Availability is the period during which the Client and its users of CUEZ PaaS can make normal use of CUEZ PaaS and the services associated with it. Unavailability is considered as downtime. CUEZ shall use its best efforts to ensure an availability of the environment of 99.00 %. CUEZ has the right at all times, for the purpose of eliminating a malfunction or performing maintenance work on the CUEZ PaaS, to put it temporarily out of operation. CUEZ shall timely announce these planned (maintenance) activities on the CUEZ PaaS, whereby such (maintenance) activities shall take place outside of the Client’s office and/or working hours as much as possible. The daily and operational management of the Client shall be hindered or negatively affected as little as possible.

The availability is measured and assessed within one calendar month. Planned maintenance is not taken into account as a period of unavailability, as far as this remains within the limits of 4 hours per month. Unavailable periods caused by Force Majeure shall not be counted as unavailable time .

5.4. Risk of data storage

CUEZ undertakes to ensure a careful storage and proportional security level of the CUEZ PaaS and the data and information originating from the Client, in such a way that unauthorized third parties can not gain access to it. To this end, CUEZ takes all reasonable, proportionate organizational and technical security measures (as described in the Data Processing Agreement). The Client bears the risk of damage to or loss of the data and information stored by CUEZ or third parties, if this damage or loss is due to an error, intent and/or deliberate recklessness on the part of the Client himself, his management and/or his managerial staff.

Subject to this Agreement, the Client hereby grants CUEZ a limited, non-exclusive, royalty-free, worldwide license to use the Client Data and perform all acts with respect to the Client Data as may be necessary for CUEZ to provide the Services to the CLient. To the extent that receipt of the Client Data requires CUEZ to access and upload Client Data from a third party service provider, the Client shall be solely responsible for obtaining and providing relevant account information and passwords, and CUEZ hereby expressly agrees to access and use the Client Data solely for the CLient’s benefit and as set forth in this Agreement. As between CUEZ and the Client, the Client is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Data.

6. Warranties

6.1 CUEZ warrants that CUEZ PaaS works in accordance with the minimum technical requirements provided by CUEZ to the Client in accordance with the Documentation. CUEZ does not provide any warranty as to quality, suitability, Description Response times Updates Urgent An Error that is so severe that it seriously compromises the Cli services and programs. 1 working hour Every 2 working ho Critical
An Error that has a substantial or serious effect and therefore ca serious inconvenience to the users of the CUEZ PaaS wit them being able to apply a workaround themselves. 2 working hours 2 times a day Non-critical Any other Errors that do not cause inconveniences to the users of CUEZ PaaS because they can easily be avoided or an work-around is available. 2 working days e NA
features, compatibility of CUEZ PaaS other than as mentioned in such general Documentation. CUEZ PaaS is provided with warranty of merchantability or fitness for the scope of License as mentioned in the Documentation excluding any other particular purposes. Moreover, CUEZ warrants that it provides its support service with reasonable care and skill in accordance with the Agreement, which constitutes an obligation of means.

6.2. The foregoing warranties apply during the period after initial activation or any renewal date as agreed by the Parties in the Agreement (Warranty Period). After expiration of the Warranty Period CUEZ PaaS and all support services under this Agreement are provided “as is” without any other warranty. For the avoidance of doubt, the support and maintenance services as set forth in Article 5 of the se GTC apply throughout the entire Term of the Agreement.

6.3. These warranties are Client’s exclusive warranties and shall replace any other warranties, express or implied. The warranties do not include any error-free or uninterrupted operation of CUEZ PaaS. CUEZ does also not warrant the correction of all defects. This Agreement does not provide any representation or warranty as to any third party software. In the event that a warranty claim, the sole recourse consists of a repair or a replacement of relevant CUEZ PaaS software elements. Except for the express warranties under this provision, CUEZ makes no further representation or other warranties, express or implied, statutory or otherwise, including but not limited to CUEZ PaaS merchantability, fitness for a particular purpose, non- infringement or its accuracy.

6.4. Client warrants that the information to be provided is correct and complete. The Client indemnifies CUEZ against the consequences arising from the incorrect and/or incomplete nature of the information.

6.5. Client warrants that it will use the CUEZ PaaS for legal and legitimate purposes. Moreover, these may only be used in such a way that the rights of third parties, including but not limited to intellectual property rights, are not infringed.

7. Indemnification

7.1. CUEZ will be given prompt written notice of any third party claim on an alleged or actual infringement by the Licensed Materials or other material made available by CUEZ, and will be granted the right to control and direct the defense and settlement of such a claim. Client shall be entitled to participate in such proceedings at its own cost. CUEZ must keep the Client regularly informed of the status of the proceedings and/or settlement negotiations. Client agrees to reasonably cooperate with CUEZ in the defence and settlement of such a claim.

7.2. CUEZ shall indemnify, defend and hold harmless the Client from and against all claims and actions brought against the Client, its officers, directors, employees, agents and successors and pay for all actual direct damages, costs, expenses, and reasonable attorney fees that a court awards or as agreed in a settlement with CUEZ’s approval resulting from or arising out of an infringement of any patent, copyright and trademark of any third party caused by the use of CUEZ PaaS, provided that Client will give CUEZ prompt notice in writing of any such claims, permits CUEZ to control the defence or settlement of it and cooperates with CUEZ in this respect. Client shall pay any additional costs and damages caused by its failure to comply with the obligations as set out here before. CUEZ shall not be liable for settlement, related amount or any transactions agreed with regards to such infringements without the prior written consent of CUEZ. Client may employ its own counsel, at its own option and expense without interference of the proceedings.

7.3. Such obligation of CUEZ to indemnify Client does not exist if such infringement is attributable to and caused by Client, in particular if such claim results from:

(i) Client’s unauthorized use of the CUEZ PaaS by Client or its Authorized Users;
(ii) an alteration or modification of CUEZ PaaS by Client or its Authorized Users not in alignment with the Agreement
and without the authorization of CUEZ and the claim would not have been occurred but for such alteration or
modification;
(iii) a modification of CUEZ PaaS as requested by Client in accordance with its specifications;
(iv) the use of the CUEZ PaaS in combination with any other product of Client or a third party, not provided or
approved by CUEZ;
(v) circumstances where CUEZ PaaS predominantly or alone would not be the subject of the infringement claim;
(vi) Client’s failure to install the provided Updates of the CUEZ PaaS that would have avoided the infringement;
(vii) where Client or by means of its Authorized Users continues using CUEZ PaaS after being informed of the alleged
infringing activity.

CUEZ provides no warranty and Client will reimburse CUEZ for any costs or damages resulting from these actions.

7.4. Upon discretion of CUEZ and in order to eliminate or avoid the infringement, CUEZ may at its expense and at its sole discretion a) to modify or replace the infringing part with a non-infringing part, b) obtain the necessary rights from relevant third parties c) terminate the Agreement with immediate effect and refund the License Fee on a prorated basis.

7.5. CUEZ shall have no obligation for payment of royalties or any other compensation to third parties, if any, with respect to the use of CUEZ PaaS by Client or its customers, clients, viewers, listeners in connection with the Content or third party products.

7.6. In case any alleged or actual Intellectual Property Rights infringement relating to the CUEZ PaaS is arising, the Client shall immediate cease the use of these Solutions. In case the Client neglects this obligation, CUEZ may at its sole discretion terminate the GTC with immediate effect and without any compensation or indemnification due by CUEZ whatsoever.

7.7. Any claim of Client in connection with such infringement above shall be the sole exclusive remedy of Client under this Agreement.

7.8. Client shall indemnify, defend and hold CUEZ harmless from and against any damages, losses, costs and expenses (including reasonable attorneys’ fees) suffered or incurred by CUEZ arising out of (i) Client’s infringement of any third party’s intellectual property rights and/or (ii) the use of the Content.

8. Limitation of liability

8.1. CUEZ shall perform its task as may be expected of a professional company in its line of business. Subject to the maximum extent permitted by applicable law, CUEZ’s liability under these GTC in respect of each cause of damages (whether a single event or a series of events) shall not exceed all fees paid by Client to CUEZ under the present GTC for a period of six (6) months applicable at the date of the event (or last of the series of connected events) giving rise to any claims of Client’s customers or business relationships and this per cause of damage. CUEZ shall not be held liable in any way, neither contractually nor extra-contractually, for discontinuing an older Release of the Solution. Client shall at all times during and after the term of these GTC indemnify, keep indemnified and hold CUEZ harmless against all claims, demands, actions, proceedings and all losses in relation to any breach of these GTC by Client, Authorized Users or end users, any negligent or wrongful acts or omissions of Client, Authorised Users or end users under these GTC, any failure to act or misrepresentation by the Client, Authorized Users or end users and/or any faults and omissions in the performance of its obligations pursuant to these GTC, resulting into claims of third parties.

8.2. Under no circumstances shall CUEZ be liable to the Client for any indirect, punitive, special consequential or similar damages (including damages for loss of profit, lost revenue, loss of business, loss or corruption of data, loss of customers and contracts, loss of goodwill, the cost of procuring replacement goods or services, and reputational damage) whether arising from negligence, breach of contract or of statutory duty or otherwise howsoever. Each Party shall have the duty to mitigate damages. The exclusions and limitations of liability under this article shall operate to the benefit of CUEZ’s Affiliates and subcontractors under these GTC to the same extent such provisions operate to the benefit of CUEZ.

8.3. Notwithstanding any other provision of Agreement, neither Party shall be liable vis-à-vis the other Party or to any third party, whether in contract (including under any indemnity or warranty), in tort (including negligence) under a warranty, under statute or otherwise, under or in connection with the Agreement for any indirect, punitive, incidental or consequential damages, lost revenue, lost profit, interruption of use, lost data or corrupted data, costs of procurement for substitution of products or services, third party software and claims, provided information, wasted management time, loss of use of computer systems and related equipment, downtime costs, however caused, arising out of the Agreement or the termination thereof even if a) the Party has been advised of the possibility of such damages; or b) the damages were foreseeable. The limitations of liability set out in this article do not apply if the damage is due to intent, fault and/or deliberate recklessness on the part of CUEZ, its management and/or its executive staff or third parties engaged by it.

8.4. Even in the event that CUEZ cannot provide the agreed online services, CUEZ is not liable, except when the non-delivery of the relevant online services is the result of a shortcoming attributable to CUEZ and exclusively for the part that was within the sphere of control of CUEZ and in accordance with the limitation of liability as set forth hereabove. The availability of the internet depends on the internet itself, the service provider of CUEZ and the telecommunications provider of CUEZ or the telecommunications provider of the Client. Therefore, the availability of the online services in certain cases (e.g. in case of unavailability of internet) is beyond the sphere of control and responsibility of CUEZ so that CUEZ will not accept any liability in this respect.

8.5. The provisions of this Clause 8 (Limitation of Liability) shall not apply to the extent restricted or prevented by mandatory applicable law that cannot be amended or excluded by contractual waiver.

9. Confidentiality

9.1 Treament of Confidential Information

Confidential Information may be used by the receiving Party in any form which is reasonable and in connection with the Agreement subject to the limitations of confidentiality under this Clause 9 GTC (Confidentiality).

The receiving Party agrees and undertakes that for the duration of the Agreement as well as for five (5) years thereafter, it will keep confidential and will not use for its own purposes nor without the prior written consent of the disclosing Party divulge to any third party any Confidential Information of the disclosing Party or its activity it has received or obtained in the framework of the Agreement. The disclosure within its enterprise to another affiliate of the receiving Party for the purpose of implementing the Agreement does not require the prior written consent of the disclosing Party but a prior notification in order to inform the disclosing Party. The disclosing Party retains all right, title, and interest to its Confidential Information.

Content of the Client shall be treated strictly confidential and considered Confidential Information.

9.2 Exclusion

The provisions of Clause 9 GTC (Confidentiality) shall not apply to any Confidential Information of the disclosing Party that:

a) at the time of disclosure, is generally known to the public through no fault of the receiving Party; or
b) at the time the of disclosure, has been made available to the receiving Party by a third party having the lawful rights to do
so without breaching any such obligation of non-use or confidentiality; or
c) is proven by the receiving Party to have been independently developed by the receiving Party without making use of the
Confidential Information of the disclosing Party; or
d) the receiving Party is required to disclose in compliance with applicable laws, or to comply with governmental regulations. The receiving Party provides prior written notice of such disclosure to the disclosing Party and takes reasonable and lawful actions to avoid and/or minimize the degree of such disclosure and affords the disclosing Party as much notice as possible of such disclosure to allow the disclosing Party to do likewise.

9.3 Confidential Terms

Each Party agrees not to disclose any terms of the Agreement, except for the permitted disclosure under Clause 9 GTC (Confidentiality) to any third party without the prior written consent of the other Party who must not unreasonably refuse, withhold, or delay the giving of consent.

10. Term

The Agreement shall commence and expire as agreed by the Parties, for a period of 1 (one) year (“Initial Period”) unless it was terminated before in accordance with these GTC. The term shall be tacitly renewed for the same period, unless notice of termination is given by the Client.

11. Termination and Suspension

11.1 Termination

The wish to terminate the agreement must be notified to CUEZ in writing by e-mail no later than 1 (one) month before the Initial Period expires. In the event that the Client wishes to terminate the Agreement after the Initial Period, Client will respect a notice period of at least 1 (one) month. In the event that CUEZ wishes to terminate the Agreement after the Initial Period, Client will observe a notice period of at least 1 (one) month and inform the Client by e-mail of the intended termination.

In the event that a Party does not agree with an amendment to the Agreement, this Party may terminate the Agreement prematurely, taking into account an interim notice period of 3 (three) months, starting on the next month after the notice of termination.

CUEZ may terminate these GTC or suspend the Professional Services and/or user rights granted hereunder by written notice to the Client if the Client fails to pay to CUEZ any amount due hereunder and the Client fails to cure such failure to pay within thirty (30) days from the date of such notice. The Client acknowledges and agrees that any use of the CUEZ PaaS outside the scope of the license as set forth in these GTC, unless such use has been expressly approved in writing by a duly authorized representative of CUEZ, shall entitle CUEZ to immediately terminate (or alternatively, at CUEZ’s option, suspend) one or more of the licenses granted hereunder and/or the GTC for material breach by the Client, without any formalities being required and without prejudice to any other right or remedy available to CUEZ pursuant to these GTC or under applicable law.

Either Party may terminate these GTC by written notice to the other Party if the other Party materially breaches these GTC and fails to cure such breach within 30 days from the date of receipt of such notice by the breaching Party, provided that CUEZ shall be entitled to terminate these GTC (or alternatively suspend the Professional Services and/or user rights granted hereunder) on giving written notice in the event the Client breaches the license terms hereunder or infringes CUEZ’s intellectual property rights.

By refining and developing features, the services of CUEZ may change in the meantime. These changes can be made at any time and without prior notice. Only major far-reaching developments or changes will be made available to the Client by CUEZ after prior and timely notification (CUEZ reserves the right to request additional costs in the event of new features, insofar as the Client has notified in writing in advance that it wishes to purchase such new features), whereby the material functionality of the Client’s services and the (peripheral) equipment used by the Client will not change and without this affecting the Client’s possibilities of use. Maintenance work, or changes (provided they are not new features) will not take effect until one (1) month after it has been announced by CUEZ.tv, or as much longer as reasonably possible. Developments or changes shall be implemented as much as possible outside the office and/or working hours of the Client and always in such a way that the daily and operational management of the Client is not hindered or negatively affected. CUEZ reserves the right to release new features at its own discretion, although it undertakes to inform the Client of such release immediately.

If CUEZ is forced to stop providing the services for demonstrable technical or economic reasons, CUEZ shall communicate this to the Client as soon as possible, taking into account a reasonable period of at least 3 (three) months. In such a case, CUEZ shall make all reasonable efforts to try to make a replacement service available to the Client in the near future. At the request of the Client, CUEZ shall make the Content available free of charge to the Client or to third parties to be designated by the Client in the electronically common form desired by the Client.

Without prejudice to any other rights to which it may be entitled, ither Party may, without penalty or liability, terminate these GTC by written notice to the other Party, effective as of the date of delivery of such notice, with immediate effect in accordance with applicable law and without court authorization, including but not limited to the following reasons:

a) if an order is made or a resolution is passed for the winding up of the other Party or the appointment of an administrator or receiver to manage the affairs, business, property and assets of the other Party or any similar or analogous action in consequence of debt;
b) if the other Party becomes the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding or otherwise liquidates or ceases to do business
c) extraordinary circumstances, unforeseen by the Parties, which would make this Agreement resulting in an illegal action of a Party; or which substantially affect and disturb the cost structure or the initial economic value of the Agreement in an unreasonable manner so that an adherence to the contract would be unreasonable or unfair

11.2 Effects of Termination

11.2.1. All rights granted to the Client under the Agreement shall forthwith terminate and immediately revert to CUEZ. Unless otherwise agreed, all use of CUEZ PaaS shall be discontinued. Each Party shall promptly return any property of the other Party.

11.2.2. Termination of the Agreement for any reason will not affect accrued rights, indemnities, existing commitments until fulfilment or any contractual provision that by their nature are intended to survive termination. Any Party hereto shall not be released from any obligation which, at the time of such termination, has already become due to the other Party or which is attributable to a period prior to such termination nor preclude either Party from pursuing any rights and remedies it may have hereunder or at law or in equity with respect to any breach of the Agreement.

11.2.3. In case of termination of the Agreement, all unpaid License Fees shall become immediately collectible and CUEZ shall be entitled, in addition to any other remedies available to it, to take all necessary steps to collect such amounts, together with all costs, indemnities, compensations, damages, fees and expenses incurred by CUEZ.

11.3 Suspension