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    Terms and conditions

    Status June 2022

    Recitals

    The Service Provider operates a novel technology platform, which provides a set of tools to support art professionals (e.g. artists, estates, institutes, and museums) in their daily operations (hereinafter, as further specified on the website order form, the “Navigating.art Platform”). In the center of the Service Provider’s Navigating.art Platform is the idea of a digital archive, which contains primary sources of artwork-centric information, and a digital catalogue raisonné, which consists of a comprehensive list of all artworks of an artist. The Navigating.art Platform assists art professionals in all lifecycle phases (data entry, research, vetting, publishing) of the creation and publishing of a digital catalogue raisonné and accompanying archival resources.
    On top of that, it is possible to selectively publish that information on the customer’s own website or on the Service Provider’s Navigating.art platform, where the data of artists can be browsed.
    The Customer is interested in obtaining access to the Navigating.art Platform. The Service Provider is interested in operating the Navigating.art Platform for the Customer.

     
    Scope of Applicability

    1.1 These Terms & Conditions set forth the conditions under which the Service Provider will provide the Customer with access to the Navigating.art Platform and the user documentation as set forth on the website order form.

     
    License Grant and Right of Use

    2.1 The Service Provider makes available the Navigating.art Platform to the Customer under a Software-as-a-Service (SaaS) model limited to the term of these Terms & Conditions as defined in Section 11.1 (the “Subscription Term”).

    2.2 Subject to all limitations and restrictions contained in these Terms & Conditions, Service Provider grants the Customer a non-exclusive, and non-transferable, non-sublicensable right to access the Navigating.art Platform (and its documentation) as hosted by Service Provider during the Subscription Term and to use it solely to perform those functions described in the documentation for its internal business purposes (the “SaaS License”).

    2.3 The Customer shall not permit any subsidiaries, affiliated companies, or third parties to access the Navigating.art Platform.

    2.4 The Service Provider is entitled to update the Navigating.art Platform on a regular basis as part of its overall lifecycle management and product improvement policy.
     
    Represented Artists and Authorized Users

    3.1 The SaaS License is granted as a license Per Represented Artist. “Per Represented Artist” means that the Navigating.art Platform may only be used for the digital catalogue raisonné and accompanying archival resources of specific artistsas specified on the website order form.

    3.2 Unless expressly provided otherwise in a Purchase Order, users who are entitled to use the Navigating.art Platform will only consist of: (i) employees of the Customer, and (ii) subject to Section 8 (Confidentiality), third party contractors of the Customer who do not compete with Service Provider. The Customer is fully liable for the acts and omissions of Authorized Users under this Agreement.
     
    3.3 The Customer is responsible for ensuring that access to a User Account is not shared. Only one individual may authenticate to one User Account.
     
    3.4 The Customer shall be obliged to inform its users before the beginning of use of the Navigating.art Platform about the rights and obligations set forth in these Terms & Conditionst. The Customer will be liable for any violation of obligations by its Authorized Users or by other third parties who violate obligations within the Customer’s control.
     
    3.5 The Customer shall be obliged to keep the login names and the passwords required for the use of the Navigating.art Platform confidential, to keep it in a safe place, and to protect it against unauthorized access by third parties with appropriate precautions, and to instruct its users to observe copyright regulations. Personal access data must be changed at regular intervals using at least a 2 Factor Authentication.
     
    Non-Permitted Uses

    4.1 Except to the extent expressly permitted in these Terms & Conditions or required by law on a non-excludable basis, the SaaS License granted by the Service Provider to the Customer under these Terms & Conditions is subject to the following prohibitions:

    a) the Customer must not permit any unauthorized person to access or use the Navigating.art Platform;

    b) the Customer must not use the Navigating.art Platform to provide services to third parties, unless otherwise specified in the Terms & Conditions;

    c) the Customer must not make any alteration to the Software, except as permitted by the documentation; and

    d) the Customer will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Navigating.art Platform; (ii) modify, translate or create derivative works based on the Navigating.art Platform (except to the extent expressly permitted by the Service Provider).

    4.2 The Customer must not use the Navigating.art Platform in any way that

    a) is unlawful, illegal, fraudulent or harmful, or is connected to such behavior;

    b) causes, or may cause, damage to the Navigating.art Platform or impairment of the availability or accessibility of the Navigating.art Platform, including through, but not limited to, the promotion or distribution of, or infection with, any viruses, worms, spyware, adware or other harmful or malicious or not-fit-for-purpose software, programs, routines, applications or technologies.
     
    4.3 Service Provider has the right (but not the obligation) to suspend access to the Navigating.art Platform or remove any data or content transmitted via the Navigating.art Platform without liability (i) if Service Provider reasonably believes that the Navigating.art Platform is being used in violation of these Terms & Conditionsor applicable law, (ii) if requested by a law enforcement or government agency or otherwise to comply with applicable law, provided that Service Provider shall use commercially reasonable efforts to notify the Customer prior to suspending the access to the Navigating.art Platform as permitted under these Terms & Conditions, or (iii) as otherwise specified in this Agreement.
     
    4.4 Information on Service Provider’s servers may be unavailable to the Customer during a suspension of access to the Navigating.art Platform. Service Provider will use commercially reasonable efforts to give the Customer at least twelve (12) hours’ notice of a suspension unless Service Provider determines in its commercially reasonable judgment that a suspension on shorter or contemporaneous notice is necessary to protect Service Provider or its customers.
     
    4.5 The Customer agrees to defend, indemnify, and hold Service Provider and its officers, directors, employees, consultants, and agents harmless from and against any and all damages, costs, liabilities, expenses (including, without limitation, reasonable attorneys’ fees), and settlement amounts incurred in connection with any claim arising from or relating to the Customer’s: breach of any of its obligations under these Terms & Conditions and, in particular, any use of the Navigating.art Platform in violation of these Terms & Conditions or applicable law by the Customer or any of its users. 
     
    Service Fees

    5.1 The Customer shall pay Service Provider the fees indicated on the website order form (the “Service Fees”).

    5.2 Unless otherwise provided in a Purchase Order, all fees are to be paid to the Service Provider within thirty (30) days of the date of invoice.
     
    5.3 Any late payment will be subject to any costs of collection (including reasonable legal fees) and will bear interest at the statutory rate.
     
    5.4 If the Customer has set up a direct debit, the Service Provider will not debit the Customer’s designated account before seven (7) days have elapsed from the date of the invoice.
     
    5.5 If the Customer is delinquent on a payment of Service Fees for fifteen (15) days or more, Service Provider may suspend access to the Navigating.art Platform.
     
    5.6 Complaints concerning invoices must be made in writing within thirty (30) days from the date of the invoice. Invoices will be sent by electronic delivery unless requested otherwise by the Customer, additional fees will apply.
     
    5.7 All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of any applicable value added taxes or other specific taxes such as withholding tax, which will be added to those amounts and are payable by the Customer to either the Service Provider or, as applicable, directly to the local tax authorities.
     
    Hosting

    6.1 The Service Provider shall endeavor to ensure a market standard availability of the Navigating.art Platform.

    6.2The Service Provider reserves the right to subcontract any services under these Terms & Conditions.

     
    IP Ownership

    7.1 The Customer acknowledges that, subject to the SaaS Licenses granted herein, the Customer has no ownership interest in the Navigating.art Platform or Service Provider materials provided to the Customer.

    7.2 Service Provider will own all rights, title, and interest in such Software and Service Provider materials, subject to any limitations associated with intellectual property rights of third parties. Service Provider reserves all rights not specifically granted herein.
     
    7.3 The Service Provider’s and the Customer’s trademarks, trade names, service marks, and logos, whether or not registered, are the sole and exclusive property of the respective owning Party, which owns all right, title and interest therein. The Service Provider may use the Customer’s name and/or logo within product literature, press release(s), social media, and other marketing materials and/or make such other use of the Customer’s name and/or logo as may be agreed between the Parties.
     
    Confidentiality

    8.1 "Confidential Information" means any information, documents, items, materials, substances or electronic files disclosed by one Party to the other Party in written, electronic, oral or any other form, which is marked confidential by the disclosing Party or is by its nature to be treated as confidential.

    8.2 The Parties undertake to treat the Confidential Information of the other Party as confidential and to use them exclusively for the purposes of the performance of these Terms & Conditions.
     
    8.3 The disclosure of the Confidential Information of the disclosing Party by the respective recipient to third parties is only permitted to the extent that this is necessary for the performance of these Terms & Conditions, provided that the third party has committed itself to confidentiality vis-à-vis the Party making the Confidential Information available to the third party or is bound to confidentiality for professional reasons. Legal disclosure obligations remain unaffected. The respective Party making the Confidential Information available to the third party shall be responsible for ensuring that the obligations of these Terms & Conditions are also observed by such third parties. The Party making the Confidential Information available to the third party shall be liable for breaches of the confidentiality obligations under these Terms & Conditions by such third parties as if they were its own breach.
     
    8.4 Each Party undertakes to protect the Confidential Information of the respective other Party by taking appropriate security measures.
     
    8.5 The foregoing obligations shall not apply to information of which the receiving Party can prove that it (i) was or is available to the public in a lawful manner and in a manner not in breach of the provisions of these Terms & Conditions, (ii) was previously known to the receiving Party and was available to it without restriction, (iii) was disclosed to the receiving Party by a third party authorized to do so, or (iv) was developed by the receiving Party independently and without use of the Confidential Information disclosed by the disclosing Party.
     
    8.6 The respective receiving Party undertakes to completely and permanently destroy all documents and records containing Confidential Information of the respective other Party or, in the case of electronic data, to permanently delete such data immediately after termination of the Agreement. This shall not affect any statutory storage and archiving obligations.
     
    8.7 After termination of the Agreement, all rights and obligations of each Party with respect to the Confidential Information of the respective other Party shall continue to apply for a period of ten (10) years.
     
    8.8 The Service Provider shall be entitled to use the name and logo of the Customer including a reference to the cooperation under the Terms & Conditions on its website and other materials for marketing purposes.
     
    Customer Data and Data Protection

    9.1 Before entering its data and information to the Navigating.art Platform (the “Customer Data”), the Customer shall be obliged to check the same for viruses or other harmful components and to use state of the art anti-virus programs for this purpose.

    9.2 In addition, the Customer itself shall be responsible for the entry and the maintenance of its Customer Data. The Service Provider shall create a back-up copy of the Customer Data at least on a weekly basis.
     
    9.3 The Customer will own all right, title, and interest in such Customer Data.
     
    9.4 The Customer grants to Service Provider a non-exclusive, royalty-free license to access, use, reproduce, modify, perform, display and distribute Customer Data as is reasonable or necessary for Service Provider to perform or provide the Navigating.art Platform.
     
    9.5 The Customer is solely responsible for all Customer Data, in particular that its transfer and use in accordance with these Terms & Conditions does not violate any applicable laws, including data protection laws, and/or intellectual property rights of third parties. In particular, the Customer guarantees that it holds the necessary rights to upload any artworks on the Navigating.art Platform.
     
    9.6 The Customer shall indemnify and defend the Service Provider and each of its past, present and future directors, officers, employees and agents, in each case, in their respective capacities as such, and each of the heirs, executors, successors and assigns of any of the foregoing, from and against any and all third party suit, claim, action or demand to the extent relating to, arising out of or resulting from, directly or indirectly, any hosting of the Customer Data. This indemnity shall only apply in case the Customer Data (i.e. content uploaded by the Customer to the Navigating.art Platform) violates any copyright, privacy or trademark right.
     
    9.7 The Customer acknowledges that the Service Provider does not exercise any control over Customer Data and that it acts as a mere or passive conduit in transmitting and handling Customer Data. Upon specific request, the Service Provider may upload Customer Data on behalf of the Customer.
     
    9.8 Any processing of personal data of the Customer by the Service Provider shall be governed by a separate data processing agreement to be executed in accordance with Art. 28 GDPR, which the Service Provider will make available to the Customer upon request. Prior to the execution of such agreement, the Customer shall not be entitled to upload any personal data.

     

    9.9 The term “Customer Data” shall not include any data and information entered to the Navigating.art Platform by the Service Provider, e.g. data complementing the Customer Data (the “Provider Data”). The Service Provider will own all right, title, and interest in such Provider Data.

     
    Limitation of Liability

    10.1 In case of wilful misconduct, the Service Provider shall be liable according to the statutory provisions of applicable law.

    10.2 In case of gross negligence, the Service Provider shall be liable according to the statutory provisions of applicable law.
     
    10.3 In case of ordinary negligence, the Service Provider shall – provided that the standard of liability is not limited according to statutory provisions of applicable law (such as any limitation to the duty of care observed in own affairs) – only be liable for breach of material contractual obligations (material contractual obligations are obligations the breach of which endangers the purpose of the agreement and the fulfilment of which the Customer generally relies and may reasonably rely on); in this case the Service Provider’s liability shall be limited to the typical damages that were reasonably foreseeable. Therefore, indirect and consequential damages resulting from defects of the delivered goods and/or work are only eligible for compensation if such damages are typical and reasonably foreseeable and when the goods and/or work are used in conformity with its intended purpose.
     
    10.4 The aforementioned limitations of section 10.3 do not apply to
    a) damages resulting from injury to life, body or health;
    b) liability pursuant to the German Product Liability Act (“Produkthaftungsgesetz”); the assumption of a guarantee for the condition of goods and/or work or
    c) fraudulent concealment of defects by the Service Provider. The aforementioned limitations of liability shall, subject to the provisions of
    10.5 section 10.4, apply to (i) any liability claims for whatever legal reason but in particular due to impossibility, default, defective or incorrect delivery, breach of contract, breach of obligations in contractual negotiations and tort, as far as such claims are subject to fault, and (ii) any breach of duty by vicarious agents or any other person for whose conduct the Service Provider can be held liable according to the statutory provisions of applicable law.
     
    Term and Termination

    11.1 The Subscription Term shall commence upon execution of the Purchaser Order and shall run for an initial term of one (1) month. Thereafter, it shall extend automatically by consecutive one (1) month renewal terms, unless terminated by either Party before the end of the Subscription term.

    11.2 This Agreement may be terminated by Service Provider: (i) if the Customer fails to make any payments due hereunder within fifteen (15) days of the due date; (ii) on thirty (30) days written notice to the Customer if the Customer fails to perform any other material obligation required of it hereunder, and such failure is not cured within such thirty (30) day period; or (iii) the Customer files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern.
     
    11.3 This Agreement may be terminated by the Customer on ninety (90) days written notice to Service Provider if Service Provider fails to perform any material obligation required of it hereunder, and such failure is not solved within ninety (90) days from Service Provider’s receipt of the Customer’s notice or a longer period if Service Provider is working diligently towards a solution.
     
    11.4 Upon termination of this Agreement, the Customer shall no longer access the Navigating.art Platform and the Customer shall not circumvent any security mechanisms contained therein.
     
    11.5 Termination of this Agreement will not limit either Party from pursuing other remedies available to it, including injunctive relief, nor will such termination relieve the Customer’s obligation to pay all Service Fees that have accrued or are otherwise owed by the Customer under this Agreement.
     
    11.6 Within thirty (30) days following the termination of this Agreement for any reason and the submission of a request to transfer data (“Data Transfer Request”), whatever is later, the Service Provider will provide the Customer with an extract of all Customer Data stored on the Software at the moment of termination, in machine-readable format. A Data Transfer Request must be submitted within seven (7) days of termination. Absent a Data Transfer Request, the Service Provider will delete the Customer Data from its Software. Should the Customer issue a Data Transfer Request during the term of this Agreement, the Service Provider shall provide a corresponding quote for the applicable service fees to the Customer).

     

    11.7 Anonymized data previously produced from the Customer Data may be retained. Technical copies produced within an IT archiving system may be retained by the Service Provider.

     
    Final Provision

    12.1 Each Party shall bear its own costs incurred in connection with the execution and performance of these Terms & Conditions, unless expressly agreed otherwise in these Terms & Conditions.

    12.2 These Terms & Conditions fully reflect the Terms & Conditions between the Parties regarding the subject matter; no oral or other side Terms & Conditions exist. Unless expressly agreed otherwise in these Terms & Conditions, all previous Terms & Conditions between the Parties regarding the subject matter shall be fully replaced by Terms & Conditions with effect from the effective date of these Terms & Conditions.
     
    12.3 Amendments or additions to these Terms & Conditions shall require written form to be effective, unless a stricter form is required under mandatory law. The same applies to the waiver of this written form requirement. Unless expressly agreed otherwise in these Terms & Conditions, e-mails do not comply with this written form requirement. The written form requirement under these Terms & Conditions shall be deemed to have been met when the copy of a declaration is being transmitted by telecommunications (e.g. as an attachment to an e-mail) and that copy contains the signature of the person making that declaration, unless a stricter form is required under mandatory law.
     
    12.4 Neither Party is entitled to transfer these Terms & Conditions or to assign rights or obligations under these Terms & Conditions to a third Party without the prior written consent of the other Party.
     
    12.5 These Terms & Conditions shall be governed by the laws of the Federal Republic of Germany, excluding the conflict of laws rules of private international law. The applicability of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
     
    12.6 Exclusive place of jurisdiction for all disputes arising out of or in connection with these Terms & Conditions shall be Berlin, unless otherwise required by mandatory law.

     

    12.7 Should any provision of these Terms & Conditions be or become invalid or unenforceable in whole or in part, the validity of the remaining provisions of these Terms & Conditions shall not be affected. The same shall apply if and insofar as a gap in these Terms & Conditions become apparent. In place of the invalid or unenforceable provision or to fill the gap, an appropriate provision shall apply which, as far as legally possible, comes closest to or corresponds to what the Parties economically intended or would have intended according to the spirit and purpose of these Terms & Conditions, had they considered this point.