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Software Terms

Contract for software transfer and maintenance

preliminary remark

  1. This contract applies between the contracting parties in their contractual relationship (see §1). Different conditions of the contractual partner of the sportstation GmbH (hereinafter referred to as TS) do not apply. Different agreements between the parties that go beyond the content of these conditions only become part of the contract if they are agreed in writing.

  2. This Agreement shall be incorporated into the agreement between the parties by reference in any order form or otherwise. Signing this contract is not a formal requirement for its effectiveness. The text of this contract is made available to the customer in electronic form on the Internet at   http://www.thesportstation.com/legal/software/  .

  3. For reasons of better readability, the simultaneous use of male and female forms of speech is avoided. All personal designations apply equally to both genders, without any discrimination being intended.

  4. TS provides its customers (hereinafter: licensees) with hardware and software for recording and evaluating running and movement data (sportstation). The hardware can be purchased or rented by the licensee. The following license agreement regulates the rights and obligations of the parties in connection with the use of the sportstation device software and the sportstation cloud or cloud software.

§ 1 Contractual partner and contractual relationship

1. Parties to this contract are

the sports station GmbH

Juice genriede 3a

38518 Gifhorn

Germany

and the Customer who accepts the terms of this Agreement by clicking the Accept button, signing and sending the Order Form/Quotation to TS, or signing any other document that references this Agreement.

2. The contractual relationship between TS and the customer is exclusively determined by this software license and maintenance contract. The customer's contractual terms will not become part of the contract, even if TS has not expressly objected to them.

§ 2 Subject of the contract

  1. TS provides Licensee with the following software subject to the following terms:

    • Sportstation device software: the software enables the operation and control of the sportstation hardware (hereinafter: device software).

    • Sportstation cloud software: the cloud enables the use of advanced functions by evaluating the data collected, in particular creating training sessions and events, managing participants, logo campaigns and geocoded advertising campaigns (hereinafter: cloud software).

(Device software and cloud software are hereinafter collectively referred to as software)

  1. The product description available at   www.thesportstation.com   applies to the software in the respective version at the time the contract was concluded. The functional features and system requirements of the software mentioned there are known to the licensee. He has checked the compliance of this specification with his wishes and needs.

  2. If the licensee rents a device, the following additional points apply:

    • TS grants the licensee a simple, geographically and factually limited right of use to the sportstation device described in more detail in the order form/offer for this contract. Hereinafter referred to as device.

    • Licensee must treat the device with care and comply with the operating instructions available at   www.thesportstation.com/documentation  . The device is to be operated as it corresponds to normal operation. The licensee is liable for damage caused by gross negligence in handling the device.

    • For storage, the device must be kept in a closed, dry room or in a locked cupboard.

    • The licensee will appoint a trustworthy person to take care of the device. At the request of TS, the licensee will provide the contact details of the supervisor.

    • TS has the right to ask for the location of the devices and to receive correct information at any time.

    • The licensee may not make any changes to the device

    • The licensee must notify TS immediately of any damage to the device

    • The licensee will only use the device in accordance with the application scenarios defined in the order form/offer.

    • The device remains the property of TS. Measures that affect the property of TS must be reported immediately by the licensee.

    • For any loss of the device and damage to the device that is not due to normal wear and tear, the licensee is liable, depending on the damage, up to the full sales price of the device according to the price list valid at the time of the damage.

§ 3 Granting of rights

  1. TS grants the licensee a simple, locally and subject-restricted right to use the device software, as is necessary for the agreed use. In principle, the licensee is not authorized to transfer rights of use to third parties or to grant further rights to third parties. If a Sportstation device is purchased, the licensee receives an unlimited right to use the device software; if the Sportstation device is rented, the right to use the device software ends with the end of the transfer of use.

  2. TS grants the licensee a simple right to use the cloud software that is limited in terms of time and subject matter to the extent agreed in the individual contract. The licensee does not become the owner of the software, nor is he fundamentally authorized to transfer rights of use to third parties or to further grant rights to third parties. In terms of location, the right to use the cloud software is limited to the place of use agreed between the contracting parties in the individual contract. If no agreement is reached between the contracting parties about the place of use, the licensee is entitled to operate the extended functionalities of the cloud software within a radius of 1 km from his business premises. Exceptions are gyms and schools that are not near the headquarters.

  3. The licensee is obliged to take suitable measures to protect the software against access by unauthorized third parties, in particular to keep all copies of the software in a protected place.

  4. The licensee is not entitled to make the software or any backup copy made available to third parties. In particular, he is not permitted to sell, lend, rent or otherwise sublicense the software or to publicly reproduce or make the software accessible.

  5. The use of the software and the data made available by it is permitted exclusively for the licensee and his employees and exclusively for use and processing in the licensee's own company. Any passing on of the software as well as the access data and the data and information contained therein is prohibited. The same applies to allowing third parties to use the software or the cloud. Violations entitle TS to terminate this contract without notice after a warning and to assert claims for damages and can be prosecuted under civil and criminal law.

  6. Licensee may not reverse engineer, decompile, or disassemble the Software or otherwise attempt to make the source code of the Software accessible. A right to release the source code is excluded.

  7. Agreements that deviate from this granting of rights must be in writing and are specified in more detail in the order form/offer or in a separate agreement.

  8. If activation of the device software is required, the use of the device software will be assigned to a specific device. During activation and subsequent use of the device, the device software may transmit information about the device software and the device to TS. This information includes the version, language and product key of the device software, the IP address, the operating system, the version of the device software that the customer is using and the language code of the device running the device software. TS only uses this information to provide Internet-based services to the customer. By using the device and the device software, the customer agrees to the transmission of this information to TS.

§ 4 Extensions, Partial Terminations

  1. If the licensee acquires the right to use additional fee-based software modules during the term of the contract, all rights and obligations arising from this contract also extend to these modules from the time of activation.

  2. Paragraph 1 applies accordingly in the case of partial termination of individual modules.

§ 5 Warranty, rectification of defects, software maintenance

  1. The contracting parties are aware that, given the current state of the art, it is not possible to create software that is completely free of defects. If the deviation from the agreed quality is only insignificant or if the usability is only insignificantly impaired, there are no claims for defects.

  2. TS guarantees that the contractually agreed quality of the software will be maintained during the term of the contract and that no third-party rights conflict with the contractual use of the software. TS will remedy any material and legal defects in the rented item within a reasonable period of time.

  3. The licensee is obliged to notify the licensor in writing of any defects in the software immediately after they are discovered. In the case of material defects, this is done with a description of the time the defects occurred and the more detailed circumstances. TS is entitled to have the troubleshooting carried out by third parties or their service providers.

  4. The elimination of errors in the case of defects in the software that do not come from the area of responsibility of the licensee, which significantly impede the operation of the licensee and for which there is no workaround, begins within one week after receipt of the error message. Error elimination can be combined with the next software update if this is reasonable for the licensee.

  5. TS provides the following services during the contract period:

    • Development : TS develops the software in terms of quality and modernity, adapts it to changing requirements, eliminates errors in order to maintain the quality owed and makes new versions of the software available to the licensee as a result. Smaller function extensions are also included.

    • Troubleshooting : TS supports the licensee with information on software use and error avoidance, error correction and error workarounds in accordance with the cloud, maintenance and support plan booked in each case. For this purpose, a telephone hotline is available to the licensee on weekdays according to the booked support level (cloud, maintenance and support plan).

  6. TS provides the services according to the current state of the art and in such a way that they are based on the interests of all software users. The services are only provided in relation to the last and immediately prior software version delivered by TS.

  7. TS can demand additional costs if the software has been modified, used outside of the specified environment or operated incorrectly. It can demand reimbursement of expenses if no defect is found and the licensee did not report the defect without negligence. The burden of proof lies with the licensee. § 254 BGB applies accordingly.

  8. In the case of equipment rental, the following agreements apply to maintenance and repair:

    • The licensee is not authorized to repair the device himself. However, he is obliged to regularly connect the device to the Internet in order to carry out the data synchronization and the authorized software updates, thus ensuring a perfect device status.

    • All maintenance, repairs etc. are carried out by TS. If a device is damaged through the fault of the licensee, the licensee is liable to TS for the damage incurred.

    • Claims by the licensee that go beyond the maintenance and repair services, in particular claims for compensation for damage caused by temporary failure of the device or delayed repair or other consequential damage, are excluded to the extent permitted by law.

§ 6 Term and Termination

  1. This agreement begins on the day the customer accepts the services of TS by either clicking the accept button or signing the order form and sending it to TS; in the latter case, the day TS receives the order form is the start of the term.

  2. The term of the cloud maintenance and support plan and an optional device rental is specified in the order form/offer. The contract is automatically extended under the same conditions if one of the two parties does not cancel in writing 3 months before the end of the term.

  3. Insofar as the licensee acquires extended functionalities (national or extended event mode), TS grants the licensee the rights required for the respectively agreed use. The term begins when the cloud is activated and depends on the individual agreements made between the parties.

  4. In addition, the Cloud Maintenance and Support Plan and Equipment Rental may be terminated by either party in writing for cause without notice. An important reason that entitles the licensor to terminate exists in particular if the licensee defaults on his payment obligation or violates the licensor's rights of use by using the software beyond the extent permitted under this contract and the violation is due to a warning of the licensor within a reasonable period of time. Despite termination, TS's claim to payment remains, limited to the period for which the customer originally wanted to use the service of TS. In any case, TS has the right to prove the reason for the damage and the amount of the damage and to assert a corresponding damage claim against the customer.

  5. In the event of termination, the licensee must give up using the software and immediately return or destroy any existing copies. In the case of a device rental, he must return the device and all accessories to TS immediately after the end of the contract. The licensee bears the cost of the return shipment.

§ 7 defects of title

  1. TS guarantees that no rights of third parties conflict with the contractual use of the software by the licensee. In the event of legal defects, TS guarantees that it will provide the licensee with a legally correct option to use the software or equivalent software at its discretion.

  2. The licensee shall inform TS immediately in writing if third parties assert property rights (e.g. copyrights or patent rights) to the software. TS supports the licensee in its defense against attacks by third parties by providing advice and information.

§ 8 Confidentiality and data protection

  1. The contracting parties undertake to treat as confidential all documents and information received or known to them from the other contracting party before or during the execution of the contract, which are legally protected or contain business or trade secrets or are designated as confidential, even after the end of the contract, unless they are publicly known without violating the duty of confidentiality. The contractual partners keep and secure these items in such a way that access by third parties is excluded.

  2. The parties undertake to observe the relevant data protection regulations within the scope of the execution of the contract.

§ 9 Final Provisions

  1. The licensee may only transfer rights and obligations arising from or in connection with this contract to third parties with the written consent of the licensor.

  2. Offsetting is only permissible against undisputed or legally established claims of the licensor.

  3. Changes and additions to the contract must be in writing. This also applies to the amendment or cancellation of this clause.

  4. General terms and conditions of the licensee do not apply.

  5. German law shall apply exclusively to this contract, excluding the United Nations Convention on Contracts for the International Sale of Goods dated April 11, 1980 (UN Sales Convention).

  6. The parties understand that software may be subject to export and import restrictions. In particular, there may be authorization requirements or the use of the software or related technologies abroad may be subject to restrictions. For this reason and for reasons of data protection law, the licensee is not permitted to use the software outside the territory of the European Union, to export it or to make it usable abroad. Irrespective of the aforementioned restrictions, the licensor is obliged to comply with the applicable export and import control regulations of the Federal Republic of Germany, the European Union and the United States of America, as well as all other relevant regulations.

  7. The place of performance for all obligations arising from the contractual relationship is our place of business. If the buyer is a merchant i. s.d. Commercial Code, a legal entity under public law or a special fund under public law, the Munich District Court is the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. However, we are also entitled to sue the customer at the court responsible for his place of business. Overriding legal regulations, in particular regarding exclusive responsibilities, remain unaffected.

  8. Should individual provisions of this contract be ineffective, this does not affect the validity of the remaining provisions. The contracting parties will endeavor to replace the ineffective provision with one that comes as close as possible to the legal and economic goal of the contract.

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