Terms and Conditions of our

Software

1. Introduction

1.1 Circula GmbH, with its registered office at Schönhauser Allee 148, 10435 Berlin, and all legal entities affiliated with the Circula GmbH within the meaning of section 15 of the German Stock Corporation Act (AktG), in particular the subsidiaries of the Circula GmbH (hereinafter each legal entity "Circula"), operates an intelligent software platform for the administration of employee expenses, travel costs and benefits under the domain www.circula.com (hereinafter "Circula Portal"). Within the scope of the Circula Portal, Circula offers various Software Products (as defined below) for the use of web app-based and mobile app-based software, which is used to manage employee expenses, travel costs and employee benefits.

1.2 In addition, Circula offers credit card management software to customers using a so-called co-branded Circula Pliant credit card. Pliant GmbH (hereinafter "Pliant") is a cooperation partner of Circula, which offers an online platform for connecting physical and virtual credit cards, which contains various functions (hereinafter "Pliant Platform"). In cooperation with Pliant, Circula offers its customers a Circula Pliant credit card. The issuer of this credit card is Pliant’s affiliated company Pliant Oy, c/o Spacent, 8th floor Kaisaniemenkatu 4, 00100 Helsinki, Finland (hereinafter "Credit Card Issuer"), which issues corporate credit cards under a license from VISA Europe Limited. You can find the Credit Card Issuer’s Privacy Policy here (hereinafter "Pliant Oy Privacy Policy"), the Credit Card Issuer’s General Terms and Conditions here, and the Credit Card Issuer’s Schedule of Prices and Services here (the Credit Card Issuer’s General Terms and Conditions and its Schedule of Prices and Services hereinafter collectively "Pliant Oy GTC"). Cards are issued by the Credit Card Issuer, identified by business ID 3266913-9, pursuant to licence by VISA Europe Limited and authorised and regulated by the Financial Supervisory Authority of Finland as an e-money payment institution.

1.3 The use of the Circula Portal and Circula's Software Products by entrepreneurs within the meaning of section 14 of the German Civil Code (BGB), by legal entities under public law or by special funds under public law is based on these General Terms and Conditions (hereinafter "GTC").

2. Definitions

2.1 "Tenants" are Circula's customers (entrepreneurs) who rent the Software Products and pay for the use of the software.

2.2 "Users" are the natural persons authorised by the Tenant to use the Software Products.

2.3 "Software Products" are the software applications configured and provided by Circula for the relevant Users (cf. § 4(2)), which are provided to the User by way of a mobile app version (hereinafter "Mobile App") and a web app version (hereinafter "Web App") and also include a back-end service operated by Circula.

3. Scope of Application

3.1 These GTC apply to all contractual relationships between Tenants and the Circula GmbH or between Tenants and other legal entities affiliated with Circula GmbH within the meaning of section 15 of the German Stock Corporation Act (AktG), provided that the Tenant is an entrepreneur (section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law.

3.2 These GTC and the prices agreed with the Tenants apply exclusively to the use of the Software Products. Deviating general terms and conditions of the Tenant shall only become part of the contract if Circula has expressly agreed to their validity in writing or text form (e.g., letter or e-mail). These GTC and the agreed prices also apply if Circula provides its services without reservation in the knowledge of deviating general terms and conditions of the Tenant.

3.3 These GTC only regulate the service relationship between Circula and the Tenants. The respective Users of the Software Products do not become party to the contractual relationship with Circula.

3.4 Individual agreements made with the Tenant in individual cases (including ancillary agreements, supplements and amendments) shall in all cases take precedence over these GTC. Subject to proof to the contrary, a contract or Circula’s confirmation in writing or text form (e.g., letter or e-mail) shall be decisive for the content of such agreements.

3.5 Legally relevant declarations and notifications by the Tenant in relation to the contractual relationship between Circula and the Tenant (e.g., setting of deadlines, notification of defects, termination) must be made in writing or text form (e.g., letter or e-mail). Legal formal requirements and further proofs, in particular in case of doubts about the legitimacy of the declarant, remain unaffected.

3.6 References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.

4. Subject Matter of the Contract

4.1 Circula rents to the Tenant the Software Products listed in the order confirmation issued by Circula (hereinafter "Order Confirmation") or, if an Order Confirmation is not provided to the Tenant, the Software Products listed in the offer prepared by Circula and (electronically) signed by the Tenant (hereinafter: "Signed Offer"). The Tenant and the Users are entitled to download and install the Mobile App and to access the Web App and to access the Backend via the Mobile App or Web App; a copy of the Backend will not be provided to the Tenant. If agreed, Circula will also implement the Software Products at the Tenant's premise.

4.2 Circula offers the following Software Products to its Tenants:

• Circula Expenses,
• Circula Lunch,
• Circula Mobility,
• Circula Internet,
• Circula Relax,
• Circula Vouchers,
• Circula Credit Card App.

4.3 The Software Products are made available to the Tenant for use in the variant selected by the Tenant. Circula will provide the Tenant with a detailed service description of the individual Software Products upon Tenant’s order.

4.4 The exact scope of delivery results from the Tenant’s order and Circula’s order confirmation or the signed offer.     

5. Services of Circula within the Scope of Credit Card Administration

5.1 Tenants who wish to use the Circula Pliant credit card conclude separate contracts, on the one hand with Circula and on the other hand with each of the co-operation partners Pliant, Credit Card Issuer and, where applicable, the participating bank, as set out below.

5.2 The Tenant concludes a direct contract with Pliant for the use of the Pliant Platform and the credit card functions by agreeing to the "Pliant platform third-party user GTC".

5.3 The Tenant concludes a direct contract with the Credit Card Issuer for the issuance of Circula Pliant credit cards (subject to a positive result of Credit Card Issuer's application check, in particular with regard to AML, KYC, legitimization) by agreeing to the Pliant Oy GTC and the Pliant Oy Privacy Policy.

5.4 The credit card processing account through which the Tenant settles the payments that the Tenant made with its Circula Pliant credit card to the Credit Card Issuer shall be made available by the participating bank, subject to a positive result of the application check (in particular with regard to AML, KYC, legitimization, credit check). The Tenant concludes an account agreement for the credit card processing account with the participating bank by agreeing to the General Terms and Conditions of the participating bank. The Tenant shall observe the data protection information of the participating bank.

5.5 Tenants who wish to obtain the Circula Pliant credit card can only order the Circula Pliant credit card together with the software products Circula Expenses and Circula Credit Card App. The software product Circula Expenses contains certain functions for managing the credit card. The credit card management functions are described in detail in the service description of the Circula Expenses software product (cf. § 4 (3) sentence 2). Circula does not provide any services to the Tenant in connection with the Circula Pliant credit card other than those listed in the service description.

5.6 As long as the Tenant has not concluded an effective contract with Pliant within the meaning of § 5 (2), Circula may refuse to provide the service Circula Credit Card App to the Tenant and set a reasonable deadline towards the Tenant within which the Tenant must prove the conclusion of a contract with Pliant. If the Tenant does not provide Circula with evidence of the conclusion of a contract within the set period, Circula may terminate the entire contract or the contract with regard to the service Circula Credit Card App towards the Tenant without notice. 

5.7 As long as the Tenant has not concluded an effective contract with the Credit Card Issuer and/or the participating bank within the meaning of § 5 (3) and/or § 5 (4), Circula may refuse to provide the service Circula Credit Card App to the Tenant and set a reasonable deadline towards the Tenant within which the Tenant must provide evidence of the conclusion of the contract with the Credit Card Issuer and the financing bank. If the Tenant does not provide this proof within the set period, Circula may terminate the entire contract or the contract with regard to the service Circula Credit Card App towards the Tenant without notice.

5.8 In the event that a contract within the meaning of § 5 (2) to (4) between the Tenant and Pliant, the Credit Card Issuer or the participating bank is not concluded for any reason, this shall not affect the Tenant's contractual obligations towards Circula in respect of other Software Products ordered by the Tenant pursuant to § 4 (1) (e.g., if the Tenant ordered Circula Expenses and Circula Credit Card App and a contract between the Tenant and Pliant with respect to § 5 (2) does not materialise, the Tenant is not discharged from its contractual duties with regard to Circula Expenses).

6. Remuneration

6.1 The remuneration as well as the agreement of monthly or annual advance payment results from the Tenant’s order and Circula’s order confirmation or the Signed Offer.           

6.2 Circula has the right to adjust (increase or decrease) the remuneration annually (maximum once per calendar year) at its reasonable discretion to the development of the costs that are decisive for Circula’s price calculation. A price increase shall be considered and a price decrease shall be made if, for example, the costs of third-party software used by Circula or Circula’s labour costs increase or decrease. Increases in a cost item, e.g., third-party software used by Circula, may only be used for a price increase to the extent that they are not offset by decreases in other cost items, but – at the maximum – only to the extent of the increase in the affected cost item itself. Reduction in a cost item, e.g., third-party software used by Circula, are used for a price decrease to the extent that this price decrease is not fully or partially offset by increases in other cost items. In exercising its reasonable discretion, Circula shall select the respective time of a price adjustment in such way that price decreases have at least the same price effect as price increases.      

6.3 The renumeration is due at Contract Start Date in accordance with §9 (1) unless specified otherwise in the order confirmation.

6.4 If Circula has specifically agreed a “free trial period” with the Tenant, the remuneration is due for the first time after the expiry of this agreed free trial period, unless the Tenant decides at the end of the trial period to terminate the contract in accordance with § 9 (4). 

6.5 If Circula has specifically granted the Tenant a free-of-charge implementation period, the remuneration shall be due for the first time when the period agreed with the Tenant for the implementation of the software at the Tenant's premises (e.g., 0/30/90 days) has expired, irrespective of whether the implementation has been completed within the agreed period; if the implementation has already been completed before the agreed implementation period, the remuneration shall be due for the first time already at the time of the actual completion of the implementation of the software.

6.6 The Tenant may pay the remuneration by credit card or SEPA direct debit unless otherwise agreed. The payment method of the Tenant is determined with the order of the Tenant. Subsequent changes to the payment method are possible by agreement between Circula and the Tenant.

6.7 If the payment method provided by the Tenant does not work or the Tenant fails to update its payment information in a timely manner, Circula is entitled to suspend its contractual performance until the payment method works or the payment information is updated.

7 Circula’s Services

7.1 Circula shall provide the following services during the contract period:

7.2 Operation of the Software Products: Circula offers the Tenant and the Users the possibility to download the Mobile App and to install it on suitable smartphones as well as to access the Web App via a common browser and to use it in connection with the Backend. Circula also operates the Backend as an online product and ensures that the Backend is accessible via the Mobile App and the Web App, subject to a working data connection to be provided by the Tenant.

7.3 Further development: Circula continues to develop the Software Products in terms of quality and modernity, adapts them to changed requirements, eliminates errors in order to maintain the usual quality and grants the Tenant access to the resulting new versions of the Software Products. This also includes minor functional enhancements.

7.4 Service in the event of defaults: Circula supports the Tenant, to the extent necessary for the Tenant and reasonable for Circula, by providing advice on software use, error avoidance and error correction.

7.5 Circula provides the services in accordance with the recognised rules of technology. The Services will only be provided in relation to the last software version operated by Circula.

7.6 Circula endeavours to keep the Software Products, in particular the backend, available during normal working hours by taking appropriate technical and organisational measures. Nevertheless, failures may occur, e.g., due to technical malfunctions, errors, planned or unplanned maintenance. In the event of an outage, Circula will attempt to restore availability within the limits of the failure classes as per § 11 to restore availability. Circula will inform the Tenant in good time in advance about planned maintenance windows.

7.7 Circula's service does not include advising the Tenant on tax or legal matters. This is the sole responsibility of the Tenant.

8 Granting of Rights

8.1 The Software Products and all of their component parts (such as trademarks, logos, computer programs, graphics, images, text) are the exclusive property of Circula or have been assigned to Circula for its exclusive use. This contract does not include any assignment of intellectual property rights of any kind in any Software Products owned by or assigned to Circula for its exclusive use.

8.2 In return for payment of the remuneration in accordance with § 6 of this contract the non-exclusive, non-transferable and non-sublicensable right, limited in time to the term of this contract, to use the Software Products to the extent specified in this contract. The contractual use includes in particular the installation as well as the loading, displaying and running of the installed software. The Tenant uses the Software Products and allows the Users to access the Software Products in accordance with the information that the Tenant can obtain from Circula’s order confirmation or the signed offer, as well as the GTC herein.

8.3 Insofar as this is necessary for use in accordance with this contract, the Tenant is entitled to reproduce the Software Products supplied. In particular, the loading of the software into the working memory shall be regarded as duplication required for use in accordance with the contract. Otherwise, the Tenant shall not be entitled to duplicate, unless otherwise provided by law.

8.4 The Tenant is not entitled to sell the Software Products including the documentation and the order confirmation or the signed offer as well as other accompanying materials supplied to third parties or to make them available to third parties in any other way (in particular by renting or lending).

8.5 The Tenant is not entitled to edit, decompile, correct, adapt, modify, translate or generally change the Software, unless the change or editing is a remedy of a defect necessary for the contractual use of the Software, with which Circula is in default.

8.6 If the Tenant violates any of the above provisions, all rights of use granted under this contract shall immediately become invalid and automatically revert to Circula. In this case, the Tenant must immediately and completely stop using the Software and delete all copies of the Software installed on its systems.

9 Term of Contract

9.1 The term of the contract begins with respect to the Software Products "Circula Expenses" and "Circula Credit Cards App" at the point in time defined in the signed offer. With regard to the other Software Products (e.g., Lunch Benefit, Mobility Benefit, Internet Benefit, Relax Benefit, Voucher Benefit), the term of the contract begins as of (electronic) signing of Circula’s order by the Tenant. The begin of the term of the contract in accordance with sentences 1 and 2 is referred to in these GTC as the "Contract Start Date". 

9.2 The contract is initially concluded for a term of one (1) year (hereinafter "Minimum Term"). After expiry of the Minimum Term, the term of the contract shall be automatically extended for successive periods of one (1) year (hereinafter each a “Renewal Term") unless Circula or the Tenant has terminated the contract at least one (1) month before expiry of the Minimum Term or the Renewal Term in force at the time of termination.

9.3 The specific contract term results from Circula’s order confirmation or the Signed Offer.

9.4 If the Tenant has been granted a “free trial period” upon conclusion of the contract, the tenant has the right to terminate the contract with immediate effect and without stating reasons until the expiry of the trial period which is free of charge for the Tenant.      In terms of other free periods that may have been granted to the Tenant, e.g., as part of a long-term agreement, the right to terminate the contract with immediate effect and without stating reasons until the expiry of the trial period which is free of charge for the Tenant does not apply.     

9.5 The right to extraordinary termination for good cause shall remain unaffected by the above ordinary termination rights. An important reason exists in particular if (i) the Tenant violates the provisions of § 8 of these GTC and does not stop its act of infringement within a reasonable period of time, if Circula has previously warned the Tenant to cease this act of infringement or (ii) the Tenant is in arrears with at least an amount equal to two instalments of the remuneration or (iii) the Tenant is obviously insolvent.

9.6 In the event that the contract between the Tenant and Pliant or between Tenant and the Credit Card Issuer or between Tenant and the participating bank does not materialize and the Tenant, as a result, cannot use the Circula Credit Card App, the Tenant can terminate the contract with regard to the service Circula Credit Card App towards Circula without further notice. Other Software Products included in the tenancy are not impacted by this termination.

9.7 The tenant can give notice of termination by e-mail to support@circula.com.

9.8 If the Tenant uses a Circula Pliant credit card, the contractual relationship between the Tenant and Circula shall not automatically end upon termination of the contract between the Tenant and Pliant (§ 5 (2)), upon termination of the contract between the Tenant and the Credit Card Issuer (§ 5 (3)) or upon termination of the contract between the Tenant and the participating bank (§ 5 (4)). If the contracts between the Tenant and all three cooperation partners (Pliant, Credit Card Issuer, participating bank) have ended and expired, the Tenant has a special right of termination vis-à-vis Circula with regard to the Circula Credit Card App software product, provided that (i) the contracts end as a result of ordinary terminations by the cooperation partners, (ii) the contracts end as a result of extraordinary terminations by the cooperation partners and the Tenant is not responsible for the reasons for termination, or (iii) if the Tenant has justifiably terminated the contracts with the cooperation partners without notice. The special right of termination grants the Tenant the right to terminate the contract with Circula as to the Circula Credit Card App at any time (even within the contract term) with a notice period of one (1) month. The termination of the contract with Circula requires a notice of termination to Circula in accordance with § 9 (3). 

9.9 If the Tenant terminates the contract with Circula or terminates the contract for the Circula Credit Card App software product pursuant to § 9 (8) sentence 2, this termination will automatically lead to a termination of the contracts with the cooperation partners (Pliant, Credit Card Issuer, participating bank); in this case, the contracts with the cooperation partners will end at the same time as the contract between the Tenant and Circula. Circula will also accept the Tenant's notice of cancellation as the receiving messenger (Empfangsbote) for Pliant and the Credit Card Issuer      and forward it to them.

10 Return and Deletion

10.1 After termination of the contract, the Tenant is obliged to cease using the Software Products and to return the software and all program copies as well as documentation, materials and other documents to Circula. The return takes place at the Tenant’s own expense. If the Tenant continues to use the Software Products after the contract has ended, this does not extend the contract; sections 545, 548a of the German Civil Code (BGB) shall not apply.

10.2 Circula is free to waive the return in accordance with para. 1 and to demand instead from the Tenant the deletion of the Software and other programme copies and the destruction of the documentation, materials and other documents provided. The Tenant shall assure in writing or in text form within one week after termination of the contract that a corresponding deletion and destruction has taken place.

10.3 Furthermore, the Tenant is obliged to completely and permanently delete all installed programme copies and any stored documentation from all its servers.

10.4 Any use of the software after termination of the contract is not permitted.

11 Error Classes, Response times, Availability

‍11.1 The Parties agree on the following error classes and response times with regard to malfunctions of Circula’s software products:

• Error class 1 - Errors preventing operation: The error prevents business operations at the Tenant; an alternative solution (i.e. alternative software in addition to the Circula Software Product with the same functions as the contractually agreed Software Product) is not available: Circula shall immediately, at the latest within four hours after the error message, begin with the elimination of the error and shall continue it with vigour until the error has been eliminated, as far as reasonable also outside the usual working hours (weekdays 8.00 a.m. to 5.00 p.m.).
• Error class 2 - Operationally obstructive errors: The error significantly obstructs business operations at the Tenant; however, the use of the software is possible with alternative solutions or with temporarily acceptable restrictions or difficulties: Circula begins with the error removal on the same day in the case of an error message before 10.00 a.m., in the case of a later error message at the beginning of the next working day and continues until the error is removed within the usual working hours.
• Error class 3 - Other errors: Circula will begin to rectify the error within one week or will only rectify the error with the next update for the Software Product if this is reasonable for the Tenant.

10.2 In no period of three months may the availability of the software be impaired for a total of more than 22 hours by a class 1 error or for a total of more than 44 hours by a class 2 error. Otherwise, the remuneration shall be reduced by 2% of the monthly remuneration per hour of the disrupted working time (weekdays 8.00 a.m. to 5.00 p.m.) in the case of a class 1 error, and by 1 % of the monthly remuneration in the case of a class 2 error.

Pliant's "Pliant platform third-party user GTC " apply to the use and disruption of the Pliant Platform.

12 Legal Defects

12.1 Circula warrants that the contractual use of the Software Products by the Tenant does not conflict with the rights of third parties. In the case of defects of title, Circula warrants that it will, at its discretion, provide the Tenant with a legally unobjectionable possibility of using the Software Products or equivalent software.

12.2 The Tenant informs Circula immediately in writing if third parties assert property rights (e.g., copyrights or patent rights) to the Software Products. Circula supports the Tenant to a reasonable extent in his defence against the attacks of the third party by advice and information. This support presupposes that the Tenant has informed Circula immediately and coordinates the defence closely with Circula. At Circula's request, the Tenant will leave the legal defence against the third party's claim to Circula.

13 Warranty

13.1 Should the Tenant discover defects in Circula’s Software Products or in the documentation, the Tenant must notify Circula immediately in writing.

13.2 Circula is obliged to remedy the reported defects in the Software Products in accordance with the troubleshooting processes specified in § 11.

13.3 The Tenant must provide Circula with the necessary to the Software Products and documentation for the purpose of remedying defect.

13.4 The Tenant is not entitled to claim a rent reduction by deducting the amount of the reduction from the current rent on his own. The Tenant's claim under the law of enrichment to reclaim the part of the rent paid in excess due to a justified reduction remains unaffected by this.

13.5 If the Tenant has obtained a Circula Pliant credit card and the cooperation partners Pliant, Credit Card Issuer and/or the participating bank fail to fulfill their contractual obligations vis-à-vis the Tenant, this does not constitute a defect in Circula's services or Software Products and vice-versa, if Circula fails to fulfill its contractual obligations vis-á-vis the Tenant, this does not constitute a defect in the Pliant Platform or the cooperation partners’ services. 

14 Obligations of the Tenant and the Users

‍14.1 The Tenant undertakes to comply with the following conditions, also with regard to his users, and to instruct and oblige his users accordingly. The Tenant is liable to Circula for the conduct of its users in accordance with section 278 of the German Civil Code (BGB). 

14.2 The Tenant shall observe the minimum technical requirements necessary in connection with the use of the Software Products. A modern browser (e.g., Chrome, Firefox or Safari) in the respective current version is required to use the web app. The compatibility of the mobile app with mobile operating systems (Android or iOS) is specified in the respective store. Furthermore, the Tenant must have a functioning data connection between the end device and Circula's servers via the internet.

14.3 The Tenant is responsible for compliance with the statutory provisions and the following regulations when using the Software Products. In particular, the Tenant may not:

1. violate morality with his or her usage behaviour,
2. violate industrial property rights and copyrights or other property rights of third parties,
3. transmit content containing viruses, so-called Trojan horses or other programming that may damage the software (hereinafter referred to as "malware"), or
4. distribute pornographic content, advertising, unsolicited e-mails (spam) or inaccurate warnings of viruses, malfunctions and the like, or solicit participation in lotteries, snowball systems and comparable actions.

14.4 Furthermore, all actions are to be refrained from that are likely to:

1. cause an excessive load on the software or otherwise impair or manipulate the functionality of the underlying technical infrastructure; or
2. jeopardise the integrity, stability or availability of the software.
3. The Tenant is obliged to notify Circula of any functional failures, malfunctions or impairments of the Software Products immediately and as precisely as possible.
4. Furthermore, the Tenant is obliged to cooperate, insofar as this is necessary for the proper performance of the services by Circula. In particular, the Tenant has to provide Circula, without being asked, with all documents necessary for the performance of the services completely and in such a timely manner that they can be processed within a reasonable time. The same applies to the information about all processes and circumstances which can be of importance for the performance of the services of Circula.
5. The Tenant is obliged to ensure that unauthorised third parties do not gain access to the Tenant's user account.
6. The Tenant secures its data outside Circula's software by regular backups

15 Liability

15.1 Circula will only pay compensation for damages or reimbursement of futile expenses, irrespective of the legal grounds (e.g. from contractual and quasi-contractual obligations, material and legal defects, breach of duty and unlawful acts), to the following extent:

15.2 Liability in the event of intent or gross negligence, injury to life, body and health and in the event of claims under the Product Liability Act and the assumption of a guarantee is unlimited.

15.3 In the event of a simple negligent breach of a cardinal obligation (obligation, the fulfilment of which makes the proper execution of the contract possible in the first place, the observance of which the contractual partner regularly relies on and may rely on and the breach of which jeopardises the achievement of the purpose of the contract), Circula is liable to the amount of the typical damage foreseeable at the time the contract was concluded.

15.4 The parties agree that the typically foreseeable damage shall not exceed EUR 10,000.00 per claim and a maximum of EUR 100,000.00 for all claims arising from and in connection with the contract.

15.5 In all other respects, any liability on the part of Circula is excluded.

15.6 Circula retains the right to object to contributory negligence. In particular, the Tenant has the obligation to back up data and to defend against malware in each case in accordance with the current state of the art.

15.7 Contrary to the provision of § 536a BGB (German Civil Code), Circula is not liable regardless of fault for defects, which are already present at the time of conclusion of the contract, but only if and insofar as Circula is responsible for the existence of such a defect.

15.8 The above limitation of liability also applies to the personal liability of Circula's employees, representatives and bodies.(5) The cooperation partners Pliant, the Credit Card Issuer and, where applicable, the participating bank are not subcontractors or vicarious agents (Erfüllungsgehilfen) of Circula or vice-versa, unless explicitly stated otherwise, i.e.: If these cooperation partners      breach their contractual obligations towards the Tenant, Circula      shall not be liable for this towards the Tenant; if Circula breaches its contractual obligations towards the Tenant, the cooperation partners shall not be liable towards the Tenant.

15.9 Circula is not liable for damages incurred by the Tenant as a result of the Tenant using the payment services Apple Pay or Google Pay for the Circula Pliant credit card if these payment services do not function properly.§ 16 Limitation(1) The limitation period is

1. in the case of material defects, for claims for repayment of the remuneration from termination or reduction one year from the Tenant's knowledge of the respective material defect, but for duly notified defects not less than three months from the submission of the effective termination or reduction declaration;
2. in the case of other claims arising from material defects, one year from the date on which the Tenant obtained knowledge of the respective material defect;
3. in the case of claims arising from defects of title, two years from the date on which the Tenant obtained knowledge of the respective defect of title;
4. in the case of claims for damages or reimbursement of futile expenses not based on material defects or defects of title, two years; the period shall commence at the time at which the Tenant obtained knowledge of the circumstances giving rise to the claim or should have become aware without gross negligence.

15.10 The limitation period shall commence at the latest upon expiry of the maximum periods regulated in section 199 of the German Civil Code (BGB). However, in the case of damages and reimbursement of expenses arising from intent, gross negligence, warranty, fraudulent intent and in the cases specified in § 14 (3), the statutory limitation rules shall apply.

17 Secrecy and Data Protection

17.1 The parties undertake to treat as confidential all items (e.g., software, documents, information) which they receive or become aware of from the other party before or during the performance of the contract and which are protected by law or contain business or trade secrets or are designated as confidential, also beyond the end of the contract, unless they are publicly known without any breach of the duty of confidentiality. The parties shall store and secure these items in such a way that access by third parties is excluded.

17.2 The Tenant shall make the software accessible only to the users. The Tenant shall instruct these persons about the need to keep the items secret.

17.3 Circula processes the data of the Tenant and the users required for the business transaction in compliance with the data protection regulations. Circula may name the Tenant as a reference customer after successful completion of the services.

17.4 If Circula processes personal data for the Tenant as a processor (see Art. 4 No. 8 GDPR), a separate processing agreement shall be concluded between the parties pursuant to Art. 28 GDPR. The Tenant is solely responsible, as a data controller (see Art. 4 No. 7 GDPR), to provide its Users with the information required under Art. 13 and 14 GDPR.

17.5 If Circula processes personal data as a controller or joint controller (cf. Art. 26 GDPR), the data protection notices available at https://www.circula.com/en/privacy apply.

18 Final Provisions

18.1 Amendments and supplements to the contract must be made in writing to be effective. The written form requirement can only be waived in writing. Transmission in text form, in particular by fax or e-mail, shall also be sufficient to comply with the written form requirement. Written form within the meaning of this contract can also be complied with by sending a physically or digitally signed document as a PDF (by e-mail or post) or by using digital signature software (e.g., HelloSign), in addition to compliance with written form within the meaning of section 126 of the German Civil Code (BGB). 

18.2 The contract between the Tenant and Circula shall be governed exclusively by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods, and to the exclusion of private international law. The exclusive place of jurisdiction for all disputes arising from and in connection with this contract is the seat of the Circula company that is party to this contract.

18.3 If any provision of this contract is or becomes void, invalid or unenforceable in whole or in part, the validity and enforceability of all remaining provisions shall not be affected thereby. The parties shall replace the void, invalid or unenforceable provision with the valid and enforceable provision that comes closest to the economic purpose of the void, invalid or unenforceable provision in terms of subject matter, extent, time, place or scope. The same shall apply to any unplanned regulatory gaps in this contract.

18.4 The Tenant is not entitled to transfer and/or assign rights and obligations from the contractual relationships binding the parties to third parties without the prior written consent of Circula. This prohibition of assignment does not apply to monetary claims.

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