This Subscription Agreement governs the use of the software service EMDESK and related services provided by EMDESK GmbH and sets out the obligations and rights of the Customer and EMDESK. By signing or otherwise accepting an Order or by accepting this Agreement as part of the sign up procedure of the EMDESK Services (e.g. by clicking “I agree”), or by accessing the EMDESK Services, you accept the terms and conditions of this Agreement and agree to abide by them.
The EMDESK Services are available only to individuals who are acting in their capacity as an employee or representative of a business entity or other organization that has executed an Order with EMDESK or that has been granted access to the Free Version. The Services are not intended for consumer use.
This Agreement was last updated on August 15, 2018. Please also take note of the Privacy Statement of EMDESK.
As used in this Agreement, the following capitalized terms shall have the meaning set out below.
“Agreement” means this Agreement and its appendices and any Orders executed between the Parties.
“Customer” shall mean the entity having ordered the EMDESK Services hereunder.
“Customer Data” shall mean all Customer’s data that a User or another party acting on the Customer’s behalf uploads to the EMDESK Product.
“Development Services” shall mean services provided by EMDESK to Customer concerning the further development and/or integration of the EMDESK Product, including installation services for the installation of the EMDESK Product into Customer’s technical environment in cases where Customer and EMDESK have agreed upon the self-hosting of the EMDESK Product by the Customer.
“EMDESK” shall mean EMDESK GmbH.
“EMDESK Product” means the EMDESK proprietary collaboration and project management software service “EMDESK”, which is generally provided to the customers of EMDESK, as well as any associated software provided to the Customer by EMDESK, including Work Products and post-Subscription storage services. Unless otherwise agreed, the EMDESK Product is offered as a Software as a Service with several subscription types as described on the EMDESK Website. It is noted that the Parties may agree on the self-hosting of the EMDESK Product by Customer.
“EMDESK Services” means the EMDESK Product, the Development Services as well as any additional setup/training and other services provided by EMDESK, as described from time to time on the EMDESK Website.
“EMDESK Website” means the website of EMDESK, www.emdesk.com.
“Error” means any material failure in the EMDESK Product to conform substantially, subject to the system requirements communicated on the EMDESK Website, to the material specifications of the relevant published version of the EMDESK Product as set out in the service description at the EMDESK Website from time to time (or in the service description separately agreed between the Parties on the Order), that substantially interferes with or prevents the use of the EMDESK Product, when used for the purposes set out on the EMDESK Website.
“Free Version” means any versions of the EMDESK Product from time to time available to Customers for trial and other use free of charge, including the “Proposal Development” version of the EMDESK Product.
“Intellectual Property Rights” shall mean copyrights and related rights (including database and catalogue rights and photography rights), patents, utility models, design rights, trademarks, tradenames, trade secrets, know-how, and any other form of registered or unregistered intellectual property rights.
“Order” shall mean a written or electronic order or offer for the subscription of EMDESK Services, including orders made on the EMDESK Website.
“Party” shall mean Customer or EMDESK (jointly the “Parties”).
“Service Fees” shall mean the fees charged by EMDESK from time to time from Customer as agreed between EMDESK and Customer or as communicated on the EMDESK Website.
“Subscription” shall mean the fixed period during which the Customer is entitled to use the EMDESK Product as set forth in the Order.
“Users” shall mean those employees or contractors of the Customer who are entitled to use the EMDESK Services under this Agreement, the number of which users shall be specified in the Order.
“Work Product” means work products that are delivered as part of the Development Services. Accepted Work Products are incorporated to be part of the EMDESK Product.
2. Use of EMDESK Services
2.1 License grant
Subject to the terms and conditions of this Agreement and the due payment of the Service Fees, EMDESK hereby grants to the Customer and the Customer hereby accepts a limited, non-exclusive, non-transferable, and non-sublicensable right to the Customer to access the EMDESK Product during the term of this Agreement.
The Customer and the Users may use the EMDESK Product only and strictly in accordance with the terms of the Agreement, only for the internal purposes of the Customer.
EMDESK shall have the right to deny the Customer’s and the Users’ access to the EMDESK Services without any prior notice to the Customer and the Users, if EMDESK suspects that the Customer and the Users uses the EMDESK Services in violation of the terms of this Agreement.
2.2 Usage restrictions
The Customer and the Users are strictly not permitted and not entitled to permit others to use the EMDESK Services for any of the following:
- copy, modify, adapt, enhance, translate, supplement the EMDESK Services, or change its specifications;
- distribute, rent, sub-license, lease the EMDESK Services or otherwise make them available to or grant access to third parties without the prior written consent of EMDESK;
- circumvent or try to circumvent any usage control, technical, or logical protection schemes or anti-copy functionalities of the EMDESK Services;
- reverse engineer or decompile the EMDESK Services or access the source code thereof, or create a service competing with the EMDESK Services, except as permitted by law;
- probe, scan, or test the vulnerability of the EMDESK Services;
- disrupt or unnecessarily burden the EMDESK Services or other customers or users of the EMDESK Services;
- use the EMDESK Services for transmitting any unauthorized advertising, promotional materials, junk mail, spam, chain letters, contests, pyramid schemes, or any other form of solicitation or mass messaging;
- use the EMDESK Services in violation of applicable law;
- to use the EMDESK Services in ways that violate intellectual property rights, business secrets, or privacy rights of third parties;
- use the EMDESK Services to transmit any material that contains adware, malware, spyware, software viruses, worms, or any other computer code designed to interrupt, destroy, or limit the functionality of computer software or equipment.
2.3 General obligations of Customer and the Users
The Customer and the Users are responsible for acquiring and maintaining any and all network connections and all technical equipment required for using the EMDESK Services and is liable for any costs thereof.
The Customer and the Users agrees that it shall indemnify and hold EMDESK harmless from and against any and all liabilities, losses, damages, costs, and expenses (including reasonable legal fees and expenses) associated with any claim or action brought against EMDESK that may arise from the Customer’s use of the EMDESK Products in breach of this Agreement, including claims that the Customer Data infringes the Intellectual Property Rights of third parties.
2.4 Free Version
From time to time, EMDESK may make Free Versions available to the Customer and the Users at no charge. Free Versions are intended for evaluation purposes and not for production use, do not include support services, and may be subject to additional terms. EMDESK may discontinue Free Versions at any time in EMDESK’s sole discretion. EMDESK shall have no liability for any errors or interruptions in the availability of any Free Versions.
3. Registration and Security
3.1 Registration and sign-up
The person signing or otherwise accepting the Agreement represents that it has the authority to bind the organization indicated on the Order to the Agreement.
The person undertakes to provide requested full and correct contact and identity details to EMDESK in conjunction with registration to the EMDESK Services, including a valid e-mail address.
3.2 Security and unauthorized use
The Customer and the Users shall always comply with the security and administrative instructions provided by EMDESK in conjunction with registration, by e-mail, as made available on the EMDESK Website, or in any other manner. The Customer shall also be responsible for notifying its Users of such instructions.
The Customer and the Users shall use all reasonable endeavours to prevent unauthorized access to, or use of, the EMDESK Services. The Customer and the Users shall ensure that user name, passwords, and equivalent information obtained by the Customer in conjunction with registration to EMDESK Services are kept confidential and stored and used in a secure manner and cannot be accessed or used by third parties.
Where it is suspected that any unauthorized person has become aware of a user name and/or password, the Customer and the Users shall immediately inform EMDESK thereof and change such user name and/or password.
The Customer shall be liable for any unauthorized use of the EMDESK Services under Users’ user name and any losses or damage incurred by EMDESK where the Users reveal a user name/password to a third party.
4. Authorized Users
The permitted number/type of authorized Users and/or the volume of usage of the Customer’s subscription of the EMDESK Product are defined in the Order or on the EMDESK Website. EMDESK reserves the right to charge excess usage fees for any excess usage of the EMDESK Product.
The Customer is responsible for managing the Users’ right to use the EMDESK Product. The Customer shall not charge any Users fees for their use of the EMDESK Services.
The Customer undertakes not to provide access to the EMDESK Product to anyone else than Users who have agreed to comply with this Agreement. An user account cannot be shared or used by more than one (1) individual User.
The Customer is aware of and acknowledges that the Customer is fully liable for the Users to whom the Customer affords access to the EMDESK Product and for any use of the EMDESK Product with the user names and/or passwords of the Customer.
The Customer shall remain liable for the Users’ use of the EMDESK Product under this Agreement.
The Customer is responsible for the use and utilization of the EMDESK Services in its own operations and for the use of the content generated by the EMDESK Services. EMDESK has no liability for damages incurred by Customer as a result of the Customer utilizing the EMDESK Services or information generated by the EMDESK Services.
5. Customer Data
5.1 Storage limitations
The volume of Customer Data is limited as described in the Order, depending on the subscription type. In case the Customer exceeds any such restrictions, EMDESK shall have the right to, inter alia, charge additional fees and/or limit or reduce the Customer’s file size, upload speeds, or storage volumes of Customer Data.
EMDESK might offer the Customer a possibility to store Customer Data after the end of Customer’s Subscription of the EMDESK Product as described on the EMDESK Website from time to time. Such post-Subscription storage services provided by EMDESK shall at all times be subject to the terms and conditions of this Agreement. Customer acknowledges that EMDESK stores Customer Data only for a limited period determined by EMDESK in its sole discretion, and Customer shall be solely responsible for storing appropriate backup copies of the Customer Data.
5.2 Liability for Customer Data
The Customer shall be responsible for its Customer Data and shall be liable vis-à-vis EMDESK for ensuring that Customer Data does not infringe any third party rights nor in any other manner violates applicable legislation, and that the Customer and Users possess such necessary licenses and permissions from third parties as may be required in order to process the Customer Data/use the EMDESK Services and grant the licenses granted herein. The Customer and the Users are obligated to promptly notify EMDESK regarding any suspected breach or any violation of the provisions of this Section 5.
The Customer undertakes to backup the Customer Data before submitting it to the EMDESK Services. The Customer is solely responsible for maintaining backup copies of the Customer Data and shall take precautionary measures to backup and protect it.
In case so agreed between the Parties, EMDESK may take backup copies of the Customer Data at regular intervals. Data loss notification must be given by the Customer in writing to EMDESK technical support within 7 days of the data loss.
For clarity it is understood that in case of Customer’s self-hosting of the EMDESK Services, EMDESK shall have no liability for taking Customer Data backup copies and the Customer is solely responsible for the security and backup of the Customer Data.
6. Personal Data
6.1 Personal data processed by EMDESK as data controller
6.2 Processing of personal data as data processor
To the extent the Customer Data contains personal data, Customer acts as data controller under applicable data protection laws and EMDESK processes, by providing the EMDESK Services, such personal data on behalf of Customer as data processor for the purposes of this Agreement.
The types of personal data processed by EMDESK hereunder may include, but not limited to, names, contact details, organization details, other narrative descriptions, or any data relating to projects carried out by the Customer and other types of personal data contained in the Customer Data. The data subjects whose personal data is processed by EMDESK may include employees, work or research subjects, customers, suppliers, partners, or other third parties of the Customer.
In case EMDESK processes personal data on behalf of Customer, the following terms shall apply:
a) EMDESK shall process the personal data only in accordance with the terms of this Agreement and any lawful and documented instructions reasonably given by the Customer from time to time. The Customer shall primarily use the functionalities of the EMDESK Product to provide EMDESK with any instructions set out in this Section. In case the instructions cannot be provided by using the functionalities of the EMDESK Product, EMDESK has the right to charge an hourly fee in accordance with its price list in force from time to time for complying with the instructions of the Customer set out herein.
b) Customer’s instructions must be commercially reasonable, compliant with applicable data protection laws and consistent with this Agreement. In case EMDESK detects that any instruction given by Customer is non-compliant with Union or Member State law to which EMDESK is subject, EMDESK shall not be obliged to comply with such instruction and shall inform Customer of that legal requirement.
c) EMDESK shall ensure that the EMDESK employees or other persons authorized to process the personal data have committed themselves to strict confidentiality or are under an appropriate statutory obligation of confidentiality.
d) To respond to requests from individuals exercising their rights as foreseen in applicable data protection law, such as the right of access and the right to rectification or erasure, Customer shall primarily use the relevant functionalities of the EMDESK Product. In case Customer needs further assistance in this respect, EMDESK shall provide Customer with commercially reasonable assistance, without undue delay, taking into account the nature of the processing. In case the aforementioned assistance obligations require measures or work to be performed by EMDESK, EMDESK has the right to charge an hourly fee in accordance with its price list in force from time to time for handling such assistance requests.
e) Taking into account the nature of processing and the information available to EMDESK, EMDESK reasonably assists the Customer in ensuring compliance with the obligations set out in Articles 32 to 36 of the EU General Data Protection Regulation (2016/679), including Customer’s obligations to perform security and data protection impact assessments, breach notifications, and prior consultations of the competent supervisory authority. In case the aforementioned assistance obligations require measures or work to be performed by EMDESK, EMDESK has the right to charge an hourly fee in accordance with its price list in force from time to time for providing such assistance.
f) EMDESK makes available to Customer, at the Customer’s request, information necessary to demonstrate compliance with the EU General Data Protection Regulation. In case the aforementioned request by Customer require measures or work to be performed by EMDESK, EMDESK has the right to charge an hourly fee in accordance with its price list in force from time to time for handling such requests.
g) The Customer acknowledges that due to the nature of the EMDESK Services, EMDESK cannot control and has no obligation to verify personal data Customer submits to EMDESK for processing on behalf of Customer when Customer uses the EMDESK Services. The Customer acknowledges that it shall be responsible for having a legal ground to process the personal data submitted to EMDESK for processing on behalf of Customer. Further, the Customer is responsible for its lawful collection, processing, and use of the personal data submitted to EMDESK for processing on behalf of Customer, and for the accuracy thereof, as well as for preserving the rights of the individuals concerned. The Customer shall ensure that the relevant data subjects have been informed of, and have given their consent to, the processing as required by applicable data protection legislation.
h) The Customer gives a general authorization to EMDESK to use subprocessors for the processing of the personal data for the provision and use of the EMDESK Services agreed upon.
j) EMDESK may change its subprocessors. In case there is a later change of subprocessor (addition or replacement), EMDESK shall notify Customer of such change. In case Customer objects such change of subprocessor on reasonable grounds, Customer has the right to request change of the subprocessor. If EMDESK is not willing to change the subprocessor Customer has objected to, each Party shall have the right to terminate this Agreement.
l) EMDESK processes personal data mainly within the EEA, but Customer accepts that EMDESK may have personal data processed and accessible by EMDESK or its subprocessors outside Customer’s country of domicile or the EEA to provide the EMDESK Services. In case the processing is subject to any EU data protection law and personal data is transferred from the European Economic Area (“EEA”) for processing in any country outside the EEA that is not recognized by the European Commission as providing an adequate level of protection for personal data, Customer authorizes EMDESK to enter, on behalf of Customer, into the standard contractual clauses adopted or approved by the European Commission applicable to processing outside the EEA, or EMDESK shall provide for other appropriate safeguard for the protection of the personal data transferred outside the EEA as set out in the General Data Protection Regulation.
m) Customer or an auditor appointed by Customer shall have the right to audit and inspect the personal data processing activities of EMDESK under this Agreement to examine the compliance of EMDESK with the EU General Data Protection Regulation. Customer shall bear all costs for any such audit. Where an audit may lead to the disclosure of business or trade secrets of EMDESK or threaten intellectual property rights of EMDESK, Customer shall employ an independent auditor, that is not a competitor of EMDESK, to carry out the audit, and the auditor shall agree to be bound to confidentiality to EMDESK’s benefit.
n) EMDESK shall, without undue delay after having become aware of it, inform Customer in writing about any data breaches relating to Customer Data (“Breach”). EMDESK’s notification about the Breach to Customer shall include at least the following: i) description of the nature of the Breach; ii) name and contact details of EMDESK’s contact point where more information can be obtained; iii) description of the likely consequences of the Breach iv) description of the measures taken by EMDESK to address the Breach, including, where appropriate, measures to mitigate its possible adverse effects.
o) EMDESK processes personal data on behalf of Customer until the termination of this Agreement (including, for clarity, any post-Subscription storage periods) and during a reasonable retention period thereafter. All personal data processed by EMDESK under this Agreement shall be anonymized or deleted thereafter, unless otherwise required by applicable law.
7. Provision of EMDESK Services
EMDESK shall use its commercially reasonable efforts to correct or circumvent any Errors in the EMDESK Product.
Error notification must be given by the Customer in writing to the EMDESK’s support service in accordance with EMDESK’s instructions on the EMDESK Website and within 14 days of the discovery of the Error.
EMDESK shall have the right to schedule regular maintenance work of the EMDESK Product outside office hours (9 am - 5 pm. German time) during which time the EMDESK Product may be temporarily unavailable.
EMDESK shall at all times have the right to temporarily suspend the provision of the EMDESK Product during such office hours in accordance with the following, without any obligation to compensate any damages or service level failures to the Customer:
- if suspension is necessary in order to perform installation, change, or maintenance work in respect of the EMDESK Services;
- if suspension is necessary due to severe data security risk to the EMDESK Services or if required by law or public authorities.
If EMDESK suspends the EMDESK Services for the above reasons, it shall inform the Customer of the suspension and the duration of the estimated suspension in advance or, if this is not reasonably possible, without delay after EMDESK has learned of such matter.
The Customer acknowledges that interruptions to the availability of the EMDESK Services may also occur, for example, in the event of data connection or network disruptions or due to errors and interruptions in third-party services and products or in the Customer’s own environment. EMDESK shall in no event be liable for such interruptions and such interruptions shall not be considered Errors hereunder.
For clarity it is understood that in case of Customer’s self-hosting of the EMDESK Services, EMDESK shall have no liability for the availability or hosting of the EMDESK Services.
7.3 Changes in EMDESK Services
EMDESK may under its sole discretion at any time modify and update the EMDESK Services or a part thereof and may cease to provide the same. EMDESK reserves the right to implement new versions of the EMDESK Product including, but not limited to, changes that affect the design, operational method, technical specifications, systems, and other functions of the EMDESK Product, at any time without prior notice.
8. Development Services
8.1 Provision of Development Services
The Parties may agree on the provision of Development Services related to the EMDESK Product by concluding a separate Order for Development Services. The scope, agreed number of resources, and person-days of the Development Services shall be defined in such Order. All changes and/or additions agreed upon after the conclusion of the Order to the Development Services must be agreed in writing between the Parties in order to be valid.
An estimated time schedule for the delivery of the Development Services shall be agreed upon for each Order for Development Services. If a Party determines that a delay to such estimated time schedule will occur or is likely to occur, it shall, without delay, notify the other Party in writing of the delay and of the effects of the delay on the time schedule agreed in an Order and the Parties shall then in good faith agree upon a necessary extension to the time schedule set out in the respective Order.
Unless expressly otherwise agreed in a separate Order, EMDESK shall perform all Development Services at the premises of EMDESK. Subject to the provisions of this Agreement, it is acknowledged that EMDESK may utilize subcontractors, standard software, and open source software in the performance of the Development Services at its sole discretion.
Customer shall pay additional fees for changes or additional work requested by Customer that are outside the scope of the Development Services specified on the Order. Such additional fees shall be in addition to all other amounts payable under the Order, despite any maximum or fixed price set out therein. In case of any changes/additions requested by Customer, EMDESK shall have the right to extend any agreed delivery schedule or deadlines for the delivery as may be reasonably necessary due to such changes/additions to the Development Services.
8.2 Acceptance of Work Product
EMDESK shall upon completion of the Development Services report to Customer when the respective Work Products are ready for acceptance review by the Customer subject to which the Customer shall have fourteen (14) days to review the respective Development Services against the mutually agreed acceptance criteria specified in the Order. Customer shall within such 14-day acceptance period notify EMDESK in writing of all Errors detected in the Work Products and shall identify the Errors in sufficient detail to enable EMDESK to identify and replicate the Errors. Upon such report by Customer, EMDESK shall correct or provide circumvention to the Errors, whereupon a new 14-day acceptance period commences.
The Work Products shall be deemed accepted (i) when EMDESK has corrected or circumvented all Errors that have been reported by the Customer in accordance with this Section 8, or (ii) if the Customer has not provided a detailed written report of the Errors detected within the acceptance period set out above, or (iii) when Customer has notified EMDESK of its acceptance of the Work Product.
Errors, which do not substantially interfere with or prevent the use of the Work Products or which cannot be replicated by EMDESK on the basis of Customer’s report, shall not prevent the acceptance of the Work Products. However, EMDESK shall use commercially reasonable efforts to promptly correct such Errors.
After the Work Products has been accepted as set out above, the respective Work Products will be deemed part of the EMDESK Product.
8.3 Other EMDESK Services
The Parties may agree on the provision of other EMDESK Services against Service Fees set out on the EMDESK Website / agreed separately between EMDESK and Customer by concluding a separate Order for such EMDESK Services. Other EMDESK Services include set-up/training services as described on the EMDESK Website from time to time.
An ordered EMDESK training class must be used no later than twelve (12) months after the date of order, otherwise it will expire. The date and time of the training must be booked via the booking system on the EMDESK Website. EMDESK shall have the right to assign training to an EMDESK subcontractor at no additional cost to the Customer.
It is the responsibility of the Customer to (a) provide for a suitable location where training can take place (on-site) or be received (web-based) equipped with a computer and sufficient Internet connection, and (b) to invite and make sure all relevant Users will attend and to inform Users about the time, date, location, and necessary preparations for the training.
EMDESK reserves the right to reschedule or cancel the date, time, and location of a training class at any time, including replacing personnel who may be scheduled to deliver the training. In the event a training class is cancelled, the Customer is entitled to a full refund unless the training class is cancelled by EMDESK due to circumstances beyond its reasonable control. In such event is the Customer entitled to a full training class credit which must be used within three (3) months of the date of the original class for another class offered by EMDESK. EMDESK shall not be responsible for any loss incurred by Customer as a result of a cancellation or rescheduling.
9. Customer Support
EMDESK provides customer support services by email relating to Customer’s use of the EMDESK Services as described on the EMDESK Website or as agreed separately on the Order. The level of support varies depending on the subscription type to EMDESK Services.
Support services are provided on weekdays (excluding German public holidays) during EMDESK’s ordinary office hours to the reasonable extent decided upon from time to time by EMDESK.
Error notices and support requests must be submitted to EMDESK’s technical support by email as set out on the EMDESK Website.
The Customer and the Users shall provide EMDESK with the requisite assistance and access for providing Customer and the Users with support and Error correction services as set out hereunder.
10. Fees and Payment
10.1 Service Fees
In return for Customer’s use of the EMDESK Services, the Customer shall pay the Service Fees to EMDESK as set out on the EMDESK Website or as separately agreed between Customer and EMDESK in the Order or otherwise.
The Customer may upgrade its version of the EMDESK Product with additional Users, additional storage, or other available additional features at any time during a Subscription. EMDESK shall promptly charge any applicable Service Fees from Customer resulting from such upgrade. Downgrades of the EMDESK Services shall enter into force after the expiry of the Subscription during which the downgrade was made.
All prices are exclusive of VAT and any other applicable taxes or fees/payment charges imposed by public authorities or financial institutions from time to time. Such taxes and fees shall be added to the prices and be borne by the Customer.
Possible excess usage shall be calculated and charged retroactively by EMDESK from time to time. Excess usage fees are calculated based on the highest number of excess Users for each thirty-day period.
All payments made in accordance with this Agreement are non-refundable. For clarity, in the event of early termination during a Subscription, the Customer shall not be entitled to a refund of any prepaid fees.
10.2 Payment terms
Payment for each Subscription shall be made in advance.
All fees for Development Services and other EMDESK Services will be invoiced by EMDESK upon the order of the Work Product or EMDESK Services, as applicable, as set out herein.
Payment shall be made by the Customer against invoice issued by EMDESK, or through the use of third-party electronic payment services, or through a credit card approved by EMDESK by using a payment service provided by a third-party service provider. EMDESK has the right to apply an additional charge of 3% on the total sum of the fees for the use of a credit card or third-party electronic payment services. If not otherwise agreed, payment against invoice must reach EMDESK without deduction (i.e. bank charges or commissions) within thirty (30) days of the issue date of the invoice. Payment with credit card or electronic payment services must reach EMDESK immediately upon payment by Customer. The Customer is obligated to pay any bank charges or commissions applicable on the payment of the Service Fees.
The Customer shall ensure that all details provided regarding the Customer’s contact information, billing information, and electronic payment information, where applicable, are correct and undertakes to update such information as soon as possible in case such information has changed.
Invoices are provided electronically by email or to the Customer’s EMDESK account. Notices relating to invoices shall be given in writing within seven (7) days from the date of receipt of the relevant invoice. If the Customer fails to raise objections relating to an invoice in such time, the invoice shall be deemed to be accepted by Customer.
Interest on overdue payments shall be payable according to applicable law. EMDESK shall be entitled to charge a fee for any payment reminders and reserves the right to send the same via email to an invoice reference provided by the Customer. The Customer shall be responsible for the reasonable costs incurred by EMDESK when collecting overdue fees.
Without prejudice to its other rights, EMDESK may temporarily disable the Customer’s and the Users’ access to the EMDESK Product in the event the Customer has overdue payments in excess of thirty (30) days. In addition, EMDESK may terminate a Subscription, delete and destroy the Customer Data and to immediately terminate this Agreement in the event of overdue payments in excess of sixty (60) days.
10.3 Price adjustments
EMDESK shall be entitled to adjust the fees and charges of the EMDESK Services at any time by sixty (60) days prior notice. The change shall not affect the fees and charges for Subscriptions commenced before the effective date of the change.
10.4 Cost reimbursement
Unless otherwise agreed, Customer shall against an itemized 30-day invoice reimburse EMDESK for the cost of special equipment, tools, licenses, materials, and services required for the performance of the Development Services as well as travel costs as reasonably incurred by EMDESK in performing the Development Services, including actual costs of transportation, and reasonable expenses for accommodation.
Either Party shall not disclose to third parties any material or information received from the other Party and marked as confidential or which should be understood to be confidential, and shall not use such material or information for any other purposes than those stated in this Agreement. Each Party shall ensure that its employees, agents, collaborators, and sub-contractors are bound by the provisions of this clause.
The confidentiality obligation shall, however, not be applied to material and information, (a) which is generally available or otherwise public; or (b) which the Party has received from a third party without any obligation of confidentiality; or (c) which a Party has independently developed without using material or information received from the other Party as verified by the written records of such Party; (d) which a Party is obligated to disclose due to applicable mandatory laws, public authority regulations, or court orders. In case of disclosure due to (d), the Party much promptly inform the other Party of such disclosure.
Each Party shall promptly upon termination of the Agreement or when the Party no longer needs the material or information in question for the purpose stated in the Agreement cease using confidential material and information received from the other Party and, unless the Parties separately agree on destruction of such material, return the material in question (including all copies thereof). Each Party shall, however, be entitled to retain the copies required by law or regulations.
The rights and responsibilities under this section 11 shall survive the expiry or termination of this Agreement.
12. Intellectual Property Rights
The Intellectual Property Rights and the title to the Customer Data shall belong to the Customer. EMDESK shall only have the right to use Customer Data for the purposes of providing the EMDESK Services to Customer.
EMDESK shall have the right to collect and generate anonymous technical analytics and usage data (“Analytics Data”) generated through Customer’s use of the EMDESK Services. For clarity, such Analytics Data shall not be considered Customer Data and shall be proprietary to EMDESK. For the avoidance of any doubt, such data shall not contain personal data or Customer Data.
All Intellectual Property Rights in or related to the EMDESK Services, including any Work Products, and thereto related documentation and all parts and copies thereof shall remain exclusively vested with and be the sole and exclusive property of EMDESK and/or its subcontractors/licensors. For clarity, EMDESK owns all Intellectual Property Rights in the Analytics Data generated through the use of the EMDESK Services.
Except as expressly stated herein, this Agreement does not grant the Customer any Intellectual Property Rights in the EMDESK Services or the Work Products and all rights not expressly granted hereunder are reserved by EMDESK and its subcontractors/licensors.
In the event of an agreed case study or similar between Customer and EMDESK, all Intellectual Property Rights to material produced, including but not limited to photos, quotes, interviews, videos, testimonials, under such work will belong to EMDESK and may at its sole discretion be used by EMDESK in the marketing of its services.
13. Intellectual Property Infringements
EMDESK agrees that, if notified promptly in writing of and given sole control of the defense and all related settlement negotiations and reasonable assistance from the Customer if necessary, it will defend the Customer against any claim that the EMDESK Product infringes the Intellectual Property Rights of a third party.
EMDESK shall pay any resulting costs and damages finally settled or awarded by a court with respect to any such claims to the third party in question. At any time if EMDESK deems that any part of the EMDESK Product infringes the Intellectual Property Rights of any third party, EMDESK has the right at its own expense to modify/replace the EMDESK Product to eliminate the infringement or procure to Customer a right to use the EMDESK Product. If this is not reasonably possible, EMDESK may terminate the Agreement.
EMDESK shall, however, not be liable for any infringement or claim thereof in the event the claim (i) is made by any affiliates of the Customer; (ii) resulted from the Customer’s or a Customer’s subcontractor’s/supplier’s use or modification of or addition to the EMDESK Services or by the materials provided by Customer to EMDESK (such as Customer Data); (iii) is due to the use of EMDESK Services in conjunction with any other third-party software for which Customer has not obtained EMDESK’s written approval; or (v) which could have been avoided by using a patch, upgrade or otherwise amended version of the EMDESK Services.
This section 13 contains EMDESK’s entire liability and Customer’s sole and exclusive remedy in case of Intellectual Property Rights infringements.
Free Versions of the EMDESK Services are provided strictly “as is”. In light of the fact that the Free Versions are provided free of charge, EMDESK disclaims all warranties, representations, and liabilities and EMDESK shall not be liable for damages of any kind related to the Customer’s or User’s use of the Free Versions.
To the extent permitted by applicable law, the EMDESK Services are provided "as is" without warranty of any kind, either express or implied, including but not limited to the implied warranties of merchantability and fitness for a particular purpose, or accuracy, or reliability of results from use of the EMDESK Product, that the EMDESK Product will meet specific requirements, that the EMDESK Product will be uninterrupted, completely secure, free of software errors, defects, and failures.
15. Limitation of liability
(1) EMDESK shall be liable under the terms of this Agreement only in accordance with the provisions set out under (a) to (e):
(a) EMDESK shall be unrestrictedly liable for losses caused intentionally or with gross negligence by EMDESK, its legal representatives or senior executives and for losses caused intentionally by other assistants in performance; in respect of gross negligence of other assistants in performance EMDESK’s liability shall be as set forth in the provisions for simple negligence in (e) below.
(b) EMDESK shall be unrestrictedly liable for death, personal injury or damage to health caused by the intent or negligence of EMDESK, its legal representatives or assistants in performance.
(c) EMDESK shall be liable for losses arising from the lack of any warranted characteristics up to the amount, which is covered by the purpose of the warranty and which was foreseeable for EMDESK at the time the warranty was given.
(d) EMDESK shall be liable in accordance with the German Product Liability Act in the event of product liability.
(e) EMDESK shall be liable for losses caused by the breach of its primary obligations by EMDESK, its legal representatives or assistants in performance. Primary obligations are such basic duties which form the essence of the Agreement, which were decisive for the conclusion of the Agreement and on the performance of which Customer may rely. If EMDESK breaches its primary obligations through simple negligence, then its ensuing liability shall be limited to the amount which was foreseeable by EMDESK at the time the respective service was performed.
(2) The Customer is responsible for backing up the Customer Data on a regular basis and before submitting any Customer Data to the EMDESK Services. Therefore, in the event that EMDESK causes the loss of data, EMDESK shall be liable for loss of data only up to the amount of typical recovery costs which would have arisen had proper and regular data backup measures been taken in accordance with this Agreement.
(3) Any more extensive liability of EMDESK is excluded on the merits.
(4) Insofar as the Customer becomes aware of faults or damage and fails to notify EMDESK immediately, EMDESK shall in accordance with section 254 German Civil Code (Bürgerliches Gesetzbuch) not be liable for such damage which could have been avoided if immediate notification had been given.
This Agreement shall enter into force as of the signature or acceptance of this Agreement. The Agreement shall remain in force for the term of the acquired Subscription, whereupon the Agreement shall automatically renew for an additional equally long Subscription at the list price in effect at the time of renewal, unless the Parties have agreed upon the automatic expiry of the Subscription or the Customer has given EMDESK a notice of nonrenewal prior to the expiry of the ongoing Subscription. In case the Parties have agreed upon a post-Subscription storage service as described in this Agreement, the Agreement shall terminate and expire after the expiry of such post-Subscription storage period agreed between the Parties.
EMDESK may terminate any Subscription without cause at any moment, with a 3 months’ prior notice.
A Party may terminate this Agreement with immediate effect if the other Party substantially breaches the provisions of this Agreement and fails to correct the breach within thirty (30) days of having received written notice of the breach.
Notwithstanding the foregoing, a subscription of a Free Version shall be in force until further notice and may be terminated at any time.
Any licenses granted to Customer hereunder shall terminate upon the expiry or termination of this Subscription. Customer shall promptly upon termination or expiry of the Agreement cease to use and delete the EMDESK Product and any other proprietary material received from EMDESK.
In case the Customer self-hosts the EMDESK Product, Customer shall, upon the request of EMDESK, grant EMDESK access to Customer premises and technical environment during regular office hours during a period of 90 days from the expiry or termination of the Subscription for the purposes of EMDESK auditing the compliance with this Section 16.
The Customer must download and backup any Customer Data that the Customer would like to store beyond the term of the Subscription prior to the expiry or termination of the Subscription.
After 60 calendar days following the date the termination or expiry of the Subscription becomes effective and upon expiration of any post-Subscription storage services purchased by Customer, EMDESK has the right to irrecoverably delete all Customer Data.
The purpose of the 60-day retention period is to give the Customer an opportunity to recover Customer Data in the instance that the Customer has mistakenly terminated the Subscription or allowed it to expire. The Customer shall nevertheless have the right to request immediate deletion of the Customer Data upon the expiry or the termination of the Subscription. Notwithstanding the foregoing, Customer Data the storage of which is mandated according to applicable laws shall be precluded from deletion hereunder.
The provisions of this Agreement which by their nature reasonably should survive the termination or other expiration of this Agreement/Subscription shall survive any expiration or termination of this Agreement/Subscription.
Any notice or other written communication to be given by the Customer under this Agreement shall be in English or German and sent by email to the following email address: contact[a]emdesk.com
Any notice or other written communication to be given by EMDESK under this Agreement shall be in English or German and sent by email to the email address indicated in the Order.
If either party is to change their respective contact details, the other party shall be informed thereof in advance.
EMDESK shall be entitled to use subcontractors, including third party software suppliers, for the provision of the EMDESK Services. EMDESK shall be liable for the subcontractors’ work and services in the same manner as for its own work and services.
17.3 Reference Use
Customer agrees that EMDESK may use the Customer’s name and logo to identify the Customer as a customer of EMDESK on the EMDESK Website, and as part of a general list of EMDESK’s customers for use and reference in EMDESK’s promotional and marketing materials, unless otherwise agreed.
17.4 Export Restrictions
The Customer agrees to comply with any export restrictions in force in any jurisdiction that may be applied to the provision of the EMDESK Services hereunder.
17.5 Entire Agreement
This Agreement supersedes all prior agreements, arrangements, and understandings between the Parties relating to the subject matter hereof and constitutes the entire agreement between the Parties relating to the subject matter hereof.
If any provision of this Agreement is declared by any judicial or other competent authority to be void, illegal or otherwise unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
Headings used in this Agreement are for convenience only and do not alter the meaning or interpretation of any provision herein.
EMDESK shall be entitled to assign all or any of its rights or obligations hereunder in whole or part to an affiliate or successor or to a purchaser or acquirer of its business assets relating to the EMDESK Services without the Customer’s prior consent.
The Customer shall not be entitled to assign any of its rights or obligations hereunder in whole or part without the prior written consent of EMDESK.
EMDESK is entitled to amend this Agreement by providing the Customer with at least a thirty (30) days prior notice. By continuing to use EMDESK after amendments have become effective, the Customer hereby accept the amended version and is bound to it.
If the Customer does not accept the change made by EMDESK to this Agreement, the Customer has the right to terminate the Agreement by notifying EMDESK thereof in writing prior to the effective date of such change. Otherwise the Customer’s approval to the amendments shall be deemed to have been given.
17.10 Force Majeure
Both Parties shall be excused and shall not be responsible for any failure to comply with the terms of the Agreement due to causes beyond their control or the control of their suppliers, including but not limited to war, insurrection, riot, or other civil disobedience, quarantine restriction, labour dispute except within either Party’s organization, failure or delay in transportation, accidents, flood, earthquake, fire, storm, or other act of God, act of any government, or any agency thereof, judicial action or act.
Where a Party’s performance is prevented for a period in excess of three (3) months due to an event as stated above, either Party shall be entitled to terminate the Agreement in writing without any obligation to pay compensation.
17.11 Applicable law and dispute resolution
This Agreement shall be governed by the laws of the Federal Republic of Germany except for the UN Sales Convention (United Nations Convention on Contracts for the International Sale of Goods dated 11.4.1980).
The courts for EMDESK’s registered office shall have exclusive jurisdiction over all disputes under and in connection with this Agreement, provided that Customer is a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch, HGB) or if upon the commencement of legal proceedings, Customer has no place of business or ordinary residence in the Federal Republic of Germany.
Registered company name: EMDESK GmbH
Managing Director: René Linz
Peterstrasse 5, D-99084 Erfurt, Germany
Trade register number: Germany HRB 502295
VAT identification number: DE 814977174
German sales tax identification number: 151/108/10692
Competent county court: Jena/Germany
Support and contact: contact[a]emdesk.com