Terms of use for the “kolum” software

1. Subject matter of the agreement

• 1.1. The subject matter of the agreement is the provision of the software and, if applicable, other services that the Licensee can optionally make use of. The Licensor shall make the Software available as a cloud solution during the term of the Agreement in accordance with clause 9.
• 1.2. The scope of use is regulated in the Order Form.
• 1.3. The functionality of the Software and the system requirements are set out in Annex 1.
• 1.4. The Licensor is entitled to use subcontractors for the provision of all services. Any deviating data-protection regulations between the parties shall remain unaffected.

2. Obligations of the parties

• 2.1. The Licensee shall provide the Licensor with the information, data, content and documents required for the provision of the services and shall also provide all other necessary cooperation. The Licensee shall bear all expenses associated with the provision of cooperation services.
• 2.2. The Licensee shall be solely responsible for its IT infrastructure, in particular its installation and operation, for the internet connection required to use the Software and for the procurement, installation and operation of an internet browser specified in Annex 1. The Licensee shall bear all necessary expenses. This shall also apply to any hardware and software procured on the advice of the Licensor.
• 2.3. If the Licensee fails to comply with its obligations to cooperate, the Licensor's obligation to provide services shall lapse to the extent and for the period in which provision depends on prior fulfilment of the Licensee's obligations. The Licensor shall be entitled to demand compensation for additional expense at the hourly rate stipulated in the Order Form.
• 2.4. If the Licensee allows employees to use the Software, it shall be responsible for their actions as for its own. The Licensee shall ensure that employees know and comply with this Agreement.
• 2.5. The Licensee is solely responsible for the use of the data processed with the Software in its company. The Licensor is only obliged to provide the software that processes the data automatically and is not responsible for checking data for content, mathematical accuracy, plausibility or suitability. The Licensee must check the data before it is used by third parties.
• 2.6. The Licensee is responsible for making backups of its data. The Software does not serve as a backup solution.

3. Access data and delivery

The Licensor shall provide the Licensee with the necessary access data. Delivery of the Software is thereby deemed to have taken place.

4. Granting of rights of use, scope of use

• 4.1. Upon payment of the agreed remuneration, the Licensor grants the Licensee a worldwide, non-exclusive, non-transferable right, limited to the term of the contract, to use the Software for its own purposes (through its own employees) to manage its own data or that of its clients or contractual partners. The right of use is limited to cloud-based use.
• 4.2. The right of use extends to the Licensee and its affiliated companies within the meaning of § 15 AktG, subject to the number of EORI numbers specified in the Order Form. If a number is not specified, use is only permitted for one group company with one EORI number.
• 4.3. The Licensee must comply with the agreed scope of the license. If the scope is exceeded, the Licensor is entitled to demand additional remuneration proportional to the overuse (example: license fee for 10 EORI numbers used across 12 EORI numbers → remuneration increases by 20%).
• 4.4. The Licensee may allow any number of employees to use the Software with personalised user accounts. The Licensee shall oblige users to choose a secure password and protect their access data.
• 4.5. The exclusive rights to the Software, all included technologies and documentation remain with the Licensor. All rights not expressly granted to the Licensee are reserved by the Licensor.
• 4.6. The Licensee may not use the Software for purposes other than those specified in the Agreement and must protect it from unauthorised third-party access. In particular, the Licensee shall not (i) use the Software for other purposes; (ii) distribute, sell, resell, lease, rent, lend, transfer, sublicense or assign rights in the Software without written consent; (iii) disclose or make the Software available to third parties; (iv) modify or adapt the Software; (v) reverse engineer, decompile, translate or disassemble the Software (subject to 4.7); (vi) make copies of the Software; (vii) use it to develop a competing product; (viii) disable, modify or circumvent any license-management or security mechanism; (ix) use the Software to provide data-processing services to others; or (x) remove or alter any proprietary notices.
• 4.7. The Licensee's statutory rights under §§ 69d(2), 69d(3) and 69e UrhG remain unaffected, provided that (i) any decompilation under § 69e UrhG only takes place after prior written request in which the Licensor fails to provide the necessary information within two weeks, and (ii) the parties conclude an appropriate confidentiality agreement.

5. Support

The Licensor provides telephone support Monday to Friday, 9:00 a.m. to 5:00 p.m. (“service hours”), except on public holidays in Berlin. Support for one hour per month is covered by the remuneration in the Order Form. Additional services are charged at the hourly rate specified there.

6. Hosting and maintenance, service level

• 6.1. The Software shall be available on average 99.0% of the calendar year (“Availability Time”), provided that the Software is used as contractually agreed. Availability = (total time − downtime) × 100 / total time, where total time = 365 × 24 hours.
• 6.2. “Downtime” excludes time caused by: (6.2.1) announced maintenance work per 6.4; (6.2.2) unforeseeable, urgent maintenance, e.g. to close security vulnerabilities; (6.2.3) force majeure or events outside the Licensor's control (strikes, lockouts, weather, power outages, fire, epidemics/pandemics including COVID-19, legal changes and official decrees, operational disruptions); (6.2.4) third parties who are not the Licensor's subcontractors; (6.2.5) the Licensee or the Licensee's software, hardware or internet connection; (6.2.6) late notification of malfunctions by the Licensee.
• 6.3. The Licensee bears the burden of presentation and proof that Availability Time has been exceeded.
• 6.4. The Licensor is entitled to carry out regular maintenance and will try to keep interruptions to a minimum. The Licensor shall inform the Licensee at least one week before commencing. In urgent cases the notice period may be shortened or work may commence without prior notice, with immediate notification thereafter.
• 6.5. The Licensor is entitled, but not obliged, to install updates. The Licensor may adapt and modify the performance spectrum of the Software in line with technical progress provided functionality is not significantly impaired. Interoperability with third-party software is only owed if expressly agreed. Warranty claims remain unaffected.

7. Malfunctions

• 7.1. The Licensor is obliged to rectify faults in accordance with the following provisions.
• 7.2. The Licensee shall immediately report any malfunctions not caused by maintenance via the ticket system or, if none is provided, by email to info@kolum.earth, stating: (7.2.1) description, date and time; (7.2.2) affected functionality; (7.2.3) preliminary priority per 7.3; (7.2.4) measures already taken. Further information shall be provided on request.
• 7.3. Response times: Level 1 – Critical (6 hours) — the Software or significant parts are not usable or only very limited; Level 2 – High (12 hours) — use of the Software is severely restricted; Level 3 – Medium (24 hours) — basic functions are significantly impaired; Level 4 – Low (48 hours) — functionalities are not restricted but there are minor bugs.
• 7.4. If the Licensor disagrees with the preliminary classification, it shall determine a different priority at its reasonable discretion (§ 315 BGB).
• 7.5. If an appropriate workaround is available or provided, the fault shall be deemed priority level 4.
• 7.6. Within the applicable response times, the Licensor shall begin rectifying the fault. Times outside service hours do not count as response times.
• 7.7. The Licensor is not obliged to rectify the fault within the response times but shall endeavour to do so within a reasonable period and inform the Licensee accordingly.
• 7.8. If the Licensor was not responsible for a malfunction, the Licensee bears the cost of processing at the hourly rate agreed for additional services.
• 7.9. There are no maintenance obligations regarding third-party software.

8. Licensee content

• 8.1. The Licensee is responsible for content it, its affiliated companies, its employees, staff and commissioned third parties process with the Software (“Licensee Content”). (8.1.1) The Licensee shall ensure Licensee Content does not violate statutory provisions or third-party rights (in particular intellectual property, personal rights, competition or data-protection law). (8.1.2) In case of a violation, the Licensor may require deletion of infringing content and, if necessary, delete it without prior notice. The Licensee shall indemnify the Licensor against third-party claims and reimburse reasonable legal-defence costs.
• 8.2. If a risk from harmful data (in particular viruses) cannot reasonably be eliminated otherwise, the Licensor is entitled to delete the data and shall inform the Licensee as early as possible.

9. Contract term, extension and end of contract

• 9.1. The Agreement commences on the date specified in the Order Form (“Commencement Date”) and runs for three years unless otherwise specified (“Initial Term”).
• 9.2. Unless terminated by either party with three months' notice to the end of the Initial Term, it is extended by one further year at a time (“Extension Period”).
• 9.3. If the Order Form provides for the Software to be used only for the preparation of a single CBAM report, the term shall be extended to a total of three years from the start of the contract unless terminated by either party with one month's notice at the end of the next upcoming CBAM reporting period in which the report could have been prepared. Further extension is governed by 9.2.
• 9.4. The right of the parties to terminate extraordinarily for good cause remains unaffected.
• 9.5. § 543 (2) no. 1 BGB shall not apply.
• 9.6. Termination must be in writing.
• 9.7. Upon expiry of the term the Licensee shall immediately cease using the Software. The Licensor is entitled to delete Licensee Content. Data-protection regulations and statutory retention obligations remain unaffected.

10. Remuneration

• 10.1. The Licensee is obliged to pay the remuneration agreed in the Order Form.
• 10.2. All prices are net prices and do not include the applicable VAT.
• 10.3. If the Licensee defaults on payment, the Licensor is entitled, in addition to the statutory consequences of default, to block the Software after an unsuccessful reminder with a reasonable deadline until payment is made in full. After two unsuccessful reminders the Licensor is entitled to extraordinary termination.
• 10.4. The Licensor is entitled to adjust prices upwards for each new contract year in line with the average gross monthly remuneration of IT-services employees per the German Federal Statistical Office. Adjustment must be communicated in text form at least one month before the end of a contract year.

11. Warranty

• 11.1. Warranty is governed by these provisions and otherwise by statutory warranty regulations. If rental-agreement provisions apply, the Licensor is not liable regardless of fault for pre-existing damages (§ 536a(1) BGB) and the Licensee's right to remedy defects itself is excluded (§ 536a(2) BGB).
• 11.2. The warranty does not apply to defects due to: (11.2.1) improper use by Licensee or its employees; (11.2.2) missing or late Licensee cooperation; (11.2.3) unsuitable system environment or hardware.
• 11.3. In case of a defect the Licensor has a right to rectify twice, each within a reasonable period (at least four weeks), before further rights can be asserted.
• 11.4. The Licensee shall notify the Licensor of defects immediately in text form in a way that allows reproduction.
• 11.5. The Licensor is not responsible for third-party software. Responsibility for interoperability exists only where an interface has been agreed and a defect affects its functionality.

12. Liability

• 12.1. The Licensor's liability for damages and reimbursement of expenses is excluded except as provided below.
• 12.2. The exclusion does not apply to damages caused by culpable breach of a material contractual obligation. Liability is limited to typical foreseeable contractual damage; for property damage and resulting financial losses it is capped at EUR 50,000.00 per claim.
• 12.3. The exclusion does not apply to damages from injury to life, body or health based on negligent breach of duty.
• 12.4. The exclusion does not apply to damages from intentional or grossly negligent breach of duty.
• 12.5. Where the Licensor's liability is excluded or limited, this also applies to its representatives, employees and vicarious agents.
• 12.6. Guarantees for the quality of the Software are not affected by the limitation of liability.
• 12.7. Liability under the Product Liability Act remains unaffected.

13. Force majeure

Neither party is liable for damages caused by force majeure (6.2.3). The affected party is released from its performance obligation for the period it is prevented from performing, shall notify the other party and use its best efforts to minimise the impact.

14. Statute of limitations

All claims arising from or in connection with this Agreement against the Licensor and/or its representatives, employees and vicarious agents (in particular defect, damages or expense-reimbursement claims) shall become time-barred after one year, whether contractual or statutory. The limitation period does not apply in cases of (i) intent, (ii) gross negligence, (iii) breach of a material obligation within the meaning of 12.2, (iv) personal injury, (v) liability under the Product Liability Act, and (vi) fraudulent concealment of a defect. The Licensee's right to rectification remains unaffected during the term.

15. Confidentiality

• 15.1. Each party shall keep confidential information secret, apply appropriate confidentiality measures and not disclose it to third parties. “Confidential Information” means information disclosed which (i) has commercial value, (ii) the disclosing party has a legitimate interest in keeping confidential and (iii) is marked confidential, confirmed as confidential in text form within two weeks after oral disclosure, or is confidential by nature. The Software and its source code are confidential information of the Licensor.
• 15.2. Confidential information may be disclosed to employees and affiliated companies bound by essentially equivalent confidentiality obligations. For the Licensor this also applies to subcontractors.
• 15.3. Confidential Information does not include information proven to be: (15.3.1) publicly known; (15.3.2) protection waived in writing; (15.3.3) obtained without confidentiality obligation; (15.3.4) independently developed; (15.3.5) obtained by observing, examining, disassembling or testing a publicly available product.
• 15.4. In case of imminent disclosure due to an official or judicial order, the disclosing party shall be informed in text form beforehand, insofar and as soon as permissible.
• 15.5. The Licensor is entitled to name the Licensee as a reference customer and to use its logo exclusively for this purpose.
• 15.6. Further data-protection obligations remain unaffected.
• 15.7. Confidentiality obligations apply for the term of this Agreement and for a further three years.

16. Audits

The Licensor is entitled to check the scope of use of the Software by accessing it.

17. Data protection

• 17.1. The parties undertake to comply with applicable data-protection regulations.
• 17.2. The parties have concluded a data-processing agreement pursuant to Art. 28 GDPR, attached as Annex 2.

18. Amendments to the Terms of Use and functionalities

• 18.1. The Licensor may amend these Terms of Use at its reasonable discretion (§ 315 BGB), provided amendments do not affect main performance obligations and are reasonable for the Licensee. Amendments are notified in text form. If the Licensee does not object in text form within six weeks, the new version becomes part of the contract. If the Licensee objects in whole or in part, the Licensor may terminate within one month with three months' notice to month end.
• 18.2. The Licensor may change the functionalities of the Software at its reasonable discretion (§ 315 BGB), provided they are not significantly restricted and this is reasonable for the Licensee. 18.1 applies accordingly.

19. Final provisions

• 19.1. The Licensee may not transfer the Agreement or rights arising from it to third parties without the Licensor's written consent. Assignment or pledging of claims is prohibited unless the Licensee has a legitimate interest.
• 19.2. The Licensee may only offset undisputed or legally established counterclaims. The same applies to retention rights.
• 19.3. Amendments must be in writing; this also applies to the amendment of this written-form requirement.
• 19.4. The Licensee's general terms and conditions do not become part of the Agreement, even if not expressly contradicted.
• 19.5. Should a provision be or become invalid, the validity of the rest of the Agreement is not affected. The invalid provision shall be deemed replaced by an appropriate and fair provision that comes as close as possible to its economic sense.
• 19.6. German law applies to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
• 19.7. If the Licensee is a merchant within the meaning of the German Commercial Code or a special fund under public law, the place of jurisdiction is Berlin.