Terms and Conditions for the Maintenance of a Telephone System

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For customers obtaining access to Circuit via Nexus IP Circuit is Produced by Unify and Provided to you by Nexus IP, an Authorised Reseller of Unify. These TOS are part of terms and conditions of your Agreement with Nexus IP. There is no contractual relationship between you and Unify 1 – Welcome to Circuit! 1.1 “Circuit” is Unify’s cloud-based team collaboration and communication product. Circuit helps people to communicate and collaborate with others in their work environment in real time and through multiple channels, including email, chat, telephone and by sharing documents. It is provided as a Software-as-a-Service (SaaS) application and is constantly improved and further developed. 1.2 Please read this document carefully. It is part of the legal relationship between your business or organisation and Nexus IP regarding the use of Circuit and the associated software and services. Prior to using Circuit, your business or organisation must accept the TOS and agree that any person to whom your business or organisation grants access to its Circuit Tenancy, are bound by these TOS and the documents referenced herein. 1.3 You and your business, or your organisation, are collectively addressed as “you”. This and other capitalised terms used in the Agreement are defined in the section Definitions in this document. 2 – Provision of Circuit 2.1 Circuit will be provided to you by Nexus IP from the Effective Date. Nexus IP will obtain the Circuit service –possibly via distributors – ultimately from Unify. The scope of Circuit’s functionalities is described in the document Product and Service Description which is posted on the Circuit portal on Nexus IPs website. The Service Level Agreement (SLA) included in this document describes the service levels that apply to Circuit. 2.2 You acknowledge that Circuit is not a replacement for your primary telephone or internet service. You do not rely on Circuit as your sole means of telecommunication. The services of a telecommunications provider for the public are not part of the Agreement.You also acknowledge that Circuit is not intended to support or carry emergency calls such as calls to hospitals, police, fire departments or other kind of services that connect a user to emergency services answering point. It is your responsibility to provide for fixed (landline) telephone services or wireless(mobile) telephone services that offer access to such emergency services. Circuit does not support the special features required by emergency services, such a providing information about the location of the caller to the emergency service. Please note that this also applies if, technically, you could actually connect from Circuit to an emergency service. In this case, you will need to provide details of your physical location to enable the emergency services to respond to you. 2.3 When using Circuit, you must at all times comply with all Applicable Laws, including, but not limited to: (a) with respect to Personal Data, all applicable privacy laws and regulations and (b) laws or regulations relating to the recording of communications, including, when required, advising all participants in a recorded Circuit audio or video conversation or meeting that it is being recorded and that Circuit User Data and Personal Data may be transferred outside the European Economic Area and the US. It is your responsibility to ensure that you have the right to use the Services where you are located, as well as where your meeting invitees are located. 3 – Support for Circuit When you sign up for Circuit, Unify will provide you with access to a variety of support services for Circuit, including FAQs, videos and other technical support literature, support and communication forums such as the Circuit Support Forum and other product- and service-related information. The exact scope of the support services available to you may vary by the applicable Service Package/Circuit Support Plan. 4 – Eligibility to sign up for Circuit 4.1 Circuit is offered only to businesses and organisations i.e. all natural or legal persons or a partnership with legal personality who or which act in exercise of his, her or its trade, business or profession. Circuit is not offered to other persons, in particular to consumers. In any case, a person less than 18 years old or who is considered a minor in its state or country of residence, cannot register for Circuit or be signed up by you as a Circuit User. 4.2 Without limitation to the statutory rules on businesses by appearance, if Nexus IP reasonably believes that you or a specific Circuit User does not meet the above-stated requirements, Nexus IP may, without liability and at its sole discretion, block or delete that Circuit User Account(s) and their Circuit User Data and/or any portion, aspect or feature of Circuit. Depending on the case, Nexus IP may elect to terminate the entire Agreement for the cause with immediate effect. 5 – Signing up for Circuit 5.1 To sign up for Circuit, you must complete a registration process and provide current, complete and accurate information, as prompted by the registration form. If you act for a business or organisation, you may need, depending upon the legal jurisdiction in which your business or organisation operates, to conclude the Data Processing Agreement (DPA) with Nexus IP . 5.2 The registration for Circuit, whether or not it is for a Free or Trial version, and including those registrations made through Nexus IP, will result in a binding proposal from your business or organisation to Nexus IP to enter into a Subscription Agreement. You will be informed if your proposal is accepted via direct email or through Nexus IP.
Nexus IP and Unify are free to accept or deny any such proposal at their sole discretion.
If it is accepted, the Agreement becomes effective, and if it is rejected, there is no Agreement and neither you nor Nexus IP nor Unify have any liability against any other party. 5.3 Once your proposal has been accepted, you and any other Circuit User you create through the Circuit administration console will be given a username and password via email, which, upon initial access, must be changed to a password known only to such Circuit User. You must ensure that your password(s) do not become known to unauthorised third parties. In the event you reasonably suspect that your password(s) have been compromised, you must notify Nexus IP without delay. You are liable for all damages due to your fault to maintain the confidentiality of the passwords. 5.4 The first Circuit User that is created for your business or organisation during the signup process will hold the role of the Circuit Tenancy Administrator. That first Circuit User will also hold the role of Customer Contact. The password for that account should be handled with special care. 6 – Feedback about Circuit Unify and Nexus IP are very interested to hear your comments, criticisms and suggestions for changes with respect to the design, the functionality and the performance of Circuit.To the extent you provide Unify or Nexus IP with such information and data about the tests you have done, the test results, and other material such as screenshots, recordings, concepts, etc. (collectively,“Feedback”), you agree that Unify or Nexus IP own all Feedback that you submit to Unify. You hereby assign and grant Unify or Nexus IP all rights, title and interest in the Feedback and all Intellectual Property Rights herein, including the right to use, share, and commercialise the Feedback in any way and for any purpose. If requested by Unify, you or the competent person(s) within your organisation will execute such further instruments as Unify may reasonably request confirming Unify’s unlimited ownership interest in such Feedback.You will not give any Feedback that is subject to a license that requires Unify or your Nexus IP to grant any rights (e.g. Freeware and Open Source License) or make any payments to third parties because the Feedback was incorporated into Circuit or the Documentation or any other of Unify’s products, software, or services or other items. These rights survive this Agreement.For the avoidance of doubt, with the exception of the Feedback you provide to Unify, Unify does not claim ownership of any of the User Content you submit to Circuit (see also below). You should carefully review your Feedback and possibly clean it of any User Content that you do not want Unify or Nexus IP to own. 7 – Right to Use Circuit User Data Handling of Circuit User Data 7.1 By signing up for Circuit and submitting Circuit User Data to Circuit, you agree, for the term of the Agreement, that such Circuit User Data are used, modified, processed, reproduced and distributed by the Circuit Service, solely for the purpose of providing Circuit to you and the Circuit Users you appoint. This includes the public performance or public display the Circuit User Data, where such facilities are provided within or through Circuit and if effected by you. The obligations of Unify to maintain the confidentiality of the Circuit User Data or our data privacy obligations shall not be limited thereby. 7.2 You and your organisation must have all the rights, licenses, and permissions required from third parties to use the Circuit User Data and to reproduce, publish, and display Circuit User Data within and outside of Circuit. You acknowledge that the Circuit service can treat all Circuit User Data submitted by you or one of your Circuit Users to Circuit is owned by you. The Circuit service is only acting as a passive conduit for your Circuit User Data. Neither Unify nor Nexus IP claim any ownership rights in your Circuit User Data and will not review, share, distribute, or reference your Circuit User Data except as provided herein or in the Acceptable Use Policy (AUP) for Circuit, or as this may be required by Applicable Laws. The AUP is posted on the Circuit portal on Nexus IP’s website. 7.3 If you object to any third-party Circuit User Data, Nexus IP will attempt to resolve that as per the procedure described in the Acceptable Use Policy (AUP). In the event Nexus IP finds such third-party Circuit User Data to be permissible under the AUP, your sole remedy is to cease using Circuit. However, this does not constitute a right to prematurely terminate the Agreement with Nexus IP. 7.4 If you believe that Nexus IP , Unify or any of their affiliates or a third-party Circuit User (including Guest Users) violated a copyright, please first notify Nexus IP of the potential copyright infringement or other intellectual property rights issue before taking legal action. The violation-resolution procedure described in the Acceptable Use Policy (AUP) shall be applied accordingly. 7.5 You understand that publishing Circuit User Data on Circuit is not a substitute for registering it with a copyright office or any other intellectual property rights organisation such as, for instance and where applicable, the U.S. Copyright Office. 8. Liability for Circuit User Data 8.1 You are entirely responsible for any and all activities that occur under your Circuit Accounts and with your Circuit User Data. With your subscription to Circuit you acknowledge and consent, and you will make all of your Circuit Users including Guest Users acknowledge and consent, that all Circuit User Data is your sole responsibility.Circuit User Data may be accessible by the Circuit Tenancy Administrator. If a Circuit User is deleted, the Circuit User Data of that Circuit User may still be accessed by other Circuit Users who shared a Conversation with that Circuit User.For technical reasons, inside the Circuit Support Forum accounts of Circuit Users who posted content to the Circuit Support Forum will be disabled, not deleted. See the Support Forum Rules (SFR) for details. The SFR is posted on the Circuit portal on Nexus IP’s website. 8.2 You will indemnify, defend and hold harmless Nexus IP and Unify from any and all third-party claims, liability, damages and/or costs (including, but not limited to, attorneys’ fees) arising from your violation of sections 7 to 9. 9 – Data privacy 9.1 By using Circuit, you and each of your Circuit Users will upload, create or receive Circuit User Data containing personally identifiable information protected under Applicable Laws (“Personal Data”). Unify, as the Producer of Circuit, is very serious about the safety and security of such Personal Data. 9.2 Unify will provide Circuit through personnel who are bound to data secrecy as defined by Applicable Law. 9.3 With regard to the Personal Data stored or otherwise processed by Circuit, Nexus IP will observe your directions and shall take the necessary technical and organisational measures with Unify to protect the Personal Data from disclosure or misuse. This shall also apply to Personal Data that Unify retains after the termination or expiry of this Agreement. Nexus IP ’s liability for breaches of data protection shall be excluded if Nexus IP acted in accordance with a direction given by you. 9.4 Unify will process Personal Data obtained from you only for the purposes of providing Circuit and shall delete such Personal Data from Unify’s systems if it is no longer needed for that purpose, subject to any data retention obligations required by Applicable Laws. 9.5 Unify may use subcontractors to Produce Circuit. To the extent Unify uses subcontractors, Unify will impose upon them a similar obligation as per this section 11, in particular, section 11.2 in accordance with the data protection provisions of this Agreement and Applicable Laws. Where required by applicable law, they shall be bound by contractual terms no less binding than the Data Processing Agreement (DPA) with Nexus IP and follow a standard that meets or exceeds the standard provided for in the Data Privacy Statement (DPS) which is posted on the Circuit portal on Nexus IP’s website. 9.6 Unify and Nexus IP do not have control over and are not responsible for, the privacy of any Circuit User Data that you have shared with others, so always use caution when giving out any Circuit User Data that may contain Personal Data or other sensitive information. You agree to meet all statutorily required preconditions for your intended use of Circuit and the Circuit User Data for which you are responsible, e.g. by obtaining consent from employees so that in this regard Circuit can be provided to you without you infringing any Applicable Laws. You are in particular responsible for observing your worker’s council rights of co-determination, where applicable. You and your organisation shall indemnify Unify from all claims and damages resulting from your failure to do so. 9.7 More details on Unify’s data protection measures can be found in the Data Privacy Statement (DPS) which must be presented to each single Circuit User at their first login and can be accessed from within Circuit at any time. 9.8 Where required by applicable law, if you represent an organisation that signs up several Circuit Users for Circuit (Customer), you acknowledge and accept that primarily the Data Processing Agreement (DPA) shall determine your data privacy relationship with Nexus IP. Thereunder, Nexus IP will act as the data processor and you will be the data controller. Nexus IP holds a DPA – possibly via Distributors – ultimately with Unify. The DPA, where applicable, takes precedence over the DPS. You hereby also agree that the terms of the DPA, where applicable, and the DPS shall apply to each of your organisation’s Circuit Users, and that you will take appropriate measures to ensure these terms are binding upon them. 10 – Security10. Security 10.1 Unify has implemented commercially reasonable technical and organisational measures designed to secure your Personal Data and Circuit User Data from accidental loss and from unauthorised access, use, alteration or disclosure. 10.2 Neither Nexus IP nor Unify guarantee that unauthorised third parties will never be able to defeat those measures or use your Personal Data and Circuit User Data for improper purposes. You acknowledge that you provide your Personal Data at your own risk and that Nexus IP’s and Unify’s liability with respect to Personal Data shall be limited as stipulated in this Agreement. 10.3 You are entirely responsible for maintaining the confidentiality of all of your passwords and Circuit Accounts, in particular with regard to the Circuit Tenancy Administrator. None of your Circuit User’s may use any other Circuit User’s Circuit Account at any time without the permission of the affected Circuit User. 10.4 You must know the identity of any Circuit User you sign up or invite, including Guest Users. You may not permit parties that are unknown to you or who have not identified themselves to use Circuit. Failure to do so may result in blocking access to single Circuit Accounts or, in serious cases, of your entire access to Circuit. 10.5 You agree to notify Nexus IP immediately of any unauthorised use of your Circuit Accounts or any other breach of security. Neither Nexus IP nor Unify will be liable for any loss that you may incur as a result of someone else using your passwords or Circuit Accounts, either with or without your knowledge. You acknowledge and agree that in such an event you could in turn be held liable for losses incurred by Unify, Nexus IP or another party due to someone else using your Circuit Accounts or passwords. 11. Local availability may be limited Circuit may not be available in, or accessible from, all countries or for use in a particular location. You are responsible for following the Applicable Laws in your jurisdiction, state or country and must not use Circuit, if such use would result in a breach of Applicable Law. Unify reserves the right to modify or disable features and functionalities of Circuit and/or any related services, if required to comply with local Applicable Laws. In some cases, some of your Circuit Users may need to use a separate instance of Circuit. Unify has the right to block access to Circuit from certain countries or jurisdictions. Such limitation or modification or disablement does not entitle you to prematurely terminate the Agreement.Please contact Nexus IP, for the latest list of countries in which Circuit is available, and to learn about any functional variations applicable in certain countries or jurisdictions. 12 – License, Copyright and Ownership of Circuit 12.1 Subject to the terms of the Agreement, Nexus IP grants you, effective upon confirmation of acceptance of your subscription application, and then for each version of Circuit that is made available to you under the Agreement, a worldwide, revocable (pursuant to any termination of the Agreement), non-exclusive, royalty-free and non-transferable right under our Intellectual Property Rights to access and use Circuit from any technically compatible device that is controlled by your organisation, within the scope described in this Agreement and the Documentation. 12.2 Save for this right to access and use Circuit, all title to and all Intellectual Property Rights in Circuit, including but not limited to all modifications thereto, be they based on Feedback or not, shall remain exclusive property of Unify and shall not be used in any way other than as described in this Agreement or the Documentation. You acknowledge that Circuit and all Intellectual Property Rights with respect thereto are and will at all times be property of Unify, even if suggestions made by you, e.g. as part of Feedback, are incorporated into subsequent versions of Circuit. 12.3 You do not have any rights to disclose, sublicense, or otherwise transfer access to Circuit or any software that may be made available to you for download as part of your subscription to Circuit, or the related documentation, or other of Unify’s proprietary information. You may not sub-rent or sublease Circuit to any third party, including any of your Affiliates, unless explicitly agreed in writing with Nexus IP . You may not reverse engineer, reproduce, de-compile or disassemble Circuit, except to the extent expressly permitted by Applicable Law. You agree not to claim or assert title to or ownership of Circuit. 13. Confidentiality 13.1 Each Party shall use all Confidential Information exclusively for the performance of the Agreement, keep all Confidential Information confidential with the same degree of care as it uses with respect to its own confidential information and in any case at least with the care of a prudent business person; and shall not make any Confidential Information available to third parties. Affiliates, subcontractors, as well as employees of a Party, their related companies and their subcontractors, shall not be regarded as third parties, provided that they “need-to-know” the Confidential Information in order for a Party to perform its obligations under the Agreement.
Each Party shall provide that all recipients of any Confidential Information are bound by non-disclosure obligations that are equivalent to this Agreement. Each Party shall be responsible for the compliance of any recipients of Confidential Information with the obligations set forth in this Agreement. 13.2 The above obligations shall not apply to Confidential Information to the extent (a) it was, or has become after disclosure by a Party, lawfully known to the receiving Party without any duty of confidentiality, provided that, to the receiving Party’s knowledge, the third person providing such Confidential Information to the receiving Party did not violate any duty of confidentiality; (b) is, or has become after disclosure by a Party, publicly known, provided that the receiving Party is not responsible for such Confidential Information becoming publicly known and further provided that any Confidential Information shall not be deemed publicly known because a portion thereof is or becomes publicly known; (c) is independently developed or acquired by the receiving Party; (d) has been released by the disclosing Party in writing; (e) the receiving Party is obliged to disclose under Applicable Laws, provided that, if not forbidden by such Applicable Laws, the other Party was informed of such requirement without delay so that such Party may seek a protective order or another appropriate remedy. If such protective order or another remedy cannot be obtained, or if such Party waives in writing the other Party’s obligation to comply with the terms of this section 13, such other Party shall only furnish that portion of the information which it is advised to by written opinion of counsel and which is legally required. Such Party will also take all reasonable actions to ensure that such Confidential Information it was compelled to disclose will be treated confidentially.
The Party invoking an exception has to prove that the prerequisites for such exception are met. 13.3 All obligations regarding the Confidential Information in this Section shall survive the termination of the Agreement for any reason for a period of three (3) years. This time period shall begin with the end of the calendar year in which the Agreement was terminated. In the event Applicable Laws require that a Party must retain Confidential Information for a longer period of time, e.g. for taxation or audit purposes, it may only do so for the sole purpose of complying with such Applicable Laws and the confidentiality obligations stipulated in this Agreement shall continue to apply with respect to such Confidential information until it is destroyed in the Party’s ordinary course of business. 13.4 Each Party shall be entitled to request at all times the return or destruction of any Confidential Information as well as any copies thereof. The receiving Party undertakes to return, or confirm the destruction of, any Confidential Information within a time period of four (4) weeks from the receipt of such a request.
This shall not apply to (a) routinely made backup copies of electronically stored data; (b) to the extent that the receiving Party is obliged under Applicable Laws to keep the Confidential Information or copies thereof and (c) to the extent that the receiving Party needs the Confidential Information in order to prove the due performance of its contractual obligation or to enforce its rights. 14 – Downloadable Software 14.1 In order to use some features of Circuit, or to use Circuit on some devices, you may have to download and install software, e.g. an app for a smartphone or tablet, or a plugin. Such software is licensed to you under the terms of the Agreement and, in addition, the terms of our End User Agreement (EULA) apply, which is posted on the Circuit portal on Nexus IP’s website. In some cases, the software may contain third-party software components, e.g. commercial components, Freeware or Open Source Software, which may be subject to additional Third Party EULAs or Open Source Licenses, respectively. Such separate licensing terms shall prevail over the EULA. A copy of the EULA and the separate licensing terms, if any, may be obtained from Nexus IP prior to entering the Agreement. 14.2 The EULA and any separate licensing terms will be shown during the installation process or are included in the Documentation. Any installation of the software is subject to your acceptance of those license terms. If you do not want to accept them, you may not use the downloadable software. 14.3 The software shall only be delivered and licensed in object code form i.e. executable, machine-readable form. There is no claim to delivery of the source code. Insofar as the terms of Open Source Licenses provide for the provision of source code, Unify may elect to make the source code available (a) by including it in the software delivery (b) upon your request, send separate media in return for reimbursement of expenses (c) through Unify’s website. Option (b) shall always be available, and covers the relevant Open Source Software used in the current version Circuit and all preceding versions, going back to at least three (3) years. 14.4 You may copy such downloadable software for backup or archival purposes, or as part of using Circuit, but for no other purpose. You may not remove or alter any copyright or proprietary notice. You may not reverse engineer, decompile or disassemble the software save where explicitly permitted by law or by applicable Open Source Licenses. Distribution within your business or organisation by other means than Circuit (e.g. internal software distribution system) is permitted only to the extent that downloadable software is distributed solely to and for the use of your Circuit Users. 15 – Warranties 15.1 Circuit is provided in a professional manner, but Nexus IP does not warrant that your use of Circuit will always be uninterrupted or error free. The quality and manner of the provision of Circuit is described in more detail in the Service Level Agreement (SLA) in this document.
For trial uses and FREE service packages, see section 24. 15.2 If there is a Defect in Circuit, Nexus IP will work with Unify to remedy such Defect at Nexus IP’s own cost and expense, provided that you notify Nexus IP of such Defect at least in text form without undue delay and in any case not later than five (5) Business Days from your knowledge of the Defect. 15.3 You will render reasonable assistance free of charge, in particular by a prompt implementation of any work-around solution or the sending of logs. You bear the reasonable costs of an improper assertion of a Defect, in particular if it turns out that Circuit is actually not defective or if Unify is not responsible for the Defect, provided you could have avoided the improper assertion by applying reasonable care when examining the Defect. 15.4 Nexus IP and Unify will decide, at their sole discretion, how and when the Defect will be fixed and whether a workaround will be provided or a correction release of Circuit will be affected. 15.5 With respect to Defects that are within Nexus IP’s area of responsibility, your sole remedy is to claim a Service Level Credit to the extent set forth in the Service Level Agreement (SLA), for eligible subscription plans. If the Defect is not remedied and materially impairs your use of Circuit in accordance with the Agreement on an ongoing basis, you may terminate the Agreement without regard to the minimum term requirement. In this case, prepaid Fees (if any) shall be refunded to you on a pro rata basis i.e. from the time your termination becomes effective. 15.6 Unify and Nexus IP shall be exempt from obligations set forth in this Agreement and may be entitled to an extension of time and a claim for additional costs, if and to the extent Unify and Nexus IP are prevented from performing such obligations or are delayed in the performance of such obligations, due to non-fulfillment of your obligations under this Agreement, or in a case of Force Majeure such as (i) damage to or destruction or compulsory purchase of the premises or other property belonging to the affected Party; (ii) fire, explosion, accident, lightning damage, electromagnetic interference; (iii) storm, earthquake, hurricane, tornado, flood, volcanic eruption or another natural disaster; (iv) war, a threat of war, act of terrorism, insurrection, rebellion, riot or other civil unrest; (v) epidemics, pandemics, quarantine restrictions or other public health restrictions or advisories; (vi) strikes or lockouts or other labour interruptions; (vii) disruption to transport services; (viii) sanctions, embargoes or lack of materials, supplies or utilities, breaking off of diplomatic relations; (ix) the failure of any applicable governmental authority to issue any licenses or approvals, or the suspension, termination or revocation of any licenses or approvals, required for the operation of the affected Party’s business or the performance of services, or any other circumstance as a result of which performance by the affected party is prevented by law; (x) in the case of Unify, the occurrence of any of the aforementioned events to its subcontractors or suppliers which result in their delay or failure to perform. 15.7 Nothing in this Agreement shall be construed as a guarantee or warranty unless otherwise expressly provided for herein with the words “guarantee” or “warranty. resp. “Garantie”. 15.8 The provisions of this section 15 are exhaustive with respect to claims based on Defects. Circuit is otherwise provided “as is” and as available. Save as explicitly described in the agreement, Unify and Nexus IP make no warranties, either express, statutory or implied, including without limitation any implied warranties for merchantability fitness for a particular purpose or noninfringement of intellectual property rights. All other rights and remedies shall be excluded. Notwithstanding the above, Unify’s and Nexus IP’s statutory liability for intent, bodily damage, fraudulent behaviour, misrepresentation or under applicable product liability law shall not be affected hereby. This also applies to any other liability which cannot, by Applicable Law, be excluded by means of terms and conditions. 16 – Intellectual Property Rights Indemnification 16.1 Nexus IP will indemnify you against liability resulting from (a) a final judgment in proceedings brought by a third party against you that determines that Circuit infringes such third party’s Intellectual Property Rights; (b) a written settlement reached between you and the third party with respect to the infringement of Intellectual Property Right, provided that Unify or Nexus IP gave prior written consent to the settlement, including reasonable costs incurred in connection therewith. 16.2 Nexus IP, in cooperation with Unify, may also, at their sole discretion and cost, procure from such third party the Intellectual Property Rights necessary to continue to provide Circuit to you ; or modify or replace the respective part of Circuit with substantially similar functionality in order to avoid the infringement. If Nexus IP fails to provide these remedies, either Party may terminate the Agreement without regard to any minimum term and Nexus IP will refund you any remaining prepaid Fees. 16.3 You will not acknowledge any alleged infringement. In the event you elect to cease using the affected part of Circuit, or Circuit altogether, to minimise the expected damages or for other good reasons, you will inform the third party that the cessation of use does not imply any acknowledgment of the alleged infringement. 16.4 Nexus IP’s obligation to indemnify you is subject to you (a) notifying PNexus IP in writing as soon as reasonably possible of any suspected or alleged infringement; (b) not making any admission which is or may be prejudicial to Nexus IP without Nexus IP’s prior written consent; (c) giving Nexus IP the right to defend against the allegation, including the negotiation of a settlement prior; (d) providing Nexus IP with reasonable assistance in defending against the alleged infringement; and (e) permitting Nexus IP to provide the remedies set forth in section 16.2. 16.5 Nexus IP’s obligation to indemnify you shall be excluded to the extent that the alleged infringement is attributable to you and in particular if it is due to (a) misuse or any use of Circuit in a manner not authorised by or contrary to Nexus IP’s instructions or for a purpose not reasonably contemplated by Nexus IP; (b) the use of any component of Circuit in combination with any hardware equipment, system environment or third-party applications not specifically approved by Nexus IP; (c) with respect to downloadable software and without limitation to your rights under Open Source Licenses, a modification thereof that was done without Nexus IP’s prior written consent; (d) use of Circuit outside the scope of the rights of use granted to you under the Agreement; (e) with respect to downloadable software, your failure to use corrections provided or recommended by Nexus IP, including generally available corrections and security fixes for the underlying hardware equipment, third party software or system environment; (f) any claims relating to a Standard; (g) in any event where Unify or Nexus IP followed a design or instruction furnished or given by you. 16.6 You shall defend and indemnify Nexus IP against any losses, costs, expenses, demands or liabilities arising out of a claim by a third party alleging any infringement if: (a) the claim arises from an event specified in section 16.5; (b) the ability of Nexus IP to defend against the alleged claim has been prejudiced by your failure to comply with any requirements of section 16.4; (c) the claim arises from the use of the Customer Network. 16.7 The provisions of this section 16 are exhaustive with respect to claims related to an alleged or actual infringement of third-party Intellectual Property Rights, unless Unify acted with intent or fraudulently. All other rights and remedies shall be excluded. 17 – Liability 17.1 Subject to the provisions of this section 17, Nexus IP’s liability whether by way of indemnity or otherwise for each event or connected series of events arising out of or in connection with the Agreement shall be limited to the lesser of: (i) Twenty-five percent (25%) of the Agreement Value (ii) one hundred thousand Euro (EUR 100.000). Nexus IP’s aggregate liability under the Agreement shall be limited to an amount equal to fifty percent (50%) of the Agreement Value. 17.2 Nexus IP is not liable for loss of profit, indirect damages, consequential damages, including loss of business, loss of contracts, interruption of business, expenditures incurred and rendered unnecessary, loss or corruption of Circuit User Data, or, without limitation to section 16, claims raised by a third party against you.Where the Agreement is governed by federal or state law in the United States of America, the exclusion of liability set forth in the paragraph above will apply regardless of the form of action, whether in contract, tort, strict product liability, or otherwise, even if Nexus IP is advised in advance of the possibility of the damages in question and even if such damages were foreseeable, and even of your remedies fail of their essential purpose. 17.3 The liability of Nexus IP for loss or corruption of Circuit User Data shall be limited to the time and cost for restoring the data from the regular, general backups of the Circuit platform Unify makes as part of Unify’s normal operations. It is otherwise your obligation to ensure that important Circuit User Data is not stored on Circuit alone, and to provide for backups or copies of such Circuit User Data on a regular basis. You will not use Circuit as your sole means of storing such important data. 17.4 Nothing in the Agreement shall be construed to limit either Party’s liability for fraud or fraudulent misrepresentation, intentional acts or omissions, gross negligence as well as liability under a guarantee, or any mandatory Applicable Laws, e.g. the German Product Liability Act. 17.5 Unless specified otherwise in your applicable service package, your claim to service level credits as per the Service Level Agreement (SLA) in this document shall become time-barred six (6) weeks after the Incident occurred. Claims with respect to Defects shall become time-barred twelve (12) months from their respective accrual. All other claims that you may be entitled to shall become time-barred six (6) months from the date on which you became aware or should have become aware of the respective claim, but no later than twelve (12) months from their respective accrual. Any claims based on intent shall not be affected thereby. 18 – Term and Termination 18.1 If you submit your registration for the Circuit subscription, the Agreement becomes effective on the date your registration is accepted, as indicated through the confirmatory email which will be sent to you, or through the confirmation by Nexus IP. If you obtain Circuit “offline”, e.g. from one of Nexus IP’s sales representatives, the Agreement becomes effective on the date it is signed by you and Nexus IP or on the individually agreed date (each the “Effective Date”). 18.2 The minimum term of a paid-for subscription is twelve (12) months from the Effective Date. Thereafter, the term shall renew automatically for consecutive twelve (12) month periods until the Agreement is terminated with a notice period of three (3) months to the end of the minimum term or any extension term. A different minimum term may apply, depending on special offers. 18.3 Nothing in this Agreement shall be construed to limit the right of you or Nexus IP to terminate for good cause in accordance with Applicable Laws. 18.4 Without limitation to Unify’s rights to terminate stipulated elsewhere in this Agreement, Unify may terminate the Agreement for good cause with immediate effect if: (a) You fail to make a due payment within thirty (30) days of the receipt of a written reminder; (b) You stop your payments due to a petition for the commencement of insolvency proceedings being filed against your assets, or if insolvency proceedings are opened against your assets, or if the opening of insolvency proceedings is rejected due to a lack of assets; (c) If Unify is forced to do so in order to comply with Applicable Laws; (d) If Unify is ordered to do so by a competent court or authority; (e) If you are otherwise in material breach of your obligations under the Agreement and fail to remedy the breach without undue delay but no later than thirty (30) days after receipt of a written reminder, unless a reminder is not necessary by law. 18.5 Without liability to you, each and any Circuit User who does not comply with the terms of this Agreement, the Acceptable Use Policy (AUP) or the Support Forum Rules (SFR) for Circuit, which are posted on the Circuit portal on Nexus IP’s website, may be suspended, provided the dispute resolution procedure was not successful. Your Circuit Tenancy may also be suspended in its entirety or in parts without notice and without giving prior notice, if: (a) it is reasonably determined that you have grossly violated this Agreement (b) Unify or Nexus IP are ordered to do so by a court or authority in any country. Upon such suspension, access to all of your Circuit Users and Circuit User Data may be deactivated or barred, without refund or compensation. 18.6 Upon receipt of the termination notice, you will be provided with a facility from which you can download your Circuit User’s Circuit User Data prior to the expiry of the Agreement unless prohibited by Applicable Laws. In general, the download facility will be made available for up to thirty (30) days from expiry of the Agreement. Upon expiry of that period, all of your Circuit User Accounts will be completely removed together with all Circuit User Data that such Circuit Users may have (still) stored in Circuit. Upon the termination becomes effective, you will erase or otherwise destroy all copies of the downloadable software, including apps or plugins that you may have obtained through your subscription to Circuit. With the exception of the download facility, you will also cease to use any part of Circuit even if it should still be available to you.
In the event Unify terminated the Agreement for good cause attributable to you, Unify may make access to the download facility dependent on the payment of all outstanding fees, and prepayment of the fees for the relevant time during which the download facility is to be provided. 18.7 Notwithstanding any minimum term commitment, the Agreement may be terminated by Nexus IP at any time with effect to the end of a calendar month, giving at least one (1) year advance notice, if Unify declares Circuit to be end-of-life. 19 – Changes to Circuit and the Agreement 19.1 Unify may, at any time and at its sole discretion, further develop and expand Circuit and may replace or update or extend certain functionalities of Circuit by functionally equivalent functions. Unify or Nexus IP may select and/or modify at their sole discretion the equipment, hardware, software including utilities and tools, telecommunications equipment and terminals, IT systems and other items including the associated documentation (e.g. operating instructions, application guides and specifications) and the configuration used to provide Circuit to you, provided that this does not materially impair the provision of Circuit to you. Where feasible, Nexus IP will announce possible changes in Circuit that affect the system requirements, adequately in advance. 19.2 At any time, the terms of this Agreement and the other terms and conditions referenced by it may be changed, or functionality be added or removed or other changes be implemented that require changes on your side, such as a change of your browser, microphone settings or the exporting of data. In this case, Nexus IP will provide you with thirty (30) days notice by sending an email to the Customer Contact, and, at their discretion, also in other suitable forms. If you do nothing and continue to use Circuit after the change becomes effective, you are deemed to have accepted the changed terms.
If you do not want to accept the changed terms, you may terminate your subscription to Circuit with effect as of the date the change to the terms of the Agreement becomes effective. In this case, you must send Nexus IP a notice.
If a change has to be implemented because there is a requirement under Applicable Laws which cannot be reasonably and in a legally compliant manner be avoided or circumvented, Nexus IP will still inform you of the changes, but you do not have a right to terminate. 20 – Fees The Fees and payment terms for Circuit are described in Annex Payment and Pricing Terms (PPT). 21 – Subcontractors You understand that Unify and Nexus IP may, at their sole discretion, use subcontractors and third-party suppliers for the performance of any obligations under the Agreement. Obligations under section 10 shall not be limited thereby. 22 – Export Control Regulations 22.1 Any obligations of Unify or Nexus IP under the Agreement are subject to the proviso that fulfillment is not restricted by any impediments arising out of the Applicable Export Control Laws. You, the Customer, represent that you are not a citizen of an embargoed country or a prohibited end user under Applicable Export Control Laws. 22.2 If you transfer Goods (for the purpose of this section, the term “Goods” refers to hardware and/or software and/or technology as well as corresponding documentation that is made available to you in any form, regardless of the mode of provision and explicitly including software that is made available in SaaS form, including Circuit) delivered by Nexus IP, or works or services (including all kinds of technical support) performed by Nexus IP, to a third party, or if you re-export such Goods, works or services, you must comply with the Applicable Export Control Laws. 22.3 Prior to any transfer or export/re-export of Goods, works or services, you must in particular check and ensure by taking appropriate and verified contractual, technical and organisational measures that: (a) there will be no infringement of an embargo imposed by the Federal Republic of Germany and/or the European Union and/or the United States of America and/ or the United Nations by such transfer or export, by brokering of agreements concerning those Goods, works or services or by provision of other economic resources in connection with those Goods, works or services, also considering the limitations of domestic business and prohibitions of by-passing those embargos;a) there will be no infringement of an embargo imposed by the Federal Republic of Germany and/or the European Union and/or the United States of America and/ or the United Nations by such transfer or export, by brokering of agreements concerning those Goods, works or services or by provision of other economic resources in connection with those Goods, works or services, also considering the limitations of domestic business and prohibitions of by-passing those embargos; (b) such Goods, works and services are not intended for use in connection with armaments, nuclear technology or weapons, if and to the extent such use is subject to prohibition or authorisation, unless you have obtained the required authorisation; (c) you are at all times in compliance with the regulations of all applicable “Sanctioned Party Lists” or “Denied Persons Lists” or similar lists of the Federal Republic of Germany, the European Union and the United States of America concerning the trading with entities, persons and organisations listed therein. 22.4 If so required to enable a competent export control or customs authority or Unify or Nexus IP to conduct export control or customs checks, you will, upon Unify’s, Nexus IP’s or such authority’ request, promptly provide Unify, Nexus IP and the authority with all relevant information pertaining to the particular end-user or end-customer (e.g. the Circuit Users), the particular destination and the particular intended use of the Goods, works and services provided by Unify, as well as any export control restrictions required by Applicable Export Control Laws. 22.5 You will indemnify and hold harmless Unify and Nexus IP from and against any claim, proceeding, action, fine, loss, cost and damages arising out of or relating to any non-compliance of Customer with this section 22 and any breach of Applicable Export Control Laws, and you will compensate Unify and Nexus IP for all losses and expenses resulting thereof. 23 – Special Provisions for FREE subscriptions and TRIALS 23.1 The terms of this section apply to FREE service package and TRIAL subscriptions only, and take precedence over any other term of the Agreement with respect to FREE service package or TRIAL subscriptions only. Please read carefully, as these subscriptions are subject to certain limitations not applicable to a paid-for subscription. 23.2 Under a subscription to the FREE service package for Circuit, Circuit will be provided to you without charge. The FREE service package is subject to certain technical and functional limitations, as described in the Product and Service Description (PSD), which is posted on the Circuit portal on Nexus IP’s website. You are under no obligation to purchase a paid-for subscription, and we are under no obligation to offer you a paid-for subscription. 23.3 You may upgrade from a FREE service package subscription to a paid-for subscription at any time. 23.4 Nexus IP will not charge you for the FREE or TRIAL service package, and in turn you will not charge Unify or Nexus IP for anything you do with, or submit to, Circuit, including Feedback. You will bear any and all costs for using of your FREE or TRIAL service package subscription. You bear the risk of, and the cost of, any loss of data, loss of revenue, time and effort caused by your use of a FREE service package subscription. 23.5 There is no specific time limit to the FREE service package subscription, but there is no warranty that subscriptions to the FREE service package will always be available. Unify or Nexus IP may discontinue to allow, or terminate, FREE service package subscriptions, or alter their service package at any time, giving at least four (4) weeks advance notice. You should not use a FREE Service package subscription or Trial subscription (as further described in section 23.8 below) with any data that you cannot afford to lose or with data of which you do not have a separate backup physically stored outside of Circuit, unless you intend to purchase a subscription later. Keep this in mind when entering or creating or receiving data using the FREE service package or a trial subscription. 23.6 Circuit is provided “as is” under the FREE or a trial subscription i.e. reasonable efforts will be used to provide Circuit to you, but service level commitments as per the Service Level Agreement (SLA) in this document do not apply. You understand that Circuit may not be available at all times and that no SLA credits are available to you under these subscriptions. You accept that the availability of Circuit may even be less than the lowest commitment Unify gives to paid-for subscribers.
You understand and accept that you assume all risks of use, quality, and performance with respect to the trial use. Nexus IP and Unify disclaim any and all warranties with respect to Circuit and the related Documentation, whether express or implied, including specifically implied warranties of merchantability and fitness for a particular purpose. Nexus IP and Unify disclaim any liability for any problems in or caused by your trial use of Circuit, whether direct, indirect, special, or consequential, including loss of profits. 23.7 Nexus IP and Unify’s liability for the injury of life, body or health, for intent or in the case of mandatory statutory liability, e. g. under the German Product Liability Act, shall remain as per the Applicable Law. Any other claims for damages based on whatever legal reason, in particular loss of profit, data and/or information, consequential harm caused by a Defect, including infringement of duties arising in connection with the contract or tort, shall be excluded.
Nothing in this section intends to limit Nexus IP and Unify’s mandatory statutory liability for intent, bodily damage, fraudulent behaviour, misrepresentation or under applicable product liability law. This also applies to any other liability which cannot, by Applicable Law, be excluded. 23.8 A TRIAL subscription may be individually arranged with Nexus IP. In addition to the provisions applicable to Free subscriptions above, the following applies to any Free subscription that has been upgraded to a trial subscription: (a) You must have a FREE subscription which will then, for the term of the trial, be upgraded to have the advanced functionalities that are usually only available in the paid-for service packages. (b) Nexus IP does not charge you for the trial, but you understand that the service levels and SLA credits stipulated in the Service Level Agreement (SLA) do not apply. (c) Once your trial period nears its end, Nexus IP may contact you if you would like to purchase a subscription. (d) In the event you elect to upgrade to a paid-for service package, all of your existing Circuit Users and their Circuit User Data will be migrated and available under the new subscription plan. (e) In the event you do not want to purchase a subscription, upon expiry of the TRIAL term, your subscription will be terminated. You will not be able to continue the subscription with the FREE service package. (f) Nexus IP or Unify may elect to cease offering new TRIALS at any time. 24. General Provisions 24.1 Proprietary Rights
As to the trademarks, industrial design marks, names or domain names of Unify and of Unify’s suppliers (for the purpose of this clause, “Marks”), they retain ownership of all Intellectual Property Rights in all of the Marks associated with or used in or displayed with Circuit. You may not frame or utilise framing techniques to enclose any Marks of Unify or of Unify’s suppliers, or other proprietary information
(including images, text, page layout, or form) of Unify or Unify’s suppliers without Unify’s express written consent. You may not use any meta tags or any other “hidden text” utilising Unify’s or Unify’s supplier’s Marks without the respective Mark owner’s written consent.

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