Valid since May 2006

1. Validity of contractual conditions
Inxmail GmbH, Wentzingerstr. 17, 79106 Freiburg (“Inxmail”) offers its services exclusively based on the following general terms and conditions. These general terms and conditions apply to all present and future legal transactions between the customer and Inxmail. In addition, the “software licence agreement” of Inxmail applies.

Customers of Inxmail are generally entrepreneurs in the sense of § 14 BGB but also consumers in the sense of § 13 BGB.

General terms and conditions of customers are hereby rejected. Deviations from the contractual conditions of Inxmail are only effective if they have been confirmed in writing by Inxmail.

2. Services of Inxmail
The Inxmail sells products and software solutions for e-mail marketing. Its email marketing system is offered as an ASP service and as a license solution.

ASP means: Inxmail provides the customer with the technical platform to carry out e-mail marketing actions. Inxmail carries out delivery tests for all e-mails to be sent but cannot offer any guarantee for successful delivery. Inxmail is only the conveyor of the e-mails and does not check their content with regard to legal, factual or other aspects. Inxmail is therefore also not responsible for the content of the e-mails it conveys.

License means: the buyer acquires the right to install or use the Inxmail software in accordance with the license.

3. Conclusion of contract
With the order, the customer declares under obligation an intention to acquire the service ordered. Inxmail is entitled to accept the contractual offer in the order within 10 days of receipt at Inxmail.

A contract with Inxmail arises through the acceptance by means of order confirmation in written form, by fax or by e-mail or with performance of the service by Inxmail.

Amendments and additions to the contract are only valid if Inxmail has confirmed them in writing, by fax or by e-mail.

If a consumer orders a service electronically, receipt of the order is confirmed immediately. Confirmation of receipt does not represent conclusion of a contract. The confirmation of receipt can be combined with the declaration of acceptance.

The contract is concluded subject to the correct and timely self-delivery by the suppliers of Inxmail in so far as Inxmail is not responsible for non-delivery. In the case of unavailability of the ordered product, the customer will be informed without delay and any payment already made will be reimbursed.

If the consumer orders services electronically, the contractual text will be stored by Inxmail and sent to the customer on request by e-mail in addition to the applicable Terms and Conditions.

4. Delivery and rights of use
For delivery and rights of use, the provisions of the “software licence agreement” between the customer and Inxmail apply.

5. Prices and payment conditions
The prices listed in the current price list are binding. All amounts are exclusive of statutory VAT.

Inxmail reserves the right to adjust the prices for its software and services. Price increases are announced by Inxmail at least six weeks before they come into effect. If a delivery period of more than 4 months is agreed, the prices if Inxmail valid at the time of delivery or provision of the software or of the services shall apply.

If services which Inxmail performs for the customer are not listed in the price list, a separate agreement must be concluded for these.

Unless otherwise agreed, payments are due immediately after receipt of invoice. If a customer does not pay within the agreed period after receipt of invoice, the customer is in arrears. The relevant statutory regulations shall apply. Inxmail reserves the right to claim higher compensation for delayed payment from an entrepreneur where necessary. In the event of delayed payment, Inxmail is entitled to withhold all deliveries and services to the customer, also from other contractual relationships.

A right of retention of the customer is excluded unless it is based on the same contractual relationship. The customer is only entitled to offset if the counter-claims of the customer have been deemed to be legally valid.

In the case of a sale to a destination according to the customer’s instructions, the customer also has to pay a shipping charge including packaging. The customer is responsible for disposing of the packaging material.

Delivery dates only apply by written agreement. The delivery period is extended appropriately in the case of work stoppages (strikes/lock-outs), statutory or authority orders (import/ export restrictions), force majeure. In the event of delay on the part of the seller, the customer has the right to withdraw from the contract after setting an appropriate deadline. Further compensation claims in this respect are excluded in so far as Inxmail is guilty of gross negligence or intent.

6. Right of return and right of withdrawal
For orders of a consumer, the consumer is entitled to return software within two weeks of receipt and to withdraw from the contract without stating reasons. The consumer can exercise this right by returning the software and documents to Inxmail or by declaring his/her withdrawal from the contract in writing, by fax or e-mail and confirming that the software has been deleted.

In the case of an order value of more than € 40.00, the consumer does not have to bear the costs of return delivery.

Timely dispatch to Inxmail GmbH shall suffice for compliance with the time limit.

The consumer has to pay compensation for deterioration due to proper use of the product. The consumer may carefully and closely inspect the product. Any use beyond this which means that the product can no longer be sold as new, the consumer has to bear the loss in value.

Individually created or personalised licenses or products are generally excluded from return.

7. Duty of care of the user
The customer has to treat the personal user name, passwords and customer keys provided by Inxmail in strict confidence. He/she must ensure that no unauthorised person obtains knowledge of them or can use them. In the event of loss, or if it is possible that an unauthorised person has obtained knowledge of the user name, passwords and customer keys, the customer must inform Inxmail of this immediately in writing, by fax or by e-mail, so that Inxmail can block them.

8. Warranty
Inxmail and the user agree that it is not possible to develop computer programs in such a way that they are free of errors for all application conditions. Within the framework of statutory regulations, Inxmail warrants that the software corresponds to the agreed properties resulting from the product description and the manual as well as other explanatory material and can be used accordingly. No warranty is given by Inxmail for the agreed properties or others.

In the event of considerable deviation, Inxmail provides warranty at its discretion either by reworking or replacement delivery. If the customer is a consumer, he/she can first decide whether replacement delivery or reworking is to be carried out. Inxmail is entitled to reject the selected type of re-performance if it is only possible at an unacceptable cost and the other type of re-performance does not have considerable disadvantages for the consumer.

If Inxmail fails to eliminate the considerable deviations from the agreed properties within a reasonable period by reworking or otherwise enable the user to use the software in accordance with the contract, the user can demand a reasonable reduction in payment or withdraw from the contract.
The entrepreneur is obliged to report and describe visible defects within one week of receipt of the software delivered in writing, by fax or e-mail, otherwise the assertion of warranty claims is excluded. Timely dispatch to shall suffice for compliance with the time limit. The entrepreneur bears the burden of proof for the claim conditions, in particular for the defect itself, the time of detection and for timeliness of the complaints. If a status is detected which infringes the contract, consumers are obliged to report on obvious defects within two months of the time of detection in writing, by fax or e-mail. Compliance with the time limit is receipt of notification at Inxmail. If the consumer fails to send this notification, warranty claims become null and void two months after detection of the defect. This does not apply to malice on the part of Inxmail. The consumer bears the burden of proof for the time of detection of the defect.

The user is obliged to provide Inxmail with verifiable documents on the type and occurrence of deviations from the agreed properties and to co-operate in the localisation of faults.

The warranty does not cover defects which were caused by deviation from the intended conditions of use for the software or to defects in modified or edited versions of the software and of the licence material. If after failed re-performance the consumer elects to withdraw from the contract, he/she is not entitled to any other warranty claims based on the defect.

The warranty period for the software supplied is one year from delivery for entrepreneurs and two years for consumers. This does not apply if the customer did not report the defect in time.

9. Limitation of liability
In the case of mere negligent breach of duty by Inxmail, its legal representatives, vicarious agents or commissioners, the liability of Inxmail is restricted to the foreseeable, immediate damage typical of the contract. Inxmail is not liable to companies in the case of ordinarily negligent breaches of unessential contractual duties. These liability restrictions do not apply to product liability claims of the customer or to attributable injuries and health damage or to the loss of life of the customer.

Compensation claims of the user due to a defect expire one year after delivery. This does not apply if Inxmail is at fault or in the case of attributable injuries and health damage or to the loss of life of the customer.

Inxmail does not accept warranty claims of software has been modified or edited.

Further warranty claims, regardless of the legal basis, are expressly excluded. Inxmail is not liable in particular for data loss, damage to data carriers or other programs, operational breakdowns etc. This liability limitation does not apply if liability can be traced to gross negligence or intent.

10. Data protection
Inxmail treats all data received confidentially and uses it exclusively for the purpose of the contract. Data is not forwarded to third parties without the permission of the customer. Data will be completely deleted on request if it is not required for fulfilment of the contract.

11. Declaration of exemption
The customer expressly promises to observe all statutory regulations, in particular those that restrict the distribution of contents and all data protection regulations. If a claim is asserted against Inxmail by a third party due to a violation of the law by the customer of what ever kind (in particular but not restricted to the sending of e-mails or faxes to recipients who have not given their permission for this), the customer shall exempt Inxmail from such claims and undertakes to bear all costs of Inxmail thus incurred. This also includes the costs connected with appropriate defence of these claims.

12. Other provisions
Additional agreements do not exist. Modifications and additions to these General Terms and Conditions must be made in writing. This also applies to the agreement with which the written form requirement is cancelled.

This agreement is subject to the law of the Federal Republic of Germany excluding the UN sales law CISG.

The exclusive place of jurisdiction for non-consumers is Freiburg im Breisgau.

If individual provisions of these General Terms and Conditions are ineffective, this does not affect the validity of the other provisions. In place of the partly or wholly ineffective provision, the statutory regulation which most closely reflects the purpose of the original provision shall apply.

Freiburg, April 2006, Inxmail GmbH