Targomo GmbH Terms of Service

Last Updated: February, 2018

Thank you for using the Targomo Services (as described on the website at www.targomo.com respectively https://targomo.com/developers/). Before reading this Targomo Terms of Service (this “Agreement” or these “Terms”), we strongly encourage you to familiarize yourself with the Targomo Services on our website www.targomo.com

To be eligible to register for a Targomo account and use Targomo’s Services, you must review and accept the terms of this Agreement by clicking on the respective tickbox applicable for the acceptance of these Terms and the “Subscribe Now” button or other mechanism provided. By providing the data requested in the signup mask and clicking “Subscribe now”, you make us an offer to enter into the Agreement based on these Terms. Before clicking “Subscribe now”, you can review and modify the data entered in the signup mask by clicking on the relevant data field and making your modifications. We will confirm receipt of this offer by e-mail. This e-mail is the acceptance of your offer. PLEASE REVIEW THESE TERMS CAREFULLY. BY ACCEPTING THESE TERMS, YOU AGREE TO THESE TERMS AND CONDITIONS WITH TARGOMO GMBH (“TARGOMO”). IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT CLICK THE “Subscribe now” BUTTON.

In this Agreement, “you,” “your” and “Customer” will refer to you. If you are registering for a Targomo account or using the Targomo Services on behalf of an entity or other organization, you are agreeing to these Terms for that entity or organization and representing to Targomo that you have the authority to bind that entity or organization to these Terms (and, in which case, the terms “you”, “your” and “Customer” will refer to that entity or organization). The exception to this is if that organization has a separate contract with Targomo covering one or more accounts and use of the Targomo Services, in which case that contract will govern the Targomo Services with respect to those accounts only.

1. Certain Definitions

The following terms, when used in this Agreement will have the following meanings: “Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information. “Targomo Services” means the SaaS-based services, programs, functions and platform provided by Targomo to you (including the Targomo APIs, Documentation, Upgrades, Updates and technical support that is made available by Targomo to you as applicable pursuant to your order in connection with such services), and subsequent updates or upgrades of any of the foregoing made generally available by Targomo. “Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Targomo for the Targomo Services.

2. The Targomo Services and Changes

2.1 The Targomo Services are currently made available by Targomo in many regions and countries worldwide on the basis of data of the well known OpenStreetMap-project (“OSM”) as well as diverse GTFS-data and other data by third party data providers in accordance with the availability, quality and licensing terms of such data. An up to date overview regarding the availability of Services and underlying data is provided online at: https://targomo.com/developers/availability/. Targomo expands the geographic scope continuously.

2.2 You acknowledge that Targomo may change, deprecate or republish Targomo APIs for any Targomo Services or feature of the Targomo Services from time to time, and that it is your responsibility to ensure that calls or requests you make to the Targomo Services are compatible with then-current Targomo APIs for the Targomo Services. Although Targomo endeavors to avoid changes to the Targomo APIs or Targomo Services that are not backwards compatible, if any such changes become necessary Targomo will notify you at least thirty (30) days prior to Targomo’s implementation of any such incompatible changes to the Targomo Service of which it becomes aware.

3. Targomo Services

3.1 Provision of Services. Subject to the terms and conditions of this Agreement and the Targomo Acceptable Use Policy pursuant to the so called Full Feature List on the website of Targomo (currently available on https://targomo.com/developers/pricing/) (the “AUP”), Targomo will make the Targomo Service, including the Software and available to you pursuant to this Agreement, and hereby grants you a non-exclusive right to access and use the Targomo ServicesTargomo will provide the Targomo Services with an availability on annual average as particularly defined in accordance with the pricing model chosen by the Customer; available here https://targomo.com/developers/pricing/.

3.2 Restrictions. The rights granted herein are subject to the following restrictions (the “License Restrictions”): (a) You will not reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Targomo Services; except that Customer may exceptionally decompile, disassemble or reverse engineer the Service to the extent this is required for the contractual operation of the Service, including correction of defects, or to obtain information required to make the Service interoperable with an independently developed piece of software (each a “Permitted Purpose”), but only if such contractual use, correction of defects or required information could not be obtained from Targomo upon request. Any decompiling, disassembling or reverse engineering may be done only to the extent absolutely required for the respective Permitted Purpose, and any information gathered from such actions may only be used for such Permitted Purpose, and in particular not shared with any third party except to the extent required to achieve the Permitted Purpose. Under no circumstances may the information gathered from such actions be used to develop a competing software, product or service. (b) Except for and within the Permitted Purpose or otherwise agreed with Targomo on case by case basis, you will not transfer, distribute, resell, lease, license, or assign Targomo Services or results derived from analysis thereof, or otherwise offer the Targomo Services on a standalone basis,unless Targomo has permitted such action in advance; (c) You shall not make any of the results deriving from using the Targomo Services, in particular the resulting polygons, persistent nor permanently stored in the cache and shall delete such results, including copies thereof, upon the end of the contractually permitted use; unless Targomo has permitted such extended use explicitly. Persistent or permanently stored in cache means for the purposes of this Agreement that the results or data remain existent once written on a storage when the program is run the next time or extends the lifetime of the Targomo Services previously run. (d) You will not (nor will it permit any third party to) use Targomo Services in any manner that violates Targomo’s AUP (or any other term of this Agreement); (e) You will not otherwise use the Targomo Services outside the scope expressly permitted hereunder; (f) You will ensure that you and your users do not use temporary email addresses or share user accounts among multiple individuals or disclose their access credentials to any third party. You will, and will ensure that your users, immediately report to Targomo any breaches or suspected breaches of the aforementioned provision and any cases of actual or suspected unauthorized third party access, and you hereby permit Targomo to deactivate the accounts of any users that violate this Agreement or the AUP.

3.3 License Key, Password; Other Customer Responsibilities.
(a) To use the Targomo Services and to get the results, you need the license key for using the software or the respective password. (b) You will (i) be responsible for all use of the Targomo Services and Documentation under your account (whether or not authorized), (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Targomo Services and Documentation and notify Targomo promptly of any such unauthorized access or use, (iii) be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Targomo Services, including as set forth in the Documentation, and (iv) separately and regularly backing up any data and information used in conjunction with the Targomo Services, at intervals that are reasonable in view of the nature and criticality of the information. You will be solely responsible for your failure to maintain such equipment, software and services, or to use the current version of the APIs made available by Targomo or, if you choose to use any of the SDKs made separately available by Targomo, the current version of such SDKs, and Targomo will have no liability for such failure. With your permission (which may be by email or other reasonable means), Targomo may log into user accounts in order to debug the Targomo Services. (c) You are responsible for the suitability of the hardware on which the Targomo Services will be running. (d) You are responsible for protecting and backing up the data and information stored on the computers on which the Targomo Services are used and you should confirm that such data and information is protected and backed up in accordance with any internal or regulatory requirements as applicable, before you are using the Targomo Services. Targomo is not responsible for lost data or information in the event of errors or other malfunction of the Targomo Services or computers on which the Targomo Services are used.

4. Fees

4.1 Fees. You agree to pay the subscription fees, additional usage fees and other fees set forth in Targomo’s standard schedule of fees (shown as net amounts, so that any applicable mandatory tax, such as VAT, need to be added, if applicable) in effect upon conclusion of the Agreement, or any other order forms for the Targomo Services ordered by you and accepted in writing by Targomo. Except as otherwise mutually agreed upon in writing or expressly set forth herein, (a) fees are quoted and payable in Euros or any other currencies offered by Targomo from time to time, and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable. The pricing is available at https://targomo.com/developers/pricing/.

4.2 Payment. Except where expressly agreed otherwise, payments are due 14 days after receiving the invoice. Where credit card or other payment methods are agreed upon between the Parties, the specific stipulations in this regard apply. In case of transaction charges, e.g. bank charges or charges of other payment providers, shall be borne by you.

4.3 Subject to certain credit requirements as determined by Targomo, Targomo may let you pay amounts due under these Terms in arrears. If Targomo lets you do that, you will make all of the payments due hereunder within thirty (30) days of the date of the invoice. If you are overdue on any payment and fail to pay within ten (10) business days of a written notice of your overdue payment, then Targomo may assess and you must pay the statutory interest on overdue payments and/or Targomo may suspend your account until you pay the amount you are overdue plus the interest. Targomo’s other statutory and contractual rights and remedies remain unaffected.

4.4 Suspension. If your use of the Targomo Services exceeds the amounts prepaid by you or if you fail to pay any amounts due by you, Targomo may suspend your account without prior notice to you. Targomo will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur with connection with any suspension of your account pursuant to this section.

4.5 Net of Taxes. All applicable use, sales and other similar taxes and government charges will be payable by you. You will not withhold any taxes from any amounts due to Targomo, except to the extent required under mandatory local law. In the event Customer is thusly obliged to withhold taxes, Customer will inform Targomo accordingly in writing as soon as the obligation to withhold taxes becomes known, and will assist Targomo at no charge in obtaining any mitigations, exemptions and/or refunds as may be available under any applicable law, including any double taxation treaties. In particular, Customer will provide Targomo, at no charge and in a timely manner, with any and all information, document or confirmation required for Targomo to avail itself of any exemptions, mitigations or reductions of any such withholding tax under any applicable law, including any double taxation treaties.

5. Proprietary Rights and Confidentiality

5.1 Targomo’s Ownership Rights. As between the parties, Targomo exclusively owns all right, title and interest in and to the Targomo Services. Except for the express rights granted hereunder, Targomo reserves all rights, title and interests in and to the Targomo Services and Targomo’s Confidential Information.

5.2 Targomo Marks & Data Source. Targomo hereby grants you a non-transferable, non-sublicensable, non-exclusive license during the term of this Agreement to display the trade names, trademarks, service marks, logos, domain names of Targomo (each, a “Targomo Mark”) for the purpose of promoting or advertising that you use the Targomo Services. (a) You are responsible for the the protection and storage of any data and information that are saved on devices used for the Targomo Services. You shall confirm that such data and information are stored and secured in accordance with internal or mandatory requirements, before using the Targomo Services. Targomo shall not be responsible for loss of data or information in case of defaults or any malfunctions of the Targomo Services or devices used for the Targomo Services. (b) Furthermore, you are obliged to include into the results of the Targomo Services and in an appropriate manner, a Mark provided by Targomo, including a respective link to Targomo. You are also obliged to also include into the results logos and references, links and other information, as may be required under any of the licenses of the data sources of Targomo, in particular OpenStreetMap, GTFS-sources as well as any other third party data providers. Targomo provides an overview of data sources (c) In using Targomo Marks, you may not: (aa) display a Targomo Mark in any manner that implies a relationship or affiliation with, sponsorship, or endorsement by Targomo; (bb) use Targomo Marks to disparage Targomo or its products or services; or (cc) display a Targomo Mark on a site that violates any law or regulation. Furthermore, Targomo may modify any Targomo Marks at any time, and upon notice, you will use only the updated Targomo Marks. Other than as permitted in this Section, you may not use any Targomo Marks without prior written consent. All use of the Targomo Marks will be subject to any trademark usage guidelines that Targomo may provide from time to time, and Customer will conduct its business in a professional manner that reflects favorably on the goodwill and reputation of Targomo.used at https://targomo.com/developers/availability/ or explicitly upon request.

5.3 Feedback. Customer may from time to time provide Targomo suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Targomo Services. Targomo will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Targomo will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.

5.4 Customer Results. As between the parties, the results and analytics derived from the use of Targomo Services (“Customer Results”) will be owned by you, subject to the applicable licenses terms of data sources (e.g. OpenStreetMap as well as others, such as GTFS-data sources) . You hereby grant to Targomo a non-exclusive, worldwide license to copy, distribute and use Customer results only in connection with providing the Targomo Services.

5.5 Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Neither party will disclose the terms of this Agreement to any third party other than advisors bound by a professional secret (such as lawyers and tax advisors), except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section or the License Restrictions, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.

5.6 Aggregated Information. Notwithstanding anything to the contrary, Targomo shall have the right to aggregate, collect and analyze data and other information relating to the provision, use and performance of the Targomo Services (all in a way that does not permit identification of any individual) and shall be free (during and after the term hereof) to (a) use such data and other information to develop and improve the Targomo Services and other Targomo offerings, and (b) disclose such data and other information solely in an aggregated and anonymized format that does not identify you or any individual.

6. Warranties and Disclaimers

6.1 Targomo. To the extent any Targomo Services are provided free of charge, Targomo makes no warranties whatsoever, in accordance with applicable law. To the extent Targomo provides the Targomo Services against a fee, Targomo warrants that it will, consistent with prevailing industry standards, maintain the Targomo Services in a manner which minimizes errors in the Targomo Services and perform the Targomo Services in a professional and workmanlike manner. The Targomo Services shall be deemed defective or erroneous or otherwise non-conforming only in the event and to the extent they (i) materially deviate from the agreed Documentation, which is exhaustive, or (ii) fall short of the annual average availability set forth above. Technical support is only available for users of the current software version.

6.2 Customer. You warrant that you have the necessary rights, licenses, consents, permissions, waivers and releases to use, make available and distribute the Customer Results in connection with the Targomo Services as contemplated herein. Without limiting the foregoing, if Customer is an agency, it warrants that it has been granted the necessary rights from its client(s) to use the Targomo Services related to such client(s) on such client(s)’ behalf. In case of errors you must cooperate, particularly providing access to the software to Targomo. (e.g. remote).

6.3 Remedy. In the event of any breach of Targomo’s warranty above, Targomo will correct the relevant defect of a non-conforming Targomo Service in accordance with the agreed specifications at no additional charge to the Customer. In the event that Targomo is unable to correct a non-conforming Targomo Service within a reasonable time period to be set by Customer (which must allow for at least three attempts at rectification), Customer may claim a reduction in fees proportionate to the defect (and claim a refund of any pre-paid fees exceeding the accordingly adjusted total) or terminate the concerned Targomo Service(s) immediately by written notice, and shall be entitled to receive a refund of any pre-paid Fees for unused Targomo Service access remaining during the term of the concerned Targomo Service(s). Save for damage claims subject to the limitations of liability Section below, the foregoing remedy is Customer’s sole remedy in the event of a breach of the limited warranty above.

6.4 Customer’s Cooperation. Targomo’s obligations for breach of warranty as set forth above in this Section are conditional upon Customer promptly notifying Targomo of such breach in writing, and providing Targomo with sufficient evidence of such non-conformity to enable Targomo to reproduce and/or verify the same.

6.5 BETA SERVICES. FROM TIME TO TIME, YOU MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH TARGOMO WHERE YOU GET TO USE ALPHA OR BETA SERVICES, PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “BETA SERVICES”) OFFERED BY TARGOMO FREE OF CHARGE FOR TESTING PURPOSES. ANY USE OF THE BETA SERVICES IN CONJUNCTION WITH ACTUAL DATA AND/OR IN A PRODUCTIVE SETTING, IS AT YOUR SOLE RISK. THESE BETA SERVICES ARE NOT GENERALLY AVAILABLE AND MAY CONTAIN BUGS, ERRORS, DEFECTS OR HARMFUL COMPONENTS. YOU OR TARGOMO MAY TERMINATE YOUR ACCESS TO THE BETA SERVICES AT ANY TIME.

7. Indemnification

You will defend, indemnify and hold Targomo and its affiliates harmless against any actual or threatened claim, loss, liability, proceeding, governmental investigation or enforcement action arising out of or relating to your activities under these Terms or your acts or omissions in connection with the provision of any Customer Results (“Claim”). Targomo and its affiliates will cooperate as fully as reasonably required in the defense of any Claim, at your expense. Targomo reserves the right, at your expense, to retain separate counsel for themselves in connection with any Claim or, if you have not responded reasonably to the applicable Claim, to assume the exclusive defense and control of any Claim in which you are a named party and that is otherwise subject to indemnification under this Section (to the extent permitted under applicable law, in particular the applicable laws, rules or code of civil procedure). You will pay all costs, reasonable attorneys’ fees and any settlement amounts or damages awarded against Targomo in connection with any Claim. You will also be liable to Targomo for any costs and attorneys’ fees Targomo incurs to successfully establish or enforce Targomo’s right to indemnification under this Section.

8. Limitation of Liability

8.1 Notwithstanding the provisions that follow, to the extent Targomo provides the Targomo Services free of charge, it is liable only for damages caused intentionally or with gross negligence, in accordance with statutory law.

8.2 Targomo’s liability is unlimited for damages caused intentionally or with gross negligence, personal injury and death, for breaches of a guarantee (which must be expressly designated as such in order to be a guarantee in the legal sense) and under the German Product Liability Act.

8.3 Except in the cases of unlimited liability stated above in this Section, Targomo’s liability in the event of a breach of a Cardinal Duty with simple negligence is limited to damages that are typical for cloud services agreements and foreseeable upon conclusion of the Agreement (“Typical and Foreseeable Damages”). A “Cardinal Duty” for the purpose of this Agreement is a duty the compliance with which makes the achievement of the purpose of the Agreement possible in the first place and on the compliance with which the other Party may therefore generally rely. Any other liability for simple negligence is excluded.

8.4 The amount of Typical and Foreseeable Damages is limited to the amounts Customer paid to Targomo in one (1) month the immediately preceding the incident creating the specific liability.

8.5 To the extent Targomo is responsible for any loss of data pursuant to the provisions above, Targomo’s liability is further limited to the amount that would be necessary to restore the lost data if regular backups had been made in compliance with these Terms of Service.

8.6 Targomo’s no-fault strict liability for initial defects under Sec. 536a (1) of the German Civil Code is excluded.

8.7 You are aware that all of the results of the Targomo Services are or may be based on OpenStreetMap-data, GTFS-data as well as data of other data providers. The quality of the results are directly dependent on the quality and completeness of the underlying data. Targomo cannot influence the data, their quality, completeness or accuracy and actuality. Furthermore, such data do not always contain real time information. This is why, for instance, temporary interruptions of operations, such as traffic interruptions, cannot be reflected accordingly when using a data source and may not be entirely accurate. Any result, such as a route or connection, shall be regarded as an interpretation of data used to a certain extent and rather a recommendation than being granted as guaranteed. Any routing or information regarding connections shall be assumed without liability. Notwithstanding the aforementioned clauses regarding liability, any liability of targomo due to wrong information shall be excluded. Targomo cannot guarantee the factual correctness of the results of the Targomo Services. The Customer may potentially inform its clients in an appropriate way in this regard, e.g. by placing a disclaimer in connection with a timetable information.

8.8 Furthermore, Targomo does not have any influence on the terms and licenses of data sources used for the Targomo Services, i.e. on the GTFS-sources, that data derived from the OpenStreetMap-project or any other third party data providers. Thus, Targomo does not guarantee unlimted availability of underlying data or unchanged terms. The Customer shall therefore be obliged to familiarize itself with the license terms of data sources used in any idividual case and adhere to them accordingly.

8.9 To the extent that Targomo’s affiliates, employees or directors are held liable in connection with the Agreement, the exclusions and limitations of liability in this Section shall apply to such liability.

9. Termination and Suspension

9.1 Term. The term of this Agreement will commence on the date these Terms are accepted by you and continue until your license key or password or your subscription is terminated as set forth below.

9.2 Termination and Suspension. You may terminate your subscription to the Targomo Services at any time with one month notice to any month´s end by written termination. Targomo may terminate your account at any time with six (6) week’s notice; provided that to the extent you have pre-paid any fees for a specific time period, such termination for convenience will be effective no earlier than at the end of such pre-paid period. Targomo furthermore may terminate or suspend your account in the event you commit any material breach of any provision of these Terms and fail to fix that breach within five (5) days after written notice of that breach. Targomo may also terminate or suspend your account immediately for cause if: (a) you violate (or give Targomo reason to believe you have violated) the AUP; (b) there is reason to believe the traffic created from your use of the Targomo Services or your use of the Targomo Services is fraudulent or negatively impacting the operating capability of Targomo Services; (c) Targomo determines, in its sole discretion, that providing the Targomo Services is prohibited by law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the Targomo Services; or (d) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if you become the subject of bankruptcy or similar proceeding. Either Party’s statutory right to terminate this Agreement for good cause remains unaffected. If Targomo suspends your account, Targomo will notify you accordingly. Note that no refund will be provided in the event of any suspension or termination of your account for your breach.

9.3 Survival. Upon termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below. If Customer terminates for Targomo’s breach pursuant to the provisions above, Targomo shall reimburse any unused pre-paid fees.

10. General

10.1 Export Controls. The Targomo Services, including any software Targomo provides in connection with the Targomo Services, may be subject to applicable export control laws and economic sanctions regulations. In receiving this software or the Targomo Services, you agree to comply strictly with all domestic and international export laws and economic sanctions regulations as they apply to this software and the Targomo Services, and to the extent consistent with these Terms, to obtain any necessary license or other authorization to export, re-export, or transfer such software or other aspects of the Targomo Services. These laws include restrictions on destinations, users and end use. Without limitation, you may not transfer any such software or other aspect of the Targomo Service without any required government authorization to any entity on a government exclusion list. You represent that you are not on a U.S. government, European Union or other applicable exclusion list or under the control of or an agent for any entity on such a list, and you further warrant that you will immediately discontinue use of Targomo’s software and the Targomo Service if you become placed on any such list or under the control of or an agent for any entity placed on such a list.

10.2 Publicity. You agree that Targomo may refer to your name and trademarks in Targomo’s marketing materials and website.

10.3 Assignment; Delegation. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. In addition, you agree that Targomo may have any of its obligations performed through an affiliate of Targomo, provided that Targomo will remain responsible for its obligations hereunder and will be liable for such affiliate’s performance hereunder as if it were Targomo hereunder. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.

10.4 Waiver. No waiver of any rights hereunder will be effective unless assented to in writing by both parties. This also applies for any waiver of the written form requirement. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

10.5 Amendment. Targomo may amend or modify this Agreement – with the exceptions of the Parties’ main rights and obligations – from time to time to the extent required to comply with changes in applicable statute and/or case law, or for similarly compelling reasons, in which case the new Agreement will supersede prior versions. Targomo will notify you via e-mail not less than 30 days prior to the effective date of any such amendment or modification and will inform you about the intended amendments or modifications. If you do not object to the amendment or modification within 30 days from the sending of such notice, such non-objection may be relied upon by Targomo as your consent to such amendment. Targomo will inform you about your right to object and the consequences of non-objection in such notice. Subject to the foregoing, no amendment or modification to this Agreement will be effective unless assented to in writing by both parties. This also applies for any waiver of the written form requirement.

10.6 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.

10.7 Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, the Parties will replace such provision in good faith by a provision coming as close as possible to the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.

10.8 Governing Law. This Agreement will be governed by the laws of the Federal Republic of Germany, exclusive of its rules governing choice of law and conflict of laws, and all disputes arising out of the Agreement will be subject to the exclusive jurisdiction and venue of the courts of Potsdam, Germany, and the parties hereby consent to the personal jurisdiction of these courts. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods (“CISG”).

10.9 Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to you must be sent to your email or other address as set forth in your account information. Notices to Targomo must be sent to the following address: Targomo GmbH, August-Bebel-Str. 26-53, 14482 Potsdam, Germany.

10.10 Entire Agreement. This Agreement comprises the entire agreement between you and Targomo with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Targomo, its agents or employees will create a warranty.

10.11 Order of Precedence. In the event of any discrepancy between these Terms of Service and the Acceptable Use Policy (AUP), these Terms of Service take precedence.

10.12 Force Majeure. Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy (except such incidents concerning only the relevant Party’s personnel), civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.

10.13 Interpretation. For purposes hereof, “including” means “including without limitation”. All dates and times set forth in this Agreement or any related document are in relation to Central European Time (CET), unless otherwise specified.

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