General Terms and Conditions

November 21st, 2016

1. Scope of validity

1.1 These General Terms and Conditions shall apply exclusively to merchants, legal entities under public law and special funds regulated by public law within the meaning of Section 310(1) of the German Civil Code (BGB). The General Terms and Conditions apply to all the services of KC Analysts GmbH, KuppingerCole Ltd. and other members of the network of KuppingerCole (hereafter referred to as KC), regardless of the type and legal nature of the services offered or contractually undertaken.

1.2 We do not recognise deviating conditions, or standard conditions of the client that differ from our General Terms and Conditions, unless we expressly agree to their validity in writing. KC is not obliged to expressly reject such conditions in writing.

1.3 Should contracts or tenders from KC contain written provisions that differ from the following General Terms and Conditions, the individually agreed contract provisions take precedence over these General Terms and Conditions.

2. Offer and conclusion of the contract

2.1 Offers or orders made to KS are binding and may be accepted by KC within two weeks from the date of receipt.

2.2 All offers by KC are non-binding. A contract comes into force upon confirmation or declaration of acceptance by KC.

3. Participation in seminars and conferences

3.1 Registration for workshops is possible by internet, letter, fax, e-mail or telephone. Registration will be legally binding only after we have confirmed in writing (confirmation).

3.2 The itemised attendance fee applies per person and event and is exclusive of the statutory VAT. It includes the meeting documents, lunch and refreshments. KC reserves the right to replace scheduled speakers by others and to make necessary changes to the programme whilst preserving the overall character of the event. Participants shall be informed immediately if the event cannot be held because of force majeure, the inability of a speaker to attend, disruption at the venue or because the minimum number of participants has not been reached. Events shall not be cancelled due to a lack of participants later than two weeks before the event. In this case the fee will be refunded. There will be no entitlement to a refund of travel and accommodation costs or loss of income, unless such costs have been incurred due to gross negligence or deliberate intent on the part of KC. Should there be any interference with performance, we undertake to do everything in our power to rectify or restrict the effects of said interference.

3.3 Cancellation is possible at no charge up to thirty days before commencement of the event. Should KC receive notification of cancellation between 30 and 14 days before commencement of the event, half the attendance fee will be charged. The full attendance fee will be payable from the 13th day before commencement of the conference or in a case of non-attendance. We shall accept a replacement participant at any time, at no extra charge. Notice of cancellation must be given in writing.

3.4 All workshop documents are protected by copyright. Participants are granted a simple, non-transferable personal right of use. Participants and third parties are expressly prohibited from making editorial changes to meeting documents, even in part, or to use amended versions, copy them for third parties, make them publicly available or to forward them, place them on the internet or other networks, whether in return for payment or free of charge, to reproduce them, sell them or use them for commercial purposes. No copyright notices, distinguishing marks or trademarks may be removed.

3.5 In order to deliver in good time an analysis the client shall comprehensively and contemporarily answer and provide information about their enterprise to our KC analysts. Our analysts will ask the questions that are necessary to provide the specific analysis. KC will inform the client in good time about specific circumstances of importance.

3.6 The client must accept results and reports provided by KC within ten working days. KC must be advised without delay of any necessary corrections and desired changes in writing. Should the customer fail to respond within this period, the service will be deemed to have been accepted.

3.7 All analysis and working results by KC are provided exclusively for the client. If the client wants to disclose this information to a third party, a release and hold harmless agreement shall be agreed with KC in advance. In principle, KC refuses to disclose its working results to third parties.

3.8 The client is responsible for backing up its data at its own cost before transmitting such data electronically to KC.

3.9 Unless agreed otherwise, the client shall be charged for all travelling costs or other expenses relating to the specific engagement.

4. Invoicing, due date, payment and default of payment

4.1 KC is entitled to invoice the client monthly in arrears for fees and disbursements for consultancy services, as incurred.

4.2 The fee for an annual contract (12 months of duration) under which access to KC research as well as other services is granted is payable annually in advance. If additional services are required during the duration of the contract, such extra services will be invoiced with the Confirmation.

4.3 Payment of all KC invoices is due upon receipt of the invoice. The term of payment is seven business days. Invoices are payable strictly net.

4.4 Damages caused by default of payment are payable in accordance with the legal requirements. KC may claim higher damages if they are provable. The client may refuse such a claim, if the client proves no damages occurred or the claimed amount is lower.

4.5 KC shall be in delay with its engagement if a specific date was agreed and KC is liable for the delay. KC is not liable for force majeure.

4.6 Any temporary disturbance by performing the engagement, KC will be entitled to postpone fulfilment of its obligation by the term of the obstacle and an appropriate lead time. The postponement shall not cause any liability of KC. If the disturbance is permanent, KC shall be released of its duty to perform the engagement.

4.7 KC does not provide any legal or fiscal consultancy or advisory services.

5. Data protection

5.1 Based on the specific purpose of the engagement, KC will process data with information that can be linked to specific individuals (personal data). Personal data will be processed in accordance with the applicable law, especially in compliance with European and German data protection laws.

5.2 The client grants that he is entitled to transfer und to submit personal data to KC and retrieve this data in compliance to data protection regulations.

6. Liability and Limitation

6.1 KC is liable for damages caused by an infringement of contractual or non-contractual obligations in accordance with German law, unless otherwise stipulated in the provisions below.

6.2 KC is liable for damages in case of intent or gross negligence of any legal cause. KC’s liability for cases of damage from slight negligence is limited in case of:
a) injury to life, body or health;
b) infringements of cardinal obligations of the engagement; but in case of such an infringement the liability is limited to the typically predictable damage.

6.3 The limitation of liability according to 6.2 is also applicable for any infringement by a person for whom KC is liable according to German law.

7. Choice of law, place of fulfilment and court of jurisdiction

7.1 German law is solely applicable to all agreements and all non-contractual obligations associated with the engagement, to the exclusion of the rules on the conflict of laws.

7.2 The place of fulfilment for services and payments is Wiesbaden, Germany.

7.3 The exclusive court of jurisdiction is Wiesbaden, except in case a different exclusive court of jurisdiction is required by law.

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