1. Scope of Application

The following General Terms of Use apply to usage of the FirstSpirit Online Community (referred to hereinafter as “Community”) and to all the services offered and provided by e-Spirit AG in that context.

2. Services

2.1 The Community’s main objective is for members to communicate amongst themselves. Our members can use the Community to exchange their experiences with FirstSpirit, to ask questions about FirstSpirit, to post comments on FirstSpirit, and more besides. In addition, the Community provides e-Spirit’s partners with a forum where they can publish press releases, case studies, and other articles relating to FirstSpirit which may be of interest to other members. e-Spirit assumes the role of presenter throughout, whereby we also of course answer members’ questions, publish content of our own relating to FirstSpirit, or simply join in the discussion.

2.2 The services offered cover a whole range of Community functions. Each member can draw up a personal profile and post content and information there, and of course contact other members. Members can also network with each other (“Friends Network”) and keep themselves informed about the latest activities of members of their network. The Community also provides forums on different topics, a commentary function, and other ways of posting personal content in the Community. The exact scope of the features and functions that are available is indicated on the respective pages on the Internet.

3. Registering for the Community

3.1 A small part of the Community is public; the content posted there can therefore be accessed by anybody. However, registration is required in order to obtain full access to the Community and for actively using the Community’s functions.

3.2 e-Spirit offers use of the Community first and foremost to its existing customers, to its potential future customers, and to its business partners. Full access to the Community is therefore restricted to these user groups.

3.3 Apart from the other data that is required, the email address of the person registering has to be given first of all in order to register. e-Spirit needs this email address so that it can allocate the user to a certain business, customer or partner. Registration is therefore only possible with the email address of the domain used by the entity concerned. A webmail address or some other email address only enables use of the commentary functions in the Community area available to the public.

3.4 After validating the email address provided (for which purpose e-Spirit sends the user an email to the address given), e-Spirit opens a user account and activates it for the user. However, users are not entitled to be given access to the Community; e-Spirit always reserves the right to reject registration requests without stating any reasons.

4. Access Data

4.1 The user’s access data (i.e. the user name and password chosen by the user after registering) are exclusively for use by the user himself. The user may not disclose the access data to third parties, including colleagues at the same business. The user is under obligation to keep the access data secret and thus prevent any unauthorised use of the Community by third parties.

4.2 e-Spirit must be notified immediately if the user becomes aware of or suspects any misuse of his access data. The user is responsible for the consequences of any third-party use, insofar as he is responsible for his access data being misused. The user’s liability only lapses once he has informed e-Spirit about the unauthorised usage or about the access data getting lost, and has altered the password if necessary.

4.3 e-Spirit is entitled to block the access data either temporarily or permanently in order to avert any harm being caused to e-Spirit. If these General Terms of Use have not been breached, the user will be given new access data. If a breach has occurred, e-Spirit may give extraordinary notice terminating the user’s contract with immediate effect; in any such case, the user may not re-register without our express prior consent. In all events, the user will only be allocated new access data on filing a new application.

5. Members’ Content, Rights of Use

5.1 In order for it to run the Community, e-Spirit requires just a few rights of use in the content that users post in the Community.

5.1.1 On placing any content in the Community – no matter whether this involves articles, comments, forum entries or any other contributions – the user grants e-Spirit in perpetuity and without any territorial restrictions the non-exclusive, transferable right of use in the respective content, to the extent required for running the Community. In particular, the user grants e-Spirit the right to technically make the respective content available for retrieval in the Community setup, and to make any copies of it that are required for this purpose (storing it on the servers used for running the Community, etc.). Moreover and in particular, the user grants e-Spirit as the operator of the Community the right to make the content accessible to the public, as well as the right to transmit and otherwise openly reproduce the content. In this context, e-Spirit draws attention to the following special technical features:

The Community is changing and growing and may also expand its features and functions in keeping with the latest technical developments. The non-exclusive right to make the content accessible to the public and to transmit and otherwise openly reproduce it, which has been granted to e-Spirit under this Item 5.1.1, therefore also covers any additional functions that go beyond merely viewing a page on the Internet from some fixed terminal. e-Spirit may also offer newsfeeds (in varying formats if necessary), other services for subscription (push services) or retrieval (pull services), versions of the Community technically enhanced for use on mobile terminals, relevant applications (“Apps”), or email newsletters. However, the rights granted are always restricted to the Community’s specific functions and features.

5.1.2 Technically, the Community is a complex system with very diverse inter-relating connections. Content posted by one member builds on other content posted by other members, and multiple links are created. The granting of the rights of use pursuant to Item 5.1.1 is therefore irrevocable and persists beyond any termination of the user’s contract. Content that the user has placed in the Community may therefore still be retrievable in the Community even though the user is no longer a member. This obviously does not apply to the member’s profile, but it does apply to any content that cannot actually be simply erased without at the same time depriving other content of a coherent context, and to subject-related content such as reports on experience with FirstSpirit.

5.2 If e-Spirit wants to use any of a member’s content outside the Community, this shall only be done under a separate arrangement with the user.

5.3 Irrespective of Item 5.1 above, e-Spirit reserves the right to delete individual content items without stating reasons. No member has any right to demand that a certain content item is to remain retrievable.

6. General Rules on Using the Community

6.1 Inadmissible Content

As a matter of principle members are free to place any content in the Community, but at the same time each member undertakes vis-à-vis e-Spirit not to post any manner of illegal content there. This obviously includes anything covered by criminal law, but it also includes content that may be prosecuted under civil law. The following content in particular is prohibited in the Community:

content of an insulting, slanderous or defamatory nature;

content infringing third-party labelling and identification rights (trademarks, logos, titles) or other intellectual property rights (e.g. patents);

content infringing third-party copyrights and/or ancillary copyrights;

content the publication of which – even within the restricted Community circles – breaches third-party business or trade secrets, including those of e-Spirit itself; an undertaking to this same effect also applies with regard to any non-disclosure obligations that have been assumed by a member or his employer;

content that contravenes competition law, in particular any untrue or misleading information about the goods and services offered by the member or his employer, content as defined in Sect. 4 (7) of the Law on Unfair Competition [Gesetz gegen den unlauteren Wettbewerb], and unfair comparative advertising.

6.2 Links

Members may on principle set links to the websites of their employers and other third parties. Any member so doing must however ensure that the content that can be retrieved from the linked websites in turn does not break the rules laid down in this Item 6.

6.3 Reading Data, Intercepting Messages

All members are strictly prohibited from using any automatic or manual methods enabling data from the Community to be read, stored, processed, modified, transferred, or misused in any other manner. Obviously no emails or messages may be intercepted either, and certainly there may be no hacking of other members’ profiles.

6.4 Other Members’ Personal Data

Moreover, beyond any circumstances in which permission is granted under relevant legislation, it is inadmissible at all times to publish, transfer or otherwise disclose the personal data of other members or third parties (e.g. names, telephone numbers, email addresses), unless the member or third party concerned has consented to this being done.

6.5 Viruses & Malware

No viruses, Trojans and comparable scripts and programmes or other malware may be introduced into the Community. Sending spam emails and spam messages is likewise prohibited.

7. Newsletter

e-Spirit reserves the right to send a newsletter and news about the Community’s messaging system at regular intervals. The newsletter and the messages are editorially designed and may contain notes on new features of the Community and information about modifications and enhancements to FirstSpirit. Users can deactivate newsletters and messages at any time by selecting the relevant option in the profile settings.

8. Member’s Guarantee & Liability, Release & Discharge for Illegal Content

8.1 The member warrants to e-Spirit that he is both entitled and able to grant the rights to the extent specified in Item 5. Similarly, the member guarantees that he shall not place any matter in the Community the object or content of which breaches the provisions of Item 6 above, that he shall not do any of the acts prohibited there or disregard any of the restrictions stipulated there, and that he shall not provide any incorrect data.

8.2 The member is responsible for the entire content he places in the Community and for the existence of entitlement to do so, as well as for all his acts in the Community. e-Spirit does not review the content in advance; the content is automatically placed online without being verified by e-Spirit.

In this context, the member undertakes to release and discharge e-Spirit and its members, employees and other staff from all and any liability and from all and any costs – including any lawyer’s fees incurred for defence purposes, any pending or actual litigation costs, and any fines imposed by a court of law – if any claims are filed on e-Spirit, members of its management, employees and/or other staff due to the member infringing third-party rights or the rights of any persons he represents, thus committing a culpable breach of duty pursuant to Items 5 and 6 above. The same applies if a claim is filed due to content that is illegal for any other reason, and in cases where a claim is filed by a consumer protection agency, a competition association or public authority. e-Spirit shall notify the member about the claim filed and give him an opportunity to enter a defence against the claims being asserted, insofar as this is possible and may reasonably be expected. In turn, the member shall be under obligation to immediately furnish e-Spirit with all and any information available on the matter at issue.

Any entitlement to claim damages beyond this shall remain unaffected.

9. e-Spirit’s Liability

As a matter of principle, e-Spirit is liable in accordance with statutory regulations, whereby two limitations apply:

e-Spirit shall not be liable for any loss or damage sustained due to loss of data, if such loss or damage would have been avoided if the member had regularly made a full back-up of all the relevant data. Moreover, in cases of omission or slight negligence, e-Spirit’s liability is excluded for any loss or damage that is not typical for the type of contract or was not foreseeable at the time of contract closure, unless it is based on mortal injury, physical harm or health damage, or on a guarantee that has been given.

10. Infringements

e-Spirit reserves the right to erase any content that is inadmissible pursuant to these General Terms of Use, to prevent or reverse any prohibited actions, to issue a warning to any member violating these General Terms of Use, and/or to temporarily or permanently deactivate the user’s account in order to admonish compliance with members’ obligations. Any warning and/ or deactivation shall be communicated to the member concerned in writing. In addition, extraordinary notice may be given terminating the user’s contract, if e-Spirit may not reasonably be expected to continue it.

11. Termination

11.1 Either party may give routine notice terminating the user’s contract. Both parties also reserve the right to give immediate extraordinary notice of termination for important cause. Any notice of termination must on principle be given in written form pursuant to Sect. 126b of the Civil Code [Bürgerliches Gesetzbuch], i.e. by email at least. Notice of termination by email must be sent to: community-admin@e-spirit.com, and shall likewise incur the consequences specified in Item 11.2 below.

11.2 After the user’s contract has been terminated, any content placed in the Community by the member may still remain retrievable (cf. Item 5.1.2 above). However, the member’s actual profile (including the data that has exclusively been entered there) shall be deleted entirely. The content that is left no longer gives any indication that it originates from the user. Reactivating the profile is not possible for technical reasons.

12. Data Protection

We take the protection and safety of our members’ personal data very seriously. All the information on this is provided in our Data Protection Policy.

13. Amendments

13.1 e-Spirit reserves the right to amend these General Terms of Use at any time without stating reasons. The new General Terms of Use shall be sent to members by email. They shall be deemed agreed unless a member objects to their application within 14 days of receiving the email. The objection must be filed in writing, i.e. by email at least. In its email, e-Spirit shall specifically draw the member’s attention to the possibility of objecting, to the deadline applying, and to the consequences of failing to respond. If the member files an objection, then both the member and e-Spirit shall have the right to terminate the user’s contract by issuing immediate notice.

13.2 The amendment process described in Item 13.1 above shall not be used either for making modifications that restrict the content and scope of the main ways of using the Community available to each member, thus causing a disadvantage to members, or for introducing new obligations that are not already laid down in these General Terms of Use.

14. Choice of Law

The contractual relationship between e-Spirit and the member and these General Terms of Use including their interpretation shall be exclusively governed by German law, excluding provisions of German private international law and CISG.

15. Venue

If the member is a registered merchant within the meaning of the Commercial Code [Handelsgesetzbuch], then exclusive venue for all and any disputes arising from or in connection with this contract on using the Community shall be at e-Spirit’s registered location.

16. Severability

If any of the provisions of these General Terms of Use including these final clauses are ineffective in whole or in part, the validity of the remaining provisions or parts thereof shall not be affected. Any invalid or missing provisions shall be replaced by the statutory regulations relevant in each case.

Revised: June 2010