MASTER SERVICE AGREEMENT (German Law)

Amendment since last version: Removal of references to the BRYTER Intake and Matter Management.

This master service agreement (the “MSA”) sets out the entire agreement which governs the contractual relationship between customer as defined in the applicable order (“Customer”) and BRYTER GmbH, Biebergasse 2, 60313 Frankfurt am Main, Germany (“BRYTER”) (individually, a “Party” and together the “Parties”) alongside an Order which references this MSA. Unless defined in the main body of this MSA, definitions are set out in Appendix 1 to this MSA. In the event of conflicts between this MSA and an Order concluded under this MSA, the respective Order shall prevail. The terms of this agreement shall be deemed accepted upon signing an Order. 

1.           Scope of this MSA.

This MSA governs the use of BRYTER’s cloud-based solutions that are provided as part of a subscription, along with any software made available by BRYTER in connection with such services as specified in each Order (the “Software”). The Software may include the BRYTER Automation Platform, the BRYTER Policy AI, BRYTER Sandbox, software development kits and APIs made available in connection with such cloud-based solutions. Professional Services may be booked separately.

2.          Right of Use.

2.1.           Subject to this MSA and the applicable Order, BRYTER hereby grants Customer (including its Affiliates where so stated in an Order) a limited, non-exclusive, non-transferable right to use the Software during the Subscription Term.

2.2.          This MSA is entered into by Customer for and on behalf of itself and its Affiliates. Any such Affiliate shall be entitled to perform any of the obligations and exercise any of the rights of Customer under this MSA, but only Customer shall be entitled to enforce the rights granted to Customer under this MSA, for and on behalf of such Affiliates. Any act or omission of any Affiliate shall be deemed to be an act or omission of Customer. Any loss, damage, liability, costs and expenses incurred by any such Affiliate, shall be deemed to be incurred by Customer. Any such Affiliate may also enter into a separate MSA at any time.

2.3.          Where the terms of an Order reference a Trial Period, BRYTER hereby grants to Customer a nonexclusive, nontransferable, revocable right to use parts of the Software during the Trial Period in accordance with the relevant Order.

2.4.          Each Authorized User shall have their own individual login and password. Authorized Users may not share their Accounts with other users. An Account may be assigned to another user only where the original user is no longer working for Customer, on a leave of any kind for more than three consecutive months or is no longer carrying out a function that relates to the Software. Authorized Users may only use the Software in accordance with the applicable definitions.

3.          Uptime Commitment and Support.

3.1.           BRYTER shall provide Support and ensure uptime of the Software in accordance with the Support & Maintenance Services in Appendix 2.

3.2.          Customer Support is included in every paid subscription. Subject to each Order, a paid subscription may also include a level of support from our Customer Success team to help with the overall success and adoption of the Software.

4.          Restrictions on Use.

4.1.           Customer may only use the Software subject to the Scope as defined in each Order. If at any time during a Trial Period or the Subscription Term, Customer exceeds the Scope, BRYTER shall invoice Customer at BRYTER’s then standard rates (unless such pro rata pricing is set out in an Order in which case such pricing in the Order shall apply), based on that increased usage beyond the Scope and Customer shall pay in accordance with this MSA.

4.2.          Customer may not (and will not allow any third party to): (i) sell, license, distribute, assign, provide, permit use of or otherwise transfer in whole or in part the Software to another party, except for the purposes of publishing Applications (in relation to BRYTER Automation Platform); (ii) use the BRYTER Automation Platform to host Applications on behalf of third-parties to this MSA without BRYTER’s prior written consent; (iii) perform or attempt to perform any actions that would interfere with the proper functioning of the Software, including but not limited to the circumvention of or interference with any security or other technological feature of the Software; (iv) create derivative works based on the Software; (v) remove or modify any Software markings or any notice of BRYTER’s proprietary rights; or (vi) use the Software for any unlawful purposes. Except to the extent expressly permitted under this MSA or applicable law, Customer may not decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Software, in whole or in part. For the avoidance of doubt, security testing and scanning of the Software requires written permission by BRYTER.

4.3.          Customer agrees that it is liable for the acts and omissions of each Affiliate and each Authorized User, as though those acts and omissions were those of the Customer.

5.     Restricted Release.

If Customer participates in any version of the Software marked as alpha, beta or otherwise designated as a restricted release including but not limited to API releases (“Restricted Release”): (i) Customer shall promptly report to BRYTER any error condition discovered in the Restricted Release; (ii) BRYTER shall have no obligation to correct errors or deliver updates to the Restricted Release; (iii) BRYTER shall have no obligation to otherwise support the Restricted Release; (iv) Customer shall provide BRYTER with appropriate test data for the Restricted Release if necessary to resolve problems in the Restricted Release encountered by Customer; (v) the Restricted Release is experimental, may contain problems and errors and is being provided to Customer on an as-is basis with no warranty of any kind, express or implied; (vi) neither Party shall be responsible or liable to the other for any losses, claims or damages of whatever nature, arising out of or in connection with the performance or non-performance of the Restricted Release; and (vii) Customer shall not distribute the Restricted Release to third parties without the prior written consent of BRYTER. 

6.     APIs.

In the event BRYTER provides customer with access to the API, the following provisions shall apply:

6.1.           BRYTER shall grant Customer a non-exclusive, worldwide, non-transferable, limited license to access the API and its related documentation only as necessary to develop, test and support Customer’s own application based on that API. Customer must not (i) sell, rent, lease, sublicense, distribute, or otherwise transfer the API or any portion thereof to any third party; (ii) modify, alter, or create derivative works of the API; (iii) reverse engineer, decompile, or disassemble the API; or (iv) remove or alter any proprietary or confidentiality notices contained in the API.

6.2.          The API allows Customer to use the technical infrastructure provided by BRYTER to integrate Applications in Customer’s third-party applications in accordance with the BRYTER Automation Platform Documentation. Customer is solely responsible for any implementation of the API on Customer’s side.

6.3.          BRYTER may, in its sole discretion, provide Customer with software development kits or code samples (hereinafter jointly referred to as “Code Samples”). Code Samples are provided free of charge and are excluded from the paid services provided by BRYTER. Code Samples are provided in electronic form and can be downloaded from a dedicated website. BRYTER is not obligated to develop Code Samples or to keep Code Samples functional or available at all times. Code Samples are not suited for any use in production environments and are provided for educational purposes only.

6.4.          BRYTER may introduce new versions of the API with an additional or different range of features. BRYTER may replace deprecated versions of the API provided that the replacement is reasonable for Customer in consideration of the interests of both Parties.

6.5.          For purposes of Customer participating in the Restricted Release, Customer may need to disclose code to BRYTER to use the full functionality of Restricted Release (“Customer Code”). For the avoidance of doubt BRYTER may not be held liable for any infringement caused by Customer through such Customer Code and Customer is responsible for obtaining all necessary licenses with regards to Customer Code.

7.          Professional Services.

7.1.           Professional Services are subject to a separate SOW and will be performed with due skill, care, and ability in accordance with good industry practice, applicable laws and using appropriately trained personnel.

7.2.           The performance of the Professional Services is contingent on Customer (i) meeting any dependencies set out in the SOW, (ii) making decisions and providing information as necessary for BRYTER to be able to provide the Professional Services, and (iii) allowing BRYTER such access to its facilities, equipment and data as is reasonably required to provide the Professional Services.

8.          Payments.

8.1.           Customer shall pay to BRYTER the Fees stipulated in the applicable Order in the currency set out therein. Unless stated otherwise in the Order, BRYTER will invoice Customer (a) the Fees relating to the Software annually in advance; and (b) the Fees for any Professional Services as set out in the applicable SOW. All amounts and Fees stated or referred to in this MSA, any Order and SOW are exclusive of all Taxes which Customer shall pay in addition. 

8.2.          In the case of multiple year Subscription Terms, on each anniversary of the Effective Date of the Order, BRYTER may levy an adjustment to the Fees for the coming year in accordance with, and which shall in no circumstances exceed, the previous 12 months’ annual rise in the Consumer Price Index in the country where the BRYTER entity entering into this MSA is based, according to the German Federal Statistical Office (Statistisches Bundesamt) or any other successor thereto.

8.3.          If Customer’s internal processes require a purchase order or purchase order number to be submitted with an invoice, Customer shall provide to BRYTER such purchase order and/or purchase order number with the signed Order. Payment of invoices shall not be delayed or withheld by Customer due to Customer’s internal ordering processes or formalities, including the requirement and/or failure to provide a purchase order number.

8.4.          Customer shall pay undisputed invoices by bank transfer within thirty (30) days upon receipt of an invoice. Any Fees not paid when due shall accrue interest at a rate of 6 per cent per annum from the due date until payment is made, whether before or after judgement. BRYTER can deny access to the Software temporarily until overdue payments have been received (without prejudice to any other rights it may have), provided it has given Customer 15 days’ written notice of its intention to do so.

8.5.          Customer may withhold payment of particular Fees (or elements of them) that it reasonably disputes in good faith on the basis that BRYTER has not performed in accordance with the terms of this MSA and/or the applicable Order. Customer may not withhold payment for any non-disputed element of Fees. Customer must raise such dispute within the time for payment of that invoice, failing which such invoice shall be deemed to be undisputed and no amounts may be withheld.

8.6.          Where approved by Customer in advance (including under an Order), Customer will reimburse BRYTER for all reasonable travel, subsistence and other expenses incurred by BRYTER staff and contractors in providing Professional Services to Customer.

9.          Customer Data.

9.1.           Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility and liability for the legality, appropriateness, accuracy, quality and integrity of the Customer Data. Customer is solely responsible for obtaining any consents required for the use of Customer Data within the Software.

9.2.          Customer grants BRYTER a non-exclusive, royalty-free license for a Trial Period and/or Subscription Term (as applicable) to use, host, transmit, display, and create derivative works of the Customer Data solely in connection with the provision of the Software and Professional Services (if applicable).

9.3.          Customer agrees not to use or permit the use of the Software to display, store, or process any Customer Data, that may (i) menace or harass any person or cause damage or injury to any person or property; (ii) involve the publication of any material that is false, defamatory, harassing or obscene; (iii) violate privacy rights or promote hatred or harm; (iv) constitute unsolicited bulk e-mail or “junk” mail; (v) infringe Intellectual Property rights, or (vi) violate applicable laws. If BRYTER receives information that Customer is in violation of any of the foregoing, BRYTER will notify Customer, and Customer will promptly take appropriate action to resolve such violation. If Customer does not take required action in accordance with the above, BRYTER reserves the right, but has no obligation, to take remedial action, including the removal or disablement of access to such material (without liability on BRYTER’s part).

9.4.          Customer shall defend BRYTER, or at Customer’s option, settle any claim or action brought against BRYTER by a third party alleging that Customer Data violates the provisions of section 9.3 and will indemnify BRYTER for any damages finally awarded against BRYTER by a court of competent jurisdiction or for amounts paid by BRYTER under a court-approved settlement or a settlement of such a claim. The indemnification obligations above are subject to BRYTER providing Customer with prompt written notice of such claim granting Customer sole control of the defense and settlement of such claim; not entering into any settlement or compromise of any such claim without Customer’s prior written consent; and providing Customer with all reasonable information for such claim at Customer’s expense.

10.       Software Warranty.

10.1.         Except as otherwise agreed in this MSA, BRYTER represents and warrants to Customer that during the Subscription Term (i) it has the power to grant Customer the rights set out in this MSA; (ii) the Software will be provided with reasonable skill and care and in compliance with applicable laws, (iii) the Software shall materially conform to the Documentation and applicable Order, and (iv) BRYTER shall not materially decrease the functionality of the Software.

10.2.        Subject to section 10.3, and notification of such by Customer, if the Software does not comply with the warranty in section 10.1, BRYTER will, at its discretion, use reasonable endeavors to correct such error promptly, or will provide Customer with alternative means of carrying out the task which it was carrying out using the Software.

10.3.        BRYTER will not be liable under any warranty or any other provision of this MSA or Order to the extent that any loss or damage is caused by Customer or any Authorized User not having complied with the MSA, the Documentation or Order.

10.4.        BRYTER is constantly improving and updating the Software and aims to provide new and innovative features and services. Customer shall always have access to the latest version of the Software. Customer acknowledges that BRTYER may update or modify certain elements of the Software and introduce new Premium Features as BRYTER sees fit, provided that BRYTER shall comply with the warranties set out in section 10.1 for the Subscription Term.

10.5.        BRYTER warrants that Deliverables which are provided as a result of Professional Services under a SOW and which consist in the provision of a work in accordance with German law (Werkleistungen), correspond to the agreed specification and shall remedy Errors in accordance with Section 10.2. If BRYTER fails to remedy an Error by the end of an additional time period of length set by Customer in writing, Customer may either request an appropriate reduction of the remuneration for the Professional Service concerned or cancel (zurücktreten) the applicable Order with respect to the Professional Services. Section 14 shall apply accordingly to any claim for damages caused by any Error.

10.6.        In the event that BRYTER: (i) fails to properly provide Professional Services which are services (Dienstleistungen), or (ii) is in breach of contract which breach does not consist in an Error of the Software or a work, Customer must notify BRYTER in writing and set BRYTER a reasonable time period to properly perform its duty or otherwise remedy the breach. Section 14 shall apply accordingly to any claim for damages caused by any Error.

10.7.        Save as expressly provided in this MSA, to the fullest extent allowable by applicable law APIs, relevant documentation and all related components and information are provided on an “as is” and “as available” basis without any warranties (express or implied), conditions, representations or undertakings, made by BRYTER including without limitation any implied warranties of satisfactory quality, fitness for a particular purpose or non-infringement, or arising by course of dealing or performance, or by custom or usage in the trade, all of which are hereby expressly disclaimed.

10.8.        This section 10 does not apply to any BRYTER Sandbox access and other services free of charge.

11.         Confidentiality.

11.1.          During the Term of this MSA, each Party shall hold in confidence and not use for any purposes unrelated to this MSA or disclose to any third party (except each Party’s employees, agents or contractors who have a need to know and who are subject to confidentiality obligations at least as restrictive as those herein) any Confidential Information of the other Party.

11.2.         Either Party may disclose Confidential Information of the other Party: (i) in response to a valid order by a court or other governmental or regulatory body; or (ii) as otherwise required by law; or (iii) as necessary to establish the rights of either Party under this MSA. The receiving Party will promptly give notice to the disclosing Party of such compelled disclosure and allow the disclosing Party to object or to seek a protective order, to the extent legally permitted.

11.3.         Except as otherwise authorized or required in furtherance of the purposes of this MSA or any Order, promptly upon a request by the disclosing Party, the receiving Party will destroy (and so certify it in writing) or return to the disclosing Party all Confidential Information and all documents or media containing any such Confidential Information and all copies or extracts thereof provided that the receiving Party shall be permitted to retain copies of any computer records and files containing any Confidential Information which have been created pursuant to automatic archiving and back-up procedures, or retain a back-up copy of such Confidential Information as required by law, or internal compliance policies, in which cases such Confidential Information shall continue to be subject to confidentiality obligations even after termination of this MSA.

11.4.         For the avoidance of doubt the permission to retain Confidential Information after termination in accordance with this clause, shall not apply to any Personal Data which shall be governed by the data protection provisions herein.

11.5.         Subject to Customer’s prior written consent, BRYTER may use Customer’s name and logo to refer to Customer as customer or as a reference for marketing purposes.

12.        Intellectual Property Ownership.

12.1.         Customer acknowledges and agrees that BRYTER owns all Intellectual Property Rights in the Software, its components, the Documentation, feedback on the Software given by Customer, and BRYTER Data (the “BRYTER IP”). Except as expressly stated herein, this MSA does not grant Customer, its Affiliates, any Authorized Users and/or End Users any Intellectual Property Rights or any other rights or licenses in respect of the BRYTER IP.

12.2.        BRYTER acknowledges and agrees that Customer and/or its licensors own all Intellectual Property Rights in the Customer Data, Applications and other use cases created by Customer in connection with the use of the Software (the “Customer IP”). Except as expressly stated herein, this MSA does not grant BRYTER any Intellectual Property Rights or any other rights in respect of the Customer IP. For the avoidance of doubt such ownership of Customer IP shall not give Customer any rights to access or use the Software or Documentation after the expiry or termination of the applicable Order (save that BRYTER shall make the Software available to Customer upon request for a maximum of 30 days post termination solely for the purposes of downloading the Customer Data which is stored on Case Databases).

13.        Limitation of Liability.

13.1.         BRYTER shall be liable under the terms of this MSA, any Order and SOW in accordance with the provisions set out in this Section:

13.1.1.      BRYTER shall be liable for damages occurred due to the provision of any Professional Services and/or the Software which BRYTER provides free of charge in accordance with the statutory provisions.

13.1.2.     Notwithstanding the foregoing, BRYTER shall be fully liable for damages in connection with the provisions of any other services provided under this MSA in the event of intent (Vorsatz) and gross negligence (grobe Fahrlässigkeit) as well as for damages caused by injury to life, body, or health.

13.1.3.     In the event of slight negligence (einfache Fahrlässigkeit), BRYTER shall be liable only for breaches of a material contractual obligation. A material contractual obligation in the meaning of this provision is an obligation which makes the implementation of this MSA possible in the first place and upon which the contractual partner may therefore generally rely.

13.1.4.     In the event of section 13.1.3, BRYTER’s liability for any lack of commercial results, indirect damages and loss of profits is excluded.

13.1.5.     Liability according to section 13.1.3 shall be limited to typical and foreseeable damages at the time of conclusion of each applicable Order or SOW. The Parties agree that the typical foreseeable damage per event shall be limited to the amount set out in the applicable Order or SOW, respectively.

13.1.6.     The liability for loss of data in the event of section 13.1.3 shall be limited to typical recovery costs which would arise if Customer had made a backup of the relevant data.

13.1.7.     Limitations of liability shall also apply to employees, sub-contractors and agents of BRYTER.

13.2.        The potential liability of BRYTER for any guarantees or claims based on the German product liability act (Produkthaftungsgesetz) remains unaffected.

13.3.        Further liability of BRYTER shall be excluded.

14.        Term and Termination.

14.1.         This MSA takes effect on the Effective Date and will remain in effect until all applicable Orders have expired or been terminated.

14.2.        Each Order shall commence on the Order Date. Subject to earlier termination in accordance with section 14.3 or 14.4, the Order will continue for the Initial Term and then for successive Renewal Terms until the expiry of not less than 90 days’ written notice given by either Party to the other, that notice to expire at the end of the Initial Term or at the end of the applicable Renewal Term. In the event an Order sets out a Trial Period, the Trial Period shall automatically roll over into the Initial Term unless Customer notifies BRYTER that it wishes to terminate the Order in accordance with the terms of that Order.

14.3.        An Order may be terminated by a Party immediately upon notice to the other Party if the other Party (i) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or creditor assignment or analogous event in any applicable jurisdiction, or (ii) breaches any of its obligations under this MSA and/or the respective Order in any material respect, which breach is not remedied within thirty (30) days following written notice to the breaching Party.

14.4.        An Order may also be terminated by Customer immediately on written notice to BRYTER in the event of a Persistent Breach by BRYTER in relation to that Order.

14.5.        Upon termination of this MSA and any Order, Customer shall cease using the Software immediately. Following termination by Customer in accordance with section 14.3 or 14.4, BRYTER shall refund to Customer any fees paid by the Customer in advance in respect of the period following the date of termination. If the Order is terminated by BRYTER in accordance with section 14.3, Customer will promptly pay any unpaid amounts including those covering the remainder of the Subscription Term. In no event will termination relieve Customer of its obligation to pay any fees payable to BRYTER for the period prior to the effective date of termination.

14.6.        During the Subscription Term, Customer can access its Customer Data at any time. In regard to the BRYTER Automation Platform, Customer may perform a final export of Customer Data which is stored on Case Databases before the Subscription Term expires. After the end of the Subscription Term, BRYTER will delete or overwrite the Customer Data remaining on servers hosting the Software unless applicable mandatory law requires retention. Retained data is subject to the confidentiality provisions in this MSA.

14.7.        Each Party’s statutory rights of termination for good cause shall remain unaffected.

15.        General.

15.1.         Data Protection. The Parties acknowledge that all provisions related to applicable data protection laws are set out in a separate data protection agreement which is an addendum to this MSA.

15.2.        Entire Agreement. This Agreement sets out the entire agreement between the Parties and supersedes any previous agreements between the Parties relating to its subject matter. No terms or conditions contained in a purchase order or any other document or implied course of dealing shall apply to this Agreement. Each Party acknowledges and agrees that it has not relied on any representations made by the other except as set forth in this Agreement. Any such representations are excluded.

15.3.        Waiver. A waiver of any right under this Agreement is only effective if it is expressed as a waiver and sets out which provision is being waived in writing. It applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

15.4.        Invalid provisions. If any provision (or part of a provision) of this Agreement is found by any court or body of competent jurisdiction to be invalid, unenforceable, or illegal, the other provisions shall remain in force.  If any invalid, unenforceable or illegal provision would be valid, enforceable, or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.

15.5.        Governing Law and Jurisdiction. This Agreement and any disputes or claims arising out of or in connection with it, its subject matter or formation (including non-contractual disputes or claims) will for all purposes be solely and exclusively governed, construed, and enforced in accordance with the laws of Germany.  Both parties submit to the exclusive jurisdiction of the courts of Hamburg, Germany.

15.6.        Third Party Rights. A person who is not a party to the Agreement has no rights to enforce, or to enjoy the benefit of, any term of this Agreement (except as otherwise stated herein).

15.7.        Assignment. Subject to Section 354a German Commercial Code, neither BRYTER nor Customer may assign or otherwise transfer this Agreement or any of its rights or obligations under it to any third party without prior written consent from the other party. Any attempted assignment, or other transfer in violation of this provision shall be void. Nothing in this section shall restrict a party from assigning its rights under this Agreement to any undertaking which acquires its business, provided that such acquiring entity is not a competitor of the non-assigning Party and the assigning Party is not in breach of this Agreement.

15.8.        Force Majeure. Neither Party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from a Force Majeure Event. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non‑performance continues for the period of fourteen (14) days, the Party not affected may terminate the Agreement by giving seven (7) days’ written notice to the affected Party.

15.9.        Notices. All notices given under this Agreement (except for notices given pursuant to Appendix 2) must be in writing and sent by pre-paid letter post or by email to the postal or email address for legal notice set out on the Order or to such other postal or email address as may from time to time be notified in accordance with this section, and will be deemed to have been given: if sent by pre-paid letter post, two Business Days after posting; and if sent by email, three Business Hours after being sent to the correct email address (provided the sender has not received notice of failure of delivery). Any notice sent to BRYTER must be copied to legal@bryter.io.

15.10.      Variations. Save as otherwise expressly stated in this Agreement, the terms of this Agreement may only be modified or varied in writing executed by duly authorized representatives of both parties.

15.11.       Survival. Sections 4 (Restrictions on Use), 11 (Confidentiality), 12 (IP Ownership), 13 (Limitation of Liability), 14.5 (Effect of Termination), and 15 (General) of this Agreement shall survive termination.

Version: 4.1 (February 2024)

Amendments since last version: (1) Implementation of BRYTER Policy AI; (2) change of jurisdiction to courts of Hamburg, Germany, clause 15.5.

This master service agreement (the “MSA”) sets out the entire agreement which governs the contractual relationship between customer as defined in the applicable order (“Customer”) and BRYTER GmbH, Biebergasse 2, 60313 Frankfurt am Main, Germany (“BRYTER”) (individually, a “Party” and together the “Parties”) alongside an Order which references this MSA. Unless defined in the main body of this MSA, definitions are set out in Appendix 1 to this MSA. In the event of conflicts between this MSA and an Order concluded under this MSA, the respective Order shall prevail. The terms of this agreement shall be deemed accepted upon signing an Order. 

1.           Scope of this MSA.

This MSA governs the use of BRYTER’s cloud-based solutions that are provided as part of a subscription, along with any software made available by BRYTER in connection with such services as specified in each Order (the “Software”). The Software may include the BRYTER Automation Platform, BRYTER Intake and Matter Management, Policy AI, BRYTER Sandbox, software development kits and APIs made available in connection with such cloud-based solutions. Professional Services may be booked separately.

2.          Right of Use.

2.1.           Subject to this MSA and the applicable Order, BRYTER hereby grants Customer (including its Affiliates where so stated in an Order) a limited, non-exclusive, non-transferable right to use the Software during the Subscription Term.

2.2.          This MSA is entered into by Customer for and on behalf of itself and its Affiliates. Any such Affiliate shall be entitled to perform any of the obligations and exercise any of the rights of Customer under this MSA, but only Customer shall be entitled to enforce the rights granted to Customer under this MSA, for and on behalf of such Affiliates. Any act or omission of any Affiliate shall be deemed to be an act or omission of Customer. Any loss, damage, liability, costs and expenses incurred by any such Affiliate, shall be deemed to be incurred by Customer. Any such Affiliate may also enter into a separate MSA at any time.

2.3.          Where the terms of an Order reference a Trial Period, BRYTER hereby grants to Customer a nonexclusive, nontransferable, revocable right to use parts of the Software during the Trial Period in accordance with the relevant Order.

2.4.          Each Authorized User shall have their own individual login and password. Authorized Users may not share their Accounts with other users. An Account may be assigned to another user only where the original user is no longer working for Customer, on a leave of any kind for more than three consecutive months or is no longer carrying out a function that relates to the Software. Authorized Users may only use the Software in accordance with the applicable definitions.

3.          Uptime Commitment and Support.

3.1.           BRYTER shall provide Support and ensure uptime of the Software in accordance with the Support & Maintenance Services in Appendix 2.

3.2.          Customer Support is included in every paid subscription. Subject to each Order, a paid subscription may also include a level of support from our Customer Success team to help with the overall success and adoption of the Software.

4.          Restrictions on Use

4.1.           Customer may only use the Software subject to the Scope as defined in each Order. If at any time during a Trial Period or the Subscription Term, Customer exceeds the Scope, BRYTER shall invoice Customer at BRYTER’s then standard rates (unless such pro rata pricing is set out in an Order in which case such pricing in the Order shall apply), based on that increased usage beyond the Scope and Customer shall pay in accordance with this MSA.

4.2.          Customer may not (and will not allow any third party to): (i) sell, license, distribute, assign, provide, permit use of or otherwise transfer in whole or in part the Software to another party, except for the purposes of publishing Applications (in relation to BRYTER Automation Platform); (ii) use the BRYTER Automation Platform to host Applications on behalf of third-parties to this MSA without BRYTER’s prior written consent; (iii) perform or attempt to perform any actions that would interfere with the proper functioning of the Software, including but not limited to the circumvention of or interference with any security or other technological feature of the Software; (iv) create derivative works based on the Software; (v) remove or modify any Software markings or any notice of BRYTER’s proprietary rights; or (vi) use the Software for any unlawful purposes. Except to the extent expressly permitted under this MSA or applicable law, Customer may not decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Software, in whole or in part. For the avoidance of doubt, security testing and scanning of the Software requires written permission by BRYTER.

4.3.          Customer agrees that it is liable for the acts and omissions of each Affiliate and each Authorized User, as though those acts and omissions were those of the Customer.

5.     Restricted Release.

If Customer participates in any version of the Software marked as alpha, beta or otherwise designated as a restricted release including but not limited to API releases (“Restricted Release”): (i) Customer shall promptly report to BRYTER any error condition discovered in the Restricted Release; (ii) BRYTER shall have no obligation to correct errors or deliver updates to the Restricted Release; (iii) BRYTER shall have no obligation to otherwise support the Restricted Release; (iv) Customer shall provide BRYTER with appropriate test data for the Restricted Release if necessary to resolve problems in the Restricted Release encountered by Customer; (v) the Restricted Release is experimental, may contain problems and errors and is being provided to Customer on an as-is basis with no warranty of any kind, express or implied; (vi) neither Party shall be responsible or liable to the other for any losses, claims or damages of whatever nature, arising out of or in connection with the performance or non-performance of the Restricted Release; and (vii) Customer shall not distribute the Restricted Release to third parties without the prior written consent of BRYTER. 

6.     APIs.

In the event BRYTER provides customer with access to the API, the following provisions shall apply:

6.1.           BRYTER shall grant Customer a non-exclusive, worldwide, non-transferable, limited license to access the API and its related documentation only as necessary to develop, test and support Customer’s own application based on that API. Customer must not (i) sell, rent, lease, sublicense, distribute, or otherwise transfer the API or any portion thereof to any third party; (ii) modify, alter, or create derivative works of the API; (iii) reverse engineer, decompile, or disassemble the API; or (iv) remove or alter any proprietary or confidentiality notices contained in the API.

6.2.          The API allows Customer to use the technical infrastructure provided by BRYTER to integrate Applications in Customer’s third-party applications in accordance with the BRYTER Automation Platform Documentation. Customer is solely responsible for any implementation of the API on Customer’s side.

6.3.          BRYTER may, in its sole discretion, provide Customer with software development kits or code samples (hereinafter jointly referred to as “Code Samples”). Code Samples are provided free of charge and are excluded from the paid services provided by BRYTER. Code Samples are provided in electronic form and can be downloaded from a dedicated website. BRYTER is not obligated to develop Code Samples or to keep Code Samples functional or available at all times. Code Samples are not suited for any use in production environments and are provided for educational purposes only.

6.4.          BRYTER may introduce new versions of the API with an additional or different range of features. BRYTER may replace deprecated versions of the API provided that the replacement is reasonable for Customer in consideration of the interests of both Parties.

6.5.          For purposes of Customer participating in the Restricted Release, Customer may need to disclose code to BRYTER to use the full functionality of Restricted Release (“Customer Code”). For the avoidance of doubt BRYTER may not be held liable for any infringement caused by Customer through such Customer Code and Customer is responsible for obtaining all necessary licenses with regards to Customer Code.

7.          Professional Services.

7.1.           Professional Services are subject to a separate SOW and will be performed with due skill, care, and ability in accordance with good industry practice, applicable laws and using appropriately trained personnel.

7.2.           The performance of the Professional Services is contingent on Customer (i) meeting any dependencies set out in the SOW, (ii) making decisions and providing information as necessary for BRYTER to be able to provide the Professional Services, and (iii) allowing BRYTER such access to its facilities, equipment and data as is reasonably required to provide the Professional Services.

8.          Payments.

8.1.           Customer shall pay to BRYTER the Fees stipulated in the applicable Order in the currency set out therein. Unless stated otherwise in the Order, BRYTER will invoice Customer (a) the Fees relating to the Software annually in advance; and (b) the Fees for any Professional Services as set out in the applicable SOW. All amounts and Fees stated or referred to in this MSA, any Order and SOW are exclusive of all Taxes which Customer shall pay in addition. 

8.2.          In the case of multiple year Subscription Terms, on each anniversary of the Effective Date of the Order, BRYTER may levy an adjustment to the Fees for the coming year in accordance with, and which shall in no circumstances exceed, the previous 12 months’ annual rise in the Consumer Price Index in the country where the BRYTER entity entering into this MSA is based, according to the German Federal Statistical Office (Statistisches Bundesamt) or any other successor thereto.

8.3.          If Customer’s internal processes require a purchase order or purchase order number to be submitted with an invoice, Customer shall provide to BRYTER such purchase order and/or purchase order number with the signed Order. Payment of invoices shall not be delayed or withheld by Customer due to Customer’s internal ordering processes or formalities, including the requirement and/or failure to provide a purchase order number.

8.4.          Customer shall pay undisputed invoices by bank transfer within thirty (30) days upon receipt of an invoice. Any Fees not paid when due shall accrue interest at a rate of 6 per cent per annum from the due date until payment is made, whether before or after judgement. BRYTER can deny access to the Software temporarily until overdue payments have been received (without prejudice to any other rights it may have), provided it has given Customer 15 days’ written notice of its intention to do so.

8.5.          Customer may withhold payment of particular Fees (or elements of them) that it reasonably disputes in good faith on the basis that BRYTER has not performed in accordance with the terms of this MSA and/or the applicable Order. Customer may not withhold payment for any non-disputed element of Fees. Customer must raise such dispute within the time for payment of that invoice, failing which such invoice shall be deemed to be undisputed and no amounts may be withheld.

8.6.          Where approved by Customer in advance (including under an Order), Customer will reimburse BRYTER for all reasonable travel, subsistence and other expenses incurred by BRYTER staff and contractors in providing Professional Services to Customer.

9.          Customer Data.

9.1.           Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility and liability for the legality, appropriateness, accuracy, quality and integrity of the Customer Data. Customer is solely responsible for obtaining any consents required for the use of Customer Data within the Software.

9.2.          Customer grants BRYTER, a non-exclusive, royalty-free license for a Trial Period and/or Subscription Term (as applicable) to use, host, transmit, display, and create derivative works of the Customer Data solely in connection with the provision of the Software and Professional Services (if applicable).

9.3.          Customer agrees not to use or permit the use of the Software to display, store, or process any Customer Data, that may (i) menace or harass any person or cause damage or injury to any person or property; (ii) involve the publication of any material that is false, defamatory, harassing or obscene; (iii) violate privacy rights or promote hatred or harm; (iv) constitute unsolicited bulk e-mail or “junk” mail; (v) infringe Intellectual Property rights, or (vi) violate applicable laws. If BRYTER receives information that Customer is in violation of any of the foregoing, BRYTER will notify Customer, and Customer will promptly take appropriate action to resolve such violation. If Customer does not take required action in accordance with the above, BRYTER reserves the right, but has no obligation, to take remedial action, including the removal or disablement of access to such material (without liability on BRYTER’s part).

9.4.          Customer shall defend BRYTER, or at Customer’s option, settle any claim or action brought against BRYTER by a third party alleging that Customer Data violates the provisions of section 9.3 and will indemnify BRYTER for any damages finally awarded against BRYTER by a court of competent jurisdiction or for amounts paid by BRYTER under a court-approved settlement or a settlement of such a claim. The indemnification obligations above are subject to BRYTER providing Customer with prompt written notice of such claim granting Customer sole control of the defense and settlement of such claim; not entering into any settlement or compromise of any such claim without Customer’s prior written consent; and providing Customer with all reasonable information for such claim at Customer’s expense.

10.       Software Warranty.

10.1.         Except as otherwise agreed in this MSA, BRYTER represents and warrants to Customer that during the Subscription Term (i) it has the power to grant Customer the rights set out in this MSA; (ii) the Software will be provided with reasonable skill and care and in compliance with applicable laws, (iii) the Software shall materially conform to the Documentation and applicable Order, and (iv) BRYTER shall not materially decrease the functionality of the Software.

10.2.        Subject to section 10.3, and notification of such by Customer, if the Software does not comply with the warranty in section 10.1, BRYTER will, at its discretion, use reasonable endeavors to correct such error promptly, or will provide Customer with alternative means of carrying out the task which it was carrying out using the Software.

10.3.        BRYTER will not be liable under any warranty or any other provision of this MSA or Order to the extent that any loss or damage is caused by Customer or any Authorized User not having complied with the MSA, the Documentation or Order.

10.4.        BRYTER is constantly improving and updating the Software and aims to provide new and innovative features and services. Customer shall always have access to the latest version of the Software. Customer acknowledges that BRTYER may update or modify certain elements of the Software and introduce new Premium Features as BRYTER sees fit, provided that BRYTER shall comply with the warranties set out in section 10.1 for the Subscription Term.

10.5.        BRYTER warrants that Deliverables which are provided as a result of Professional Services under a SOW and which consist in the provision of a work in accordance with German law (Werkleistungen), correspond to the agreed specification and shall remedy Errors in accordance with Section 10.2. If BRYTER fails to remedy an Error by the end of an additional time period of length set by Customer in writing, Customer may either request an appropriate reduction of the remuneration for the Professional Service concerned or cancel (zurücktreten) the applicable Order with respect to the Professional Services. Section 14 shall apply accordingly to any claim for damages caused by any Error.

10.6.        In the event that BRYTER: (i) fails to properly provide Professional Services which are services (Dienstleistungen), or (ii) is in breach of contract which breach does not consist in an Error of the Software or a work, Customer must notify BRYTER in writing and set BRYTER a reasonable time period to properly perform its duty or otherwise remedy the breach. Section 14 shall apply accordingly to any claim for damages caused by any Error.

10.7.        Save as expressly provided in this MSA, to the fullest extent allowable by applicable law APIs, relevant documentation and all related components and information are provided on an “as is” and “as available” basis without any warranties (express or implied), conditions, representations or undertakings, made by BRYTER including without limitation any implied warranties of satisfactory quality, fitness for a particular purpose or non-infringement, or arising by course of dealing or performance, or by custom or usage in the trade, all of which are hereby expressly disclaimed.

10.8.        This section 10 does not apply to any BRYTER Sandbox access and other services free of charge.

11.         Confidentiality.

11.1.          During the Term of this MSA, each Party shall hold in confidence and not use for any purposes unrelated to this MSA or disclose to any third party (except each Party’s employees, agents or contractors who have a need to know and who are subject to confidentiality obligations at least as restrictive as those herein) any Confidential Information of the other Party.

11.2.         Either Party may disclose Confidential Information of the other Party: (i) in response to a valid order by a court or other governmental or regulatory body; or (ii) as otherwise required by law; or (iii) as necessary to establish the rights of either Party under this MSA. The receiving Party will promptly give notice to the disclosing Party of such compelled disclosure and allow the disclosing Party to object or to seek a protective order, to the extent legally permitted.

11.3.         Except as otherwise authorized or required in furtherance of the purposes of this MSA or any Order, promptly upon a request by the disclosing Party, the receiving Party will destroy (and so certify it in writing) or return to the disclosing Party all Confidential Information and all documents or media containing any such Confidential Information and all copies or extracts thereof provided that the receiving Party shall be permitted to retain copies of any computer records and files containing any Confidential Information which have been created pursuant to automatic archiving and back-up procedures, or retain a back-up copy of such Confidential Information as required by law, or internal compliance policies, in which cases such Confidential Information shall continue to be subject to confidentiality obligations even after termination of this MSA.

11.4.         For the avoidance of doubt the permission to retain Confidential Information after termination in accordance with this clause, shall not apply to any Personal Data which shall be governed by the data protection provisions herein.

11.5.         Subject to Customer’s prior written consent, BRYTER may use Customer’s name and logo to refer to Customer as customer or as a reference for marketing purposes.

12.        Intellectual Property Ownership.

12.1.         Customer acknowledges and agrees that BRYTER owns all Intellectual Property Rights in the Software, its components, the Documentation, feedback on the Software given by Customer, and BRYTER Data (the “BRYTER IP”). Except as expressly stated herein, this MSA does not grant Customer, its Affiliates, any Authorized Users and/or End Users any Intellectual Property Rights or any other rights or licenses in respect of the BRYTER IP.

12.2.        BRYTER acknowledges and agrees that Customer and/or its licensors own all Intellectual Property Rights in the Customer Data, Applications and other use cases created by Customer in connection with the use of the Software (the “Customer IP”). Except as expressly stated herein, this MSA does not grant BRYTER any Intellectual Property Rights or any other rights in respect of the Customer IP. For the avoidance of doubt such ownership of Customer IP shall not give Customer any rights to access or use the Software or Documentation after the expiry or termination of the applicable Order (save that BRYTER shall make the Software available to Customer upon request for a maximum of 30 days post termination solely for the purposes of downloading the Customer Data which is stored on Case Databases).

13.        Limitation of Liability.

13.1.         BRYTER shall be liable under the terms of this MSA, any Order and SOW in accordance with the provisions set out in this Section:

13.1.1.      BRYTER shall be liable for damages occurred due to the provision of any Professional Services and/or the Software which BRYTER provides free of charge in accordance with the statutory provisions.

13.1.2.     Notwithstanding the foregoing, BRYTER shall be fully liable for damages in connection with the provisions of any other services provided under this MSA in the event of intent (Vorsatz) and gross negligence (grobe Fahrlässigkeit) as well as for damages caused by injury to life, body, or health.

13.1.3.     In the event of slight negligence (einfache Fahrlässigkeit), BRYTER shall be liable only for breaches of a material contractual obligation. A material contractual obligation in the meaning of this provision is an obligation which makes the implementation of this MSA possible in the first place and upon which the contractual partner may therefore generally rely.

13.1.4.     In the event of section 13.1.3, BRYTER’s liability for any lack of commercial results, indirect damages and loss of profits is excluded.

13.1.5.     Liability according to section 13.1.3 shall be limited to typical and foreseeable damages at the time of conclusion of each applicable Order or SOW. The Parties agree that the typical foreseeable damage per event shall be limited to the amount set out in the applicable Order or SOW, respectively.

13.1.6.     The liability for loss of data in the event of section 13.1.3 shall be limited to typical recovery costs which would arise if Customer had made a backup of the relevant data.

13.1.7.     Limitations of liability shall also apply to employees, sub-contractors and agents of BRYTER.

13.2.        The potential liability of BRYTER for any guarantees or claims based on the German product liability act (Produkthaftungsgesetz) remains unaffected.

13.3.        Further liability of BRYTER shall be excluded.

14.        Term and Termination.

14.1.         This MSA takes effect on the Effective Date and will remain in effect until all applicable Orders have expired or been terminated.

14.2.        Each Order shall commence on the Order Date. Subject to earlier termination in accordance with section 14.3 or 14.4, the Order will continue for the Initial Term and then for successive Renewal Terms until the expiry of not less than 90 days’ written notice given by either Party to the other, that notice to expire at the end of the Initial Term or at the end of the applicable Renewal Term. In the event an Order sets out a Trial Period, the Trial Period shall automatically roll over into the Initial Term unless Customer notifies BRYTER that it wishes to terminate the Order in accordance with the terms of that Order.

14.3.        An Order may be terminated by a Party immediately upon notice to the other Party if the other Party (i) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or creditor assignment or analogous event in any applicable jurisdiction, or (ii) breaches any of its obligations under this MSA and/or the respective Order in any material respect, which breach is not remedied within thirty (30) days following written notice to the breaching Party.

14.4.        An Order may also be terminated by Customer immediately on written notice to BRYTER in the event of a Persistent Breach by BRYTER in relation to that Order.

14.5.        Upon termination of this MSA and any Order, Customer shall cease using the Software immediately. Following termination by Customer in accordance with section 14.3 or 14.4, BRYTER shall refund to Customer any fees paid by the Customer in advance in respect of the period following the date of termination. If the Order is terminated by BRYTER in accordance with section 14.3, Customer will promptly pay any unpaid amounts including those covering the remainder of the Subscription Term. In no event will termination relieve Customer of its obligation to pay any fees payable to BRYTER for the period prior to the effective date of termination.

14.6.        During the Subscription Term, Customer can access its Customer Data at any time. In regard to the BRYTER Automation Platform, Customer may perform a final export of Customer Data which is stored on Case Databases before the Subscription Term expires. After the end of the Subscription Term, BRYTER will delete or overwrite the Customer Data remaining on servers hosting the Software unless applicable mandatory law requires retention. Retained data is subject to the confidentiality provisions in this MSA.

14.7.        Each Party’s statutory rights of termination for good cause shall remain unaffected.

15.        General.

15.1.         Data Protection. The Parties acknowledge that all provisions related to applicable data protection laws are set out in a separate data protection agreement which is an addendum to this MSA.

15.2.        Entire Agreement. This Agreement sets out the entire agreement between the Parties and supersedes any previous agreements between the Parties relating to its subject matter. No terms or conditions contained in a purchase order or any other document or implied course of dealing shall apply to this Agreement. Each Party acknowledges and agrees that it has not relied on any representations made by the other except as set forth in this Agreement. Any such representations are excluded.

15.3.        Waiver. A waiver of any right under this Agreement is only effective if it is expressed as a waiver and sets out which provision is being waived in writing. It applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

15.4.        Invalid provisions. If any provision (or part of a provision) of this Agreement is found by any court or body of competent jurisdiction to be invalid, unenforceable, or illegal, the other provisions shall remain in force.  If any invalid, unenforceable or illegal provision would be valid, enforceable, or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.

15.5.        Governing Law and Jurisdiction. This Agreement and any disputes or claims arising out of or in connection with it, its subject matter or formation (including non-contractual disputes or claims) will for all purposes be solely and exclusively governed, construed, and enforced in accordance with the laws of Germany.  Both parties submit to the exclusive jurisdiction of the courts of Hamburg, Germany.

15.6.        Third Party Rights. A person who is not a party to the Agreement has no rights to enforce, or to enjoy the benefit of, any term of this Agreement (except as otherwise stated herein).

15.7.        Assignment. Subject to Section 354a German Commercial Code, neither BRYTER nor Customer may assign or otherwise transfer this Agreement or any of its rights or obligations under it to any third party without prior written consent from the other party. Any attempted assignment, or other transfer in violation of this provision shall be void. Nothing in this section shall restrict a party from assigning its rights under this Agreement to any undertaking which acquires its business, provided that such acquiring entity is not a competitor of the non-assigning Party and the assigning Party is not in breach of this Agreement.

15.8.        Force Majeure. Neither Party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from a Force Majeure Event. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non‑performance continues for the period of fourteen (14) days, the Party not affected may terminate the Agreement by giving seven (7) days’ written notice to the affected Party.

15.9.        Notices. All notices given under this Agreement (except for notices given pursuant to Appendix 2) must be in writing and sent by pre-paid letter post or by email to the postal or email address for legal notice set out on the Order or to such other postal or email address as may from time to time be notified in accordance with this section, and will be deemed to have been given: if sent by pre-paid letter post, two Business Days after posting; and if sent by email, three Business Hours after being sent to the correct email address (provided the sender has not received notice of failure of delivery). Any notice sent to BRYTER must be copied to legal@bryter.io.

15.10.      Variations. Save as otherwise expressly stated in this Agreement, the terms of this Agreement may only be modified or varied in writing executed by duly authorized representatives of both parties.

15.11.       Survival. Sections 4 (Restrictions on Use), 11 (Confidentiality), 12 (IP Ownership), 13 (Limitation of Liability), 14.5 (Effect of Termination), and 15 (General) of this Agreement shall survive termination.

Version: 4.0 (January 2024)

Amendments since last version: (1) Update of the usage restrictions in clause 4.2.; (2) clarification of the usage restrictions in clause 4.2. regarding pen-tests; (3) rectification of editorial mistakes in clause 6.2.; (4) deletion of usage limitation of the API to testing and evaluation, clause 6.2.; (5) inclusion of a clarifying term in clause 13.1.1.; (6) change of jurisdiction to courts of Frankfurt am Main, Germany, clause 15.5.

This master service agreement (the “MSA”) sets out the entire agreement which governs the contractual relationship between customer as defined in the applicable order (“Customer”) and BRYTER GmbH, Biebergasse 2, 60313 Frankfurt am Main, Germany (“BRYTER”) (individually, a “Party” and together the “Parties”) alongside an Order which references this MSA. Unless defined in the main body of this MSA, definitions are set out in Appendix 1 to this MSA. In the event of conflicts between this MSA and an Order concluded under this MSA, the respective Order shall prevail. The terms of this agreement shall be deemed accepted upon signing an Order. 

1.           Scope of this MSA.

This MSA governs the use of BRYTER’s cloud-based solutions that are provided as part of a subscription, along with any software made available by BRYTER in connection with such services as specified in each Order (the “Software”). The Software may include the BRYTER Automation Platform and BRYTER Intake and Matter Management, BRYTER Sandbox, software development kits and BRYTER’s application programming interfaces (“APIs”) made available in connection with such cloud-based solutions. Professional Services may be booked separately.

2.          Right of Use.

2.1.           Subject to this MSA and the applicable Order, BRYTER hereby grants Customer (including its Affiliates where so stated in an Order) a limited, non-exclusive, non-transferable right to use the Software during the Subscription Term.

2.2.          This MSA is entered into by Customer for and on behalf of itself and its Affiliates. Any such Affiliate shall be entitled to perform any of the obligations and exercise any of the rights of Customer under this MSA, but only Customer shall be entitled to enforce the rights granted to Customer under this MSA, for and on behalf of such Affiliates. Any act or omission of any Affiliate shall be deemed to be an act or omission of Customer. Any loss, damage, liability, costs and expenses incurred by any such Affiliate, shall be deemed to be incurred by Customer. Any such Affiliate may enter into a separate MSA at any time.

2.3.          Where the terms of an Order reference a Trial Period, BRYTER hereby grants to Customer a non‑exclusive, non‑transferable, revocable right to use parts of the Software during the Trial Period in accordance with the relevant Order.

2.4.          Each Authorized User shall have their own individual login and password. Authorized Users may not share their Accounts with other users. An Account may be assigned to another user only where the original user is no longer working for Customer, on a leave of any kind for more than three consecutive months or is no longer carrying out a function that relates to the Software. Authorized Users may only use the Software in accordance with the applicable definitions.

3.          Uptime Commitment and Support.

3.1.           BRYTER shall provide the Support and ensure uptime of the Software in accordance with the Support & Maintenance Services in Appendix 2.

3.2.          Customer Support is included in every paid subscription. Subject to each Order, a paid subscription may also include a level of support from our Customer Success team to help with the overall success and adoption of the Software.

4.          Restrictions on Use.

4.1.           Customer may only use the Software subject to the Scope as defined in each Order. If at any time during a Trial Period or the Subscription Term, Customer exceeds the Scope, BRYTER shall invoice Customer at BRYTER’s then standard rates (unless such pro rata pricing is set out in an Order in which case such pricing in the Order shall apply), based on that increased usage beyond the Scope and Customer shall pay in accordance with this MSA.

4.2.          In accordance with this MSA, Customer may not (and will not allow any third party to): (i) sell, license, distribute, assign, provide, permit use of or otherwise transfer in whole or in part the Software to another party, except for the purposes of publishing Applications (in relation to BRYTER Automation Platform); (ii) use the BRYTER Automation Platform to host Applications on behalf of third-parties to this MSA without BRYTER’s prior written consent; (iii) perform or attempt to perform any actions that would interfere with the proper functioning of the Software, including but not limited to the circumvention of or interference with any security or other technological feature of the Software; (iv) create derivative works based on the Software; (v) remove or modify any Software markings or any notice of BRYTER’s proprietary rights; or (vi) use the Software for any unlawful purposes. Except to the extent expressly permitted under this MSA or applicable law, Customer may not decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Software, in whole or in part. For the avoidance of doubt, security testing and scanning of the Software requires written permission by BRYTER.

4.3.          Customer agrees that it is liable for the acts and omissions of each Affiliate and each Authorized User, as though those acts and omissions were those of the Customer.

5.     Restricted Release.

If Customer participates in any version of the Software marked as alpha, beta or otherwise designated as a restricted release including but not limited to API releases (“Restricted Release”): (i) Customer shall promptly report to BRYTER any error condition discovered in the Restricted Release; (ii) BRYTER shall have no obligation to correct errors or deliver updates to the Restricted Release; (iii) BRYTER shall have no obligation to otherwise support the Restricted Release; (iv) Customer shall provide BRYTER with appropriate test data for the Restricted Release if necessary to resolve problems in the Restricted Release encountered by Customer; (v) the Restricted Release is experimental, may contain problems and errors and is being provided to Customer on an as-is basis with no warranty of any kind, express or implied; (vi) neither Party shall be responsible or liable to the other for any losses, claims or damages of whatever nature, arising out of or in connection with the performance or non-performance of the Restricted Release; and (vii) Customer shall not distribute the Restricted Release to third parties without the prior written consent of BRYTER. 

6.     APIs.

6.1.           In the event BRYTER provides customer with access to the API, the following provisions shall apply:

6.2.          BRYTER shall grant Customer a non-exclusive, worldwide, non-transferable, limited license to access the API and its related documentation only as necessary to develop, test and support Customer’s own application based on that API. Customer must not (i) sell, rent, lease, sublicense, distribute, or otherwise transfer the API or any portion thereof to any third party; (ii) modify, alter, or create derivative works of the API; (iii) reverse engineer, decompile, or disassemble the API; or (iv) remove or alter any proprietary or confidentiality notices contained in the API.

6.3.          The API allows Customer to use the technical infrastructure provided by BRYTER to integrate Applications in Customer’s third-party applications in accordance with the BRYTER Automation Platform Documentation. Customer is solely responsible for any implementation of the API on Customer’s side.

6.4.          BRYTER may, in its sole discretion, provide Customer with software development kits or code samples (hereinafter jointly referred to as “Code Samples”). Code Samples are provided free of charge and are excluded from the paid services provided by BRYTER. Code Samples are provided in electronic form and can be downloaded from a dedicated website. BRYTER is not obligated to develop Code Samples or to keep Code Samples functional or available at all times. Code Samples are not suited for any use in production environments and are provided for educational purposes only.

6.5.          BRYTER may introduce new versions of the API with an additional or different range of features. BRYTER may replace deprecated versions of the API provided that the replacement is reasonable for Customer in consideration of the interests of both Parties.

6.6.          For purposes of Customer participating in the Restricted Release, Customer may need to disclose code to BRYTER to use the full functionality of Restricted Release (“Customer Code”). For the avoidance of doubt BRYTER may not be held liable for any infringement caused by Customer through such Customer Code and Customer is responsible for obtaining all necessary licenses with regards to Customer Code.

7.          Professional Services.

7.1.           Professional Services are subject to a separate SOW and will be performed with due skill, care, and ability in accordance with good industry practice, applicable laws and using appropriately trained personnel.

7.2.           The performance of the Professional Services is contingent on Customer (i) meeting any dependencies set out in a SOW, (ii) making decisions and providing information as necessary for BRYTER to be able to provide the Professional Services, and (iii) allowing BRYTER such access to its facilities, equipment and data as is reasonably required to provide the Professional Services.

8.          Payments.

8.1.           Customer shall pay to BRYTER the Fees stipulated in the applicable Order in the currency set out therein. Unless stated otherwise in the Order, BRYTER will invoice Customer a) the Fees relating to the Software annually in advance; and b) the Fees for any Professional Services as set out in the applicable SOW. All amounts and Fees stated or referred to in this MSA, any Order and SOW are exclusive of all Taxes which Customer shall pay in addition. 

8.2.          In the case of multiple year Subscription Terms, on each anniversary of the Effective Date of the Order, BRYTER may levy an adjustment to the Fees for the coming year in accordance with, and which shall in no circumstances exceed, the previous 12 months’ annual rise in the Consumer Price Index in the country where the BRYTER entity entering into this MSA is based, according to the German Federal Statistical Office (Statistisches Bundesamt) or any other successor thereto.

8.3.          If Customer’s internal processes require a purchase order or purchase order number to be submitted with an invoice, Customer shall provide to BRYTER such purchase order and/or purchase order number with the signed Order. Payment of invoices shall not be delayed or withheld by Customer due to Customer’s internal ordering processes or formalities, including the requirement and/or failure to provide a purchase order number.

8.4.          Customer shall pay undisputed invoices by bank transfer within thirty (30) days upon receipt of an invoice. Any Fees not paid when due shall accrue interest at a rate of 4 per cent per annum from the due date until payment is made, whether before or after judgement. BRYTER can deny access to the Software temporarily until overdue payments have been received (without prejudice to any other rights it may have), provided it has given Customer 15 days’ written notice of its intention to do so.

8.5.          Customer may withhold payment of particular Fees (or elements of them) that it reasonably disputes in good faith on the basis that BRYTER has not performed in accordance with the terms of this MSA and/or the applicable Order. For the avoidance of doubt Customer may not withhold payment for any non-disputed element of Fees. Customer must raise such dispute within the time for payment of that invoice, failing which such invoice shall be deemed to be undisputed and no amounts may be withheld.

8.6.          Where approved by Customer in advance (including under an Order), Customer will reimburse BRYTER for all reasonable travel, subsistence and other expenses incurred by BRYTER staff and contractors in providing Professional Services to Customer.

9.          Customer Data.

9.1.           Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility and liability for the legality, appropriateness, accuracy, quality and integrity of the Customer Data. Customer is solely responsible for obtaining any consents required for the use of Customer Data within the Software.

9.2.          Customer grants BRYTER, a non-exclusive, royalty-free license for a Trial Period and/or Subscription Term (as applicable) to use, host, transmit, display, and create derivative works of the Customer Data solely in connection with the provision of the Software and Professional Services (if applicable).

9.3.          Customer agrees not to use or permit the use of the Software to display, store, or process any Customer Data, that may (i) menace or harass any person or cause damage or injury to any person or property; (ii) involve the publication of any material that is false, defamatory, harassing or obscene; (iii) violate privacy rights or promote hatred or harm; (iv) constitute unsolicited bulk e-mail or “junk mail; (v) infringe Intellectual Property rights, or (vi) violate applicable laws. If BRYTER receives information that Customer is in violation of any of the foregoing, BRYTER will notify Customer, and Customer will promptly take appropriate action to resolve such violation. If Customer does not take required action in accordance with the above, BRYTER reserves the right, but has no obligation, to take remedial action, including the removal or disablement of access to such material (without liability on BRYTER’s part).

9.4.          Customer shall defend BRYTER, or at Customer’s option, settle any claim or action brought against BRYTER by a third party alleging that Customer Data violates the provisions of section 9.39.2 and will indemnify BRYTER for any damages finally awarded against BRYTER by a court of competent jurisdiction or for amounts paid by BRYTER under a court-approved settlement or a settlement of such a claim. The indemnification obligations above are subject to BRYTER providing Customer with prompt written notice of such claim granting Customer sole control of the defense and settlement of such claim; not entering into any settlement or compromise of any such claim without Customer’s prior written consent; and providing Customer with all reasonable information for such claim at Customer’s expense.

10.       Software Warranty.

10.1.         Except as otherwise agreed in this MSA, BRYTER represents and warrants to Customer that during the Subscription Term (i) it has the power to grant Customer the rights set out in this MSA; (ii) the Software will be provided with reasonable skill and care and in compliance with applicable laws, (iii) the Software shall materially conform to the Documentations and applicable Order, and (iv) BRYTER shall not materially decrease the functionality of the Software.

10.2.        Subject to section 10.3, and notification of such by Customer, if the Software does not comply with the warranty in section 10.1, BRYTER will, at its discretion, use reasonable endeavors to correct such error promptly, or will provide Customer with alternative means of carrying out the task which it was carrying out using the Software.

10.3.        BRYTER will not be liable under any warranty or any other provision of this MSA or Order to the extent that any loss or damage is caused by Customer or any Authorized User not having complied with the MSA or Order.

10.4.        BRYTER is constantly improving and updating the Software and aims to provide new and innovative features and services. Customer shall always have access to the latest version of the Software. Customer acknowledges that BRTYER may update or modify certain elements of the Software and introduce new Premium Features as BRYTER sees fit, provided that BRYTER shall comply with the warranties set out in section 10.1 for the Subscription Term.

10.5.        BRYTER warrants that Deliverables which are provided as a result of Professional Services under a SOW and which consist in the provision of a work in accordance with German law (Werkleistungen), correspond to the agreed specification and shall remedy Errors in accordance with Section 10.2. If BRYTER fails to remedy an Error by the end of an additional time period of length set by Customer in writing, Customer may either request an appropriate reduction of the remuneration for the Professional Service concerned or cancel (zurücktreten) the applicable Order with respect to the Professional Services. Section 14. shall apply accordingly to any claim for damages caused by any Error.

10.6.        In the event that BRYTER: (i) fails to properly provide Professional Services which are services (Dienstleistungen), or (ii) is in breach of contract which breach does not consist in an Error of the Software or a work, Customer must notify BRYTER in writing and set BRYTER a reasonable time period to properly perform its duty or otherwise remedy the breach. Section 14 shall apply accordingly to any claim for damages caused by any Error.

10.7.        Save as expressly provided in this MSA, to the fullest extent allowable by applicable law APIs, documentation and all related components and information are provided on an “as is” and “as available” basis without any warranties (express or implied), conditions, representations or undertakings, made by BRYTER including without limitation any implied warranties of satisfactory quality, fitness for a particular purpose or non-infringement, or arising by course of dealing or performance, or by custom or usage in the trade, all of which are hereby expressly disclaimed.

10.8.        This section 10. does not apply to any BRYTER Sandbox access and other services free of charge.

11.         Confidentiality.

11.1.          During the Term of this MSA, each Party shall hold in confidence and not use for any purposes unrelated to this MSA or disclose to any third party (except each Party’s employees, agents or contractors who have a need to know and who are subject to confidentiality obligations at least as restrictive as those herein) any Confidential Information of the other Party.

11.2.         Either Party may disclose Confidential Information of the other Party: (i) in response to a valid order by a court or other governmental or regulatory body; or (ii) as otherwise required by law; or (iii) as necessary to establish the rights of either Party under this MSA. The receiving Party will promptly give notice to the disclosing Party of such compelled disclosure and allow the disclosing Party to object or to seek a protective order, to the extent legally permitted.

11.3.         Except as otherwise authorized or required in furtherance of the purposes of this MSA or any Order, promptly upon a request by the disclosing Party, the receiving Party will destroy (and so certify it in writing) or return to the disclosing Party all Confidential Information and all documents or media containing any such Confidential Information and all copies or extracts thereof provided that the receiving Party shall be permitted to retain copies of any computer records and files containing any Confidential Information which have been created pursuant to automatic archiving and back-up procedures, or retain a back-up copy of such Confidential Information as required by law, or internal compliance policies, in which cases such Confidential Information shall continue to be subject to confidentiality obligations even after termination of this MSA.

11.4.         For the avoidance of doubt the permission to retain Confidential Information after termination in accordance with this clause, shall not apply to any Personal Data which shall be governed by the data protection provisions herein.

11.5.         Subject to Customer’s prior written consent, BRYTER may use Customer’s name and logo to refer to Customer as customer or as a reference for marketing purposes.

12.        Intellectual Property Ownership.

12.1.         Customer acknowledges and agrees that BRYTER owns all Intellectual Property Rights in the Software, Documentations, feedback on the Software given by Customer, and BRYTER Data (the “BRYTER IP”). Except as expressly stated herein, this MSA does not grant Customer, its Affiliates, any Authorized Users and/or End Users any Intellectual Property Rights or any other rights or licenses in respect of the BRYTER IP.

12.2.        BRYTER acknowledges and agrees that Customer and/or its licensors own all Intellectual Property Rights in the Customer Data, Applications and other use cases created by Customer in connection with the use of the Software (the “Customer IP”). Except as expressly stated herein, this MSA does not grant BRYTER any Intellectual Property Rights or any other rights in respect of the Customer IP. For the avoidance of doubt such ownership of Customer IP shall not give Customer any rights to access or use the Software or Documentations after the expiry or termination of the applicable Order (save that BRYTER shall make the Software available to Customer upon request for a maximum of 30 days post termination solely for the purposes of downloading the Customer Data which is stored on Case Databases).

13.        Limitation of Liability.

13.1.         BRYTER shall be liable under the terms of this MSA, any Order and SOW in accordance with the provisions set out in this Section:

13.1.1.      BRYTER shall be liable for damages occurred due to the provision of any Professional Services and/or the Software which BRYTER provides free of charge in accordance with the statutory provisions.

13.1.2.     Notwithstanding the foregoing, BRYTER shall be fully liable for damages in connection with the provisions of any other services provided under this MSA in the event of intent (Vorsatz) and gross negligence (grobe Fahrlässigkeit) as well as for damages caused by injury to life, body, or health.

13.1.3.     In the event of slight negligence (einfache Fahrlässigkeit), BRYTER shall be liable only for breaches of a material contractual obligation. A material contractual obligation in the meaning of this provision is an obligation which makes the implementation of this MSA possible in the first place and upon which the contractual partner may therefore generally rely.

13.1.4.     In the event of section 13.1.3, BRYTER’s liability for any lack of commercial results, indirect damages and loss of profits is excluded.

13.1.5.     Liability according to section 13.1.3 shall be limited to typical and foreseeable damages at the time of conclusion of each applicable Order or SOW. The Parties agree that the typical foreseeable damage per event shall be limited to the amount set out in the applicable Order or SOW, respectively.

13.1.6.     The liability for loss of data in the event of section 13.1.3 shall be limited to typical recovery costs which would arise if Customer had made a backup of the relevant data.

13.1.7.     Limitations of liability shall also apply to employees, sub-contractors and agents of BRYTER.

13.2.        The potential liability of BRYTER for any guarantees or claims based on the German product liability act (Produkthaftungsgesetz) remains unaffected.

13.3.        Further liability of BRYTER shall be excluded.

14.        Term and Termination.

14.1.         This MSA takes effect on the Effective Date and will remain in effect until all applicable Orders have expired or been terminated.

14.2.        Each Order shall commence on the Order Date. Subject to earlier termination in accordance with section 14.3 or 14.4, the Order will continue for the Initial Term and then for successive Renewal Terms until the expiry of not less than 90 days’ written notice given by either Party to the other, that notice to expire at the end of the Initial Term or at the end of the applicable Renewal Term. In the event an Order sets out a Trial Period, the Trial Period shall automatically roll over into the Initial Term unless Customer notifies BRYTER that it wishes to terminate the Order in accordance with the terms of that Order.

14.3.        An Order may be terminated by a Party immediately upon notice to the other Party if the other Party (i) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or creditor assignment or analogous event in any applicable jurisdiction, or (ii) breaches any of its obligations under this MSA and/or the respective Order in any material respect, which breach is not remedied within thirty (30) days following written notice to the breaching Party.

14.4.        An Order may also be terminated by Customer immediately on written notice to BRYTER in the event of a Persistent Breach by BRYTER in relation to that Order.

14.5.        Upon termination of this MSA and any Order, Customer shall cease using the Software immediately. Following termination by Customer in accordance with section 14.3 or 14.4, BRYTER shall refund to Customer any fees paid by the Customer in advance in respect of the period following the date of termination. If the Order is terminated by BRYTER in accordance with section 14.3, Customer will promptly pay any unpaid amounts including those covering the remainder of the Subscription Term. In no event will termination relieve Customer of its obligation to pay any fees payable to BRYTER for the period prior to the effective date of termination.

14.6.        During the Subscription Term, Customer can access its Customer Data at any time. Before the Subscription Term expires, Customer may perform a final export of Customer Data which is stored on Case Databases. After the end of the Subscription Term, BRYTER will delete or overwrite the Customer Data remaining on servers hosting the Software unless applicable mandatory law requires retention. Retained data is subject to the confidentiality provisions in this MSA.

14.7.        Each Party’s statutory rights of termination for good cause shall remain unaffected.

15.        General.

15.1.         Data Protection. The Parties acknowledge that all provisions related to applicable data protection laws are set out in a separate data protection addendum which is an addendum to this MSA.

15.2.        Entire Agreement. This Agreement sets out the entire agreement between the Parties and supersedes any previous agreements between the Parties relating to its subject matter. No terms or conditions contained in a purchase order or any other document or implied course of dealing shall apply to this Agreement. Each Party acknowledges and agrees that it has not relied on any representations made by the other except as set forth in this Agreement. Any such representations are excluded.

15.3.        Waiver. A waiver of any right under this Agreement is only effective if it is expressed as a waiver and sets out which provision is being waived in writing. It applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

15.4.        Invalid provisions. If any provision (or part of a provision) of this Agreement is found by any court or body of competent jurisdiction to be invalid, unenforceable, or illegal, the other provisions shall remain in force.  If any invalid, unenforceable or illegal provision would be valid, enforceable, or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.

15.5.        Governing Law and Jurisdiction. This Agreement and any disputes or claims arising out of or in connection with it, its subject matter or formation (including non-contractual disputes or claims) will for all purposes be solely and exclusively governed, construed, and enforced in accordance with the laws of Germany.  Both parties submit to the exclusive jurisdiction of the courts of Berlin, Germany.

15.6.        Third Party Rights. A person who is not a party to the Agreement has no rights to enforce, or to enjoy the benefit of, any term of this Agreement (except as otherwise stated herein).

15.7.        Assignment. Subject to Section 354a German Commercial Code, neither BRYTER nor Customer may assign or otherwise transfer this Agreement or any of its rights or obligations under it to any third party without prior written consent from the other party. Any attempted assignment, or other transfer in violation of this provision shall be void. Nothing in this section shall restrict a party from assigning its rights under this Agreement to any undertaking which acquires its business, provided that such acquiring entity is not a competitor of the non-assigning Party and the assigning Party is not in breach of this Agreement.

15.8.        Force Majeure. Neither Party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from a Force Majeure Event. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non‑performance continues for the period of fourteen (14) days, the Party not affected may terminate the Agreement by giving seven (7) days’ written notice to the affected Party.

15.9.        Notices. All notices given under this Agreement (except for notices given pursuant to Appendix 2) must be in writing and sent by pre-paid letter post or by email to the postal or email address for legal notice set out on the Order or to such other postal or email address as may from time to time be notified in accordance with this section, and will be deemed to have been given: if sent by pre-paid letter post, two Business Days after posting; and if sent by email, three Business Hours after being sent to the correct email address (provided the sender has not received notice of failure of delivery). Any notice sent to BRYTER must be copied to legal@bryter.io.

15.10.      Variations. Save as otherwise expressly stated in this Agreement, the terms of this Agreement may only be modified or varied in writing executed by duly authorized representatives of both parties.

15.11.       Survival. Sections 4 (Restrictions on Use), 11 (Confidentiality), 12 (IP Ownership), 13 (Limitation of Liability), 14.5 (Effect of Termination), and 15 (General) of this Agreement shall survive termination.

Version: 3.1 (October 2023)

Amendments since last version: (1) BRYTER Platform is renamed to BRYTER Automation Platform; (2) BRYTER Intake and Matter Management is implemented; (3) change of BRYTER’s business address to Biebergasse 2, 60313 Frankfurt am Main, Germany.

This master service agreement (the “MSA”) sets out the entire agreement which governs the contractual relationship between customer as defined in the applicable order (“Customer”) and BRYTER GmbH, Biebergasse 2, 60313 Frankfurt am Main, Germany (“BRYTER”) (individually, a “Party” and together the “Parties”) alongside an Order which references this MSA. Unless defined in the main body of this MSA, definitions are set out in Appendix 1 to this MSA. In the event of conflicts between this MSA and an Order concluded under this MSA, the respective Order shall prevail. The terms of this agreement shall be deemed accepted upon signing an Order. 

1.           Scope of this MSA.

This MSA governs the use of BRYTER’s cloud-based solutions that are provided as part of a subscription, along with any software made available by BRYTER in connection with such services as specified in each Order (the “Software”). The Software may include the BRYTER Automation Platform and BRYTER Intake and Matter Management, BRYTER Sandbox, software development kits and BRYTER’s application programming interfaces (“APIs”) made available in connection with such cloud-based solutions. Professional Services may be booked separately.

2.          Right of Use.

2.1.           Subject to this MSA and the applicable Order, BRYTER hereby grants Customer (including its Affiliates where so stated in an Order) a limited, non-exclusive, non-transferable right to use the Software during the Subscription Term.

2.2.          This MSA is entered into by Customer for and on behalf of itself and its Affiliates. Any such Affiliate shall be entitled to perform any of the obligations and exercise any of the rights of Customer under this MSA, but only Customer shall be entitled to enforce the rights granted to Customer under this MSA, for and on behalf of such Affiliates. Any act or omission of any Affiliate shall be deemed to be an act or omission of Customer. Any loss, damage, liability, costs and expenses incurred by any such Affiliate, shall be deemed to be incurred by Customer. Any such Affiliate may enter into a separate MSA at any time.

2.3.          Where the terms of an Order reference a Trial Period, BRYTER hereby grants to Customer a non‑exclusive, non‑transferable, revocable right to use parts of the Software during the Trial Period in accordance with the relevant Order.

2.4.          Each Authorized User shall have their own individual login and password. Authorized Users may not share their Accounts with other users. An Account may be assigned to another user only where the original user is no longer working for Customer, on a leave of any kind for more than three consecutive months or is no longer carrying out a function that relates to the Software. Authorized Users may only use the Software in accordance with the applicable definitions.

3.          Uptime Commitment and Support.

3.1.           BRYTER shall provide the Support and ensure uptime of the Software in accordance with the Support & Maintenance Services in Appendix 2.

3.2.          Customer Support is included in every paid subscription. Subject to each Order, a paid subscription may also include a level of support from our Customer Success team to help with the overall success and adoption of the Software.

4.          Restrictions on Use.

4.1.           Customer may only use the Software subject to the Scope as defined in each Order. If at any time during a Trial Period or the Subscription Term, Customer exceeds the Scope, BRYTER shall invoice Customer at BRYTER’s then standard rates (unless such pro rata pricing is set out in an Order in which case such pricing in the Order shall apply), based on that increased usage beyond the Scope and Customer shall pay in accordance with this MSA.

4.2.          Except for the purposes of publishing Applications (in relation to BRYTER Automation Platform) in accordance with this MSA, Customer may not (and will not allow any third party to): (i) sell, license, distribute, assign, provide, permit use of or otherwise transfer in whole or in part the Software to another party; (ii) use the BRYTER Automation Platform to host Applications on behalf of third-parties to this MSA without BRYTER’s prior written consent; (iii) use the Software in a manner that circumvents or interferes with the operation of the technological measure that controls the access to the Software; (iv) create derivative works based on the Software; (v) remove or modify any Software markings or any notice of BRYTER’s proprietary rights; or (vi) use the Software for any unlawful purposes. Except to the extent expressly permitted under this MSA or applicable law, Customer may not decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Software, in whole or in part.

4.3.          Customer agrees that it is liable for the acts and omissions of each Affiliate and each Authorized User, as though those acts and omissions were those of the Customer.

5.     Restricted Release.

If Customer participates in any version of the Software marked as alpha, beta or otherwise designated as a restricted release including but not limited to API releases (“Restricted Release”): (i) Customer shall promptly report to BRYTER any error condition discovered in the Restricted Release; (ii) BRYTER shall have no obligation to correct errors or deliver updates to the Restricted Release; (iii) BRYTER shall have no obligation to otherwise support the Restricted Release; (iv) Customer shall provide BRYTER with appropriate test data for the Restricted Release if necessary to resolve problems in the Restricted Release encountered by Customer; (v) the Restricted Release is experimental, may contain problems and errors and is being provided to Customer on an as-is basis with no warranty of any kind, express or implied; (vi) neither Party shall be responsible or liable to the other for any losses, claims or damages of whatever nature, arising out of or in connection with the performance or non-performance of the Restricted Release; and (vii) Customer shall not distribute the Restricted Release to third parties without the prior written consent of BRYTER. 

6.     APIs.

6.1.           In the event BRYTER provides customer with access to the API, the following provisions shall apply:

6.2.          BRYTER shall grant Customer a non-exclusive, worldwide, non-transferable, limited license to access the API and its related documentation only as necessary to develop, test and support Customer’s own application based on that API. Customer must not sell, rent, lease, sublicense, distribute, or otherwise transfer the API or any portion thereof to any third party; (ii) modify, alter, or create derivative works of the API; (iii) use the API for any purpose other than testing and evaluation; (iv) reverse engineer, decompile, or disassemble the API; or (v) remove or alter any proprietary or confidentiality notices contained in the API.

6.3.          The API allows Customer to use the technical infrastructure provided by BRYTER to integrate Applications in Customer’s third-party applications in accordance with the BRYTER Automation Platform Documentation. Customer is solely responsible for any implementation of the API on Customer’s side.

6.4.          BRYTER may, in its sole discretion, provide Customer with software development kits or code samples (hereinafter jointly referred to as “Code Samples”). Code Samples are provided free of charge and are excluded from the paid services provided by BRYTER. Code Samples are provided in electronic form and can be downloaded from a dedicated website. BRYTER is not obligated to develop Code Samples or to keep Code Samples functional or available at all times. Code Samples are not suited for any use in production environments and are provided for educational purposes only.

6.5.          BRYTER may introduce new versions of the API with an additional or different range of features. BRYTER may replace deprecated versions of the API provided that the replacement is reasonable for Customer in consideration of the interests of both Parties.

6.6.          For purposes of Customer participating in the Restricted Release, Customer may need to disclose code to BRYTER to use the full functionality of Restricted Release (“Customer Code”). For the avoidance of doubt BRYTER may not be held liable for any infringement caused by Customer through such Customer Code and Customer is responsible for obtaining all necessary licenses with regards to Customer Code.

7.          Professional Services.

7.1.           Professional Services are subject to a separate SOW and will be performed with due skill, care, and ability in accordance with good industry practice, applicable laws and using appropriately trained personnel.

7.2.           The performance of the Professional Services is contingent on Customer (i) meeting any dependencies set out in a SOW, (ii) making decisions and providing information as necessary for BRYTER to be able to provide the Professional Services, and (iii) allowing BRYTER such access to its facilities, equipment and data as is reasonably required to provide the Professional Services.

8.          Payments.

8.1.           Customer shall pay to BRYTER the Fees stipulated in the applicable Order in the currency set out therein. Unless stated otherwise in the Order, BRYTER will invoice Customer a) the Fees relating to the Software annually in advance; and b) the Fees for any Professional Services as set out in the applicable SOW. All amounts and Fees stated or referred to in this MSA, any Order and SOW are exclusive of all Taxes which Customer shall pay in addition. 

8.2.          In the case of multiple year Subscription Terms, on each anniversary of the Effective Date of the Order, BRYTER may levy an adjustment to the Fees for the coming year in accordance with, and which shall in no circumstances exceed, the previous 12 months’ annual rise in the Consumer Price Index in the country where the BRYTER entity entering into this MSA is based, according to the German Federal Statistical Office (Statistisches Bundesamt) or any other successor thereto.

8.3.          If Customer’s internal processes require a purchase order or purchase order number to be submitted with an invoice, Customer shall provide to BRYTER such purchase order and/or purchase order number with the signed Order. Payment of invoices shall not be delayed or withheld by Customer due to Customer’s internal ordering processes or formalities, including the requirement and/or failure to provide a purchase order number.

8.4.          Customer shall pay undisputed invoices by bank transfer within thirty (30) days upon receipt of an invoice. Any Fees not paid when due shall accrue interest at a rate of 4 per cent per annum from the due date until payment is made, whether before or after judgement. BRYTER can deny access to the Software temporarily until overdue payments have been received (without prejudice to any other rights it may have), provided it has given Customer 15 days’ written notice of its intention to do so.

8.5.          Customer may withhold payment of particular Fees (or elements of them) that it reasonably disputes in good faith on the basis that BRYTER has not performed in accordance with the terms of this MSA and/or the applicable Order. For the avoidance of doubt Customer may not withhold payment for any non-disputed element of Fees. Customer must raise such dispute within the time for payment of that invoice, failing which such invoice shall be deemed to be undisputed and no amounts may be withheld.

8.6.          Where approved by Customer in advance (including under an Order), Customer will reimburse BRYTER for all reasonable travel, subsistence and other expenses incurred by BRYTER staff and contractors in providing Professional Services to Customer.

9.          Customer Data.

9.1.           Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility and liability for the legality, appropriateness, accuracy, quality and integrity of the Customer Data. Customer is solely responsible for obtaining any consents required for the use of Customer Data within the Software.

9.2.          Customer grants BRYTER, a non-exclusive, royalty-free license for a Trial Period and/or Subscription Term (as applicable) to use, host, transmit, display, and create derivative works of the Customer Data solely in connection with the provision of the Software and Professional Services (if applicable).

9.3.          Customer agrees not to use or permit the use of the Software to display, store, or process any Customer Data, that may (i) menace or harass any person or cause damage or injury to any person or property; (ii) involve the publication of any material that is false, defamatory, harassing or obscene; (iii) violate privacy rights or promote hatred or harm; (iv) constitute unsolicited bulk e-mail or “junk mail; (v) infringe Intellectual Property rights, or (vi) violate applicable laws. If BRYTER receives information that Customer is in violation of any of the foregoing, BRYTER will notify Customer, and Customer will promptly take appropriate action to resolve such violation. If Customer does not take required action in accordance with the above, BRYTER reserves the right, but has no obligation, to take remedial action, including the removal or disablement of access to such material (without liability on BRYTER’s part).

9.4.          Customer shall defend BRYTER, or at Customer’s option, settle any claim or action brought against BRYTER by a third party alleging that Customer Data violates the provisions of section 9.3 and will indemnify BRYTER for any damages finally awarded against BRYTER by a court of competent jurisdiction or for amounts paid by BRYTER under a court-approved settlement or a settlement of such a claim. The indemnification obligations above are subject to BRYTER providing Customer with prompt written notice of such claim granting Customer sole control of the defense and settlement of such claim; not entering into any settlement or compromise of any such claim without Customer’s prior written consent; and providing Customer with all reasonable information for such claim at Customer’s expense.

10.       Software Warranty.

10.1.         Except as otherwise agreed in this MSA, BRYTER represents and warrants to Customer that during the Subscription Term (i) it has the power to grant Customer the rights set out in this MSA; (ii) the Software will be provided with reasonable skill and care and in compliance with applicable laws, (iii) the Software shall materially conform to the Documentations and applicable Order, and (iv) BRYTER shall not materially decrease the functionality of the Software.

10.2.        Subject to section 10.3, and notification of such by Customer, if the Software does not comply with the warranty in section 10.1, BRYTER will, at its discretion, use reasonable endeavors to correct such error promptly, or will provide Customer with alternative means of carrying out the task which it was carrying out using the Software.

10.3.        BRYTER will not be liable under any warranty or any other provision of this MSA or Order to the extent that any loss or damage is caused by Customer or any Authorized User not having complied with the MSA or Order.

10.4.        BRYTER is constantly improving and updating the Software and aims to provide new and innovative features and services. Customer shall always have access to the latest version of the Software. Customer acknowledges that BRTYER may update or modify certain elements of the Software and introduce new Premium Features as BRYTER sees fit, provided that BRYTER shall comply with the warranties set out in section 10.1 for the Subscription Term.

10.5.        BRYTER warrants that Deliverables which are provided as a result of Professional Services under a SOW and which consist in the provision of a work in accordance with German law (Werkleistungen), correspond to the agreed specification and shall remedy Errors in accordance with Section 10.2. If BRYTER fails to remedy an Error by the end of an additional time period of length set by Customer in writing, Customer may either request an appropriate reduction of the remuneration for the Professional Service concerned or cancel (zurücktreten) the applicable Order with respect to the Professional Services. Section 14. shall apply accordingly to any claim for damages caused by any Error.

10.6.        In the event that BRYTER: (i) fails to properly provide Professional Services which are services (Dienstleistungen), or (ii) is in breach of contract which breach does not consist in an Error of the Software or a work, Customer must notify BRYTER in writing and set BRYTER a reasonable time period to properly perform its duty or otherwise remedy the breach. Section 14 shall apply accordingly to any claim for damages caused by any Error.

10.7.        Save as expressly provided in this MSA, to the fullest extent allowable by applicable law APIs, documentation and all related components and information are provided on an “as is” and “as available” basis without any warranties (express or implied), conditions, representations or undertakings, made by BRYTER including without limitation any implied warranties of satisfactory quality, fitness for a particular purpose or non-infringement, or arising by course of dealing or performance, or by custom or usage in the trade, all of which are hereby expressly disclaimed.

10.8.        This section 10. does not apply to any BRYTER Sandbox access and other services free of charge.

11.         Confidentiality.

11.1.          During the Term of this MSA, each Party shall hold in confidence and not use for any purposes unrelated to this MSA or disclose to any third party (except each Party’s employees, agents or contractors who have a need to know and who are subject to confidentiality obligations at least as restrictive as those herein) any Confidential Information of the other Party.

11.2.         Either Party may disclose Confidential Information of the other Party: (i) in response to a valid order by a court or other governmental or regulatory body; or (ii) as otherwise required by law; or (iii) as necessary to establish the rights of either Party under this MSA. The receiving Party will promptly give notice to the disclosing Party of such compelled disclosure and allow the disclosing Party to object or to seek a protective order, to the extent legally permitted.

11.3.         Except as otherwise authorized or required in furtherance of the purposes of this MSA or any Order, promptly upon a request by the disclosing Party, the receiving Party will destroy (and so certify it in writing) or return to the disclosing Party all Confidential Information and all documents or media containing any such Confidential Information and all copies or extracts thereof provided that the receiving Party shall be permitted to retain copies of any computer records and files containing any Confidential Information which have been created pursuant to automatic archiving and back-up procedures, or retain a back-up copy of such Confidential Information as required by law, or internal compliance policies, in which cases such Confidential Information shall continue to be subject to confidentiality obligations even after termination of this MSA.

11.4.         For the avoidance of doubt the permission to retain Confidential Information after termination in accordance with this clause, shall not apply to any Personal Data which shall be governed by the data protection provisions herein.

11.5.         Subject to Customer’s prior written consent, BRYTER may use Customer’s name and logo to refer to Customer as customer or as a reference for marketing purposes.

12.        Intellectual Property Ownership.

12.1.         Customer acknowledges and agrees that BRYTER owns all Intellectual Property Rights in the Software, Documentations, feedback on the Software given by Customer, and BRYTER Data (the “BRYTER IP”). Except as expressly stated herein, this MSA does not grant Customer, its Affiliates, any Authorized Users and/or End Users any Intellectual Property Rights or any other rights or licenses in respect of the BRYTER IP.

12.2.        BRYTER acknowledges and agrees that Customer and/or its licensors own all Intellectual Property Rights in the Customer Data, Applications and other use cases created by Customer in connection with the use of the Software (the “Customer IP”). Except as expressly stated herein, this MSA does not grant BRYTER any Intellectual Property Rights or any other rights in respect of the Customer IP. For the avoidance of doubt such ownership of Customer IP shall not give Customer any rights to access or use the Software or Documentations after the expiry or termination of the applicable Order (save that BRYTER shall make the Software available to Customer upon request for a maximum of 30 days post termination solely for the purposes of downloading the Customer Data which is stored on Case Databases).

13.        Limitation of Liability.

13.1.         BRYTER shall be liable under the terms of this MSA, any Order and SOW in accordance with the provisions set out in this Section:

13.1.1.      BRYTER shall be liable for damages occurred due to the provision of any Professional Services and/or the Software free of charge in accordance with the statutory provisions.

13.1.2.     Notwithstanding the foregoing, BRYTER shall be fully liable for damages in connection with the provisions of any other services provided under this MSA in the event of intent (Vorsatz) and gross negligence (grobe Fahrlässigkeit) as well as for damages caused by injury to life, body, or health.

13.1.3.     In the event of slight negligence (einfache Fahrlässigkeit), BRYTER shall be liable only for breaches of a material contractual obligation. A material contractual obligation in the meaning of this provision is an obligation which makes the implementation of this MSA possible in the first place and upon which the contractual partner may therefore generally rely.

13.1.4.     In the event of section 13.1.3, BRYTER’s liability for any lack of commercial results, indirect damages and loss of profits is excluded.

13.1.5.     Liability according to section 13.1.3 shall be limited to typical and foreseeable damages at the time of conclusion of each applicable Order or SOW. The Parties agree that the typical foreseeable damage per event shall be limited to the amount set out in the applicable Order or SOW, respectively.

13.1.6.     The liability for loss of data in the event of section 13.1.3 shall be limited to typical recovery costs which would arise if Customer had made a backup of the relevant data.

13.1.7.     Limitations of liability shall also apply to employees, sub-contractors and agents of BRYTER.

13.2.        The potential liability of BRYTER for any guarantees or claims based on the German product liability act (Produkthaftungsgesetz) remains unaffected.

13.3.        Further liability of BRYTER shall be excluded.

14.        Term and Termination.

14.1.         This MSA takes effect on the Effective Date and will remain in effect until all applicable Orders have expired or been terminated.

14.2.        Each Order shall commence on the Order Date. Subject to earlier termination in accordance with section 14.3 or 14.4, the Order will continue for the Initial Term and then for successive Renewal Terms until the expiry of not less than 90 days’ written notice given by either Party to the other, that notice to expire at the end of the Initial Term or at the end of the applicable Renewal Term. In the event an Order sets out a Trial Period, the Trial Period shall automatically roll over into the Initial Term unless Customer notifies BRYTER that it wishes to terminate the Order in accordance with the terms of that Order.

14.3.        An Order may be terminated by a Party immediately upon notice to the other Party if the other Party (i) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or creditor assignment or analogous event in any applicable jurisdiction, or (ii) breaches any of its obligations under this MSA and/or the respective Order in any material respect, which breach is not remedied within thirty (30) days following written notice to the breaching Party.

14.4.        An Order may also be terminated by Customer immediately on written notice to BRYTER in the event of a Persistent Breach by BRYTER in relation to that Order.

14.5.        Upon termination of this MSA and any Order, Customer shall cease using the Software immediately. Following termination by Customer in accordance with section 14.3 or 14.4, BRYTER shall refund to Customer any fees paid by the Customer in advance in respect of the period following the date of termination. If the Order is terminated by BRYTER in accordance with section 14.3, Customer will promptly pay any unpaid amounts including those covering the remainder of the Subscription Term. In no event will termination relieve Customer of its obligation to pay any fees payable to BRYTER for the period prior to the effective date of termination.

14.6.        During the Subscription Term, Customer can access its Customer Data at any time. Before the Subscription Term expires, Customer may perform a final export of Customer Data which is stored on Case Databases. After the end of the Subscription Term, BRYTER will delete or overwrite the Customer Data remaining on servers hosting the Software unless applicable mandatory law requires retention. Retained data is subject to the confidentiality provisions in this MSA.

14.7.        Each Party’s statutory rights of termination for good cause shall remain unaffected.

15.        General.

15.1.         Data Protection. The Parties acknowledge that all provisions related to applicable data protection laws are set out in a separate data protection addendum which is an addendum to this MSA.

15.2.        Entire Agreement. This Agreement sets out the entire agreement between the Parties and supersedes any previous agreements between the Parties relating to its subject matter. No terms or conditions contained in a purchase order or any other document or implied course of dealing shall apply to this Agreement. Each Party acknowledges and agrees that it has not relied on any representations made by the other except as set forth in this Agreement. Any such representations are excluded.

15.3.        Waiver. A waiver of any right under this Agreement is only effective if it is expressed as a waiver and sets out which provision is being waived in writing. It applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

15.4.        Invalid provisions. If any provision (or part of a provision) of this Agreement is found by any court or body of competent jurisdiction to be invalid, unenforceable, or illegal, the other provisions shall remain in force.  If any invalid, unenforceable or illegal provision would be valid, enforceable, or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.

15.5.        Governing Law and Jurisdiction. This Agreement and any disputes or claims arising out of or in connection with it, its subject matter or formation (including non-contractual disputes or claims) will for all purposes be solely and exclusively governed, construed, and enforced in accordance with the laws of Germany.  Both parties submit to the exclusive jurisdiction of the courts of Berlin, Germany.

15.6.        Third Party Rights. A person who is not a party to the Agreement has no rights to enforce, or to enjoy the benefit of, any term of this Agreement (except as otherwise stated herein).

15.7.        Assignment. Subject to Section 354a German Commercial Code, neither BRYTER nor Customer may assign or otherwise transfer this Agreement or any of its rights or obligations under it to any third party without prior written consent from the other party. Any attempted assignment, or other transfer in violation of this provision shall be void. Nothing in this section shall restrict a party from assigning its rights under this Agreement to any undertaking which acquires its business, provided that such acquiring entity is not a competitor of the non-assigning Party and the assigning Party is not in breach of this Agreement.

15.8.        Force Majeure. Neither Party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from a Force Majeure Event. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non‑performance continues for the period of fourteen (14) days, the Party not affected may terminate the Agreement by giving seven (7) days’ written notice to the affected Party.

15.9.        Notices. All notices given under this Agreement (except for notices given pursuant to Appendix 2) must be in writing and sent by pre-paid letter post or by email to the postal or email address for legal notice set out on the Order or to such other postal or email address as may from time to time be notified in accordance with this section, and will be deemed to have been given: if sent by pre-paid letter post, two Business Days after posting; and if sent by email, three Business Hours after being sent to the correct email address (provided the sender has not received notice of failure of delivery). Any notice sent to BRYTER must be copied to legal@bryter.io.

15.10.      Variations. Save as otherwise expressly stated in this Agreement, the terms of this Agreement may only be modified or varied in writing executed by duly authorized representatives of both parties.

15.11.       Survival. Sections 4 (Restrictions on Use), 11 (Confidentiality), 12 (IP Ownership), 13 (Limitation of Liability), 14.5 (Effect of Termination), and 15 (General) of this Agreement shall survive termination.

Version: 3.0 (June 2023)

Amendments since last version: (1) Addition of Section 4. on Restricted Release of the Software; (2) addition of Section 5. concerning the provision of access to the API; (3) addition of Section 9.7. to declare APIs, documentation and all related components and information to be provided on an “as is” and “as available” basis.

THIS MASTER SERVICE AGREEMENT (THE “MSA”) SETS OUT THE ENTIRE AGREEMENT WHICH GOVERNS THE CONTRACTUAL RELATIONSHIP BETWEEN CUSTOMER AS DEFINED IN THE APPLICABLE ORDER FORM (“CUSTOMER”) AND BRYTER GMBH, LINIENSTRASSE 71, 10119 BERLIN, GERMANY (“BRYTER”) (INDIVIDUALLY, A “PARTY” AND TOGETHER THE “PARTIES”) ALONGSIDE AN ORDER WHICH REFERENCES THIS MSA. UNLESS DEFINED IN THE MAIN BODY OF THIS MSA, DEFINITIONS ARE SET OUT IN APPENDIX 1 TO THIS MSA. IN THE EVENT OF CONFLICTS BETWEEN THIS MSA AND AN ORDER CONCLUDED UNDER THIS MSA, THE RESPECTIVE ORDER SHALL PREVAIL. THE TERMS OF THIS AGREEMENT SHALL BE DEEMED ACCEPTED UPON SIGNING AN ORDER FORM. 

1.           Right of Use.

1.1.           Subject to this MSA and the applicable Order, BRYTER hereby grants Customer (including its Affiliates where so stated in an Order) a limited, non-exclusive, non-transferable right to use the Software during the Subscription Term, for the purpose of making Applications available to End Users for: (i) internal and (ii) external business purposes. Customer may only grant sub-licenses to the Software to the extent necessary to provide Applications to End Users within the Scope.

1.2.           This MSA is entered into by Customer for and on behalf of itself and its Affiliates. Any such Affiliate shall be entitled to perform any of the obligations and exercise any of the rights of Customer under this MSA, but only Customer shall be entitled to enforce the rights granted to Customer under this MSA, for and on behalf of such Affiliates. Any act or omission of any Affiliate shall be deemed to be an act or omission of Customer. Any loss, damage, liability, costs and expenses incurred by any such Affiliate, shall be deemed to be incurred by Customer. Any such Affiliate may enter into a separate MSA at any time.

1.3.           Where the terms of an Order reference a Trial Period, BRYTER hereby grants to Customer a non‑exclusive, non‑transferable, revocable right to use the Software during the Trial Period in accordance with the relevant Order. 

1.4.          Each Authorized User shall have their own individual login and password. Authorized Users may not share their Accounts with other users. An Account may be assigned to another user only where the original user is no longer working for Customer, on a leave of any kind for more than three consecutive months or is no longer carrying out a function that relates to the Software. Author Accounts, Author Test Accounts and Admin Accounts may only be used in accordance with their definitions.

2.          Uptime Commitment and Support.

2.1.           BRYTER shall provide the Support and ensure uptime of the Software in accordance with the Support & Maintenance Services in Appendix 2.

2.2.          Customer Support is included in every paid subscription. Subject to each Order, a paid subscription may also include a level of support from our Customer Success team to help with the overall success and adoption of the Software.

3.          Restrictions on Use.

3.1.           Customer may only use the Software subject to the Scope. If at any time during the Trial Period or the Subscription Term, Customer exceeds the Scope, BRYTER shall invoice Customer at BRYTER’s then standard rates (unless such pro rata pricing is set out in an Order in which case such pricing in the Order shall apply), based on that increased usage beyond the Scope and Customer shall pay in accordance with this MSA.

3.2.          Except for the purposes of publishing Applications in accordance with this MSA, Customer may not (and will not allow any third party to): (i) sell, license, distribute, assign, provide, permit use of or otherwise transfer in whole or in part the Software to another party; (ii) use the Software to host Applications on behalf of third-parties to this MSA without BRYTER’s prior written consent; (iii) use the Software in a manner that circumvents or interferes with the operation of the technological measure that controls the access to the Software; (iv) create derivative works based on the Software; (v) remove or modify any Software markings or any notice of BRYTER’s proprietary rights; or (vi) use the Software for any unlawful purposes. Except to the extent expressly permitted under this MSA or applicable law, Customer may not decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Software, in whole or in part.

3.3.          Customer agrees that it is liable for the acts and omissions of each Affiliate and each Authorized User, as though those acts and omissions were those of the Customer.

4.          Restricted Release.

If Customer participates in any version of the Software marked as alpha, beta or otherwise designated as a restricted release including but not limited to API releases (“Restricted Release”): (i) Customer shall promptly report to BRYTER any error condition discovered in the Restricted Release; (ii) BRYTER shall have no obligation to correct errors or deliver updates to the Restricted Release; (iii) BRYTER shall have no obligation to otherwise support the Restricted Release; (iv) Customer shall provide BRYTER with appropriate test data for the Restricted Release if necessary to resolve problems in the Restricted Release encountered by Customer; (v) the Restricted Release is experimental, may contain problems and errors and is being provided to Customer on an as-is basis with no warranty of any kind, express or implied; (vi) neither Party shall be responsible or liable to the other for any losses, claims or damages of whatever nature, arising out of or in connection with the performance or non-performance of the Restricted Release; and (vii) Customer shall not distribute the Restricted Release to third parties without the prior written consent of BRYTER.

5.          APIs.

5.1.           In the event BRYTER provides customer with access to the API, the following provisions shall apply:

5.2.          BRYTER shall grant Customer a non-exclusive, worldwide, non-transferable, limited license to access the API and its related documentation only as necessary to develop, test and support Customer’s own application based on that API. Customer must not sell, rent, lease, sublicense, distribute, or otherwise transfer the API or any portion thereof to any third party; (ii) modify, alter, or create derivative works of the API; (iii) use the API for any purpose other than testing and evaluation; (iv) reverse engineer, decompile, or disassemble the API; or (v) remove or alter any proprietary or confidentiality notices contained in the API.

5.3.          The API allows Customer to use the technical infrastructure provided by BRYTER to integrate Applications in Customer’s third-party applications in accordance with the Documentation. Customer is solely responsible for any implementation of the API on Customer’s side.

5.4.          BRYTER may, in its sole discretion, provide Customer with software development kits or code samples (hereinafter jointly referred to as “Code Samples”). Code Samples are provided free of charge and are excluded from the paid services provided by BRYTER. Code Samples are provided in electronic form and can be downloaded from a dedicated website. BRYTER is not obligated to develop Code Samples or to keep Code Samples functional or available at all times. Code Samples are not suited for any use in the Software in environments and are provided for educational purposes only.

5.5.          BRYTER may introduce new versions of the API with an additional or different range of features. In order to replace depreciated versions of the API provided that the replacement is reasonable for Customer in consideration of the interests of both Parties.

5.6.          For purposes of Customer participating in the Restricted Release, Customer may need to disclose code to BRYTER to use the full functionality of Restricted (“Customer Code”). For the avoidance of doubt BRYTER may not be held liable for any infringement caused by Customer through such Customer Code and Customer is responsible for obtaining all necessary licenses with regards to Customer Code.

6.          Professional Services.

6.1.          Professional Services will be performed with due skill, care and ability in accordance with good industry practice, applicable laws and using appropriately trained personnel. 

6.2.          The performance of the Professional Services is contingent on Customer (i) meeting any dependencies set out in a SOW, (ii) making decisions and providing information as necessary for BRYTER to be able to provide the Professional Services, and (iii) allowing BRYTER such access to its facilities, equipment and data as is reasonably required to provide the Professional Services.

7.          Payments.

7.1.           Customer shall pay to BRYTER the Fees stipulated in the applicable Order in the currency set out therein. Unless stated otherwise in the Order, BRYTER will invoice Customer a) the Fees relating to the Software annually in advance; and b) the Fees for any Professional Services as set out in the applicable SOW. All amounts and Fees stated or referred to in this MSA, any Order and SOW are exclusive of all Taxes which Customer shall pay in addition. 

7.2.          In the case of multiple year Subscription Terms, on each anniversary of the Effective Date of the Order, BRYTER may levy an adjustment to the Fees for the coming year in accordance with, and which shall in no circumstances exceed, the previous 12 months’ annual rise in the Consumer Price Index in the country where the BRYTER entity entering into this MSA is based, according to the German Federal Statistical Office (Statistisches Bundesamt) or any other successor thereto.

7.3.          If Customer’s internal processes require a purchase order or purchase order number to be submitted with an invoice, Customer shall provide to BRYTER such purchase order and/or purchase order number with the signed Order. Payment of invoices shall not be delayed or withheld by Customer due to Customer’s internal ordering processes or formalities, including the requirement and/or failure to provide a purchase order number.

7.4.          Customer shall pay undisputed invoices by bank transfer within thirty (30) days upon receipt of an invoice. Any Fees not paid when due shall accrue interest at a rate of 4 per cent per annum from the due date until payment is made, whether before or after judgement. BRYTER can deny access to the Software temporarily until overdue payments have been received (without prejudice to any other rights it may have), provided it has given Customer 15 days’ written notice of its intention to do so.

7.5.          Customer may withhold payment of particular Fees (or elements of them) that it reasonably disputes in good faith on the basis that BRYTER has not performed in accordance with the terms of this MSA and/or the applicable Order. For the avoidance of doubt Customer may not withhold payment for any non-disputed element of Fees. Customer must raise such dispute within the time for payment of that invoice, failing which such invoice shall be deemed to be undisputed and no amounts may be withheld.

7.6.          Where approved by Customer in advance (including under an Order), the Customer will reimburse BRYTER for all reasonable travel, subsistence and other expenses incurred by BRYTER staff and contractors in providing Professional Services to Customer.

8.          Customer Data.

8.1.          Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility and liability for the legality, appropriateness, accuracy, quality and integrity of the Customer Data. Customer is solely responsible for obtaining any consents required for the use of Customer Data within the Software.

8.2.          Customer grants BRYTER, a non-exclusive, royalty-free license for the Trial Period and/or Subscription Term (as applicable) to use, host, transmit, display and create derivative works of the Customer Data solely in connection with the provision of the Software and Professional Services (if applicable).

8.3.          Customer agrees not to use or permit the use of the Software to display, store, or process any Customer Data, that may (i) menace or harass any person or cause damage or injury to any person or property; (ii) involve the publication of any material that is false, defamatory, harassing or obscene; (iii) violate privacy rights or promote hatred or harm; (iv) constitute unsolicited bulk e-mail or “junk mail; (v) infringe Intellectual Property rights, or (vi) violate applicable laws. If BRYTER receives information that Customer is in violation of any of the foregoing, BRYTER will notify Customer, and Customer will promptly take appropriate action to resolve such violation. If Customer does not take required action in accordance with the above, BRYTER reserves the right, but has no obligation, to take remedial action, including the removal or disablement of access to such material (without liability on BRYTER’s part).

8.4.         Customer shall defend BRYTER, or at Customer’s option, settle any claim or action brought against BRYTER by a third party alleging that Customer Data violates the provisions of section 8.38.2 and will indemnify BRYTER for any damages finally awarded against BRYTER by a court of competent jurisdiction or for amounts paid by BRYTER under a court-approved settlement or a settlement of such a claim. The indemnification obligations above are subject to BRYTER providing Customer with prompt written notice of such claim granting Customer sole control of the defense and settlement of such claim; not entering into any settlement or compromise of any such claim without Customer’s prior written consent; and providing Customer with all reasonable information for such claim at Customer’s expense.

9.          Software Warranty.

9.1.          BRYTER represents and warrants to Customer that during the Subscription Term (i) it has the power to grant Customer the rights set out in this MSA; (ii) the Software will be provided with reasonable skill and care and in compliance with applicable laws, (iii) the Software shall materially conform to the Documentation and applicable Order, and (iv) BRYTER shall not materially decrease the functionality of the Software.

9.2.          Subject to section 9.3, and notification of such by Customer, if the Software does not comply with the warranty in section 9.1, BRYTER will, at its discretion, use reasonable endeavors to correct such error promptly, or will provide Customer with alternative means of carrying out the task which it was carrying out using the Software.

9.3.          BRYTER will not be liable under any warranty or any other provision of this MSA or Order to the extent that any loss or damage is caused by Customer or any Authorized User not having complied with the MSA or Order.

9.4.         BRYTER is constantly improving and updating the Software and aims to provide new and innovative features and services. Customer shall always have access to the latest version of the Software. Customer acknowledges that BRTYER may update or modify certain elements of the Software and introduce new Premium Features as BRYTER sees fit, provided that BRYTER shall comply with the warranties in set out in section 9.1 for the Subscription Term.

9.5.          BRYTER warrants that Deliverables which are provided as a result of Professional Services under a SOW and which consist in the provision of a work in accordance with German law (Werkleistungen), correspond to the agreed specification and shall remedy Errors in accordance with Section 9.2. If BRYTER fails to remedy an Error by the end of an additional time period of length set by Customer in writing, Customer may either request an appropriate reduction of the remuneration for the Professional Service concerned or cancel (zurücktreten) the applicable Order with respect to the Professional Services. Section 13 shall apply accordingly to any claim for damages caused by any Error.

9.6.         In the event that BRYTER: (i) fails to properly provide Professional Services which are services (Dienstleistungen), or (ii) is in breach of contract which breach does not consist in an Error of the Software or a work, Customer must notify BRYTER in writing and set BRYTER a reasonable time period to properly perform its duty or otherwise remedy the breach. Section 13 shall apply accordingly to any claim for damages caused by any Error.

9.7.          Save as expressly provided in this MSA, to the fullest extent allowable by applicable law APIs, documentation and all related components and information are provided on an “as is” and “as available” basis without any warranties (express or implied), conditions, representations or undertakings, made by BRYTER including without limitation any implied warranties of satisfactory quality, fitness for a particular purpose or non-infringement, or arising by course of dealing or performance, or by custom or usage in the trade, all of which are hereby expressly disclaimed.

10.       Confidentiality.

10.1.        During this MSA, each Party shall hold in confidence and not use for any purposes unrelated to this MSA or disclose to any third party (except the Party’s employees, agents or contractors who have a need to know and who are subject to confidentiality obligations at least as restrictive as those herein) any Confidential Information of the other Party.

10.2.       Either Party may disclose Confidential Information of the other Party: (i) in response to a valid order by a court or other governmental or regulatory body; or (ii) as otherwise required by law; or (iii) as necessary to establish the rights of either Party under this MSA. The receiving Party will promptly give notice to the disclosing Party of such compelled disclosure and allow the disclosing Party to object or to seek a protective order, to the extent legally permitted.

10.3.       Except as otherwise authorized or required in furtherance of the purposes of this MSA or any Order, promptly upon a request by the disclosing Party, the receiving Party will destroy (and so certify it in writing) or return to the disclosing Party all Confidential Information and all documents or media containing any such Confidential Information and all copies or extracts thereof provided that the receiving Party shall be permitted to retain copies of any computer records and files containing any Confidential Information which have been created pursuant to automatic archiving and back-up procedures, or retain a back-up copy of such Confidential Information as required by law, or internal compliance policies, in which cases such Confidential Information shall continue to be subject to confidentiality obligations even after termination of this MSA.

10.4.       For the avoidance of doubt the permission to retain Confidential Information after termination in accordance with this clause, shall not apply to any Personal Data which shall be governed by the data protection provisions herein.

10.5.       Subject to Customer’s prior written consent, BRYTER may use Customer’s name and logo to refer to Customer as customer or as a reference for marketing purposes.

11.        Intellectual Property Ownership.

11.1.         Customer acknowledges and agrees that BRYTER owns all Intellectual Property Rights in the Software, Documentation, feedback on Software given by Customer, and BRYTER Data (the “BRYTER IP”).  Except as expressly stated herein, this MSA does not grant Customer, its Affiliates, any Authorized Users and/or End Users any Intellectual Property Rights or any other rights or licenses in respect of the BRYTER IP.

11.2.         BRYTER acknowledges and agrees that Customer and/or its licensors own all Intellectual Property Rights in the Customer Data, Applications and/or Test Modules created by Customer (the “Customer IP”). Except as expressly stated herein, this MSA does not grant BRYTER any Intellectual Property Rights or any other rights in respect of the Customer IP. For the avoidance of doubt such ownership of Applications shall not give Customer any rights to access or use the Software or Documentation after the expiry or termination of the applicable Order (save that BRYTER shall make the Software available to Customer upon request for a maximum of 30 days post termination solely for the purposes of downloading the Customer Data which is stored on Case Databases).

12.        Limitation of Liability.

12.1.         BRYTER shall be liable under the terms of this MSA, any Order and SOW in accordance with the provisions set out in this Section:

12.1.1.     BRYTER shall be liable for damages occurred due to the provision of any Professional Services and/or the Software free of charge in accordance with the statutory provisions.

12.1.2.    Notwithstanding the foregoing, BRYTER shall be fully liable for damages in connection with the provisions of any other services provided under this MSA in the event of intent (Vorsatz) and gross negligence (grobe Fahrlässigkeit) as well as for damages caused by injury to life, body or health.

12.1.3.    In the event of slight negligence (einfache Fahrlässigkeit), BRYTER shall be liable only for breaches of a material contractual obligation. A material contractual obligation in the meaning of this provision is an obligation which makes the implementation of this MSA possible in the first place and upon which the contractual partner may therefore generally rely.

12.1.4.    In the event of Section 12.1.3., BRYTER’s liability for any lack of commercial results, indirect damages and loss of profits is excluded.

12.1.5.    Liability according to Section 12.1.3 shall be limited to typical and foreseeable damages at the time of conclusion of each applicable Order or SOW. The Parties agree that the typical foreseeable damage per event shall be limited to the amount set out in the applicable Order or SOW, respectively.

12.1.6.    The liability for loss of data in the event of section 12.1.3 shall be limited to typical recovery costs which would arise if Customer had made a backup of the relevant data.

12.1.7.     Limitations of liability shall also apply to employees, sub-contractors and agents of BRYTER.

12.2.        The potential liability of BRYTER for any guarantees or claims based on the German product liability act (Produkthaftungsgesetz) remains unaffected.

12.3.        Further liability of BRYTER shall be excluded.

13.        Term and Termination.

13.1.        This MSA takes effect on the Effective Date and will remain in effect until all applicable Orders have expired or been terminated.

13.2.        Each Order shall commence on the Order Date. Subject to earlier termination in accordance with section 13.3 or 13.4, the Order will continue for the Initial Term and then for successive Renewal Terms until the expiry of not less than 90 days’ written notice given by either Party to the other, that notice to expire at the end of the Initial Term or at the end of the applicable Renewal Term. In the event an Order sets out a Trial Period, the Trial Period shall automatically roll over into the Initial Term unless Customer notifies BRYTER that it wishes to terminate the Order in accordance with the terms of that Order.

13.3.       An Order may be terminated by a Party immediately upon notice to the other Party if the other Party (i) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or creditor assignment or analogous event in any applicable jurisdiction, or (ii) breaches any of its obligations under this MSA and/or the respective Order in any material respect, which breach is not remedied within thirty (30) days following written notice to the breaching Party.

13.4.       An Order may also be terminated by Customer immediately on written notice to BRYTER in the event of a Persistent Breach by BRYTER in relation to that Order.

13.5.        Upon termination of this MSA and any Order, Customer shall cease using the Software immediately. Following termination by Customer in accordance with section 13.3 or 13.4, BRYTER shall refund to Customer any fees paid by the Customer in advance in respect of the period following the date of termination. If the Order is terminated by BRYTER in accordance with section 13.3, Customer will promptly pay any unpaid amounts including those covering the remainder of the Subscription Term. In no event will termination relieve Customer of its obligation to pay any fees payable to BRYTER for the period prior to the effective date of termination.

13.6.       During the Subscription Term, Customer can access its Customer Data at any time. Before the Subscription Term expires, Customer may perform a final export of Customer Data which is stored on Case Databases. After the end of the Subscription Term, BRYTER will delete or overwrite the Customer Data remaining on servers hosting the Software unless applicable mandatory law requires retention. Retained data is subject to the confidentiality provisions in this MSA.

13.7.        Each Party’s statutory rights of termination for good cause shall remain unaffected.

14.       General.

14.1.        Data Protection. The Parties acknowledge that all provisions related to applicable data protection laws are set out in a separate data protection addendum which is an addendum to this MSA.

14.2.        Entire Agreement. This Agreement sets out the entire agreement between the Parties and supersedes any previous agreements between the Parties relating to its subject matter. No terms or conditions contained in a purchase order or any other document or implied course of dealing shall apply to this Agreement. Each Party acknowledges and agrees that it has not relied on any representations made by the other except as set forth in this Agreement. Any such representations are excluded.

14.3.       Waiver. A waiver of any right under this Agreement is only effective if it is expressed as a waiver and sets out which provision is being waived in writing. It applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

14.4.       Invalid provisions. If any provision (or part of a provision) of this Agreement is found by any court or body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.  If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.

14.5.       Governing Law and Jurisdiction. This Agreement and any disputes or claims arising out of or in connection with it, its subject matter or formation (including non-contractual disputes or claims) will for all purposes be solely and exclusively governed, construed and enforced in accordance with the laws of Germany.  Both parties submit to the exclusive jurisdiction of the courts of Berlin, Germany.

14.6.       Third Party Rights. A person who is not a party to the Agreement has no rights to enforce, or to enjoy the benefit of, any term of this Agreement (except as otherwise stated herein).

14.7.        Assignment. Subject to Section 354a German Commercial Code, neither BRYTER nor Customer may assign or otherwise transfer this Agreement or any of its rights or obligations under it to any third party without prior written consent from the other party. Any attempted assignment, or other transfer in violation of this provision shall be void. Nothing in this section shall restrict a party from assigning its rights under this Agreement to any undertaking which acquires its business, provided that such acquiring entity is not a competitor of the non-assigning Party and the assigning Party is not in breach of this Agreement.

14.8.       Force Majeure. Neither Party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from a Force Majeure Event. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non‑performance continues for the period of fourteen (14) days, the Party not affected may terminate the Agreement by giving seven (7) days’ written notice to the affected Party.

14.9.       Notices. All notices given under this Agreement (except for notices given pursuant to Appendix 2) must be in writing and sent by pre-paid letter post or by email to the postal or email address for legal notice set out on the Order or to such other postal or email address as may from time to time be notified in accordance with this section, and will be deemed to have been given: if sent by pre-paid letter post, two Business Days after posting; and if sent by email, three Business Hours after being sent to the correct email address (provided the sender has not received notice of failure of delivery). Any notice sent to BRYTER must be copied to legal@bryter.io.

14.10.     Variations. Save as otherwise expressly stated in this Agreement, the terms of this Agreement may only be modified or varied in writing executed by duly authorized representatives of both parties.

14.11.      Survival. Sections 3 (Restrictions on Use), 9 (Confidentiality), 10 (IP Ownership), 11 (Limitation of Liability), 13.5 (Effect of Termination), and 14 (General) of this Agreement shall survive termination.

Version: 2.3 (March 2023)

THIS MASTER SERVICE AGREEMENT (THE “MSA”) SETS OUT THE ENTIRE AGREEMENT WHICH GOVERNS THE CONTRACTUAL RELATIONSHIP BETWEEN CUSTOMER AS DEFINED IN THE APPLICABLE ORDER FORM (“CUSTOMER”) AND BRYTER GMBH, LINIENSTRASSE 71, 10119 BERLIN, GERMANY (“BRYTER”) (INDIVIDUALLY, A “PARTY” AND TOGETHER THE “PARTIES”) ALONGSIDE AN ORDER WHICH REFERENCES THIS MSA. UNLESS DEFINED IN THE MAIN BODY OF THIS MSA, DEFINITIONS ARE SET OUT IN APPENDIX 1 TO THIS MSA. IN THE EVENT OF CONFLICTS BETWEEN THIS MSA AND AN ORDER CONCLUDED UNDER THIS MSA, THE RESPECTIVE ORDER SHALL PREVAIL. THE TERMS OF THIS AGREEMENT SHALL BE DEEMED ACCEPTED UPON SIGNING AN ORDER FORM. 

1.           Right of Use.

1.1.           Subject to this MSA and the applicable Order, BRYTER hereby grants Customer (including its Affiliates where so stated in an Order) a limited, non-exclusive, non-transferable right to use the Software during the Subscription Term, for the purpose of making Applications available to End Users for: (i) internal and (ii) external business purposes. Customer may only grant sub-licenses to the Software to the extent necessary to provide Applications to End Users within the Scope.

1.2.           This MSA is entered into by Customer for and on behalf of itself and its Affiliates. Any such Affiliate shall be entitled to perform any of the obligations and exercise any of the rights of Customer under this MSA, but only Customer shall be entitled to enforce the rights granted to Customer under this MSA, for and on behalf of such Affiliates. Any act or omission of any Affiliate shall be deemed to be an act or omission of Customer. Any loss, damage, liability, costs and expenses incurred by any such Affiliate, shall be deemed to be incurred by Customer. Any such Affiliate may enter into a separate MSA at any time.

1.3.           Where the terms of an Order reference a Trial Period, BRYTER hereby grants to Customer a non‑exclusive, non‑transferable, revocable right to use the Software during the Trial Period in accordance with the relevant Order. 

1.4.          Each Authorized User shall have their own individual login and password. Authorized Users may not share their Accounts with other users. An Account may be assigned to another user only where the original user is no longer working for Customer, on a leave of any kind for more than three consecutive months or is no longer carrying out a function that relates to the Software. Author Accounts, Author Test Accounts and Admin Accounts may only be used in accordance with their definitions.

2.          Uptime Commitment and Support.

2.1.           BRYTER shall provide the Support and ensure uptime of the Software in accordance with the Support & Maintenance Services in Appendix 2.

2.2.          Customer Support is included in every paid subscription. Subject to each Order, a paid subscription may also include a level of support from our Customer Success team to help with the overall success and adoption of the Software.

3.          Restrictions on Use.

3.1.           Customer may only use the Software subject to the Scope. If at any time during the Trial Period or the Subscription Term, Customer exceeds the Scope, BRYTER shall invoice Customer at BRYTER’s then standard rates (unless such pro rata pricing is set out in an Order in which case such pricing in the Order shall apply), based on that increased usage beyond the Scope and Customer shall pay in accordance with this MSA.

3.2.          Except for the purposes of publishing Applications in accordance with this MSA, Customer may not (and will not allow any third party to): (i) sell, license, distribute, assign, provide, permit use of or otherwise transfer in whole or in part the Software to another party; (ii) use the Software to host Applications on behalf of third-parties to this MSA without BRYTER’s prior written consent; (iii) use the Software in a manner that circumvents or interferes with the operation of the technological measure that controls the access to the Software; (iv) create derivative works based on the Software; (v) remove or modify any Software markings or any notice of BRYTER’s proprietary rights; or (vi) use the Software for any unlawful purposes. Except to the extent expressly permitted under this MSA or applicable law, Customer may not decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Software, in whole or in part.

3.3.          Customer agrees that it is liable for the acts and omissions of each Affiliate and each Authorized User, as though those acts and omissions were those of the Customer.

4.          Professional Services.

4.1.          Professional Services will be performed with due skill, care and ability in accordance with good industry practice, applicable laws and using appropriately trained personnel. 

4.2.          The performance of the Professional Services is contingent on Customer (i) meeting any dependencies set out in a SOW, (ii) making decisions and providing information as necessary for BRYTER to be able to provide the Professional Services, and (iii) allowing BRYTER such access to its facilities, equipment and data as is reasonably required to provide the Professional Services.

5.          Payments.

5.1.           Customer shall pay to BRYTER the Fees stipulated in the applicable Order in the currency set out therein. Unless stated otherwise in the Order, BRYTER will invoice Customer a) the Fees relating to the Software annually in advance; and b) the Fees for any Professional Services as set out in the applicable SOW. All amounts and Fees stated or referred to in this MSA, any Order and SOW are exclusive of all Taxes which Customer shall pay in addition. 

5.2.          In the case of multiple year Subscription Terms, on each anniversary of the Effective Date of the Order, BRYTER may levy an adjustment to the Fees for the coming year in accordance with, and which shall in no circumstances exceed, the previous 12 months’ annual rise in the Consumer Price Index in the country where the BRYTER entity entering into this MSA is based, according to the German Federal Statistical Office (Statistisches Bundesamt) or any other successor thereto.

5.3.          If Customer’s internal processes require a purchase order or purchase order number to be submitted with an invoice, Customer shall provide to BRYTER such purchase order and/or purchase order number with the signed Order. Payment of invoices shall not be delayed or withheld by Customer due to Customer’s internal ordering processes or formalities, including the requirement and/or failure to provide a purchase order number.

5.4.          Customer shall pay undisputed invoices by bank transfer within thirty (30) days upon receipt of an invoice. Any Fees not paid when due shall accrue interest at a rate of 4 per cent per annum from the due date until payment is made, whether before or after judgement. BRYTER can deny access to the Software temporarily until overdue payments have been received (without prejudice to any other rights it may have), provided it has given Customer 15 days’ written notice of its intention to do so.

5.5.          Customer may withhold payment of particular Fees (or elements of them) that it reasonably disputes in good faith on the basis that BRYTER has not performed in accordance with the terms of this MSA and/or the applicable Order. For the avoidance of doubt Customer may not withhold payment for any non-disputed element of Fees. Customer must raise such dispute within the time for payment of that invoice, failing which such invoice shall be deemed to be undisputed and no amounts may be withheld.

5.6.          Where approved by Customer in advance (including under an Order), the Customer will reimburse BRYTER for all reasonable travel, subsistence and other expenses incurred by BRYTER staff and contractors in providing Professional Services to Customer.

6.          Customer Data.

6.1.          Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility and liability for the legality, appropriateness, accuracy, quality and integrity of the Customer Data. Customer is solely responsible for obtaining any consents required for the use of Customer Data within the Software.

6.2.          Customer grants BRYTER, a non-exclusive, royalty-free license for the Trial Period and/or Subscription Term (as applicable) to use, host, transmit, display and create derivative works of the Customer Data solely in connection with the provision of the Software and Professional Services (if applicable).

6.3.          Customer agrees not to use or permit the use of the Software to display, store, or process any Customer Data, that may (i) menace or harass any person or cause damage or injury to any person or property; (ii) involve the publication of any material that is false, defamatory, harassing or obscene; (iii) violate privacy rights or promote hatred or harm; (iv) constitute unsolicited bulk e-mail or “junk mail; (v) infringe Intellectual Property rights, or (vi) violate applicable laws. If BRYTER receives information that Customer is in violation of any of the foregoing, BRYTER will notify Customer, and Customer will promptly take appropriate action to resolve such violation. If Customer does not take required action in accordance with the above, BRYTER reserves the right, but has no obligation, to take remedial action, including the removal or disablement of access to such material (without liability on BRYTER’s part).

6.4.         Customer shall defend BRYTER, or at Customer’s option, settle any claim or action brought against BRYTER by a third party alleging that Customer Data violates the provisions of section 6.3 and will indemnify BRYTER for any damages finally awarded against BRYTER by a court of competent jurisdiction or for amounts paid by BRYTER under a court-approved settlement or a settlement of such a claim. The indemnification obligations above are subject to BRYTER providing Customer with prompt written notice of such claim granting Customer sole control of the defense and settlement of such claim; not entering into any settlement or compromise of any such claim without Customer’s prior written consent; and providing Customer with all reasonable information for such claim at Customer’s expense.

7.          Software Warranty.

7.1.           BRYTER represents and warrants to Customer that during the Subscription Term (i) it has the power to grant Customer the rights set out in this MSA; (ii) the Software will be provided with reasonable skill and care and in compliance with applicable laws, (iii) the Software shall materially conform to the Documentation and applicable Order, and (iv) BRYTER shall not materially decrease the functionality of the Software.

7.2.          Subject to section 7.3, and notification of such by Customer, if the Software does not comply with the warranty in section 7.1, BRYTER will, at its discretion, use reasonable endeavors to correct such error promptly, or will provide Customer with alternative means of carrying out the task which it was carrying out using the Software.

7.3.          BRYTER will not be liable under any warranty or any other provision of this MSA or Order to the extent that any loss or damage is caused by Customer or any Authorized User not having complied with the MSA or Order.

7.4.          BRYTER is constantly improving and updating the Software and aims to provide new and innovative features and services. Customer shall always have access to the latest version of the Software. Customer acknowledges that BRTYER may update or modify certain elements of the Software and introduce new Premium Features as BRYTER sees fit, provided that BRYTER shall comply with the warranties in set out in section 7.1 for the Subscription Term.

7.5.          BRYTER warrants that Deliverables which are provided as a result of Professional Services under a SOW and which consist in the provision of a work in accordance with German law (Werkleistungen), correspond to the agreed specification and shall remedy Errors in accordance with Section 7.2. If BRYTER fails to remedy an Error by the end of an additional time period of length set by Customer in writing, Customer may either request an appropriate reduction of the remuneration for the Professional Service concerned or cancel (zurücktreten) the applicable Order with respect to the Professional Services. Section 11 shall apply accordingly to any claim for damages caused by any Error.

7.6.          In the event that BRYTER: (i) fails to properly provide Professional Services which are services (Dienstleistungen), or (ii) is in breach of contract which breach does not consist in an Error of the Software or a work, Customer must notify BRYTER in writing and set BRYTER a reasonable time period to properly perform its duty or otherwise remedy the breach. Section 11 shall apply accordingly to any claim for damages caused by any Error.

8.          Confidentiality.

8.1.          During this MSA, each Party shall hold in confidence and not use for any purposes unrelated to this MSA or disclose to any third party (except the Party’s employees, agents or contractors who have a need to know and who are subject to confidentiality obligations at least as restrictive as those herein) any Confidential Information of the other Party.

8.2.          Either Party may disclose Confidential Information of the other Party: (i) in response to a valid order by a court or other governmental or regulatory body; or (ii) as otherwise required by law; or (iii) as necessary to establish the rights of either Party under this MSA. The receiving Party will promptly give notice to the disclosing Party of such compelled disclosure and allow the disclosing Party to object or to seek a protective order, to the extent legally permitted.

8.3.          Except as otherwise authorized or required in furtherance of the purposes of this MSA or any Order, promptly upon a request by the disclosing Party, the receiving Party will destroy (and so certify it in writing) or return to the disclosing Party all Confidential Information and all documents or media containing any such Confidential Information and all copies or extracts thereof provided that the receiving Party shall be permitted to retain copies of any computer records and files containing any Confidential Information which have been created pursuant to automatic archiving and back-up procedures, or retain a back-up copy of such Confidential Information as required by law, or internal compliance policies, in which cases such Confidential Information shall continue to be subject to confidentiality obligations even after termination of this MSA.

8.4.         For the avoidance of doubt the permission to retain Confidential Information after termination in accordance with this clause, shall not apply to any Personal Data which shall be governed by the data protection provisions herein.

8.5.          Subject to Customer’s prior written consent, BRYTER may use Customer’s name and logo to refer to Customer as customer or as a reference for marketing purposes.

9.          Intellectual Property Ownership.

9.1.          Customer acknowledges and agrees that BRYTER owns all Intellectual Property Rights in the Software, Documentation, feedback on Software given by Customer, and BRYTER Data (the “BRYTER IP”).  Except as expressly stated herein, this MSA does not grant Customer, its Affiliates, any Authorized Users and/or End Users any Intellectual Property Rights or any other rights or licenses in respect of the BRYTER IP.

9.2.          BRYTER acknowledges and agrees that Customer and/or its licensors own all Intellectual Property Rights in the Customer Data, Applications and/or Test Modules created by Customer (the “Customer IP”). Except as expressly stated herein, this MSA does not grant BRYTER any Intellectual Property Rights or any other rights in respect of the Customer IP. For the avoidance of doubt such ownership of Applications shall not give Customer any rights to access or use the Software or Documentation after the expiry or termination of the applicable Order (save that BRYTER shall make the Software available to Customer upon request for a maximum of 30 days post termination solely for the purposes of downloading the Customer Data which is stored on Case Databases).

10.       Limitation of Liability.

10.1.        BRYTER shall be liable under the terms of this MSA, any Order and SOW in accordance with the provisions set out in this Section:

10.1.1.     BRYTER shall be liable for damages occurred due to the provision of any Professional Services and/or the Software free of charge in accordance with the statutory provisions.

10.1.2.    Notwithstanding the foregoing, BRYTER shall be fully liable for damages in connection with the provisions of any other services provided under this MSA in the event of intent (Vorsatz) and gross negligence (grobe Fahrlässigkeit) as well as for damages caused by injury to life, body or health.

10.1.3.    In the event of slight negligence (einfache Fahrlässigkeit), BRYTER shall be liable only for breaches of a material contractual obligation. A material contractual obligation in the meaning of this provision is an obligation which makes the implementation of this MSA possible in the first place and upon which the contractual partner may therefore generally rely.

10.1.4.    In the event of Section 10.1.3., BRYTER’s liability for any lack of commercial results, indirect damages and loss of profits is excluded.

10.1.5.    Liability according to Section 10.1.3 shall be limited to typical and foreseeable damages at the time of conclusion of each applicable Order or SOW. The Parties agree that the typical foreseeable damage per event shall be limited to the amount set out in the applicable Order or SOW, respectively.

10.1.6.    The liability for loss of data in the event of section 10.1.3 shall be limited to typical recovery costs which would arise if Customer had made a backup of the relevant data.

10.1.7.    Limitations of liability shall also apply to employees, sub-contractors and agents of BRYTER.

10.2.       The potential liability of BRYTER for any guarantees or claims based on the German product liability act (Produkthaftungsgesetz) remains unaffected.

10.3.       Further liability of BRYTER shall be excluded.

11.        Term and Termination.

11.1.         This MSA takes effect on the Effective Date and will remain in effect until all applicable Orders have expired or been terminated.

11.2.         Each Order shall commence on the Order Date. Subject to earlier termination in accordance with section 11.3 or 11.4, the Order will continue for the Initial Term and then for successive Renewal Terms until the expiry of not less than 90 days’ written notice given by either Party to the other, that notice to expire at the end of the Initial Term or at the end of the applicable Renewal Term. In the event an Order sets out a Trial Period, the Trial Period shall automatically roll over into the Initial Term unless Customer notifies BRYTER that it wishes to terminate the Order in accordance with the terms of that Order.

11.3.        An Order may be terminated by a Party immediately upon notice to the other Party if the other Party (i) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or creditor assignment or analogous event in any applicable jurisdiction, or (ii) breaches any of its obligations under this MSA and/or the respective Order in any material respect, which breach is not remedied within thirty (30) days following written notice to the breaching Party.

11.4.        An Order may also be terminated by Customer immediately on written notice to BRYTER in the event of a Persistent Breach by BRYTER in relation to that Order.

11.5.        Upon termination of this MSA and any Order, Customer shall cease using the Software immediately. Following termination by Customer in accordance with section 11.3 or 11.4, BRYTER shall refund to Customer any fees paid by the Customer in advance in respect of the period following the date of termination. If the Order is terminated by BRYTER in accordance with section 11.3, Customer will promptly pay any unpaid amounts including those covering the remainder of the Subscription Term. In no event will termination relieve Customer of its obligation to pay any fees payable to BRYTER for the period prior to the effective date of termination.

11.6.        During the Subscription Term, Customer can access its Customer Data at any time. Before the Subscription Term expires, Customer may perform a final export of Customer Data which is stored on Case Databases. After the end of the Subscription Term, BRYTER will delete or overwrite the Customer Data remaining on servers hosting the Software unless applicable mandatory law requires retention. Retained data is subject to the confidentiality provisions in this MSA.

11.7.         Each Party’s statutory rights of termination for good cause shall remain unaffected.

12.        General.

12.1.         Data Protection. The Parties acknowledge that all provisions related to applicable data protection laws are set out in a separate data protection addendum which is an addendum to this MSA.

12.2.        Entire Agreement. This Agreement sets out the entire agreement between the Parties and supersedes any previous agreements between the Parties relating to its subject matter. No terms or conditions contained in a purchase order or any other document or implied course of dealing shall apply to this Agreement. Each Party acknowledges and agrees that it has not relied on any representations made by the other except as set forth in this Agreement. Any such representations are excluded.

12.3.        Waiver. A waiver of any right under this Agreement is only effective if it is expressed as a waiver and sets out which provision is being waived in writing. It applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

12.4.        Invalid provisions. If any provision (or part of a provision) of this Agreement is found by any court or body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.  If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.

12.5.        Governing Law and Jurisdiction. This Agreement and any disputes or claims arising out of or in connection with it, its subject matter or formation (including non-contractual disputes or claims) will for all purposes be solely and exclusively governed, construed and enforced in accordance with the laws of Germany.  Both parties submit to the exclusive jurisdiction of the courts of Berlin, Germany.

12.6.       Third Party Rights. A person who is not a party to the Agreement has no rights to enforce, or to enjoy the benefit of, any term of this Agreement (except as otherwise stated herein).

12.7.        Assignment. Subject to Section 354a German Commercial Code, neither BRYTER nor Customer may assign or otherwise transfer this Agreement or any of its rights or obligations under it to any third party without prior written consent from the other party. Any attempted assignment, or other transfer in violation of this provision shall be void. Nothing in this section shall restrict a party from assigning its rights under this Agreement to any undertaking which acquires its business, provided that such acquiring entity is not a competitor of the non-assigning Party and the assigning Party is not in breach of this Agreement.

12.8.       Force Majeure. Neither Party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from a Force Majeure Event. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non‑performance continues for the period of fourteen (14) days, the Party not affected may terminate the Agreement by giving seven (7) days’ written notice to the affected Party.

12.9.       Notices. All notices given under this Agreement (except for notices given pursuant to Appendix 2) must be in writing and sent by pre-paid letter post or by email to the postal or email address for legal notice set out on the Order or to such other postal or email address as may from time to time be notified in accordance with this section, and will be deemed to have been given: if sent by pre-paid letter post, two Business Days after posting; and if sent by email, three Business Hours after being sent to the correct email address (provided the sender has not received notice of failure of delivery). Any notice sent to BRYTER must be copied to legal@bryter.io.

12.10.     Variations. Save as otherwise expressly stated in this Agreement, the terms of this Agreement may only be modified or varied in writing executed by duly authorized representatives of both parties.

12.11.      Survival. Sections 3 (Restrictions on Use), 8 (Confidentiality), 9 (IP Ownership), 10 (Limitation of Liability), 11.5 (Effect of Termination), and 12 (General) of this Agreement shall survive termination.

Version: 2.2 (February 2023)

THIS MASTER SERVICE AGREEMENT (THE “MSA”) SETS OUT THE ENTIRE AGREEMENT WHICH GOVERNS THE CONTRACTUAL RELATIONSHIP BETWEEN CUSTOMER AS DEFINED IN THE APPLICABLE ORDER FORM (“CUSTOMER”) AND BRYTER GMBH, LINIENSTRASSE 71, 10119 BERLIN, GERMANY (“BRYTER”) (INDIVIDUALLY, A “PARTY” AND TOGETHER THE “PARTIES”) ALONGSIDE AN ORDER WHICH REFERENCES THIS MSA. UNLESS DEFINED IN THE MAIN BODY OF THIS MSA, DEFINITIONS ARE SET OUT IN APPENDIX 1 TO THIS MSA. IN THE EVENT OF CONFLICTS BETWEEN THIS MSA AND AN ORDER CONCLUDED UNDER THIS MSA, THE RESPECTIVE ORDER SHALL PREVAIL. THE TERMS OF THIS AGREEMENT SHALL BE DEEMED ACCEPTED UPON SIGNING AN ORDER FORM. 

1.           Right of Use.

1.1.           Subject to this MSA and the applicable Order, BRYTER hereby grants Customer (including its Affiliates where so stated in an Order) a limited, non-exclusive, non-transferable right to use the Software during the Subscription Term, for the purpose of making Applications available to End Users for: (i) internal and (ii) external business purposes. Customer may only grant sub-licenses to the Software to the extent necessary to provide Applications to End Users within the Scope.

1.2.           This MSA is entered into by Customer for and on behalf of itself and its Affiliates. Any such Affiliate shall be entitled to perform any of the obligations and exercise any of the rights of Customer under this MSA, but only Customer shall be entitled to enforce the rights granted to Customer under this MSA, for and on behalf of such Affiliates. Any act or omission of any Affiliate shall be deemed to be an act or omission of Customer. Any loss, damage, liability, costs and expenses incurred by any such Affiliate, shall be deemed to be incurred by Customer. Any such Affiliate may enter into a separate MSA at any time.

1.3.           Where the terms of an Order reference a Trial Period, BRYTER hereby grants to Customer a non‑exclusive, non‑transferable, revocable right to use the Software during the Trial Period in accordance with the relevant Order. 

1.4.          Each Authorized User shall have their own individual login and password. Authorized Users may not share their Accounts with other users. An Account may be assigned to another user only where the original user is no longer working for Customer, on a leave of any kind for more than three consecutive months or is no longer carrying out a function that relates to the Software. Author Accounts, Author Test Accounts and Admin Accounts may only be used in accordance with their definitions.

2.          Uptime Commitment and Support.

2.1.           BRYTER shall provide the Support and ensure uptime of the Software in accordance with the Support & Maintenance Services in Appendix 2.

2.2.          Customer Support is included in every paid subscription. Subject to each Order, a paid subscription may also include a level of support from our Customer Success team to help with the overall success and adoption of the Software.

3.          Restrictions on Use.

3.1.           Customer may only use the Software subject to the Scope. If at any time during the Trial Period or the Subscription Term, Customer exceeds the Scope, BRYTER shall invoice Customer at BRYTER’s then standard rates (unless such pro rata pricing is set out in an Order in which case such pricing in the Order shall apply), based on that increased usage beyond the Scope and Customer shall pay in accordance with this MSA.

3.2.          Except for the purposes of publishing Applications in accordance with this MSA, Customer may not (and will not allow any third party to): (i) sell, license, distribute, assign, provide, permit use of or otherwise transfer in whole or in part the Software to another party; (ii) use the Software to host Applications on behalf of third-parties to this MSA without BRYTER’s prior written consent; (iii) use the Software in a manner that circumvents or interferes with the operation of the technological measure that controls the access to the Software; (iv) create derivative works based on the Software; (v) remove or modify any Software markings or any notice of BRYTER’s proprietary rights; or (vi) use the Software for any unlawful purposes. Except to the extent expressly permitted under this MSA or applicable law, Customer may not decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Software, in whole or in part.

3.3.          Customer agrees that it is liable for the acts and omissions of each Affiliate and each Authorized User, as though those acts and omissions were those of the Customer.

4.          Professional Services.

4.1.          Professional Services will be performed with due skill, care and ability in accordance with good industry practice, applicable laws and using appropriately trained personnel. 

4.2.          The performance of the Professional Services is contingent on Customer (i) meeting any dependencies set out in a SOW, (ii) making decisions and providing information as necessary for BRYTER to be able to provide the Professional Services, and (iii) allowing BRYTER such access to its facilities, equipment and data as is reasonably required to provide the Professional Services.

5.          Payments.

5.1.           Customer shall pay to BRYTER the Fees stipulated in the applicable Order in the currency set out therein. Unless stated otherwise in the Order, BRYTER will invoice Customer a) the Fees relating to the Software annually in advance; and b) the Fees for any Professional Services as set out in the applicable SOW. All amounts and Fees stated or referred to in this MSA, any Order and SOW are exclusive of all Taxes which Customer shall pay in addition. 

5.2.          In the case of multiple year Subscription Terms, on each anniversary of the Effective Date of the Order, BRYTER may levy an adjustment to the Fees for the coming year in accordance with, and which shall in no circumstances exceed, the previous 12 months’ annual rise in the Consumer Price Index in the country where the BRYTER entity entering into this MSA is based, according to the German Federal Statistical Office (Statistisches Bundesamt) or any other successor thereto.

5.3.          If Customer’s internal processes require a purchase order or purchase order number to be submitted with an invoice, Customer shall provide to BRYTER such purchase order and/or purchase order number with the signed Order. Payment of invoices shall not be delayed or withheld by Customer due to Customer’s internal ordering processes or formalities, including the requirement and/or failure to provide a purchase order number.

5.4.          Customer shall pay undisputed invoices by bank transfer within thirty (30) days upon receipt of an invoice. Any Fees not paid when due shall accrue interest at a rate of 4 per cent per annum from the due date until payment is made, whether before or after judgement. BRYTER can deny access to the Software temporarily until overdue payments have been received (without prejudice to any other rights it may have), provided it has given Customer 15 days’ written notice of its intention to do so.

5.5.          Customer may withhold payment of particular Fees (or elements of them) that it reasonably disputes in good faith on the basis that BRYTER has not performed in accordance with the terms of this MSA and/or the applicable Order. For the avoidance of doubt Customer may not withhold payment for any non-disputed element of Fees. Customer must raise such dispute within the time for payment of that invoice, failing which such invoice shall be deemed to be undisputed and no amounts may be withheld.

5.6.          Where approved by Customer in advance (including under an Order), the Customer will reimburse BRYTER for all reasonable travel, subsistence and other expenses incurred by BRYTER staff and contractors in providing Professional Services to Customer.

6.          Customer Data.

6.1.          Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility and liability for the legality, appropriateness, accuracy, quality and integrity of the Customer Data. Customer is solely responsible for obtaining any consents required for the use of Customer Data within the Software.

6.2.          Customer grants BRYTER, a non-exclusive, royalty-free license for the Trial Period and/or Subscription Term (as applicable) to use, host, transmit, display and create derivative works of the Customer Data solely in connection with the provision of the Software and Professional Services (if applicable).

6.3.          Customer agrees not to use or permit the use of the Software to display, store, or process any Customer Data, that may (i) menace or harass any person or cause damage or injury to any person or property; (ii) involve the publication of any material that is false, defamatory, harassing or obscene; (iii) violate privacy rights or promote hatred or harm; (iv) constitute unsolicited bulk e-mail or “junk mail; (v) infringe Intellectual Property rights, or (vi) violate applicable laws. If BRYTER receives information that Customer is in violation of any of the foregoing, BRYTER will notify Customer, and Customer will promptly take appropriate action to resolve such violation. If Customer does not take required action in accordance with the above, BRYTER reserves the right, but has no obligation, to take remedial action, including the removal or disablement of access to such material (without liability on BRYTER’s part).

6.4.         Customer shall defend BRYTER, or at Customer’s option, settle any claim or action brought against BRYTER by a third party alleging that Customer Data violates the provisions of section 6.3 and will indemnify BRYTER for any damages finally awarded against BRYTER by a court of competent jurisdiction or for amounts paid by BRYTER under a court-approved settlement or a settlement of such a claim. The indemnification obligations above are subject to BRYTER providing Customer with prompt written notice of such claim granting Customer sole control of the defense and settlement of such claim; not entering into any settlement or compromise of any such claim without Customer’s prior written consent; and providing Customer with all reasonable information for such claim at Customer’s expense.

7.          Software Warranty.

7.1.           BRYTER represents and warrants to Customer that during the Subscription Term (i) it has the power to grant Customer the rights set out in this MSA; (ii) the Software will be provided with reasonable skill and care and in compliance with applicable laws, (iii) the Software shall materially conform to the Documentation and applicable Order, and (iv) BRYTER shall not materially decrease the functionality of the Software.

7.2.          Subject to section 7.3, and notification of such by Customer, if the Software does not comply with the warranty in section 7.1, BRYTER will, at its discretion, use reasonable endeavors to correct such error promptly, or will provide Customer with alternative means of carrying out the task which it was carrying out using the Software.

7.3.          BRYTER will not be liable under any warranty or any other provision of this MSA or Order to the extent that any loss or damage is caused by Customer or any Authorized User not having complied with the MSA or Order.

7.4.          BRYTER is constantly improving and updating the Software and aims to provide new and innovative features and services. Customer shall always have access to the latest version of the Software. Customer acknowledges that BRTYER may update or modify certain elements of the Software and introduce new Premium Features as BRYTER sees fit, provided that BRYTER shall comply with the warranties in set out in section 7.1 for the Subscription Term.

7.5.          BRYTER warrants that Deliverables which are provided as a result of Professional Services under a SOW and which consist in the provision of a work in accordance with German law (Werkleistungen), correspond to the agreed specification and shall remedy Errors in accordance with Section 7.2. If BRYTER fails to remedy an Error by the end of an additional time period of length set by Customer in writing, Customer may either request an appropriate reduction of the remuneration for the Professional Service concerned or cancel (zurücktreten) the applicable Order with respect to the Professional Services. Section 11 shall apply accordingly to any claim for damages caused by any Error.

7.6.          In the event that BRYTER: (i) fails to properly provide Professional Services which are services (Dienstleistungen), or (ii) is in breach of contract which breach does not consist in an Error of the Software or a work, Customer must notify BRYTER in writing and set BRYTER a reasonable time period to properly perform its duty or otherwise remedy the breach. Section 11 shall apply accordingly to any claim for damages caused by any Error.

8.          Confidentiality.

8.1.          During this MSA, each Party shall hold in confidence and not use for any purposes unrelated to this MSA or disclose to any third party (except the Party’s employees, agents or contractors who have a need to know and who are subject to confidentiality obligations at least as restrictive as those herein) any Confidential Information of the other Party.

8.2.          Either Party may disclose Confidential Information of the other Party: (i) in response to a valid order by a court or other governmental or regulatory body; or (ii) as otherwise required by law; or (iii) as necessary to establish the rights of either Party under this MSA. The receiving Party will promptly give notice to the disclosing Party of such compelled disclosure and allow the disclosing Party to object or to seek a protective order, to the extent legally permitted.

8.3.          Except as otherwise authorized or required in furtherance of the purposes of this MSA or any Order, promptly upon a request by the disclosing Party, the receiving Party will destroy (and so certify it in writing) or return to the disclosing Party all Confidential Information and all documents or media containing any such Confidential Information and all copies or extracts thereof provided that the receiving Party shall be permitted to retain copies of any computer records and files containing any Confidential Information which have been created pursuant to automatic archiving and back-up procedures, or retain a back-up copy of such Confidential Information as required by law, or internal compliance policies, in which cases such Confidential Information shall continue to be subject to confidentiality obligations even after termination of this MSA.

8.4.         For the avoidance of doubt the permission to retain Confidential Information after termination in accordance with this clause, shall not apply to any Personal Data which shall be governed by the data protection provisions herein.

8.5.          Subject to Customer’s prior written consent, BRYTER may use Customer’s name and logo to refer to Customer as customer or as a reference for marketing purposes.

9.          Intellectual Property Ownership.

9.1.          Customer acknowledges and agrees that BRYTER owns all Intellectual Property Rights in the Software, Documentation, feedback on Software given by Customer, and BRYTER Data (the “BRYTER IP”).  Except as expressly stated herein, this MSA does not grant Customer, its Affiliates, any Authorized Users and/or End Users any Intellectual Property Rights or any other rights or licenses in respect of the BRYTER IP.

9.2.          BRYTER acknowledges and agrees that Customer and/or its licensors own all Intellectual Property Rights in the Customer Data, Applications and/or Test Modules created by Customer (the “Customer IP”). Except as expressly stated herein, this MSA does not grant BRYTER any Intellectual Property Rights or any other rights in respect of the Customer IP. For the avoidance of doubt such ownership of Applications shall not give Customer any rights to access or use the Software or Documentation after the expiry or termination of the applicable Order (save that BRYTER shall make the Software available to Customer upon request for a maximum of 30 days post termination solely for the purposes of downloading the Customer Data which is stored on Case Databases).

10.       Limitation of Liability.

10.1.        BRYTER shall be liable under the terms of this MSA, any Order and SOW in accordance with the provisions set out in this Section:

10.1.1.     BRYTER shall be liable for damages occurred due to the provision of any Professional Services and/or the Software free of charge in accordance with the statutory provisions.

10.1.2.    Notwithstanding the foregoing, BRYTER shall be fully liable for damages in connection with the provisions of any other services provided under this MSA in the event of intent (Vorsatz) and gross negligence (grobe Fahrlässigkeit) as well as for damages caused by injury to life, body or health.

10.1.3.    In the event of slight negligence (einfache Fahrlässigkeit), BRYTER shall be liable only for breaches of a material contractual obligation. A material contractual obligation in the meaning of this provision is an obligation which makes the implementation of this MSA possible in the first place and upon which the contractual partner may therefore generally rely.

10.1.4.    In the event of Section 10.1.3., BRYTER’s liability for any lack of commercial results, indirect damages and loss of profits is excluded.

10.1.5.    Liability according to Section 10.1.3 shall be limited to typical and foreseeable damages at the time of conclusion of each applicable Order or SOW. The Parties agree that the typical foreseeable damage per event shall be limited to the amount set out in the applicable Order or SOW, respectively.

10.1.6.    The liability for loss of data in the event of section 10.1.3 shall be limited to typical recovery costs which would arise if Customer had made a backup of the relevant data.

10.1.7.    Limitations of liability shall also apply to employees, sub-contractors and agents of BRYTER.

10.2.       The potential liability of BRYTER for any guarantees or claims based on the German product liability act (Produkthaftungsgesetz) remains unaffected.

10.3.       Further liability of BRYTER shall be excluded.

11.        Term and Termination.

11.1.         This MSA takes effect on the Effective Date and will remain in effect until all applicable Orders have expired or been terminated.

11.2.         Each Order shall commence on the Order Date. Subject to earlier termination in accordance with section 11.3 or 11.4, the Order will continue for the Initial Term and then for successive Renewal Terms until the expiry of not less than 90 days’ written notice given by either Party to the other, that notice to expire at the end of the Initial Term or at the end of the applicable Renewal Term. In the event an Order sets out a Trial Period, the Trial Period shall automatically roll over into the Initial Term unless Customer notifies BRYTER that it wishes to terminate the Order in accordance with the terms of that Order.

11.3.        An Order may be terminated by a Party immediately upon notice to the other Party if the other Party (i) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or creditor assignment or analogous event in any applicable jurisdiction, or (ii) breaches any of its obligations under this MSA and/or the respective Order in any material respect, which breach is not remedied within thirty (30) days following written notice to the breaching Party.

11.4.        An Order may also be terminated by Customer immediately on written notice to BRYTER in the event of a Persistent Breach by BRYTER in relation to that Order.

11.5.        Upon termination of this MSA and any Order, Customer shall cease using the Software immediately. Following termination by Customer in accordance with section 11.3 or 11.4, BRYTER shall refund to Customer any fees paid by the Customer in advance in respect of the period following the date of termination. If the Order is terminated by BRYTER in accordance with section 11.3, Customer will promptly pay any unpaid amounts including those covering the remainder of the Subscription Term. In no event will termination relieve Customer of its obligation to pay any fees payable to BRYTER for the period prior to the effective date of termination.

11.6.        During the Subscription Term, Customer can access its Customer Data at any time. Before the Subscription Term expires, Customer may perform a final export of Customer Data which is stored on Case Databases. After the end of the Subscription Term, BRYTER will delete or overwrite the Customer Data remaining on servers hosting the Software unless applicable mandatory law requires retention. Retained data is subject to the confidentiality provisions in this MSA.

11.7.         Each Party’s statutory rights of termination for good cause shall remain unaffected.

12.        General.

12.1.         Data Protection. The Parties acknowledge that all provisions related to applicable data protection laws are set out in a separate data protection addendum which is an addendum to this MSA.

12.2.        Entire Agreement. This Agreement sets out the entire agreement between the Parties and supersedes any previous agreements between the Parties relating to its subject matter. No terms or conditions contained in a purchase order or any other document or implied course of dealing shall apply to this Agreement. Each Party acknowledges and agrees that it has not relied on any representations made by the other except as set forth in this Agreement. Any such representations are excluded.

12.3.        Waiver. A waiver of any right under this Agreement is only effective if it is expressed as a waiver and sets out which provision is being waived in writing. It applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

12.4.        Invalid provisions. If any provision (or part of a provision) of this Agreement is found by any court or body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.  If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.

12.5.        Governing Law and Jurisdiction. This Agreement and any disputes or claims arising out of or in connection with it, its subject matter or formation (including non-contractual disputes or claims) will for all purposes be solely and exclusively governed, construed and enforced in accordance with the laws of Germany.  Both parties submit to the exclusive jurisdiction of the courts of Berlin, Germany.

12.6.       Third Party Rights. A person who is not a party to the Agreement has no rights to enforce, or to enjoy the benefit of, any term of this Agreement (except as otherwise stated herein).

12.7.        Assignment. Subject to Section 354a German Commercial Code, neither BRYTER nor Customer may assign or otherwise transfer this Agreement or any of its rights or obligations under it to any third party without prior written consent from the other party. Any attempted assignment, or other transfer in violation of this provision shall be void. Nothing in this section shall restrict a party from assigning its rights under this Agreement to any undertaking which acquires its business, provided that such acquiring entity is not a competitor of the non-assigning Party and the assigning Party is not in breach of this Agreement.

12.8.       Force Majeure. Neither Party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from a Force Majeure Event. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non‑performance continues for the period of fourteen (14) days, the Party not affected may terminate the Agreement by giving seven (7) days’ written notice to the affected Party.

12.9.       Notices. All notices given under this Agreement (except for notices given pursuant to Appendix 2) must be in writing and sent by pre-paid letter post or by email to the postal or email address for legal notice set out on the Order or to such other postal or email address as may from time to time be notified in accordance with this section, and will be deemed to have been given: if sent by pre-paid letter post, two Business Days after posting; and if sent by email, three Business Hours after being sent to the correct email address (provided the sender has not received notice of failure of delivery). Any notice sent to BRYTER must be copied to legal@bryter.io.

12.10.     Variations. Save as otherwise expressly stated in this Agreement, the terms of this Agreement may only be modified or varied in writing executed by duly authorized representatives of both parties.

12.11.      Survival. Sections 3 (Restrictions on Use), 8 (Confidentiality), 9 (IP Ownership), 10 (Limitation of Liability), 11.5 (Effect of Termination), and 12 (General) of this Agreement shall survive termination.

Version: 2.1 (November 2022)