Holly Services Agreement

Last Revision: 2014-01-05

THIS IS A LEGAL AGREEMENT BETWEEN YOU, A PERSON OR ENTITY WHO PURCHASES A HOLLY SERVICE PLAN ("Paid User") OR WHO REGISTERS TO USE THE FREE VERSION OF THE HOLLY SERVICE ("Free User") OR WHO POSTS CONTRIBUTIONS TO THE SITE WITHOUT PRIOR REGISTRATION ("ANONYMOUS USER") OR (Paid Users and Free Users and Anonymous Users, collectively "Customer(s)") AND HENNING KOCH SOFTWARE ("HollyCorp") REGARDING CUSTOMER’S USE OF HOLLY SERVICE ON THE HOLLY SITE. BY REGISTERING WITH THE SITE, OR BY POSTING CONTRIBUTIIONS TO THE SITE YOU AGREE TO THE TERMS OF THIS AGREEMENT.

1.DEFINED TERMS

2. SERVICES; CUSTOMER PLANS AND ACCOUNTS; CUSTOMER DATA

3. ACCEPTABLE USE OF THE HOLLY SERVICE

Customers may not use the Holly Service in any way that violates applicable federal, state, or international law, or for any unlawful purpose. Customers may not use the Holly Service to send, receive, or download messages or materials that are inappropriate or violate the intellectual property rights of HollyCorp or others. Customers are entirely responsible for the content of, and any harm resulting from any of their postings or submissions to the Holly Site and Holly Service (collectively, "Contributions"). When you create or make available a Contribution, you represent and warrant that you:

4. GRANT OF LICENSE TO HOLLYCORP

As between you and HollyCorp, you exclusively own all rights in and to the Contributions that you submit to the Holly Site. HollyCorp needs a limited license from you so that we can use your Contributions to make the Holly Services and Holly Site available to you. For example, if you submit copyrighted text material the Holly Site, we need a license from you to display, perform and distribute these Contributions in order to make these Contributions available to you on your Trees. And, if you permit third parties (such as your customers or consultants) to view your Trees, we need to have a license to sub-license your Contributions to these third parties so that they can view and use your Trees.

By making a Contribution to the Holly Site, you grant to HollyCorp a limited, perpetual, non-exclusive (meaning you are free to license your Contribution to anyone else in addition to HollyCorp), fully-paid, royalty-free (meaning that HollyCorp is not required to pay you to use your Contribution), sub-licensable (subject to the restrictions below), transferable (solely because we need the right to transfer this license to a successor Holly Site operator) and worldwide (because the Internet and the Holly Site are global in reach) license to use, modify, perform, display, reproduce and distribute the Contribution for the sole purpose of operating the Holly Site and Holly Services. HollyCorp needs the right to "modify" and "reproduce" your Content, because the software and servers hosting the Holly Site modify and reproduce your Content automatically in order to make the Holly Site and Holly Service available.

We will only sublicense your Contribution for the following purposes: (a) to make your Contributions available to any third party (such as a client or a contractor) that you permit to view your Trees on the Holly Site; and (b) to permit a third party hosted services provider to host the Holly Site.

5. RESTRICTIONS

Customer shall not: (a) rent, lease or loan the Holly Service; (b) conduct automated functionality tests or load tests on the Holly Service; (c) attempt to gain access to data that is not Customer’s Data, or use a disproportionate amount of the Holly Service that interrupts or degrades the Holly Service; or (d) use the Holly Service in any manner that violates any applicable law or regulation, including without limitation any third party copyright or other intellectual property or proprietary right.

6. SYSTEM REQUIREMENTS AND SUPPORT

7. SUBSCRIPTIONS AND PAYMENT

8. TERMINATION AND SURVIVAL

9. NO LICENSE; INTELLECTUAL PROPERTY OWNERSHIP

HollyCorp hereby reserves all right, title and interest in and to the Holly Service and all intellectual property rights related thereto not expressly granted in this Agreement. Customer shall not reverse engineer or otherwise attempt to derive source code from the Holly Services.

10. CONFIDENTIALITY

11. DISCLAIMER OF WARRANTY

CUSTOMER AGREES THAT CUSTOMER’S ACCESS TO AND USE OF, OR INABILITY TO ACCESS OR USE, THE HOLLY SERVICE IS AT CUSTOMER’S SOLE RISK. THE HOLLY SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE", AND HOLLYCORP AND ITS CONTRACTORS AND LICENSORS, AS APPLICABLE, MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF PROPRIETARY RIGHTS. CUSTOMER ACKNOWLEDGES THAT THE OPERATION OF THE HOLLY SERVICE MAY NOT BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE OR SOFTWARE. THE HOLLY SERVICE MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND HOLLYCORP SHALL NOT BE RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO CUSTOMER.

12. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY LAW, HOLLYCORP AND ITS CONTRACTORS OR LICENSORS, WILL NOT BE LIABLE TO CUSTOMER FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY ACCESS TO OR USE OF THE HOLLY SERVICE, EVEN IF SUCH PARTIES WERE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE AGGREGATE LIABILITY FOR ANY AND ALL OF CUSTOMER’S CLAIMS AGAINST HOLLYCORP AND ITS CONTRACTORS AND LICENSORS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE VALUE PAID FOR USE OF THE HOLLY SERVICE DURING THE 12-MONTH PERIOD PRIOR TO THE DATE A CLAIM IS MADE. THE PARTIES AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO SUCH CUSTOMERS.

13. INDEMNIFICATION BY CUSTOMER

Customer will defend or settle, at Customer’s expense, any action brought against HollyCorp based upon the claim that any modifications Customer makes to the Holly Service or any combination of the Holly Service with Holly Service or other items not approved by HollyCorp infringes or violates any third party intellectual property right.

15. GOVERNING LAW

This Agreement shall be governed by and construed under German laws, without regard to that state’s conflict of laws principles. Each party accepts unconditionally the jurisdiction and venue of the state and federal courts located in Augsburg, Germany. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

16. INJUNCTIVE RELIEF

Customer understands and agrees that its breach of this Agreement will cause HollyCorp irreparable damage for which recovery of money damages would be inadequate, and that HollyCorp shall therefore be entitled to obtain timely injunctive relief to protect HollyCorp’s rights under this Agreement in addition to any and all remedies available at law.

17. MISCELLANEOUS

This Agreement is the entire agreement between the parties on the subject matter hereof. No amendment or modification hereof will be valid or binding upon the parties unless made in writing and signed by the duly authorized representatives of both parties. The relationship of the parties hereunder is that of independent contractors, and this Agreement will not be construed to imply that either party is the agent, employee, or joint venturer of the other. In the event that any provision of this Agreement is held to be unenforceable, this Agreement will continue in full force and effect without said provision and will be interpreted to reflect the original intent of the parties. Customer may not assign this Agreement (by operation of law or otherwise) without the prior written consent of HollyCorp and any prohibited assignment will be null and void. This Agreement will be binding upon and will inure to the benefit of the parties permitted successors and/or assignees. Waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.