General Terms and Conditions - MasterTag /Publisher

(“MasterTag T&C/P”)

- 2 May 2011 -

 
With its "MasterTag" solution, ZANOX.de AG (hereinafter "zanox" or "Company“) provides a management application pertaining to third-party supplier cooperation via the Performance Advertising Network ("zanox Network) operated and managed by the Company with which Advertisers registered with zanox can manage third-party applications via the zanox network, MasterTag is available to Publishers and developers of third-party applications (hereinafter referred to uniformly as “Publishers”) registered with zanox or all other zanox group companies for the provision of third-party applications in accordance with these MasterTag T&C/P.
 

1 Object of Contract

 
1.1 zanox provides the Advertisers with the “MasterTag” solution (the “MT Solution”) in accordance with the “General Terms and Conditions MasterTag/Advertiser” ("MasterTag T&C/A"). The MT Solution consists of a central interface that integrates further applications ("MT Applications") on a website operated by the Advertiser ("Advertiser Website"). Above all, the MT Solution offers Advertisers the possibility of incorporating a so-called "Script Container" (the "MT Script Container") on their own website so as to incorporate, illustrate and use MT applications of zanox (“MT zanox Applications”) or of the Publisher (“MT Third-Party Applications”) via the MT Script Container and to make available any data collected via the MT Application ("MT ApplicationData") to the provider of an MT Application ("MT Provider") and/or to other third parties associated with the Advertiser by contract.
 
1.2 In connection with the MT Solution, zanox offers Publishers the possibility
 
1.2.1 of offering Advertisers, in accordance with the General Terms and Conditions for the zanox Application Store (“ApplicationStore T&C”), MT Third Party Applications via the zanox Application Store, of concluding corresponding contracts with Advertisers and, on the basis of such a contract, enabling the respective Advertisers to use MT Third Party Applications and
 
1.2.2 on the basis of these MasterTag T&C/P, to make use of the zanox services described herein and provided on behalf of the Advertiser.
 
1.3 On the basis of these MasterTag T&C/P, zanox will forward exclusively any MT application data collected via the MT Third Party Application to the Advertiser, the Publisher and further third parties selected by the Advertiser. In contrast, the offer of an MT Third Party Application by the Publisher, the conclusion of corresponding contracts with Advertisers and the enabling of use of an MT Third Party Application are based exclusively on the ApplicationStore T&C. In case of doubt, the ApplicationStore T&C shall take preference over these MasterTag T&C-P.
 

2 zanox Services

 
2.1 zanox will
 
2.1.1 provide the Advertiser with the MT Solution and the MT Third Party Application(s) activated for an Advertiser in accordance with the ApplicationStore T&C with an average availability of at least 99.8 % per month. As regards the provision of the activated MT Third Party Applications, the availability at zanox presupposes that the respective Publisher provides his MT Third Party Application taking account of the availability agreed in the ApplicationStore T&C. Due to the realization of necessary maintenance work or improvements, it may occur on occasion that individual functions are temporarily unavailable because they are either undergoing maintenance or are being improved. Insofar as actually possible and, in particular, is economically and legally reasonable and the adverse effects are not insignificant, zanox shall do its utmost to immediately resolve any faults or downtimes.
 
2.1.2 transmit the MT ApplicationData selected by the Advertiser in the respective MT Third Party Application to the Publisher within the framework of the above-mentioned availability and description of services of the respective Third Party Application.
 
2.2 zanox shall endeavour to achieve constant further development of the MT Solution. In the course of such development, zanox may enhance, expand or slightly modify the MT Solution and/or its functionalities. zanox may enhance the range of functions of the MT Solution, slightly change it, or improve it. zanox particularly reserves the right to alter a service when such a change is customary in the industry or made necessary by changes of the law or court rulings. As a matter of course, zanox will properly take into account the interests of the Publisher.
 
2.3 zanox reserves the right to delegate a part or all of the rendering of the service to affiliated enterprises, third party service providers or vicarious agents.
 
2.4 Furthermore, zanox may offer Publisher training courses relating to the setup and use of the MT Solution and the MT Applications. Provided that zanox does not make such training courses or respective documents freely available via the zanox Network, the provision of training services shall be subject to a separate agreement and may be invoiced separately.
 

3 Publisher’s Services and Obligations to Cooperate

 
3.1 With its MT Solution, zanox provides a technical solution for independent use by the Publisher. Given this background, the Publisher is obliged to refrain from technical interference of any kind regarding the zanox Network, the MT Solution and the MT Applications. Technical interference is defined, in particular, as hacking attempts, i.e. attempts to breach, circumvent or override in any other way the safety mechanisms of the zanox Network, the MT Solution and/or another MT Application, the use of automatic data reading programs, the use and/or dissemination of viruses, worms, Trojans, the use of brute force attacks and/or the use of other links, programmes or procedures that may damage the zanox Network (including the entire hardware and software employed to operate the zanox Network) or individual components of the zanox Network.
 
3.2 Given this background, the Publisher guarantees in particular,
 
3.2.1 not to violate the rights of third parties (especially copyrights, trademark rights, personal rights or other similar rights) through the offer, the provision and use of his 3 MT Third Party Application(s) by the respective Advertisers and not to infringe other legal requirements (in particular under competition law and data protection law).
 
3.2.2 before offering an MT Third Party Application, to check himself whether the functionalities provided to the Advertiser through the third-party application are permissible on the basis of applicable legal regulations and to implement, offer and provide exclusively legally admissible functionalities through the MT Third Party Application.
 
3.2.3 to offer the Advertiser the possibility via the MT Third Party Application of informing the end user, where required, of the use of the respective MT Third Party Application and of his right to object against the collection of personal/impersonal user data in the manner prescribed by law or required by industry´s self-regulation.
 
3.2.4 to offer the Advertiser – via the respective third-party application – solely the possibility of collecting impersonal data on end users and, for this purpose, in particular (a) to offer and provide the respective third-party MT Application such that no personal user data is collected or such that personal user data is not made available for transfer by zanox where the collection of personal user data from the Advertiser is admissible and (b) to offer and provide the respective MT application such that information on validated profiles including user data is deleted after a maximum of 30 days of inactivity and information on non-validated profiles including user data is deleted after a maximum of 30 days of inactivity and a maximum of ten user transactions are recorded per end user on the Advertiser’s website.
 
3.2.5 to collect, process or use exclusively the MT application data provided by the Advertiser via zanox in a legally admissible scope and - without prejudice to the obligation in point 3.1 not to collect any further MT application data and/or other information concerning end customers of the Advertiser or third parties, and not to transfer any MT application data to other third parties.
 
3.2.6 to inform zanox without delay if the Publisher is of the opinion that performance of the above obligations to cooperate is either entirely or partially impossible or that the offer, provision or use of the MT Third Party Application by Advertisers infringes legal requirements or requirements of the industry´s self-regulations despite fulfilment of the above obligations to cooperate.
 
3.3 The Publisher is obliged to impose the obligations to cooperate pursuant to this paragraph 3 on all third parties associated with it by contract or collaborating with it in any other form in connection with the MT Third Party Application.
 
3.4 Upon zanox’ notification (written or text form), the Publisher shall provide further cooperative services to an appropriate extent if and inasmuch as these are required to ensure the lawful use of the MT Solution and/or an MT Third Party Application respectively the use in line with requirements of the industry´s self-regulations.
 

4 Compensation

 
4.1 At present, Publishers registered with zanox shall receive the services under paragraph 2 of these MasterTag T&C/A without separate compensation.
 
4.2 Separate compensation may be charged for the provision of MT Applications by zanox and MT Third Party Providers in accordance with the respective MT Application Terms.
 

5 Data Protection and Data Security

 
5.1 In connection with the provision of the services specified in paragraph 2.1, zanox shall collect, process and/or utilize MT ApplicationData exclusively
 
5.1.1 for the Advertiser and
 
5.1.2 to the extent required to provide the services specified under paragraph 2.1., MT application data shall not be collected, processed or used for own purposes beyond the provision of the services under the contract, in particular it shall not be modified or transmitted. Neither zanox nor the Publisher shall acquire any rights to the MT ApplicationData and, to the exclusion of any rights of withholding, are under obligation to deliver the MT ApplicationData upon the Advertiser’s request if and inasmuch as zanox is obligated to retain the respective MT ApplicationData (1) due to the ongoing clarification of legal or factual issues between zanox, the Publisher, the Advertisers and/or third parties or (2) due to a legal data retention requirement in particular pursuant to the accounting requirements under Sections 145 to 147 AO (German Fiscal Code) and the data retention periods under Section 257 HGB (German Commercial Code).
 
5.2 Irrespective of the contractual exclusion of the processing of personal data (in particular due to the Publisher’s obligations to cooperate according to the above paragraph 3.), zanox has taken appropriate data protection and data security measures. In specific, zanox has
 
5.2.1 appointed an internal data protection officer,
 
5.2.2 obliged all persons engaged with the provision of services in connection with the MT Solution to observe data secrecy as well as the trade and business secrets of zanox’ contractual partners,
 
5.2.3 established the technical and organizational measures relating to MT ApplicationData security in the form of a data security concept,
 
5.2.4 concluded a respective contractual agreement with the affiliated companies, third party service providers or vicarious agents commissioned by the Company in accordance with paragraph 2.3 on the basis of which such commissioned companies, third party service providers or vicarious agents are obligated to protect MT ApplicationData to the same extent as zanox itself.
 

6 Term and Termination

 
6.1 The contract has a twelve month period of validity. It shall be automatically extended by another six months unless one of the contractual parties terminates the contract in text form three months in advance of the end of the term.
 
6.2 Both contractual parties reserve the right to terminate the contract without notice for good cause. Good cause is given in particular when
 
6.2.1 one of the contractual parties effectively and/or sustainably violates its contractual obligations;
 
6.2.2 the respective other party is liquidated, its business operation or essential aspects/assets of its operations are sold or liquidated, it becomes insolvent and/or is placed under sequestration or undergoes similar significant changes to its financial position, its capacity to act or its business organization or if insolvency proceedings have been opened against its assets, if such an application is dismissed for insufficiency of assets or if the court orders a temporary securing of assets
 

7 Liability and Exemption in the Case of Publisher’s Breach of Contract

 
7.1 Compliance with these MasterTag T&C/P is of great significance for the operation of the zanox Network and the provision of the MT Application. Aside from the termination of the contract, zanox reserves the right to take further legal action in the case of significant breaches of contract.
 
7.2 In the event that the Publisher violates the provisions contained within these MasterTag T&C/P, in particular his obligations pursuant to paragraph 3, and zanox is subsequently held liable by a third party (e.g. an author, an end user or an authority) because of such breach of contract, the Publisher shall be obligated to indemnify zanox, upon zanox’ first request, against all costs and expenses incurred by zanox as a consequence of the breach of contract. This includes in particular the payment of damages or repayment of expenses to third parties based on court orders or settlements, lawyer or court costs associated with the defence against third party claims and any other damage arising to zanox.
 
7.3 Notwithstanding the aforementioned, the Publisher shall be liable in accordance with relevant legal requirements.
 

8 Liability and Limitation of Liability

 
8.1 zanox is not responsible for the content of third party websites, damage or other disruption arising due to the Publisher’s faulty or incompatible software or hardware or for damage arising due to deficient availability or functioning of the internet.
 
8.2 In all other respects, regardless of the legal grounds, liability arises exclusively
 
8.2.1 if one of its legal representatives, executives or other vicarious agents has acted with intent or gross negligence,
 
8.2.2 in the event of any culpable breach of an essential contractual duty, delayed performance or the impossibility of performance, in each case based on the respective merits. The expression "essential contractual duty" describes a duty in the abstract, the fulfilment of which is an essential pre-requisite for the due implementation of the agreement, and that is a duty on whose fulfilment the respective other party can rely as a general rule.
 
8.3 In the event of liability pursuant to paragraph 8.2.2, this shall be limited, for financial loss and damage to property, to the amount of the typically foreseeable loss.
 
8.4 The above limitations of liability do not apply to cases of mandatory statutory liability, in particular liability under product liability law, liability for a guarantee that has been assumed, and liability for culpable injury to life, limb or health.
 
9 Amendment of the MasterTag T&C/P
 
9.1 zanox reserves the right to amend less material provisions under these MasterTag T&C/P at any time without providing reasons unless such amendment would lead to a revision of the overall contract structure. Notification regarding the amended terms shall be sent by e-mail no later than two weeks before they become effective. Should the Publisher not object to the validity of the amended MasterTag T&C/P within four weeks of receiving the e-mail in text form, the amended terms shall be deemed accepted. zanox will send a separate notification detailing the right to object as well as the significance of the four week period.
 
9.2 Should the Publisher object to the validity of the new (amended) MasterTag T&C/P, zanox’ amendment request shall be considered rejected. In this case, the contract shall be continued in its previous form. The parties’ right to terminate their participation in the Zanox Network shall remain unaffected thereby. A separate notification regarding this termination option shall be produced.
 

10 Final Provisions

 
10.1 Utilization of the zanox Network and the MT Solution requires the use of certain technical systems such as terminal devices, software programmes, transmission paths, telecommunications services and other services provided by third parties that may lead to the incurrence of further costs by the Publisher. zanox does not provide such terminal devices, software programmes, transmission paths, telecommunications services or other services and therefore shall not assume any liability for such services provided by third parties.
 
10.2 zanox is hereby authorized to use the trade names of the Publisher (including the brands of the goods or services of the Publisher marketed through zanox) as a reference within the context of its own customer acquisition, particularly in the framework of customer reference lists.
 
10.3 The contract concluded on the basis of these MasterTag T&C/P represents the parties’ entire agreement and understanding with respect to the object of the contract and shall replace all oral or written agreements or understandings entered into by the parties with respect to the object of the contract. Any other general terms and conditions of the parties shall explicitly not apply.
 
10.4 Rights and obligations arising from these MasterTag T&C/P and the contracts concluded on their basis may not be transferred without zanox’ prior approval.
 
10.5 These MasterTag T&C/P and the contracts concluded on their basis do not establish a company in relation to third parties and therefore do not authorize either of the parties to make any legally binding declarations on behalf of both parties together, or on behalf of the respective other party, nor do they authorize them to place the respective other party under any obligation or to represent it in any other way.
 
10.6 These MasterTag T&C/P and the contractual relationship between zanox and the Publisher shall be governed exclusively by the laws of the Federal Republic of Germany, to 7 the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
 
10.7 The place of jurisdiction is Berlin provided the Publisher is a merchant within the meaning of the German Commercial Code (HGB), does not permanently reside in Germany, has relocated its permanent residence abroad after the present General Terms and Conditions have entered into force or the Publisher’s domicile or usual place of residence are not known at the time at which a suit is filed with the courts.
 
10.8 Should individual provisions of these MasterTag T&C/P be entirely or partially invalid, the validity of the remaining provisions shall remain unaffected. The invalid provision will be deemed replaced by a provision that is legally effective and comes closest, in the usual understanding, to the economic intent and purpose of the invalid provision. The same shall apply to any unintentional omission.
 
10.9 The Publisher is aware that these MasterTag T&C/P are originally drafted in German. The German version can be handed out upon request of the Publisher. The Publisher is aware and agrees that in case of any inconsistencies between the German and the English version the German version shall always prevail.

zanox Application Store

Terms & Conditions for Developers

ZANOX.de AG (hereinafter referred to as "zanox") operates and manages a network on the Internet through which suppliers can advertise their goods and services, particularly by way of affiliate marketing ("zanox network"). Participants in the zanox network are advertisers, publishers and zanox. Advertisers market and advertise their goods and services with promotional material such as banners, product information, text links, emails and videos. Publishers integrate the promotional material of the advertisers into their homepage/website, an email or their own network ("advertising space"). For example, if an end customer clicks an advertisement he is directed to the advertiser's website and if a business transaction is subsequently concluded, the advertisement is considered successful and the publisher receives a predetermined remuneration from zanox.

In the zanox Application Store, zanox offers applications including new advertising material such as widgets or gadgets, analysis tools, statistics, geo-targeting or behavioral targeting tools, and much more.

In the zanox Application Store, publishers and advertisers receive an overview of the applications listed there, which are generally developed by third parties ("developers"). zanox brokers a potential conclusion of contract between users and developers. Following the conclusion of a contract, users can evaluate the application and exchange information with other users.

1 Subject of the contract

1.1 zanox operates and manages the zanox Application Store. Participants of the zanox Application Store are publishers and advertisers; jointly called "users", developers and zanox. Publishers are natural or legal persons who provide the advertisers with a segment of their advertising space to market good and services. Advertisers are natural or legal persons who market and advertise their goods and services via zanox through partner programs using advertising material ("affiliate marketing"). Developers are legal or natural persons who develop the applications and make them available to users for sale or use on the platform of the zanox Application Store. The applications can be used by publishers and advertisers within the context of online marketing, such as augmented advertising material or for statistical evaluation.

1.2 The users register with zanox for the complete use of the zanox Application Store. Registration is free of charge. An overview of the available applications can be accessed in the zanox Application Store. The subject of this overview is a service description or documentation of the respective application and the remuneration to be paid to the developer as well as an evaluation or comment function. zanox reserves the right to remove individual applications from the catalog after providing appropriate prior notice. The users have no entitlement to the listing of specific applications. No claims can be derived from the removal of applications.

1.3 The developers transmit the applications to zanox for listing in the zanox Application Store. Once zanox decides to accept the respective application in its portfolio, it will be promptly entered in the list. The developers have no entitlement to acceptance of a specific application; no claims can be derived from non-acceptance. This also applies to updates or new releases of a particular application. The developers themselves can arrange for zanox to remove their application after providing appropriate prior notice.

1.4 If the user decides to purchase or use a specific application, he shall submit an appropriate offer to the developer through the platform of the zanox Application Store. If the developer accepts the offer, a contract is concluded between the user and developer according to the respective application-specific contractual provisions. zanox shall keep a record of this conclusion of the contract and shall provide the user and developer with appropriate means for communication and processing the contract.

1.5 The performance of necessary maintenance work and improvements may result in the temporary unavailability of individual functions of the Application Store, or the complete store, as it is maintained or improved. Users and developers shall be notified in good time of planned downtimes, if required, and such downtimes shall not occur during peak times, if possible. zanox will remedy faults or failures without delay, if this is actually possible and, in particular, commercially and legally reasonable, and if the faults are not negligible.

1.6 zanox is committed to the continuous further development of the zanox Application Store. Within the scope of this further development, individual functions may be improved, expanded, or marginally altered by zanox. This includes the partial or complete withdrawal of functions or other service components. The right to change the service exists, in particular if this change is common industry practice or if an obligation exists due to a change in legislation, or due to established case law.

2 Conclusion of contract

2.1 The developer must register as a publisher with zanox to use the zanox Application Store. The registration is free of charge and is based on the General Terms and Conditions for publishers (http://www.zanox.com/de/zanox/about/agb.html).

After registration, the developer can transfer the application to zanox via the zanox user interface.

3 Performances of the developer

3.1 The developer makes the applications he has developed available to the users. The applications are initially transmitted to the zanox Application Store. The developer must also transmit appropriate documentation / descriptions with the applications. Applications and accompanying documentation must always be in the English language. The documentation must contain details of the supported browser, operating system and plug-ins, where applicable, as well as instructions on installation or implementation.

3.2 zanox reserves the right to examine the technical and functional properties of every transmitted application. This applies in particular to the requirements listed under clause 6. If an application does not comply with the technical guidelines it will be immediately rejected. zanox also has the right to reject applications without providing further reasons. If the application complies with the abovementioned requirements and if zanox accepts them, the application will be listed in the zanox Application Store.

3.3 With the transmission of the application to zanox, the developer agrees to accept every offer which may lead to the conclusion of a user agreement.

3.4 If the technical composition of the application requires it, the developer must host the application at his own expense and responsibility according to clause 12, to continue its development and take suitable measures to keep it up-to-date and available.

3.5 The developer is also obliged to uphold the zanox code of conduct (http://www.zanox.com/de/zanox/about/zanox_code_of_conduct.html).

3.6 The developer undertakes to enable access to the latest version of the zanox Webservices, to zanox Connect for the required data transfer of the applications and to the zanox User Interface.

3.7 The developer undertakes to market the actual application exclusively via the zanox Application Store. A regulation that differs from the above is only possible with the explicit written agreement of zanox. Moreover, the application may not be used to refer to or transmit offers from the developer or third parties to the user, while bypassing zanox or the zanox Application Store. Every form of sales pitch that goes beyond marketing the application is forbidden within the framework of the zanox Application Store.

4 Remuneration

4.1 The developer can specify whether the application is free of charge to the user or subject to a fee. In the latter case, the amount of the fee will be mutually agreed by zanox and the developer. The amount of the remuneration must be appropriate and in line with the market price as regards the scope and functionality of the application.

4.2 A choice can be made between the following remuneration modalities: one-off use / facility fee, recurring fee, combination of one-off and recurring fees, traffic-share models or revenue-share models between the developers and users.

4.3 The remuneration is due upon conclusion of the respective contract between the user and developer and must be paid by the user to the developer according to the specified payment arrangements.

4.4 In all cases zanox will receive a share of 30% of the above mentioned remuneration from the developer for the services provided under the contract. This is payable to zanox and due in accordance with clause 4.3.

4.5 If the contract between the user and the developer is null and void or revoked for any reason, zanox retains its entitlement to the abovementioned remuneration.

5 Rights of use

5.1 The information and data acquired through the participation in the zanox Application Store may only be used in conjunction with the use of the zanox Application Store. Passing on such information to third parties and any use thereof for other purposes is prohibited.

5.2 The zanox Application Store is protected according to copyright and other statutory regulations.

5.3 zanox grants the developer the revocable, non-exclusive and non-transferable right to use the zanox Application Store. The aforementioned rights of use will cease upon expiry of this contract.

5.4 Additional rights of use are not granted to the developer. In particular, the developer is not entitled to forward the zanox Application Store or the data contained therein, partially or wholly, to third parties, or allow third parties access to the store or the data, to change or otherwise process, transfer the store or the data into another form of work, or use the zanox Application Store to create a separate database and/or an information service.

6 Guarantees of the developer / technical requirements

6.1 The developer guarantees that:

6.1.1 the functions of the application correspond to the documentation and description,

6.1.2 the application is not malware, spyware, adware etc. which is designed for unauthorized spying into data on the computers of users or third parties, or intervention into the data processing operations,

6.1.3 the application does not spy into the data of the user or third parties in any other way, or query data such as login names and passwords,

6.1.4 the application is designed to ensure that no personal or confidential data can be intercepted or read by third parties,

6.1.5 the application is compatible with the zanox Webservices, APIs as well as standard browsers, operating systems and media replay devices,

6.1.6 the application is written in a standard programming language and complies with the latest technological developments, and

6.1.7 if the application enables tracking, it will only support zanox tracking.

6.2 zanox will make acceptance into the application portfolio in the zanox Application Store dependent on fulfillment of the above requirements. Should it occur, after acceptance into the zanox Application Store, that the application does not comply with the abovementioned requirements (any more), zanox is entitled to immediately remove the application.

7 Term of the contract

7.1 The contract for the use of the zanox Application Store is always concluded for an indefinite period. The parties can terminate the contract at any time in writing.

7.2 Contracts concluded between the developer and users for the use of applications are not affected by the termination of this contract.

7.3 When the use of the zanox Application Store come to an end, the data record saved with the registration shall be completely deleted after settlement of any contractual relationships with users, upon the expiration of the statutory record retention periods.

8 Liability

8.1 The use of the zanox Application Store and the zanox Webservices requires the use of specific technical systems such as end devices, software programs, transmission routes, telecommunications and other services provided by third parties. zanox does not provide such end devices, software programs, transmission routes, telecommunications and other services, and therefore assumes no liability to the developer for the services provided by these third parties.

8.2 Zanox is not responsible for damages which result from the defective software and hardware of third parties or because of a lack of availability or malfunction of the Internet.

8.3 For the rest, zanox is only liable " regardless of legal grounds "

8.3.1 in case of intent and gross negligence of a legal representative, management personnel, or other vicarious agents,

8.3.2 in case of any culpable violation of a fundamental contractual obligation (whereby the term fundamental contractual obligation abstractly refers to an obligation which must be fulfilled to allow the performance of the contract in the first place, and which the other party can generally rely on being fulfilled), in case of default and impossibility.

8.4 According to clause 8.3.2, liability in the case of financial loss and property damage is limited to the amount of the typical, foreseeable damages.

8.5 The aforementioned liability limitations do not apply in the case of mandatory statutory liability, in particular, according to the law on product liability, in the case of acceptance of a warranty, and in the case of culpable injury to life, bodily injury, or damage to health.

8.6 In the relationship with the user, the developer is exclusively liable for the proper function, compatibility, accuracy or availability of the application purchased or used via the zanox Application Store as well as for material defects and breach of title.

9 Indemnification in case of breach of contract

9.1 The compliance with these provisions is extremely important for operating the zanox Application Store. In addition to termination of the contract, zanox reserves the right to take further legal action in the case of serious violations.

9.2 If the user violates these provisions and legal claims are made against zanox by a third party as a result of this breach of contract, zanox is entitled to demand payment from the user of all costs and expenses incurred by zanox due to the violation.

9.3 In particular, this refers to payment of damages or expenses to third parties in defence of claims by third parties, and other damages.

10 Confidentiality

10.1 The parties are obliged to maintain secrecy concerning all company and other business information and knowledge of the other contractual party, made accessible through this contract and designated as confidential or, under the circumstances, can be recognized as the company or business secrets of a party, during the term of the contract and for a period of two years after expiry of the contract. The parties are also obliged not to record, pass on, or reuse such information. In any case of doubt, the information shall be treated as confidential information.

10.2 The parties are obliged to require their employees and agents to maintain confidentiality according to paragraph 1 above.

11 Data protection

11.1 The collection, processing, and use of personal data is a mandatory requirement for operating the zanox Application Store and zanox Webservices. zanox collects, processes, and uses personal data exclusively in compliance with the applicable, statutory data protection regulations.

11.2 zanox is entitled to collect and use the developer’s personal data if it is required to enable performance of the contract.

11.3 The processing and use of personal data for a purpose other than those stated above, only takes place on the basis of an agreement or a legal provision that allows zanox such use. Personal data will not be passed on to third parties under any circumstances.

11.4 If the developer gains access to the personal data of third parties within the framework of this contract (particularly data of publishers, advertisers and/or tracking information), he guarantees to collect and use this data exclusively for the performance of this contract. The developer undertakes to comply with the applicable, statutory data protection regulations and, in particular, will not collect, process or use the personal data of third parties without the agreement of those affected or a legal provision.

11.5 The developer also undertakes to provide zanox, at any time after appropriate notification, with information about the data currently in his possession, and to delete this data where necessary.

12 Running operation, service / maintenance and support

12.1 Within the framework of the contract, the developer is also responsible for the running operation of the application during the term of the contract with the user. The measure of the performance is the successful and constantly available live operation, which is met by maintaining the agreed service parameters given in Appendix 1 " Service Level Agreement "; this also regulates the availability to be guaranteed by the developer.

12.2 In the case of technical defects, the developer shall provide support in accordance with the conditions of Appendix 1 " Service Level Agreement " and observe the reaction and fault rectification times which are regulated there. The developer must maintain the fault-free function of the application and the user access during the term of the contract with the respective user, or in the case of breakdown to restore access without delay.

12.3 The developer will continuously monitor the functional efficiency of the application and independently rectify faults without delay. The developer is responsible for regularly installing updates and upgrades which ensure the functionality and operation of the application, within the agreed maintenance hours or without interrupting operations. The parties to the contract have also regulated the details regarding service and maintenance of the application in Appendix 1 " Service Level Agreement". The obligation to rectify faults arising from the contractual or statutory warranties for defects and title remain unaffected by the obligation to provide updates and upgrades.

13 Amendment of the terms of use

13.1 zanox reserves the right to amend less significant provisions of these terms of use at any time and without providing reasons, if this change does not completely transform the contractual arrangement. The amended provisions shall be sent by email at least two weeks before they become effective. If the developer does not provide written rejection of the validity of the amended terms of use within four weeks after receiving the email, the amended conditions are considered accepted. zanox shall provide special notification concerning the option to reject and the significance of the four-week deadline.

13.2 If the developer rejects the validity of the new (amended) terms of use, the request for change from zanox is considered rejected. The contract shall continue without the proposed amendment. Special notification must also be provided concerning this option to terminate the contract.

14 Final provisions

14.1 The assignment of the rights and obligations arising from this contract or the transfer of the entire contract by the developer to a third party requires the written agreement of zanox.

14.2 The parties can only assert a right to offset a claim or a right of retention against claims by the other party to this contract if a due counterclaim of the other party is established as legally valid or is uncontested.

14.3 This contract does not constitute a company with an external effect and thus, does not authorize any of the parties to issue legally binding statements for both parties or for the other party, or otherwise obligate or represent them.

14.4 The contract is exclusively subject to the law of the Federal Republic of Germany excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

14.5 The place of jurisdiction is Berlin.

14.6 Should individual clauses of this contract be fully or partially invalid, the validity of the remaining provisions remains unaffected. The invalid provision shall then be replaced by a legally valid provision, which comes as close as possible to the invalid provision in its economic effect. The same applies to any loopholes in this contract.

14.7 Amendments or extensions to the contract are only valid if made in writing. This also applies to the annulment of the above written form clause.

Appendix 1 " Service Level Agreement "

I. Subject of the Service Level Agreement

Subject of this Service Level Agreement ("SLA") is to set forth qualitative and maintenance requirements for the applications / the developers have to match. The performance of the developer under this agreement is settled and satisfied with the given remuneration. If the application is for free, this agreement shall apply nevertheless.

II. Maintenance and service performances of the Developer

(1) Maintenance / Monitoring

The developer maintains the application, keeps them functional and available. The developer provides contact information for support requests of the users.

(2) Troubleshooting

The developer has " by himself or with qualified personal " to begin with troubleshooting immediately after the receipt of a notice of a malfunction.

(3) Updates

The developer provides updates in order to improve and expand the applications but also for bug fixing. Before transmitting updates to zanox the developer undertakes to test those thoroughly and only transmit an update once every test has been successful. Updates are as well subject to the prior approval of zanox according to the Conditions of Participation.

III. Requirements concerning performance, maintenance and availability

(1) Hours of Operation

The application must be available and fully functional from Monday thru Sunday on a 24/7 Basis.

(2) Availability

The Availabilty must be " within the hours of operation " available on an average of 99,8% on a monthly basis.

IV. Service Levels in respect of bugfixing

The parties additionally agree on the following response times and bug-fixing deadlines in case the application is defective or not disposable due to other reasons than unavailability which is reported by the user.

(1) Response times and bug fixing dealines.

Response time is the amount of time within the developer has to confirm the receipt of an error report issued by any user. The response time under this agreement is to confirm the receipt of an error report within 24 hours on weekdays. The issue has to be fixed within further 48 hours (bug fixing deadline).

(2) Business hours

The developer undertakes to provide the aforementioned services from Monday thru Friday at least between 10am and 5pm.