EMDESK License Agreement
This License 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.
This Agreement was last updated on January 17, 2017.
As used in this Agreement, the following capitalized terms shall have the meaning set out below.
“Agreement” means this License Agreement and its appendices and any Orders executed between the Parties.
“Customer” shall mean the entity or person 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 generates in or submits 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 Customers 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 amount 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.
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 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 access to the EMDESK Services without any prior notice to the Customer, if EMDESK suspects that the Customer uses the EMDESK Services in violation of the terms of this Agreement.
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.
The Customer is 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 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.
From time to time, EMDESK may make Free Versions available to the Customer 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.
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 Customer shall ensure that all details provided regarding the Customer’s contact information, billing information and credit card information, where applicable, are correct and undertakes to update such information as soon as possible in case such information has changed.
The Customer 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 shall use all reasonable endeavours to prevent unauthorised access to, or use of, the EMDESK Services. The Customer 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 unauthorised person has become aware of a user name and/or password, the Customer shall immediately inform EMDESK thereof and change such user name and/or password.
The Customer shall be liable for any unauthorised use of the EMDESK Services under Customer’s user name and any losses or damage incurred by EMDESK where the Customer reveals a user name/password to a third party.
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. User accounts 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 Intellectual Property Rights and the title to the Customer Data shall belong to the Customer.
EMDESK and its subcontractors (subject to applicable data protection laws) may use, copy, store, and modify Customer Data during the term of this Agreement for the purposes of providing the EMDESK Services and managing the customer relationship between EMDESK and Customer as well as analyzing the use of the EMDESK Services. Such right shall be non-exclusive, royalty-free and worldwide.
EMDESK shall have the right to generate anonymous usage and other data from and by using the Customer Data. EMDESK shall own all such anonymous data generated from and by using the Customer Data. If the title to the anonymous data cannot be transferred to EMDESK, the Customer grants EMDESK and its subcontractors a perpetual, non-exclusive, worldwide, royalty-free, transferable and sublicensable license to use, modify, copy, publish, and store such anonymous data for any business or other purpose of EMDESK, including for the purposes of developing existing or new services and analyzing the use of the EMDESK Services. For clarity, anonymous data shall not in any event be used in a manner that identifies the Customer or any natural person. Such license shall survive the expiry or termination of this Agreement.
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, 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 after such EMDESK storage period communicated by EMDESK from time to time.
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 licences 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 is 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 written 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.
In order for the Customer to be able to use the EMDESK Services, the Customer must provide certain data to EMDESK regarding the Customer’s and Users’ representatives, including but not limited to full name, e-mail address, contact details and type of organisation. Following receipt of such data, EMDESK will process the same using automatic data processing in order to enable EMDESK to administer and otherwise perform its obligations within the scope of the EMDESK Services and to ensure that unauthorised persons do not gain access to the EMDESK Services.
In addition, in order for the Customer to be able to use the EMDESK Product, the Customer must also allow EMDESK to store and retrieve session information on the Customer’s representatives’ end terminal equipment, through the use of “cookies”. The purpose of such storage and retrieval of information is to enable the necessary login/logout procedures used in the EMDESK Services and to ensure that unauthorised persons do not gain access to the EMDESK Services.
If third party applications are made available by EMDESK within the EMDESK Services, Customer acknowledges that EMDESK may allow such third party application provider access to personal data as required for the interoperation of such embedded or linked applications.
EMDESK shall adopt adequate technical systems and operational procedures to protect the privacy of the Customer and the Users.
To the extent the Customer Data contains personal data, Customer acts as data controller under applicable data protection laws and EMDESK processes such personal data on behalf of Customer as data processor.
The Parties shall, during the term of this Agreement cooperate to find suitable solutions on how to process personal data in accordance with and in compliance with the General Data Protection Regulation (Regulation (EU) 2016/679), if applicable during the term of the Agreement.
In case EMDESK processes personal data on behalf of Customer:
a) the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA in order to provide the EMDESK Services and perform EMDESK’s other obligations under this Agreement unless EMDESK has agreed to store the personal data solely within the EEA. All international transfers of personal data shall comply with requirements set out in applicable laws;
b) unless otherwise agreed, the Customer authorizes EMDESK to use subprocessors for the processing of the personal data for the provision and use of the EMDESK Services agreed upon;
c) EMDESK shall ensure that the EMDESK employees or other persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
d) EMDESK assists the Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer’s obligation to respond to requests for exercising the data subject's rights under applicable law;
e) EMDESK reasonably assists the Customer in ensuring compliance with data security obligations set out in applicable laws taking into account the nature of processing and the information available to EMDESK;
f) EMDESK makes available to Customer information necessary to demonstrate compliance with applicable data protection laws;
g) the Customer shall ensure that the Customer is entitled to submit the relevant personal data to the EMDESK Services so that EMDESK may lawfully process the personal data in accordance with this Agreement on behalf of the Customer;
h) the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by applicable data protection legislation;
i) 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;
j) each Party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage to ensure the level of security required under applicable laws and the rights of the data subjects; and
k) all personal data processed by EMDESK shall be anonymized or deleted upon the expiry or termination of this Agreement as set out herein or otherwise agreed between the Parties, unless otherwise required by applicable law.
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 Product; and
- 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.
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.
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.
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.
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.
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 shall provide EMDESK with the requisite assistance and access for providing Customer with support and Error correction services as set out hereunder.
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.
Payment for each Subscription shall be made in advance.
All fees for Development Services will be invoiced by EMDESK upon the acceptance of the Work Product as set out herein.
Payment shall be made by the Customer against invoice issued by EMDESK, or through the use of Paypal or a credit card approved by EMDESK by using a payment service provided by a third party service provider. An additional charge of 3% on invoice total applies for the use of Paypal or a credit card. If not otherwise agreed, payment must reach EMDESK without deduction (i.e. bank charges or commissions) within fifteen (15) days with a discount of 3% or in full within thirty (30) days of the issue date of the invoice or credit card charge. The customer is obligated to pay any bank charges or commissions applicable on the payment of the Service Fees.
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.
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.
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 servants, 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.
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.
Except as expressly stated herein, this Agreement does not grant the Customer any Intellectual Property Rights in the EMDESK Services 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.
EMDESK agrees that, if notified promptly in writing of and given sole control of the defence 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.
(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.
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 of the Customer has self-hosted 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.
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.
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.
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 sixty (60) 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.
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 organisation, 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.
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