Terms of Service for the SaaS solution Cakewalk (“Contract”) between:

Cakewalk Technology GmbH, Hardenbergstraße 32, 10623 Berlin, Germany (hereinafter "Cakewalk Technology") and the customer (hereinafter "Customer") – collectively referred to as the "Parties" and each individually as a "Party".

1. Services
   • Cakewalk Technology shall provide the Customer with the Cakewalk application (“Application”). The Application is provided as software-as-a-service.
   • Cakewalk will continue to develop the Application and provide updates, upgrades, and other further developments. This does not constitute a claim for the development of individual versions or the provision of new versions. Cakewalk Technology will provide new features to the Customer at its sole discretion at no additional costs.
   • Cakewalk Technology provides the following other services for the Customer: Customer Support
2. Remuneration
   • The fees for the application depend on the selected plan of the Application.
   • The ongoing fees for the Application are billed monthly or annually.
   • All prices quoted by Cakewalk Technology or listed in the Contract are stated without value added tax. If VAT is payable, the statutory VAT applicable at the time of delivery shall be added to the net price shown.
   • All remunerations shall be due for payment within 14 days after invoicing, unless expressly agreed otherwise. After expiry of the payment period, the Customer shall be in default. Cakewalk Technology shall be entitled to charge interest on arrears from the date of default in the amount of the applicable default interest rate.
   • Cakewalk Technology shall, at its own discretion, provide the Customer with the invoice by mail or transmit the invoices to the Customer electronically. The Customer agrees to electronic billing.
   • The Customer may only offset uncontested or legally established claims and may only base a right of retention on uncontested or legally established claims.
   • If a service provided under this Contract is terminated within a billing period, the relevant billing period will be billed in full. This shall not apply if the Customer has validly terminated the respective service extraordinarily.
3. Contract term and termination
   • The Contract shall enter into force at signing date. The term of the Contracts depends on the selected plan. The standard Cakewalk contract has a term of one (1) year (“Initial Term”).
   • After the Initial Term of the standard Contract (one year Term) has expired, the Contract shall be extended for a further year at a time, unless one of the Parties terminates the Contract with a notification period of four (4) weeks to the expiration of the respective Contract term.
   • The right to extraordinary termination remains unaffected.
   • Notices of termination must be declared in text form, email being sufficient.
4. Provision, operation and support of the Application
   • Date for the provision of the Application ("Provision Date"): With signature date.
   • The place of performance for the provision of the Application shall be the location of the servers operating the Application. In all other respects, Cakewalk Technology shall provide the contractual services at the registered office of Cakewalk Technology.
   • Cakewalk Technology intends that the actual availability of the Application will not be less than 98.00 % per year (“Availability”).
   • Cakewalk Technology shall be entitled to carry out regular maintenance work ("Planned Maintenance Work") but shall try to keep the interruptions of the agreed availability time as low as possible. Cakewalk Technology will inform about Planned Maintenance Work at least 2 days before the start of the maintenance work. Planned Maintenance Work is not considered when calculating downtime with respect to Availability.
   • Cakewalk Technology will respond to support requests as quickly as possible (usually within less than 24 hours). Cakewalk Technology will also use its best efforts to correct any malfunctions as quickly as possible.
   • Cakewalk Technology shall be entitled at any time to further develop, restrict or reduce the functionalities of the Application ("Modifications"). Cakewalk Technology shall inform the Customer about Modifications within a reasonable period of time. Modifications shall be communicated to the Customer either by e-mail, within the Application or by any other means of communication chosen by Cakewalk Technology. If, as a result of the Modification, the Application cannot be used by the Customer for the contractually agreed or assumed purposes, or can only be used by the Customer with severe restrictions, the Customer shall have a special right of termination. Termination shall take effect five days after Cakewalk Technology receives the notice of termination in text form.
5. Intellectual property, rights of use
   • Cakewalk Technology grants the Customer the non-exclusive right to use the Application for its own business purposes for the duration of the Contract as software-as-a-service.
   • The Customer is not allowed to, copy, translate, disassemble, decompile, reverse engineer or otherwise modify the Application, in whole or in part.
   • Cakewalk Technology shall remain the owner of all intellectual property rights in the Application and the results of other services. All intellectual property rights associated with or embodied in or resulting from the Application ("New Rights") shall belong exclusively to Cakewalk Technology. This shall also apply if New Rights are based on suggestions, specifications, feedback, requirements, ideas, contributions, comments or other input of the Customer, the users or third parties. New Rights do not include data of the Customer that is processed via the Application. Unless otherwise agreed, in relation to Cakewalk Technology, the Customer shall exclusively be entitled to all rights in and in relation to the aforementioned Customer data.
   • Subject to the conditions set forth in this section, Cakewalk Technology may create anonymized analytics with aggregated data for which (in part) data of the Customer and information resulting from the use of the Application by the Customer and the users are used (“Analytics”). The data is anonymized and aggregated for the Analytics so that it is impossible to draw conclusions about individual companies or natural persons. The Analytics data is used for product enhancements, resource and support enhancements, product performance improvements, security and data integrity reviews, new product creation, marketing purposes, and benchmarking. The Analytics and the process of anonymization are carried out in accordance with data security standards and the regulations of the General Data Protection Regulation.
   • In all cases of termination of the Contract - for whatever legal reason - the Customer is obliged to immediately stop using and accessing the Application.
6. Cooperation obligations of the Customer
   • The Customer shall cooperate in the performance of the contractual obligations to the extent necessary and free of charge. In particular, the Customer shall provide Cakewalk Technology with information and documents required for the performance of the services, which Cakewalk Technology requires for the execution of the Contract.
   • The assessment as to whether the applications meet the Customer's requirements and can be used for the Customer's economic purposes is the sole responsibility of the Customer.
   • The Customer shall take reasonable precautions for the event that the Application does not function or does not function properly. The Customer is solely responsible for the regular and complete backup of its business-relevant data and documents.
7. References
   • Cakewalk Technology is entitled to mention the Customer by name on its website and in further marketing activities.
8. Limited Warranty
   • Cakewalk Technology will make its best efforts to ensure that the Application is bug-free by following its “Zero Bug Policy” by Cakewalk Technology’s engineering team.
   • All information on the services shall not constitute a guarantee for the quality of the services, unless a guarantee has been expressly agreed in writing. A certain quality of the services cannot be derived from advertising materials, which are not specifically included as an attachment to this Contract.
   • Cakewalk Technology shall be liable without limitation for (i) intent or gross negligence, or (ii) in the event of injury to life, body, or health or (iii) insofar as Cakewalk Technology has assumed a guarantee. Liability under the Product Liability Act shall also remain unaffected. In all other events, the liability for damages and reimbursement of wasted expenditures shall be limited to EUR 10,000.00 and, in the event of data loss, Cakewalk Technology shall only reimburse the costs of recovery up to the amount that would have been incurred for the recovery of the data if it had been properly and regularly backed up.
   • Insofar as liability is excluded or limited according to this section, this exclusion or limitation shall also apply to the personal liability of the legal representatives, employees and vicarious agents (“Erfüllungsgehilfen”) of Cakewalk Technology and all subcontractors of Cakewalk Technology.
9. Confidentiality and data protection
   • The Receiving Party (defined below) may use Confidential Information of the Disclosing Party (defined below) only for the performance of contractual obligations or - to the extent necessary for this purpose - for the utilization of contractual services.
   • "Confidential Information" means information as defined in the sentence 2, which is disclosed by one Party ("Disclosing Party") to the other Party ("Receiving Party") or otherwise becomes known to the Receiving Party in the course of the project, irrespective of whether disclosed directly or indirectly in writing, orally or through the viewing of items before or after the signing of the Contract, and whether or not it is the subject of intellectual property. Confidential Information includes (i) prices and terms under this Contract, marketing strategies, financial information or projections, sales estimates, and business plans, (ii) plans for products or services, (iii) inventions, new designs, processes, formulas, or technologies, (iv) work in process, source code, (v) any other information designated as confidential or obviously identifiable as confidential information of the Disclosing Party.
   • However, Confidential Information shall not include any information that the Receiving Party can demonstrate (i) was publicly known and generally available prior to the time of disclosure by the Disclosing Party, (ii) becomes publicly known and generally available after disclosure by the Disclosing Party to the Receiving Party without any action or inaction by the Receiving Party, (iii) was already in the Receiving Party's possession at the time of disclosure by the Disclosing Party, (iv) was obtained by the Receiving Party from a third-party without breach of a confidentiality obligation, or (v) was independently developed by the Receiving Party without reference to or use of the Disclosing Party's Confidential Information.
   • In the event that Confidential Information is required to be disclosed due to an order by a public authority or a court or due to a legal obligation, the Receiving Party shall disclose only such Confidential Information that is necessary to comply with the obligation and shall promptly notify the Disclosing Party as soon as and to the extent permitted by law. The Parties shall assist each other, to the extent legally possible, in avoiding disclosure.
   • The Receiving Party shall treat all Confidential Information as strict confidential and shall exercise a reasonable degree of care, but not less than the degree of care it exercises to protect its own Confidential Information. The Receiving Party shall not disclose any Confidential Information received by it to any third-party (except as otherwise provided in this Contract). Each Party shall be responsible for any breach of this Contract by its managing directors (“Geschäftsführer”), executive staff, employees, agents, or representatives ("Representatives"), regardless of whether the respective Representatives were authorized to receive such information under this Contract.
   • Furthermore, the Parties undertake to comply with the applicable provisions of data protection law. In addition, to the extent that the services constitute commissioned processing within the meaning of Article 28 of the General Data Protection Regulation, the data processing agreement ("DPA”) shall apply.
10. Final provisions
    • In the event that the Contract between the Parties is terminated - for whatever legal reason - those provisions shall continue to apply which, according to their meaning and purpose, would justify their continued application even after termination of the mutual obligations to perform. This includes in particular the following regulatory areas of this Contract:
      • Provisions on confidentiality and data protection;
      • Provisions on liability;
      • Final Provisions:
    • Should one or more provisions of the Contract be or become ineffective for any reason whatsoever or should there be gaps in the provisions of this Contract, this shall not affect the validity of the remaining provisions of the Contract.
    • The Contract shall be governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The conflict of law provisions shall not apply. The exclusive place of jurisdiction for all disputes in connection with this Contract shall be the registered office of Cakewalk Technology.