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General Terms & Conditions for Movilizer Partner Agreements

1. SCOPE OF APPLICATION

1.1 These General Terms and Conditions Movilizer' Partner Agreements ("GTC") apply to all agreements between Movilizer GmbH, a German corporation, with its offices at Konrad-Zuse-Ring 30, 68163 Mannheim, ("Movilizer") and its partners ("Partners") setting forth the terms and conditions applicable to the following partner types:

  • Authorized Partner;
  • Certified Partner;
  • Expert Partner; or
  • ISV Partner;

Movilizer and the Partner shall enter, according to the partner type of the Partner, in a specific partner agreement (the GTC and any specific partner agreement collectively "Agreement"). In the event of any conflict between the GTC and any specific partner agreement, the specific partner agreement shall prevail.

1.2 No other general terms and conditions, including Partner's general terms and conditions (if any), form any part of the Agreements, even if Movilizer has performed an agreement without rejecting such general terms and conditions.

 

2. DEFINITIONS

The following capitalized terms, and any defined terms in the Agreement, shall apply to the Agreement:

  • Authorized, Certified and Expert Partners - These are implementation partners as such that the companies are allowed to respond to market demand, extend Movilizer offers to the market and deliver services related to the Movilizer offering in order to develop applications, train users, maintain installations and applications throughout the complete application lifecycle and offer the customer 2nd line support services.
  • Affiliate means a corporation, partnership, or other entity, either directly or indirectly controlling or controlled by a Party.
  • Commissions mean the commissions to be paid by Movilizer to the Partner for any sale of the Products, as defined and specified in the specific partner agreement. It covers the Referral Fee as well as the Sales Commission as per Partner Agreement.
  • Customer - Any organisation that uses the Movilizer Enterprise Platform to connect its mobile workforce to its backend systems or utilizes the Movilizer Enterprise Platform capabilities to serve as its Standalone System, whilst working with mobile clients that run Movilizer Client software, is categorized as a "Customer".
  • Developer's & Demo Account - Each registered partner will be able to freely set up a system ID on the Movilizer cloud and download any of the available Movilizer Connectors as well as any of the Movilizer Standard Applications in order for him to test, evaluate and showcase the system to his customers. The demo-account will be restricted in terms of annual volume and a maximum number of connected devices and the license will not allow any applications to run in a production environment for any of the partner's customers. Terms and Conditions for Developer and Demo Accounts are detailed in this Document in Chapter 6.4.
  • Reseller Partners mean ISV Partners only, in case they opt to act as a reseller of the Products.
  • Partners Fees mean the fees to be paid by the Partners to Movilizer for their appointment as Partner, as defined and specified in the specific partner agreement.
  • Fees mean the fees to be paid by the Partner to Movilizer for the purchase of the Products, as defined and specified in the specific partner agreement.
  • Local Movilizer Branch (LMB) means a sales office directly associated with Movilizer for a geographical unit.
  • Mobile Apps mean software applications that are provided by Movilizer to third parties, as defined and specified in the specific partner agreement, or, if not defined, includes any mobile applications as published on www.movilizer.com.
  • Partner(s) means any partner contractual party bound to a Partner Agreement.
  • Party means Movilizer or Partner; Parties means Movilizer and Partner.
  • Products mean both the Services and the Mobile Apps.
  • Referral Partners mean Authorized, Certified and Expert Partners always, and ISV Partners in case they opt to act as agents for the Products.
  • Second Level Support is a more in-depth technical support level and requiring more experience and knowledge on the Product providing the ability to resolve all custom developed coding, basic technical problems and for investigating elevated issues by confirming the validity of the problem and seeking for known solutions related to these more complex issues.
  • Third Level Support means the highest level of technical support for the Product, responsible for handling the most difficult or advanced problems that cannot be resolved with reasonable effort by a suitably experienced Second Level Support.
  • Services mean training services, SaaS Services and other IT-professional services for ramp-up, pilot and quality assurance activities to be provided by Movilizer to third parties, as defined and specified in the specific partner agreement.
  • System Integration - Partners are allowed to deliver also the integration work needed to connect the Movilizer Enterprise Platform to the customer's backend system he wishes to interface with the mobile applications.
  • ISV Partners - These are companies that market their own software solution that serves as backend system or as middleware to the customer's backend system and from which they want to expose certain processes to mobile clients and therefore have selected to leverage on the Movilizer Enterprise Platform and the associated technologies developed by Movilizer. Under the conditions of the ISV Partnership, they are not allowed to provide system integration work to customers if their own designated software product is not serving as the backend or middleware system in a project. Should they wish to be able to do so, they need to sign up as an Authorized, Certified or Expert Partner as well and for such projects, their remuneration will be set up according to the clauses stipulated for this category of partners.
  • Territory means the geographic area composed of a country or a group of countries as defined and specified in the specific partner agreement for which the Partner will be appointed as Referral Partner or as Reseller Partner of Movilizer for the sale of the Products.
  • Trademark means a trademark, logo or any other marking owed my Movilizer in respect of any partner type, as amended from time to time by Movilizer in its sole discretion.

 

3. REFERRAL PARTNERS - RIGHTS AND OBLIGATIONS

3.1 The Referral Partner shall solicit the sale of the Products within the Territory. It shall endeavour to obtain business in the name of Movilizer and for the account of Movilizer, and shall serve the interest of Movilizer to the best of its ability.

The Referral Partner shall inform Movilizer regularly about every new sales opportunity, any order initiated or received, thereby transmitting the opportunity details or original of the order so solicited to Movilizer for acceptance.

The Referral Partner shall not deviate from the prices, delivery and payment conditions of Movilizer and from Movilizer' General terms and Conditions Movilizer' Services and Licenses without prior written consent.

3.2 Movilizer shall supply to the Referral Partner at regular intervals all information necessary for the conduct of its business in respect of the Products.

3.3 Referral Partners are obligated to provide support for any of their Customer projects for Movilizer product, which Referral Partner provided implementation services for. Customers of a Referral Partner are entitled to initiate a direct interaction with Movilizer support, but Movilizer support unit might reject support request in case it asses resolution to the support request can be provided by Partner implementation or problem resides inside an implementation provided by Referral Partner.

3.4 Movilizer may market and distribute the Products directly or indirectly to third parties inside or outside the Territory. The Referral Partner acknowledges that Movilizer may appoint other Referral Partners, other Resale Partners inside and outside the Territory.

3.5 Referral Partner shall not develop and/or design any service or product, which is identical or similar to the Movilizer Service (SaaS), and not to file for any patents in respect of and/or in connection with the Products, including without limitation the Movilizer Service (SaaS).

 

4. RESALE PARTNERS - RIGHTS AND OBLIGATIONS

4.1 Resale Partners are entitled to buy, in accordance with

  • the Agreement; and
  • Movilizer' General Terms and Conditions Movilizer' Services and Licenses, as amended from time to by Movilizer in its discretion;

Services and Mobile Apps by using the purchase process defined and specified by Movilizer, as amended from time to time by Movilizer.

Movilizer is entitled to reject any order, however only by giving due reasons for not accepting and executing the respective order.

4.2 Resale Partners are entitled to sell the Products acquired in accordance with Section 4.1 to third parties as follows:

  • In respect to the Services, Resale Partners are entitled to resell the Services to a customer in accordance with the Agreement. For this purpose, the Parties hereby agree that Movilizer will provide its Services to the Resale Partner. In consequence, vis-à-vis any customer of the Resale Partner, Movilizer will act as subcontractor.
  • In respect of the Mobile Apps, Resale Partners are entitled to resell the Mobile Apps in accordance with the Agreement to customers by passing on the right to use the Mobile Apps to customers and by entirely ceasing and desisting from their own use in respect of such Mobile Apps passed on to customers.

4.3 Resale Partners shall not be bound in any way whatsoever by the prices paid to Movilizer, but shall determine at their own risk the prices for the sale of the Products to third parties.

However, in selling the Products to third parties, the Resale partner shall incorporate Movilizer' General Terms and Conditions Movilizer' Services and Licenses, as amended form time to time by Movilizer in its discretion

4.4 Resale Partners shall inform Movilizer of any new sales opportunity and all sales effected to customers by sending copies of the respective order confirmations.

4.5 Resale Partners shall buy and sell the Services and Mobile Apps in their own name and their own account.

Resale Partners "are entitled to sell to": Customers, i.e. third parties using the Services and/or the Mobile Apps for their own and/or their Affiliates business purposes ("Customers") having their principal place of use of Movilizer Products in regards to Partner's implementation within the Territory; the sale might be solicited by further Referral Partners of the Resale Partner, but Movilizer will not pay any Commission to such partner of the Partner.

Movilizer may market and distribute the Products indirectly to third parties inside the Territory. The Resale Partner acknowledges that Movilizer may appoint other Referral or Resale Partners and LMBs inside the Territory.

4.6 Resale Partner "has to buy from": If the Customer has its principal place of use of Movilizer Products in regards to Partner's implementation in a territory for which, or the Resales Partner has its principal place of business in a territory for which

  • an LMB is appointed: LMB;
  • no LMB is appointed: Movilizer.

4.7 Resale Partners are obligated to provide Second Level Support for any of their Customer projects for Movilizer product. No Customer of a Resale Partner is entitled to initiate a direct interaction with Movilizer support, but instead is required to initiate a support request through Resale Partner, which after qualification will solve Second Level Support issues directly and forward only Third Level Support issues to Movilizer support unit.

4.8 Resale Partners

  • shall invest in marketing activies to advertise and solicit sales of the Products inside the Territory in accordance with the business plan agreed between the Parties and invest the minimum investment costs agreed upon in the specific partner agreement;
  • shall not be entitled to act as agent, representative or reseller, dealer or alike for products or services being held competitive to the Products to the Movilizer Service (SaaS) and the Mobile Apps; and
  • shall not develop and/or design any service or product, which is identical or similar to the Movilizer Service (SaaS), and not to file for any patents in respect of and/or in connection with the Products, including without limitation the Movilizer Service (SaaS).
  • Shall purchase quality assurance services from Movilizer for any implementation project of the Products at the price specified in the Partner Agreement.

 

5. FURTHER RIGHTS AND OBLIGATIONS

5.1 Nothing in the Agreement shall constitute the right of the Partner to represent Movilizer in any way whatsoever. The Partner shall have no authority whatsoever to enter into any obligations on behalf of Movilizer.

5.2 Any Partner shall not solicit any sales of the Products outside of its Territory. It shall restrict its efforts to advertise and solicit sales of the Products to activities executed within its Territory. However, it may sell the Products to third parties residing outside of the Territory in response to an unsolicited request from the third parties, which must not result from any direct or indirect active marketing and sales efforts by the Partner, however only upon prior written approval by Movilizer.

 

6. GRANT OF LICENSE

6.1 Subject to the terms and conditions of the Agreement, Movilizer grants to any Partner for the term of the Agreement the following revocable licenses:

  • a non-exclusive, non-transferable and non-assignable license to use the Trademarks as defined in the Fact Sheet Movilizer Partner Trademarks in respect of any partner type in compliance with the Agreement in order to promote the sale of the Products in the Territory only; and
  • a non-exclusive, non-transferable and non-assignable license to market and solicit the sale of the Products (and successive releases thereof) to third parties domiciling in the Territory.

The Partner shall inform Movilizer on all its major marketing and advertising activities relating to the sales of the Products in order to not divulge the identity and image of the Products. The use of the Trademarks on or in connection with any advertising, marketing, instructional or other material not provided by Movilizer shall be made in compliance with the Agreement and shall be subject to the prior written consent of Movilizer.

6.2 Subject to the terms and conditions of the Agreement, Movilizer grants to any Resale Partner for the term of the Agreement the following additional, revocable licenses:a non-exclusive, non-transferable and non-assignable license to market and distribute the Products (and successive releases thereof) to third parties domiciling in the Territory; anda non-exclusive, non-transferable and non-assignable license to operate Products for the sole purpose of demonstrating the operation and capabilities of Products to third parties in the Territory.

6.3 No Partner has any development rights regarding the Movilizer Service (SaaS) or any derivative, except for mobile applications using the API provided by the Products.

No Partner shall have any right to engage in reverse engineering of any of the Products.

6.4 As part of the partner agreement Movilizer offers an evaluation period to the Partner for integrated scenarios also. The evaluation period starts with the validity date of the partner agreement. The evaluation period ends with termination of this Agreement.

The following terms and conditions govern the installation an use of the Movilizer Service and any components required to integrate it into a backend system (the Program). By Installing and using the Program the Partner agrees to abide by the terms and conditions of this agreement. If Partner does not accept or agree with these terms, Partner may not install or use the Program.

The Program and the information provided to Partner to download the Program are exclusively for the Partner's individual use. Sharing or transfer of any of the provided, except as permitted in the agreement, is prohibited.

Within the evaluation period the Program is provided on an "as is" basis and is unsupported. This Agreement does not entitle the Partner to any maintenance or other services or any updated or new versions of the program.

Subject to Partner's compliance with the terms and conditions of this Agreement, Movilizer grants a non-exclusive, non transferable right to use the Program internally in Partner's organization on an evaluation basis for internal evaluation purposes, to provide Movilizer with feedback regarding the Program, to develop and build software applications as modified by Partner's use of the Program as permitted in this Agreement. To install Evaluation Applications on computers and configurations supported by the program.

Limitations on Use.

Partner shall make no commercial use of the Program, any Evaluation Applications, or any derivative works thereof (including for your own internal business purposes). Neither the Program nor any Evaluation Applications may be transferred, sold, assigned, sublicensed or otherwise conveyed (whether by operation of law or otherwise) to another party without Movilizer's prior written consent.

The usage of the Program might require purchase of a Volume Package at the price defined in Partner Agreement.

Upon termination of this Agreement, Partner shall cease using the Program. All disclaimers of warranties and limitations of liability shall survive any termination of this Agreement.

The Program is provided as is without any warranty whatsoever. Movilizer disclaims all warranties and conditions, express or implied, including without limitation the implied warranties or conditions of merchantable quality and fitness for a particular purpose.

Neither Movilizer, it subsidiaries, its LMB nor any of its licensors shall be liable for any loss or damage hereunder, including without limitation any inaccuracy of data, loss of profits or direct, indirect, special, incidental or consequential damages, even if such party has been advised of the possibility of such damages.

 

7. REFERRAL PARTNER - PARTNER FEES; COMMISSIONS

7.1 The Referral Partner shall pay to Movilizer the Partner Fees, as defined and specified in the specific partner agreement.

The Partners Fees have to be paid in advance, and are quoted and shall be paid in Euros, and are understood to be fees without applicable taxes (net fees).

Referral Partner undertakes to pay any applicable taxes, in particular all applicable statutory value-added taxes.

Invoices are payable net by Referral Partner within 30 days after receipt of invoice.

Referral Partner may not withhold or "setoff" any undisputed amounts due hereunder. Movilizer may refuse its part of the delivery of any products and/or the performance of any services under any agreement, until the Referral Partner renders payment, unless Movilizer is obliged to perform in advance.

7.2 Movilizer shall pay to the Referral Partner Commissions for any sale of the Products if the following preconditions are fulfilled:

  • Movilizer and a Customer solicited by the Referral Partner agree upon an order of the Products; and
  • the Customer has completely paid the amount invoiced by Movilizer for the period the commission is attributed for.

Basis for the calculation of the Commissions are the amounts invoiced to Customer (net amounts, after discounts, excluding applicable taxes) in respect of the sales of the Products.

If, due to legal regulations, Commissions will be subject to turnover tax or other applicable taxes, then the Commissions shall be understood to be the Commissions including the applicable taxes, unless otherwise agreed.

Movilizer will furnish the Referral Partner with a statement of commission due for all sales of Products based on solicited orders received by the Referral Partner and transmitted to Movilizer for acceptance no later than 2 months after the due date as per Partner Agreement.

The Commissions, to which the Referral Partner shall be entitled to in accordance with the statement of commission, are due 30 days after the Customer has completely paid the amount invoiced by Movilizer.

7.3 The Referral Partner shall not be entitled to collect monies from Movilizer' customers for any Movilizer Services or services associated with such, unless Movilizer has granted such authority to the Referral Partner expressly in writing. The Referral Partner shall not be entitled to any reimbursements, unless Movilizer has granted reimbursements for specific expenses and/or costs expressly in writing.

 

8. RESALE PARTNER - FEES; FORECASTS

8.1 The Resale Partner shall pay to Movilizer the Partner Fees, as defined and specified in the specific partner agreement.

The Partner Fees have to be paid in advance, and are quoted and shall be paid in Euros, and are understood to be fees without applicable taxes (net fees). Resale Partner undertakes to pay any applicable taxes, in particular all applicable statutory value-added taxes.

Invoices are payable net by Resale Partner within 30 days after receipt of invoice.

Resale Partner may not withhold or "setoff" any undisputed amounts due hereunder. Movilizer may refuse its part of the delivery of any products and/or the performance of any services under any agreement, until the Resale Partner renders payment, unless Movilizer is obliged to perform in advance.

8.2 The Fees to be paid by the Resale Partner to Movilizer for the purchase of the Products shall be the sole and exclusive payment to be made by the Resale Partner to Movilizer for the purchase of the Products; Section 8.1 remains unaffected.

Unless otherwise agreed upon in the specific partner agreement, the Parties agree on

  • the price lists of Movilizer, as amended by Movilizer from time to time; and
  • the discounts agreed in the specific partner agreement; and
  • Movilizer' General Terms and conditions Movilizer' Services and Licenses; Section 8.4 remains unaffected.

8.3 The Parties shall convene from time to time in order to reasonably agree the sales forecast for the forthcoming calendar quarter. Such sales forecast, if confirmed by the Partner, will not be binding upon the Parties.

8.4 Unless otherwise agreed in the applicable order, all Fees are due and payable in advance. Movilizer charges default interest at the statutory rate (5 percentage points above the basic interest rate as defined in Sec. 247 of the German Civil Code) beginning 14 days after the invoice is presented.

8.5 Movilizer retains all right, title and interest in and to the Products, until full satisfaction of its claims under the respective agreement.

Movilizer reserves the right and is entitled to suspend any Services until the Resale Partner makes the due payments for any amounts due in accordance with the Agreement in full.

 

9. TRAINING OF THE PARTNER'S STAFF

The Partner shall secure that its personnel is in the possession of the relevant know-how for the due performance of reselling and promoting the Products. Therefore, the Partner's staff will attend Movilizer partners' trainings, which shall be effected at Movilizer selection, as the case may be, in form of online trainings and/or of on-site.

 

10. Maintenance and Support Obligations of Movilizer with respect to the Products

Regarding the responsibilities of Movilizer with respect to the correction of defects in the Products as well as any other obligations of Movilizer with respect to the Products purchased by the Resale Partner, Movilizer' General Terms and Conditions Movilizer' Services and Licenses and the applicable order applies.

 

11. PROPRIETARY RIGHTS

The Partner acknowledges that Movilizer is the sole and exclusive owner of the Movilizer Services (SaaS) and of the Mobile Apps (both including any documentation thereof, if any), including without limitation any updates for and the upgrades to and the modifications of the Movilizer Service (SaaS) and/or the Mobile Apps, as well as the Trademarks.

Movilizer may provide the Products as well as its advertising, marketing, instructional or other materials with its intellectual property rights notices customary in the software industry, which notices shall not be removed by the Partner.

 

12. NON-AGGRESSION CLAUSE

If the Partner attacks and/or challenges the validity of Movilizer' intellectual property rights or raises claim against Movilizer, Movilizer shall be entitled to terminate this Agreement without prior written notice.

 

13. TERM AND TERMINATION

13.1 The Agreement shall become effective upon the Effective Date agreed upon in the specific partner agreement, and then shall run for the initial term agreed upon in the specific partner agreement.

It extends automatically for the period equal to the initial term, if not terminated by either Party with 3 months notice.

13.2 The Agreement may be terminated by either Party for good cause without observing a notice period.

Good cause shall exist in particular if circumstances occur which, taking into consideration the substance and purpose of the Agreement, would make it unreasonable for one or both of the Parties to continue the contractual relationship.

Good cause for either Party shall include, but is not limited to:

  • the other Party is in gross breach of its obligations; in such case, the Party must first demand that the breach be remedied without undue delay; should the other Party not cease its objectionable behaviour and deliver the Party appropriate verification thereof within 1 week of receiving such demand, the Party shall be entitled to terminate this Agreement without notice;
  • the other Party encounters payment difficulties or asset losses, or if insolvency proceedings are initiated in respect of its assets (e.g. bankruptcy) or if the other Party goes into liquidation.

Good cause for Movilizer shall include, but is not limited to:

  • a change of the ownership situation at the Partner in such manner that a competitor of Movilizer acquires an interest;

13.3 Any notice of termination must be in writing.

13.4 At the end of the Agreement, the Partner shall return all copies of the Products, and any other documents, manuals and/or documentations in respect of the Products in its possession to Movilizer at its own costs without undue delay or, after the written consent of Movilizer, destroy these. In addition, all documents which enable the Partner to continue the sales of the Products to existing customers must be handed over to Movilizer.

 

14. RELATIONSHIP OF THE PARTIES

Nothing in the Agreement will be deemed or construed to create a joint venture, partnership, or fiduciary relationship between the Parties for any purposes. The partners, employees, officers and agents of one Party, in the performance of the Agreement, will act only in the capacity of representatives of that Party and not as employees, officers or agents of the other Party and will not be deemed for any purpose to be employees of the other. Neither Party will commit, nor be authorized to commit or bind, the other Party in any manner.

 

15. CONFIDENTIAL INFORMATION

During the performance of the Agreement, each Party may be given access to information (in any form) that relates to the other's past, present, and future research, development, business activities, products, services, software (in both source code and object code form), and technical knowledge, or business or financial information which is the property of the disclosing party and which is identified by the discloser as confidential, or which is reasonably identifiable as confidential ("Confidential Information").

During the term of the Agreement, and for a period of 5 years thereafter, the following applies in respect of Confidential Information:

15.1 Use. A Party may use or make copies of the Confidential Information of the other Party only to the extent reasonably necessary for purposes of this Agreement, in particular for the purpose of fulfilling its obligations under the Agreement, or for the Parties' discussions regarding potential products or services to be provided by Movilizer.

15.2 Protection. Each Party will protect the confidentiality of the Confidential Information of the other in the same manner that it protects the confidentiality of its own similar confidential information, but in no event using less than a reasonable industry standard of care. Each Party will restrict access to the Confidential Information to those of its personnel and subcontractors (including personnel of such subcontractors) engaged in the performance, management, receipt or use of the products and services provided under the Agreement, provided that such personnel and subcontractors are bound by obligations of confidentiality substantially similar to the terms of the Agreement.

15.3 Return. During the term of any Agreement, each Party will return or destroy the other Party's Confidential Information in its possession upon request by the other Party, unless otherwise allowed to retain such Confidential Information. Upon the termination of the Agreement, each Party will upon request by the other Party promptly return of destroy the other Party's Confidential Information. Each Party may retain copies of the other Party's Confidential Information required for compliance with its recordkeeping, or quality assurance requirements (subject to the terms of the Agreement).

15.4 Exceptions. Nothing in the Agreement will prohibit or limit a Party's use of information (including, but not limited to, ideas, concepts, know-how, techniques, and methodologies) (a) previously known to it without an obligation not to disclose such information, (b) independently developed by or for it without use of the information, (c) acquired by it from a third party which is not, to the receiver's knowledge, under an obligation not to disclose such information, or (d) which is or becomes publicly available through no breach of the Agreement.

15.5 Compelled Disclosure. If the receiver receives a validly issued administrative or judicial process requesting Confidential Information of the other Party, it will promptly notify the other Party of such receipt and tender to the other Party the defense of such process. If requested by the other Party, the receiver will reasonably cooperate (at the expense of the other Party) in opposing such process. Unless the process is timely limited, quashed or extended, the receiver will then be entitled to comply with such request to the extent permitted by law.

 

16. MISCELLANEOUS

16.1 Entire Agreement. The Agreement, and any applicable specific partner agreement and document, which are referred to and incorporated by reference, is the complete understanding of the Parties in respect of and set forth the entire understanding between the Parties with respect to the subject matter of the Agreement and the applicable specific partner agreements, and supersedes all prior agreements, conditions, warranties, representations, arrangements and communications, whether oral or written. Each Party acknowledges that it is entering into the Agreement solely on the basis of the agreements and representations contained herein and the applicable specific partner agreement, and that it has not relied upon any representations, warranties, promises, or inducements of any kind, whether oral or written, and from any source, other than those that are expressly contained within the Agreement and any applicable specific partner agreement.

16.2 Assignment. Neither the Agreement nor any specific partner agreement can be assigned in whole or in part by Movilizer or Partner without the prior written consent of the other Party. Any purported assignment without such prior written consent will be wholly void and without effect. Approval of any requested assignment will not be unreasonably withheld.

16.3 Written Form. Neither the Agreement nor any specific partner agreement may be modified or amended except by the mutual written agreement of the Parties signed by an authorized representative of each of the Parties.

16.4 Waiver. No waiver of any provision of the Agreement will be effective unless it is in writing and signed by the Party against which it is sought to be enforced. The delay or failure by either Party to exercise or enforce any of its rights under the Agreement or any applicable specific partner agreement is not a waiver of that Party's right to later enforce those rights, nor will any single or partial exercise of any such right preclude any other or further exercise of these rights or any other right.

16.5 If a court of competent jurisdiction or arbitral panel finds any term or provision of the Agreement to be invalid, illegal or otherwise unenforceable, such term or provision will not affect the other terms or provisions of the Agreement. Such term or provision will be deemed modified to the extent necessary, in the court's or panel's opinion, to render such term or provision enforceable while preserving to the fullest extent permissible, the intent and agreements of the Parties. Upon such modification, the rights and obligations of the Parties will be construed and enforced in accordance with such modification.

16.6 Governing Law. All questions arising under or in connection with the Agreement will be exclusively governed and determined by the laws of Germany, without giving effect to its conflict of law rules and principles. To the extent it may be applicable, the Parties expressly agree to exclude the application of the U.N. Convention on Contracts for the International Sale of Goods (1980) to the Agreement.

16.7 Place of Jurisdiction. The sole place of jurisdiction for all differences arising out of or in connection with the Agreement is Mannheim, Germany.

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