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Terms and Conditions of Masterplan com GmbH

1. Contracting Parties and Definitions

(1) These General Terms and Conditions (“GTC”) apply to all contracts for internet-based access to the Masterplan Learning Experience Platform concluded between Masterplan com GmbH, Dircksenstraße 47, 10178 Berlin, Germany (“Masterplan”) and its contractual partners (“Customer”), who are not consumers within the meaning of Section 13 of the German Civil Code (“BGB”) or other relevant statutory provisions. Deviating GTC of the Customer do not apply to contracts unless Masterplan expressly agrees to their application in writing.

(2) The following definitions apply to these GTC:

“Digital Learning Content” means all training offerings that are published and available on Masterplan’s Learning Experience Platform and those that will be published there by Masterplan in the future.

“Force Majeure” means the platform operated by Masterplan under the URL, including all functions and Digital Learning Content.

“Learning Experience Platform“ means the platform operated by Masterplan under the URL, including all functions and Digital Learning Content.

“Named User License” means the maximum number of Named Users of the Customer authorized to use Masterplan’s Services as agreed under the contract, regardless of whether the Named Users have already registered for and/or are using the Services.

“Named User” means a user of Masterplan’s Services who has registered as a user by name through the Learning Experience Platform.

“Party/Parties” means Masterplan and/or the Customer.

“Confidential Information” means all information and documents, regardless of the manner of their embodiment or reproduction, including contractual documents, provided to one Party by the other Party, which are not publicly available or the content of which indicates that they are obviously intended to be kept confidential. Confidential Information includes, in particular, technical, business and other information, for example, information relating to technologies, research and development, products, Services, prices of products and Services, customers, employees, subcontractors, marketing plans, financial matters.

2. Subject and Conclusion of the Contract

(1) Masterplan operates the Software-as-a-Service Learning Experience Platform for the purpose of enabling training of the Customer’s employees via the internet and makes it available to its Customers.

(2) The subject of the contract is internet-based access to the Masterplan Learning Experience Platform in its current version, with the implemented functionalities, as well as the use of the Digital Learning Content provided by Masterplan on the Learning Experience Platform by the Customers for the duration of the contract (the “Services“).

(3) The Services include the provision of the necessary storage space for the contractual use of the functions of the Learning Experience Platform as well as the storage of the data generated from the use of the Learning Experience Platform by the Customer and/or its Named Users on a server of Masterplan during the term of the contract. The concrete scope of Services and functions as well as the agreed remuneration model and the number of Named Users result from the respective offer made by Masterplan to the Customer. If the Customer wishes to activate additional Named Users, this requires a corresponding supplementary agreement between the Parties.

(4) The Services are operated on the basis of a Named User model, i.e. the Services may only be used by employees of the Customer who have registered as Named Users by name via the Learning Experience Platform.

(5) Unless otherwise agreed in the offer, the contract shall be concluded upon signature of the offer by both Parties.

3. Scope of Services

(1) During the term of the contract, the Customer shall be granted access to all functions of the Learning Experience Platform, including Named User management and Named User license management. This also includes the course program currently available on the Learning Experience Platform. Masterplan grants access to the Learning Experience Platform to the Named Users named by the Customer to the extent of the agreed maximum number of licenses.

(2) Further Services by Masterplan are not part of the contract. There is no possibility of interaction with individual speakers regarding the Digital Learning Content of individual learning modules.

(3) The transfer point for Masterplan’s Services to the Customer is the router output of Masterplan’s server or the external data center service provider commissioned by Masterplan. In all other respects, the use of third-party computer systems and lines on the internet falls within the Customer’s sphere of risk.

(4) Masterplan is entitled to amend these GTC as well as to revise the Services and expand the scope of functions without significantly restricting the agreed Services. Masterplan will notify the Customer of any changes to these GTC four (4) weeks before they come into effect in writing or by e-mail to the contact address provided. In doing so, Masterplan will inform the Customer of the changes as well as the deadline for objection and inform the Customer of the consequences of objection. The objection can be made by email to the address provided. If the Customer does not object to the change in writing or by email within a period of four (4) weeks from receipt of the change notification, the change will become part of the contract. If the Customer objects, the Parties shall agree on a solution by mutual consent. In case of non-agreement Masterplan is entitled to terminate the contract.

4. Availability of Services

(1) Masterplan shall make the Services available to the Customer for use 24 hours and 365 days per calendar year. Masterplan warrants an availability of the Services in the amount of 99% per calendar year (“SLA”).

(2) Masterplan shall be entitled to interrupt the Services for five (5) hours per month for maintenance if work needs to be performed on its server and/or other service content that cannot be performed without interrupting the Services. Masterplan will schedule the maintenance windows, if possible, outside of normal working hours. The times of the maintenance windows are not considered times of unavailability within the meaning of section 4 (1) of these GTC.

(3) Masterplan will inform the Customer as far as possible in advance about maintenance work, line interruptions and their expected duration as well as about any disruptions via the website.

(4) Masterplan is not responsible for internet or network-related downtimes and in particular for downtimes during which the Services cannot be accessed via the internet due to technical or other problems beyond Masterplan’s control, such as Force Majeure, fault of third parties, etc.

5. Rights of the Customer, Conditions of Use

(1) The respective accounts of the Named Users are not transferable, not even to other employees of the Customer.

(2) The use of the Services is technically dependent on the registration of the respective Named User. For this purpose, the Named User must log in with his email address and a password chosen by the Named User. Subsequently, the Named User must enter at least the full name and the field of activity in the profile. The remaining profile data is voluntary. With the invitation of the Named User, the respective license is considered granted. The Customer can only assign the respective license again after deactivation of the Named User.

(3) The technical access requirements and recommendations necessary to use the Services (e.g., with regard to browser software) are set forth under described in the section “IT requirements”.

(4) The Customer is entitled to upload own learning content to the Learning Experience Platform. The use of this content is exclusively available to the Customer’s Named Users. For the duration of the contract, the Customer grants Masterplan a non-exclusive right to store the Customer’s own learning content on the Learning Experience Platform for use by the Customer and its Named Users, to create backups, to share it with subcontractors as necessary, and to keep it available for retrieval. Upon expiration of the contract, Masterplan will delete the Customer’s own learning content from the Learning Experience Platform. The customer is obliged to back up its own learning content before the end of the contract.

(5) In connection with the Named User licenses Masterplan grants the Customer the non-exclusive, non-sublicensable and non-transferable right for the term of the contract to use the Services in accordance with the contract and/or to permit its Named Users to use the Services. The right of use is limited to the purpose of training the Named Users.

(6) All rights to the Services remain with Masterplan. The Customer is not entitled to copy the Digital Learning Content or any other content from Masterplan onto its own computers or otherwise outside Masterplan’s server system.

(7) The Customer may not transfer the Digital Learning Content and other content of Masterplan to third parties (i.e. neither sell, nor rent or lend it) and may not make it accessible to third parties.

(8) The Customer may not translate, modify, edit, decompile, reverse engineer or disassemble the Digital Learning Content and other content of Masterplan. Legally binding rights under the German Federal Copyright Act (Urhebergesetz) remain unaffected.

6. Obligations of the Customer

(1) The Customer shall create the necessary Customer-side requirements for use, in particular the system requirements, infrastructure as well as for the telecommunication connection between the Customer and Masterplan up to the handover point itself.

(2) The Customer is obliged to check its own learning content, data and information for viruses or other harmful components prior to input and to use state-of-the-art virus protection programs for this purpose.

(3) The Customer shall take the necessary precautions to prevent the use of the Services by unauthorized persons. For this purpose, the Customer shall, to the extent necessary, instruct its employees to comply with copyright law. The Customer shall inform Masterplan immediately if it is suspected that passwords may have become known to unauthorized persons.

(4) The Customer shall also be responsible for monitoring its personnel and in particular the Named Users. He is obliged to ensure them to comply with the provisions of the contract applicable to them.

(5) The Customer shall ensure that the Named Users only select secure passwords for access in order to guarantee adequate access protection to the accounts.

(7) The Customer may not circumvent or disable security measures set up by Masterplan and may not modify Masterplan’s Digital Learning Content.

(8) The Customer itself is responsible for making backup copies of its own learning content and/or data of Named Users before placing them on the Learning Experience Platform. Insofar as the Services make this technically possible, the Customer or Named User must also regularly back up the data generated by it during the use of the Services by downloading and creating its own backup copies.

(9) The Customer may not use the Services for illegal purposes.

(10) If the Customer becomes aware of disruptions, it must notify Masterplan immediately of any disruptions to the Services and – insofar as it is possible – support Masterplan to a reasonable extent in determining the disruption and its causes as well as its elimination.

7. Contract Term

(1) Unless otherwise agreed in the offer, the contract shall enter into force on the next 1st day of the month after signature by both Parties and shall have a contractual term of one (1) year (“Contract Year“).

(2) After expiration of the first Contract Year, the contract shall be automatically extended by one (1) additional year in each case, unless it is terminated by one of the Parties with four (4) weeks’ notice to the end of the Contract Year.

(3) The right to terminate the contract for an important cause remains unaffected. In particular, Masterplan is entitled to terminate the contract without notice if the Customer fails to make due payments despite a reminder and the setting of a grace period or violates the contractual provisions regarding the use of the Learning Experience Platform and the Services. Termination without notice requires in any case that the other Party is warned in writing and requested to eliminate the alleged reason for termination without notice within a reasonable period of time.

(4) After termination of the contract, the Customer shall no longer be entitled to use the Services, including the Learning Experience Platform or parts thereof.

8. Naming as Reference Customer

(1) Masterplan is entitled to name the Customer as a reference customer in press releases or other marketing materials as well as on Masterplan’s website. The Customer may object to the naming in writing (email is sufficient).

(2) The indication can also be made with the representation of the Customer’s company logo. For this purpose, the Customer grants Masterplan a simple, temporally and spatially unrestricted, non-transferable right of use with regard to the name and trademark rights required for this purpose.

9. Renumeration

(1) For the provision of the Services, the Customer shall pay a service fee in the amount agreed in the contract per Named User License per Contract Year.

(2) The service fee is independent of usage and is also due if fewer than the agreed maximum number of Named Users register according to purchased Named User licenses and/or Named Users do not use the Service.

(3) The service fee shall be payable in advance for each Contract Year in accordance with Clause 9(4).

(4) The respective service fee shall be paid within 30 days after receipt of the respective invoice from Masterplan by the Customer to the business account of Masterplan specified in the invoice. All amounts are subject to the applicable value added tax.

10. Liability for Defects, Liability

(1) Masterplan warrants the functional and operational readiness of the Learning Experience Platform and the Services in accordance with the terms of these GTC.

(2) Masterplan is entitled to immediately block the content published by the Customer or, in special cases, access to the Learning Experience Platform, if there is reasonable suspicion that the learning content published and stored by the Customer is illegal and/or infringes the rights of third parties. A reasonable suspicion of illegality and/or infringement of rights exist in particular if courts, authorities and/or other third parties inform Masterplan thereof. Masterplan must notify the Customer of the block and the reason for the block without delay. The block must be lifted as soon as the suspicion is invalidated.

(3) Masterplan’s liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contractual negotiations and tort, shall be limited in accordance with this Clause 8, insofar as fault is relevant in each case.

(4) Masterplan shall not be liable in the event of simple negligence on the part of its executive bodies, legal representatives, employees or other vicarious agents, unless this involves a breach of material contractual obligations. Material contractual obligations are the obligation to provide the Services in a timely manner, their freedom from defects that impair their functionality or usability more than insignificantly, as well as any consulting, protection and custody obligations that are intended to enable the Customer to use the Services in accordance with the contract or are intended to protect the life and limb of the Customer’s personnel or to protect the Customer’s property from significant damage.

(5) Insofar as Masterplan is liable on the merits for damages pursuant to Section 10(3), this liability is limited to damages that Masterplan foresaw as a possible consequence of a breach of contract at the time the contract was concluded or that Masterplan should have foreseen by exercising due care. Indirect damages and consequential damages that are the result of defects in the Services are also only compensable insofar as such damages are typically to be expected when using the Services as intended.

(6) The above exclusions and limitations of liability apply to the same extent in favor of Masterplan’s executive bodies, legal representatives, employees and other vicarious agents.

(7) Masterplan is not liable in the event of Force Majeure. This applies in particular to a failure to comply with the availability promise in section 10(1) of these GTC.

(8) Masterplan is not liable for the loss of data insofar as the damage is due to the fact that the Customer failed to perform data backups prior to the transmission of the data and/or later – insofar as it was technically possible for the Customer to do so – and thereby ensure that lost data can be restored with reasonable effort.

11. Liability for Defects, Liability

(1) The Parties shall keep confidential all Confidential Information communicated by one Party to the other Party under the contract or received from the other Party and use it solely for the purpose of providing the Services.

(2) The Parties shall protect Confidential Information from unauthorized access and shall treat it with the same care that they apply to their own equally Confidential Information, but at least with the care of a prudent businessman.

(3) These confidentiality obligations do not apply to information that

1. were known to the receiving Party before it received them from the other Party under the contract; or

2. the receiving Party has developed independently without recourse to Confidential Information of the other party, or

3. the receiving Party has obtained from a third party who is not bound by restrictions on the use and disclosure of such information; or

4. is or becomes generally known through no fault or action of the receiving Party; or

5. which a Party has exempted from confidentiality by written declaration to the receiving Party.

12. Liability for Defects, Liability

(1) The Parties shall comply with the applicable data protection provisions. Insofar as the Customer requests special processing by Masterplan, the Customer shall ensure that it is also authorized to process the personal data.

(2) Masterplan shall act as a processor for the Customer in the provision of its services in accordance with the separately agreed data processing agreement.

13. Liability for Defects, Liability

(1) The contract as well as the agreements made under it are subject to the law of the Federal Republic of Germany excluding the UN Convention on Contracts for the International Sale of Goods. The exclusive place of jurisdiction is the registered office of Masterplan.

(2) There are no verbal agreements to the contract. Amendments or supplements to the contract must be made in writing to be effective. The same shall apply to any waiver of this written form requirement.

(3) If individual provisions of the contract may be or may become invalid or unenforceable, this shall not affect the validity of the remaining provisions of the contract. The invalid or unenforceable provision shall be replaced by a provision that comes as close as possible to the economic purpose of the invalid or unenforceable provision. The same shall apply in the event that the Parties subsequently determine that the contract is incomplete.

June 2021

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