keep user IDs and passwords secret and not to disclose them to unauthorized third parties. To make them accessible. Employees and other authorized users must be expressly instructed to comply with these conditions.
   14. If the customer or a third authorized user violates an obligation under sec. 3.9 through 3.13, Flicono may, without prejudice to any other rights under this Agreement or law, upon prior written notice to Customer, suspend access to the Services and Customer Data until the breach is cured.
   15. Insofar as the Customer makes the Services accessible to authorized third parties, the Customer shall impose on such third parties obligations corresponding to Sections 3.8 to 3.13 as well as Section 5.3.

4. SOFTWARE LEASING

The following provisions apply to the transfer of software:

1. 1. With the provision of the software, Flicono grants the customer a non-exclusive, non-transferable and time-limited right to install and use the software in accordance with the following regulations.
   2. The Customer shall be entitled to install the Software on a server operated by it or on its behalf and to make the Software installed on the server accessible to the users authorized in accordance with Section 4.3 below via an intranet or internet connection.
   3. The Customer is entitled to use the Software by the number of users (“Named Users”) specified in the Offer. The use is limited to the number of virtual workspaces named in the offer. The customer is not permitted to use the software beyond this number.
   4. The right of use (license) begins with the delivery of the software, unless the Flicono owes the installation of the software, in which case the right of use begins with the installation. The license expires at the earliest after expiration of the term specified in the offer and is automatically extended by terms of the same length if it is not terminated in writing at least one month before expiration of the respective term. The rights of termination pursuant to Section 8.7 and Section 11 of these GTC shall remain unaffected.
   5. The customer is not entitled to the following actions:

1. 1. 1. Modification, adaptation, translation, editing, arrangement or other reworking of the software as well as the reproduction of the results obtained thereby, insofar as these actions are not necessary for the intended use of the software, including the correction of errors by the person authorized to use the program, and Flicono has not offered and, in the case of an assignment, carried out the removal of the obstacle to the intended use within a reasonable period of time;
      2. Disassembling, decompiling, reverse engineering or using any other method to obtain the source code, unless these actions are necessary to establish the interoperability of an independently created computer program with other programs and Flicono has not made the information necessary for this available within a reasonable period of time;
      3. Duplication of the Software with the following exceptions: Installation of the Software in accordance with Section 4.2 above, running of the Software and creation of a backup copy, which must be marked as such;
      4. Removal or modification of trademarks, copyright or other proprietary notices from the Software;
      5. Lending, renting, leasing or otherwise temporarily transferring the software to third parties.

5. SUPPORT, TRAINING

1. 1. Flicono will provide the customer with the support defined in the offer for the use of the services for the period of provision of the services or transfer of the software.
   2. Training on the use of the Services and Software may be ordered by the Customer for a separate fee.

6. ADDITIONAL TERMS AND CONDITIONS FOR SERVICES AND SOFTWARE LICENSING

1. 1. 1. The Customer shall be entitled to make the Services and the software provided to it accessible to its employees and third parties working for and on behalf of the Customer in accordance with these GTC and the Agreement, provided that the number of users does not exceed the contractually agreed maximum number of named users (“Named User”). Furthermore, the Customer shall not be entitled to make Services or software provided to it accessible to third parties or to use the Services on behalf of a third party, e.g. as a service bureau or as an application service provider (ASP).
      2. The customer will inform Flicono immediately as soon as he becomes aware of the infringement of an industrial property right or copyright to the Services or the disclosure of user IDs or passwords to unauthorized users.
      3. The customer shall not misuse the exchange of electronic messages possible within the framework of the contractual relationship and/or using the software for the unsolicited sending of messages and information to third parties for advertising purposes.
      4. The customer will oblige the authorized users to comply with the terms of use of these GTC on their part.

7. SUBCONTRACTOR

Flicono is entitled, in order to provide the services and deliveries in accordance with this contract to engage subcontractors.

8. COMPENSATION

1. 1. The customer shall pay a monthly fee for the provision of the services and the storage space or the provision of the software as well as the provision of support. The amount of the remuneration results from the respective offer. The remuneration is also owed if the services are not used.
   2. The prices stated in offers from Flicono or in a quotation do not include the respective statutory value added tax.
   3. The remuneration shall be due in advance in each case before the start of the agreed payment period.
   4. Flicono sends invoices electronically to the customer. If the customer chooses to send paper invoices instead of electronic invoices, the amount due per invoice will be increased by a service fee of EUR 3.50 plus VAT.
   5. The remuneration is collected on the due date postage and free of charge by direct debit. If the customer chooses a method of payment other than direct debit, the remuneration and other amounts owed are to be transferred to one of Flicono’s specified accounts free of charge for Flicono. In this case, the amount due per agreed payment period is increased by a service fee of EUR 7.50 plus statutory VAT.
   6. In the event of late payment, the customer must pay interest on arrears at the statutory rate as well as the statutory flat rate for late payment of EUR 40.00. For chargebacks of contractual direct debits for which the customer is responsible, costs of EUR 25.00 each will be charged; Flicono is entitled to prove higher costs, the customer is entitled to prove lower costs. If the customer is more than 30 days in arrears with payments for services, Flicono is entitled to block the customer’s access to the services until the customer has fulfilled his due payment obligations. The assertion of further rights and claims due to the delay remains reserved.
   7. Flicono is entitled to adjust the amount of the remuneration, including the price per service unit, appropriately each year if the agreed service units are exceeded. In the case of an adjustment, Flicono will take into account cost changes that have occurred in the meantime in the area of wages, salaries and costs of the acquisition of IT services. An adjustment shall be considered for the first time with effect from the beginning of the second contract year (calculated from the beginning of the contract term) and shall become effective on the date specified by Flicono, but no earlier than one month after receipt of the notification of the adjustment vis-à-vis the customer. In the event of an increase in remuneration of more than 5% in each case, the customer may terminate the relevant individual contract extraordinarily. The termination must be declared in writing immediately after receipt of the notification of the increase with effect from the date on which the increase takes effect. Clause 8.8 shall remain unaffected.
   8. Flicono is further entitled and, in the event of changes in favor of the customer, obliged to adjust the remuneration in accordance with Clause 8.1 if and to the extent that the statutory value added tax changes or taxes are introduced that relate to the services or software and affect Flicono.

9. REDUCTION, SET-OFF / RETENTION BY THE CUSTOMER

1. 1. Malfunctions of the services or software that are remedied by Flicono or a third party within reasonable or agreed deadlines do not entitle the customer to a reduction of the remuneration.
   2. The customer shall only be entitled to a right of set-off for claims that are undisputed, ready for a decision or legally established. The customer may only assert a right of retention on the basis of claims arising from the contract and only insofar as these claims are undisputed, ready for a decision or legally established.

10. LIABILITY

1. 1. Flicono’s strict liability for damages for defects in the services or software already existing at the time of conclusion of an individual contract is excluded. In all other respects, Flicono’s liability for damages, including liability for defects in the services and software already existing at the time of conclusion of the contract and for defects occurring during the term of the contract, is governed by law, as modified by the following provisions of this Clause 10.
   2. Flicono is liable without limitation for damages caused intentionally or by gross negligence.
   3. In the event of a slightly negligent breach of a primary obligation or a secondary obligation, the breach of which jeopardizes the achievement of the purpose of the contract or the fulfillment of which makes the proper execution of the contract possible in the first place and on the observance of which the customer could rely (hereinafter “essential secondary obligation”), the liability of Flicono shall be limited to damages foreseeable at the time of the conclusion of the contract and typical for the contract. Flicono shall not be liable in the event of a slightly negligent breach of secondary obligations which do not belong to the essential secondary obligations.
   4. The above exclusions of liability in this Clause 10 do not affect the liability of Flicono for a quality guarantee assumed, for fraudulent intent, for damages arising from injury to life, body and health and for product defects in accordance with the Product Liability Act. A change in the burden of proof to the disadvantage of the customer is not associated with this.
   5. Insofar as liability is excluded or limited in accordance with this Clause 10, this shall also apply to the personal liability of Flicono’s employees, representatives and vicarious agents.
   6. With the exception of claims in tort, claims for damages by the customer for which liability is limited under this Section 10 shall become statute-barred twelve months after the statutory commencement of the limitation period.

11. TERMINATION, TERMINATION OF CONTRACT

1. 1. Subject to Clause 8.7 and subject to the following provisions of this Clause 11, termination prior to expiry of the term agreed in the individual contract shall be excluded. The statutory right of both contracting parties to terminate without notice in the event of good cause shall remain unaffected.
   2. Subject to § 112 of the Insolvency Code, Flicono may in particular terminate without notice for cause if
      1. in the case of monthly payment periods, the customer is in default with the payment of the remuneration or a not insignificant part of the remuneration for two consecutive dates and a grace period of 14 days granted to the customer has expired without success. In the case of quarterly, semi-annual or annual payment periods of the remuneration, the provision shall apply accordingly if the customer is in default with the payment of the remuneration in a period extending over more than one month in an amount that reaches the pro rata remuneration for two months.
      2. a significant deterioration of the financial situation of the customer occurs or threatens to occur and as a result the payment of the remuneration or the fulfillment of another significant obligation towards Flicono is concretely endangered, in particular if the customer stops his payments not only temporarily, is insolvent or over-indebted or if execution is levied against his assets,
      3. the customer does not immediately cease a violation of essential contractual obligations despite a warning by Flicono and the rights of Flicono are thereby violated to a considerable extent. A warning is dispensable if it obviously does not promise any success or if special circumstances exist which, after weighing the interests of both parties, justify immediate termination.
      4. Flicono’s right to terminate without notice for any other good cause remains unaffected.
      5. Notice of termination must be given in writing.
      6. In the event of a premature termination of the contract due to a termination without notice by Flicono for which the customer is responsible, Flicono’s claim includes, in addition to any gross remuneration and other amounts still in arrears, the net remuneration still outstanding for the agreed term. The crediting of saved interest, other saved expenses and other termination-related benefits shall be governed by the statutory provisions. Flicono’s claim becomes due upon receipt of the termination notice. Further claims for damages by Flicono remain unaffected.
      7. Upon termination of an individual contract, Flicono will make the customer data stored on the server available for download for 14 days from the date of contract termination. After this period, Flicono will delete any customer data still on the server.

12. DATA PROTECTION

1. 1. Insofar as the customer commissions Flicono with the collection, processing and use of personal data or Flicono obtains access to personal data used by the customer on the occasion of the execution of the contract, Flicono undertakes to process and use this data only in accordance with the provisions of data protection law, in particular those of the German Federal Data Protection Act (BDSG neu) and the German Data Protection Regulation (DS-GVO).
   2. For the use with personal data the conclusion of an order processing contract is necessary before the transfer of personal data. Flicono LLC provides the customer with this order processing contract in a separate mail. By collecting personal data, the contractor (customer) declares his consent to the order processing contract.
   3. We expressly point out that the test account may only be used for test purposes, should personal data be collected here, point two also comes into force for test accesses.

13. PUBLIC RELATIONS

Each contracting party shall have the right to notify the other contracting party in the form as reference customer or contractual partner after prior approval, in which the other contractual partner presents itself in business dealings, in particular to third parties. This representation usually extends to the mention of the name of the contractual partner in connection with its logo, on the website, on presentation slides, in advertising brochures and the like.

14. MISCELLANEOUS

1. 1. All agreements, ancillary agreements and assurances concluded before or at the time of conclusion of the contract must be in writing in order to be effective.
   2. Should individual provisions of the party agreements be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. In this case, the parties undertake to replace the invalid provision with a valid provision that comes as close as possible to the economic purpose of the invalid provision. The same shall apply to any loopholes in the agreements.
   3. The exclusive place of jurisdiction for all disputes arising from or in connection with the contract is the registered office of Flicono, provided that the customer is a merchant, a legal entity under public law or a special fund under public law or provided that the customer has no general place of jurisdiction in Germany. Flicono is also entitled to take legal action at the customer’s registered office or at any other competent court.
   4. The law of the United States shall apply with the exception of its provisions on the choice of law which would lead to the application of another legal system. The validity of the CISG (“UN Sales Convention”) is excluded.