Terms and ConditionsLympik GmbHTerms and Conditions (the “Terms and Conditions”) cover the relationship between Lympik GmbH(“Lympik OG”) and users (hereinafter referred to as the “Client”) of its flagship product the Lympik GmbH which is marketed on a “Software as a Service” basis. Client’s use of the Lympik GmbHSolution, including any applicable free trials, shall be deemed Client’s agreement to these Terms and Conditions.1.1. By signing up to the Lympik GmbHSolution and completing the registration the Client indicates the acceptance of this agreement and agree to abide by the Terms and Conditions set forth herein.1.2. If the Client is entering into this agreement on behalf of a business or another legal entity, the Client hereby represents and warrants to have the authority to bind such entity and its affiliates to the Terms and Conditions of this agreement. If the Client does not have such authority, or if the Client does not agree with the Terms and Conditions, the Client may not accept this agreement nor may use the service offered.1.3. This Agreement was last updated on November 23, 2016. It is effective between the Client and Lympik GmbH as of the date you accepted this Agreement (the “Effective Date”).Definitions. For purposes of these Terms and Conditions, the terms below shall have the meanings defined below. Additional terms are defined in the preamble above and throughout these Terms and Conditions.2.1. “Affilates” means any entity which directly or indirectly controls, is controlled by or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of the voting interests of the subject entity.2.2. “End Users” means individuals with the legal competence and the authorization to access and use the Lympik GmbH Solution under the Client’s subscription. End Users may include the Client and Client’s employees, consultants, contractors, and agents.2.3. “Lympik GmbH Solution” means the online Lympik GmbH application provided by Lympik GmbHand the underlying servers and software used to provide such application (collectively the “System”) either as a “Software as a Service” or as a software sale.2.4. “Subscription” means the right to access the Lympik GmbH Solution during the Term.2.5. “Your Data” means any personally identifiable data uploaded by the Client to the Lympik GmbH Solution that would typically be provided in the normal course of using the Lympik GmbH Solution, as well as all information generated by the End Users during the use of the Lympik GmbH Solution. Your Data includes, without limitation, any financial information of any nature or any other personally identifiable information that could be legally considered private or sensitive.Provision of the Solution3.1. Registration. The Client has the legal competence and authorization to register and must provide complete and accurate information during the registration process, including a valid credit card number that the Client is authorized to use when registering for a paid subscription3.2. Free Trial. Lympik GmbH may make all or part of the Lympik GmbH Solution available to the Client and End Users on a trial basis free of charge (the “Free Trial”). The Free Trial shall begin when the Client submits a registration for the same to Lympik OG, and shall terminate on the earlier of (i) the Free Trial expiration date as specified by Lympik GmbH upon receiving the registration, or (ii) the date the Client executes an Order Form for a subscription under this Agreement. Notwithstanding Section 11 “Warranties and Disclaimers”, access to the Lympik GmbH Solution is provided “As-Is” and without warranty of any kind during the Free Trial. The Client data entered and any specific settings or preferences the Client and the End Users make during the Free Trial will be permanently deleted unless the Client purchase a subscription.3.3. Subscription. Lympik GmbH shall make the Lympik GmbH Solution available to the Client and the End Users pursuant to this Agreement and all Order Forms during the Term. The Client agrees that the purchase of the Subscription is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Lympik GmbH with respect to future functionality or features.3.4. Support. Lympik GmbH will provide email and telephone support to Client during the time of the paid Subscription. Any action or conduct of the Client, based on the support services shall be performed under Client sole responsibility.Web-Based License.4.1. Lympik GmbH grants to Client and Client accepts, a limited, non-transferable, nonexclusive and revocable right to access the Lympik GmbH Solution via the internet and use the Lympik GmbH Solution only as authorized in these Terms and Conditions, for its own purpose and operations , during the Subscription Terms. Client acknowledges that its access and use of the Lympik GmbH Solution will be web-based only. The Lympik GmbH Solution will not be provided to Client in CD-ROM term (or any other form of media) and will not be installed on any servers or other computer equipment owned or otherwise controlled by Client. Instead, the Lympik GmbH Solution will be hosted by Lympik GmbH for Lympik GmbH standalone or on the Client’s Salesforce instance for Lympik GmbH on Salesforce. The Lympik GmbH solution is accessed and used by Client through the use of the Internet and Client’s computers.4.2. Mobile Apps. Lympik GmbH may offer applications that allow Client to access the Lympik GmbH Solution on Client’s iPad (in the future on other mobile devices running the Android or iOS operating system). Mobile devices must be purchased separately and are not included in Client Subscription. Lympik GmbH mobile apps require an active internet connection, and may incur data charges with Client wireless carrier, including roaming charges where applicable. Lympik GmbH mobile apps may collect technical data, including information about application crashes and usage statistics, and may use certain third party libraries or modules. Any such mobile apps offered by Lympik GmbH shall constitute part of the Lympik GmbH Solution, and as such their usage is subject to the terms and conditions of this Agreement.Conduct and Use Guidelines5.1. Ownership of Client Data. Client retains all right, title and interest in and to all Client Data. Lympik GmbH shall not access the Client Data except to respond to service or technical problems, or at Client request.5.2. Collection of Client Data. Client is responsible for all activities that occur in Client account and for the End User’s compliance with this Agreement. Client shall, and shall cause Client’s End Users to, comply with all local, state, federal or foreign law, treaty, regulation or convention applicable to Client in connection with the use of the Lympik GmbH Solution, including without restriction, the CAN-SPAM Act of 2003 (U.S.A.), the Personal Information Protection and Electronic Documents Act (PIPEDA) (Canada), the EU Data Protection Directive and other laws applicable to Client related to privacy, publicity, data protection, electronic communications and anti-spamming laws. Client is responsible for the collection, legality, protection and use of Client Data that is stored on the System or used in connection with the Lympik GmbH Solution. Lympik GmbH will not be responsible for any loss or disclosure of Client Data (or any damages related thereto) resulting from Client or Client’s End Users’ failure to adequately secure their user identification and passwords.5.3. Acceptable Use. Client and Client’s End Users shall use the Lympik GmbH Solution for Client internal business purposes as contemplated by this Agreement and shall not:(i) tamper with the security of the System or tamper with other customer accounts of Lympik OG,(ii) access data on the System not intended for Client,(iii) log into a server or account on the System that Client is not authorized to access,(iv) attempt to probe, scan or test the vulnerability of any System or to breach the security or authentication measures without proper authorization;(v) render any part of the System unusable;(vi) lease, distribute, license, sell or otherwise commercially exploit the Lympik GmbH Solution or make the Lympik GmbH Solution available to a third party other than as contemplated in this Agreement;(vii) use the Lympik GmbH Solution for timesharing or service bureau purposes or otherwise for the benefit of a third party; or(viii) provide to third parties any evaluation or Free Trial version of the Lympik GmbH Solution without Lympik OG’s prior written consent.5.4. Communications Responsibilities. Client shall be responsible for the content of all communications sent through the Lympik GmbH Solution, and shall comply with all applicable laws and regulations in Client use of the Lympik GmbH Solution. Client agrees that the Client will not use the Lympik GmbH Solution to communicate any message or material that(i) is libellous, harmful to minors, obscene or constitutes pornography;(ii) infringes the intellectual property rights of a third party or is otherwise unlawful; or(iii) would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense under any applicable law or regulation. Client further agrees that Client shall not use the Lympik GmbH Solution for the purpose of making emergency calls or providing emergency services.5.5. Breach of Guidelines. In the event Client or Client End Users materially breach this Section 4, Lympik GmbH will endeavour to provide Client with the opportunity to remove or disable access to the offending material or content, provided, however, that Lympik GmbH reserves the right to immediately remove, in its sole discretion, any content which is unlawful or offensive without prior notice to Client. In addition to any other rights and remedies under the Agreement and in law, Lympik GmbH reserves the right to immediately suspend access to the Lympik GmbH Solution if such breach, in Lympik OG’s opinion, is an imminent threat to the System, other customer accounts, or constitutes abusive or threatening behaviour.Third Party Providers6.1. Acquisition of Non-Lympik GmbH Products and Services. Client acknowledges that third party products or services may be made available to Client from time to time by Lympik GmbH or third parties, and that Client decision to acquire any such products or services is solely between Client and the applicable third party provider. Unless specifically set forth on an Order Form, Lympik GmbH does not warrant or support third party products or services.6.2. Third Party Applications and Client Data. Client further acknowledges that if Client acquires third party applications for use with Client Subscription, Lympik GmbH may allow the providers of such applications to access Client Data in order to allow such applications to interoperate with the Lympik GmbH Solution. Lympik GmbH shall not be responsible or liable for any disclosure, modification or deletion of Client Data resulting from any such access by third party application providers.Confidentiality7.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that is designated in writing as confidential as well as Client Data. Confidential Information shall not include information which:(a) is known publicly;(b) is generally known in the industry before disclosure;(c) has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; or(d) has been otherwise lawfully known or received by the Receiving Party.7.2. Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.7.3. Protection. The Receiving Party agrees to keep confidential all Confidential Information disclosed to it by the Disclosing Party, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of its own (at all times exercising at least a reasonable degree of care in the protection of Confidential Information).7.4. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.Fees and Taxes.8.1. Fees. Fees for Subscriptions to each version of the Lympik GmbH Solution are set forth on the Lympik GmbH website. Except as otherwise provided in the Order Forms, all fees are quoted in EURO; fees are based on Subscriptions purchased and not on actual usage; payment obligations are non-cancellable; and fees are non-refundable. Lympik GmbH may modify the fees on thirty (30) days’ email notice. In the event you upgrade your Subscription, the fees applicable to Client new version of the Lympik GmbH Solution will take effect immediately and be prorated for the rest of the month. If you downgrade, no adjustment will be made until your next billing term.8.2. User of Credit Card. A valid credit card that Client has the right to use is required for any paid Subscription, unless another form of payment was agreed upon in writing between the parties.8.3. Invoicing and Payment. Unless otherwise agreed by the parties, paid Subscriptions will be billed in advance on a monthly, annual, or 3-year basis, starting on the Effective Date.8.4. Overdue Payments. Any payment not received by the due date shall accrue interest at the lower of 1.5 or the maximum rate permitted by law on the outstanding balance per month (except with respect to charges then under reasonable and good faith dispute) from the date such payment is due until the date paid.8.5. Suspension of Service. If Client account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights and remedies (including the termination rights set forth in this Agreement), Lympik Gmb Hreserves the right to suspend access to the Lympik GmbH Solution without liability to Lympik OG, until Client account is paid in full.8.6. Taxes. Client is responsible for all sales, use, value added, withholding or other taxes or duties, payable with respect to Client purchases hereunder, other than Lympik OG’s income taxes. If Lympik GmbH pays any such taxes on Client behalf, Client agrees to reimburse Lympik GmbH for such payment unless Client provides Lympik Gmb Hwith a valid exemption certificate authorized by the appropriate taxing authority.8.7. Expenses. If Lympik GmbH is required to incur in any additional costs or expenses in providing Client support, Lympik GmbH shall first obtain Client written approval.8.8 Usage report. The client is obliged to report on exceeding the licensed user count as per the signed agreement and relicense the necessary licenses within 30 days from breaching the licenses count under the signed agreement.8.9 Subscription license audit. Lympik GmbH shall have the right, with reasonable notice to client, to audit client’s use of the software no more than once each semi-calendar year to assure compliance with the terms of the license agreement.Proprietary Rights9.1. Proprietary Rights. The Lympik GmbH Solution and all intellectual property rights therein and all intellectual property rights relating to the provision of support are owned or licensed by Lympik OG. Except for the Subscription granted hereunder, nothing in this Agreement gives Client any right, title or interest to the Lympik GmbH Solution or related support.9.2. Restrictions. Client shall not:(i) modify, translate, or create derivative works based on the Lympik GmbH Solution;(ii) create any link to the Lympik GmbH Solution or frame or mirror any content contained or accessible from the Lympik GmbH Solution,(iii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Lympik GmbH Solution;(iv) or access the Lympik GmbH Solution in order to(a) build a competitive product or service, or(b) copy any ideas, features, functions or graphics of the Lympik GmbH Solution.Term and Termination10.1. Term of the Agreement. This Agreement commences on the Effective Date and continues until the expiration of termination of Client’s Free Trial or Subscription, as applicable (the “Term”).10.2. Initial Term; Renewal Terms. The Software as a Service (SaaS) Term will commence on the Date any Client employee first gains access to the Lympik GmbH Solution and shall continue in effect until the end of the calendar month in which this takes place unless sooner terminated by Lympik Gmb Has provided in these Terms and Conditions. Upon expiration of the Initial Term, the SaaS Term shall automatically renew for successive renewal prolonging the subscription for another period as set in the initial term unless sooner terminated as provided in these Terms and Conditions, or unless either party gives notice of termination to the other party at least fourteen (14) days prior to the end of the Initial Term or any Renewal Term via the account management functions on Lympik OG’s website.10.3. Termination by Client. Upon cancelling the Client account, Lympik GmbH will allow a 10-day grace period in which Client will be able to reactivate the Client account and restore Client data. In the case Client wishes the Client data to be completely and permanently removed from Lympik OG’s application servers, please send an email to our support team at support@Lympik.com. Lympik GmbH on SF customers will uninstall the application and notify Lympik GmbH on completion.10.4. Termination for Cause. This Agreement may be terminated by either party for cause:(a) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period;(b) if either party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or(c) immediately in the event of a material breach of Section 4 hereof.10.5. Surviving provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 7 to 14.Warranties and Disclaimers11.1. Authority. Each party represents and warrants that it has the legal power to enter into this Agreement.11.2. Functionality Warranty. Lympik GmbH warrants that the Lympik GmbH Solution will operate in substantial conformity with the then current version of the applicable documentation provided by Lympik OG.11.3. Security Warranty. Lympik GmbH or its licensors or hosting providers have implemented commercially reasonable efforts to ensure that Client Data will be maintained accurately and safeguarded as well as technical and physical controls to protect Client Data against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by Lympik OG, whether by accident or otherwise.11.4. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE LYMPIK GMBHSOLUTION IS PROVIDED “AS-IS”, AND LYMPIK GMBHDISCLAIMS WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY LAW. Lympik GmbH does not warrant that the functions contained in the Lympik GmbH Solution will meet Client requirements or that the operation of the Lympik GmbH Solution will be uninterrupted or error-free. Further, Lympik GmbH does not warrant that all errors in the Lympik GmbH Solution can or will be corrected. Lympik GmbH will not be responsible for any loss of Client Data or inability to perform certain tasks resulting from Client decision to downgrade Client’s Subscription.Limitation of Liability12.1. Limitation of Liability. NEITHER CLIENT NOR LYMPIK OG, NOR OUR RESPECTIVE SUPPLIERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS SHALL BE LIABLE FOR ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, NEGLIGENCE OR TORT, IN EXCESS OF THE TOTAL FEES AND CHARGES PAID BY YOU FOR YOUR SUBSCRIPTION DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.12.2. Exclusion of Consequential and Related Damages. CLIENT AND LYMPIK GMBHAGREE THAT THE CONSIDERATION PAID UNDER THIS AGREEMENT DOES NOT INCLUDE CONSIDERATION FOR THE ASSUMPTION OF THE RISK OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, LOST PROFITS OR REVENUE.12.3. The limitations of liability under Sections 12.1 and 12.2 shall not apply to any indemnification provided by Client or Lympik GmbH hereunder.12.4. Because some states and jurisdictions do not allow limitation of liability in certain instances, portions of the above limitation set forth in this section may not apply to Client.12.5. No action against either party arising out of this Agreement may be brought by the other party more than one (1) year after the cause of action has arisen.Mutual Indemnification13.1. Indemnification by Lympik OG. Lympik GmbH shall indemnify and hold Client harmless against any loss, damage or cost (including reasonable attorney’s fees) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against Client by a third party alleging that the use of the Lympik GmbH Solution, as contemplated hereunder, infringes the intellectual property rights of a third party. Notwithstanding the foregoing if Lympik GmbH reasonably believes that Client’s use of any portion of the Lympik GmbH Solution and/or related support is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party’s intellectual property rights then Lympik GmbH may, at its expense:(i) procure for Client the right to continue using the Lympik GmbH Solution or support;(ii) replace the same with other software, services or other material of equivalent functions and efficiency that is not subject to an action of infringement; or(iii) modify the applicable software, support services or other material so that there is no longer any infringement or breach, provided that such modification does not adversely affect the functional capabilities of the Lympik GmbH Solution and/or support as set out herein. Lympik GmbH shall have no liability respecting any Claim of infringement or breach as aforesaid to the extent such Claim is based upon the combination, operation or use of the Lympik GmbH Solution or support with other equipment or software not supplied by Lympik GmbH or in a manner not consistent with Lympik OG’s instructions.13.2. Indemnification by Client. Client agrees to indemnify and hold Lympik GmbH harmless against any claims including loss, damage or costs (including reasonable attorney’s fees) incurred in connection with Claims made or brought against Lympik GmbH by a third party arising from or relating to(i) Client breach of Section 4, or(ii) Client use of Client Data or the Lympik GmbH Solution.13.3. Mutual Provisions. Each party’s indemnity obligations are subject to the following:(i) the aggrieved party shall promptly notify the indemnifier in writing of the Claim;(ii) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and(iii) the aggrieved party shall cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim.General Provisions14.1. Entire Agreement. This Agreement, inclusive of the Order Forms and any amendments or additions thereto, constitutes the entire agreement and sets forth the entire understanding between Client and Lympik GmbH with respect to the subject matter hereof and supersedes all prior agreements and discussions with respect thereto. In the event of an inconsistency between the terms and conditions of this Agreement and the Order Forms now or hereafter appended hereto, the terms of the Order Form shall govern.14.2. Marketing. Neither party may issue press releases to this Agreement without the other party’s prior written consent. Either party may include the name and logo of the other party in lists of customers or vendor in accordance with the other party’s standard guidelines.14.3. Relationship of Client and Lympik OG. Client and Lympik GmbH are independent contractors. This Agreement does not create a joint venture or partnership between Client and Lympik OG; neither party is by virtue of this Agreement authorized as an agent, employee or representative of the other party.14.4. Modifications and Waiver. Lympik GmbH may revise this Agreement from time to time. Notice of any material changes to the Agreement will be provided via a link when logging into the Lympik GmbH Solution. Any waiver of any right or remedy under this Agreement by Lympik GmbH must be in writing and signed by Lympik GmbH. No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion.14.5. Assignment. This Agreement and any rights or obligations hereunder, shall not be assigned, sublicensed or otherwise transferred by the parties without the prior written consent of the non-assigning party except that either party may assign or transfer this Agreement upon a change of control of a party or by operation of law by providing the non-assigning party with prior written notice thereof provided that the assignee agrees in writing to be bound by the terms of this Agreement.14.6. Governing Law. The rights and obligations of the parties and all interpretations and performance of this Agreement shall be governed by and construed in accordance with the laws of the Republic of Austria (part of the European Community), without regard to conflicts of laws principles. The parties irrevocably and unconditionally consent to the exclusive jurisdiction of the courts of the Republic of Austria, and all courts competent to hear appeals therefrom. THE PARTIES WAIVE ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WARRANTY ARISING OUT OF OR RELATED TO THIS AGREEMENT.14.7. Notices. Any notices under this Agreement shall be in writing and shall be deemed to have been delivered: (i) upon personal delivery; (ii) the fifth business day after mailing; (iii) the third business day after sending by confirmed facsimile; or (iv) the third business day after sending by email. Notices to Lympik GmbH shall be addressed as follows:Lympik GmbH
Freibergen 62753 Oberpiesting
Austria14.8. Severability. If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable, or shall be severed from this Agreement, and all other provisions of this Agreement shall remain in full force and effect.14.9. Force Majeure. Neither party to this Agreement shall be liable to the other for any failure or delay in performance by circumstances beyond its control, including but not limited to, acts of God, fire, labor difficulties, governmental action or terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances.