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Terms of Use for KWS BrandNet and the KWS Media Database

1. Contents of KWS BrandNet and the KWS Media Database
KWS guidelines and other information relevant to the company and corporate identity (“CI”) as well as KWS content such as sample forms / text samples, digital images, maps and film material, sound files, layout samples, fonts, trademarks and other copyrighted content and designs are published by KWS SAAT SE & Co. KGaA, Grimsehlstrasse 31, 37574 Einbeck, Germany (hereinafter referred to as “KWS”) on KWS Brand-Net and in the KWS Media Database for online viewing and downloading for the purpose of creating KWS company-related advertising and communication material and for designing business presentations. In addition, users can upload their own content in some areas and make it available to other users for viewing and use (hereinafter referred to as “User Content”).

KWS guidelines and other company and corporate identity information of relevance to (“CI”) and KWS content are hereinafter collectively referred to as “KWS Content”. KWS BrandNet and the KWS Media Database are hereinafter also referred to individually as “Database” and collectively as “Databases”.

The KWS Content and the User Content in the Databases are provided without obligation and without any claim to completeness. KWS is entitled to discontinue or restrict the operation of the Databases wholly or in part at any time without prior notice and/or to change the content of the Databases. KWS does not guarantee the uninterrupted availability of the Databases.

KWS may block access to the Databases at any time, in particular if the user acts in breach of his or her obligations under these Terms of Use.

If guidelines, other information relevant to the company and corporate identity ("CI") and other content for brands other than “KWS” from the KWS Group are made available in the Databases, these Terms of Use apply accordingly to the provision and use of such guidelines, information and content for the respective brand. The guidelines, information and content may only be used for analog and digital advertising, market-ing, sales promotion and communication measures under the respective brand.

2. Authorization to use the Databases
Only the following persons/companies are authorized to access the Databases and to view and use the KWS Content:

• employees of KWS companies and
• contractual partners of KWS companies (e.g. advertising agencies, printshops, media companies) or their employees who require the KWS Content to perform their respective contractual (service) tasks on the basis of a valid (service) contract with one of the KWS companies (contractual partners and their employees hereinafter jointly referred to as “Authorized Users”), but only a) after conclusion of a corresponding User agreement and b) after technical activation by KWS for the use of the Databases (individual account creation). There is no entitlement to activation.

Employees of KWS companies and “Authorized Users” are hereinafter also referred to individually as “User” or collectively as “Users”.

“KWS companies” refers to all branches of KWS SAAT SE & Co. KGaA and all companies affiliated with KWS SAAT SE & Co. KGaA as contemplated by Sections 15 et seq. of the [German] Stock Corporations Act (AktG). Without any guarantee of completeness, the KWS companies are listed under the following link:

3. Use of KWS Content; rights of use
Users can view the KWS Content and, if a download function is available, download it free of charge for use. By downloading, without further confirmation a user agreement in respect of the downloaded material is concluded between the User and KWS on the basis of the present Terms of Use.

Separate agreements concluded between KWS and Authorized Users regarding the use of KWS BrandNet or the KWS Media Database shall apply in addition and, in the event of any conflicts, shall take precedence over these Terms of Use.

The KWS Content is protected by copyrights, trademark rights or other intellectual property rights. The User undertakes to observe these rights, in particular not to remove alphanumeric identifiers, trademarks and copyright notices either from KWS Content or from User Content or copies thereof.

The User may use the KWS Content provided and downloaded only in the course of his or her professional activity and exclusively for activities of the KWS company for which he or she works (employees) or on whose behalf he or she acts (Authorized Users), by using the “KWS” brand and within the scope of the individual specifications of KWS, namely for analog and digital advertising, marketing, sales promotion and communication measures of KWS or the respective KWS company. KWS grants the User the non-exclusive, non-assignable, non-sublicensable, non-transferable, worldwide, timely limited for the performance of the activity license, revocable at any time and limited in content, to use the KWS Content downloaded by the User from the Database in accordance with the provisions and within the scope of these Terms of Use.

Unless expressly stated otherwise in these Terms of Use or permitted to the User in writing by KWS, the use and distribution of the KWS Content, in whatever form, for purposes other than those defined in these Terms of Use and/or outside the respective KWS company, such as for own postings by KWS employees in private accounts in social networks (LinkedIn, YouTube, etc.) or disclosure to third parties is not permitted and the User is not granted any further rights of any kind, in particular to company names and industrial property rights such as trademarks.

Exceptions and deviations from the provisions of this Section 3.3 require the prior written consent of KWS or the respective KWS company for or on behalf of which the User is working.

Editing of any kind of KWS Content is only permitted after request and granting of “editor rights”.

In addition, the User is obliged to observe and comply with the respective “license information” when using the KWS Content. License information is specific information about any restrictions on use and any other information relevant to use in KWS BrandNet and/or in the KWS Media Database, which is stored with the respective KWS Content.

If the term of use of the KWS Content is limited by the license information, the authorization to use expires automatically on the specified expiration date without termination or other action by KWS. The right of use is otherwise limited in time.

The KWS Content is provided according to the state of the art. The visual display on the screen depends, among other things, on the characteristics of the User’s monitor and can vary in terms of colors. Therefore, deviations from the preview files have no influence on the transferred high-resolution files and data.

The aforementioned regulations and obligations shall continue to apply indefinitely even after termination of the User’s activities for or on behalf of one or more KWS companies.

4. Obligations of use
When using the Databases and KWS Content, the User may not:

• infringe industrial property rights, copyrights or other property rights of KWS, KWS companies and/or third parties;
• upload and/or transmit content with viruses, so-called Trojan horses or other programming that could damage software, the Databases and/or the IT infrastructure of KWS;
• enter, store or send hyperlinks or content for which he or she is not authorized, in particular if these hyperlinks or content violate confidentiality obligations or are illegal;
• spread advertising;
• prevent or inhibit the use of the Databases by another person through his or her behavior or harm KWS, KWS companies and/or the Users of the Databases or expose them to liability through other behavior.

5. Upload of content and comment function; granting of rights
Appropriately authorized User groups can upload User Content (e.g. sample layouts and designs) to KWS BrandNet and make it available to KWS, KWS companies and other Users for viewing and/or use with or without a download option. In addition, KWS BrandNet Users have comment functions for exchanging information in some areas.

The authorization to upload will be granted to Users in writing by KWS on request in individual cases. There is no entitlement to the granting of such an authorization vis-à-vis KWS. Any authorization granted may be withdrawn by KWS at any time without justification.

In the “Inspiration Page” sub-area of KWS BrandNet, employees of KWS companies can also make content available for use solely by other employees of KWS companies without being granted further authorization.

Users who make their own User Content available to other Users for viewing / use are obliged to clearly mark such Content as their own User Content and, if necessary, to label it with further current license information. If required by the type of User Content, such information must be updated regularly.

By uploading its own User Content, the User grants KWS, the KWS companies and other Users the non-exclusive, worldwide, non-assignable, non-transferable license, unlimited in time and content and sub-licensable within the KWS Group, to use its own User Content for analog and digital advertising, marketing, sales promotion and communication measures of KWS and the KWS companies. The right to edit User Con-tent is expressly not granted; however, this restriction does not apply to content on the “Inspiration Page”.

By uploading User Content, comments or other content, the respective User confirms and undertakes that
• he or she uploads the relevant content as part of his use of the Databases and he or she is authorized to grant rights of use to such content to KWS, KWS companies and other Users within the scope of these Terms of Use,
• the uploaded content does not infringe the rights of third parties or violate legal regulations, KWS guidelines or common decency and
• the design of the User Content, where applicable, complies with the KWS Design Guidelines.

KWS does not check User content and accepts no liability for it. However, KWS reserves the right to check User Content in individual cases and, if necessary, to delete it at its own discretion, even if there is no legal obligation to do so.

The downloading of User content and its use by other Users of KWS BrandNet and the KWS Media Database is also subject to the other provisions of these Terms of Use, in particular Section 3.

6. Liability
6.1 Liability of KWS

KWS’s liability for damages, irrespective of the legal grounds, shall be limited in accordance with the following provisions insofar as fault is involved. The limitations do not apply to the liability of KWS for intentional and grossly negligent behavior, for guaranteed characteristics, for injury to life, limb or health or under the German Product Liability Act.

KWS shall not be liable in the event of simple negligence on the part of its bodies, legal representatives, employees or other vicarious agents, unless it is a breach of a material contractual obligation (an obligation, the fulfillment of which is essential for the proper performance under the contract and on whose fulfillment the User regularly relies and may indeed rely).

Insofar as a material contractual obligation has been breached and KWS is liable for damages on the merits, this liability shall be limited to compensation for foreseeable, typically occurring damage.

The above exclusions and limitations of liability shall apply to the same extent in favor of the management bodies, legal representatives, employees and other vicarious agents of KWS.

While KWS endeavors to keep the Databases and their content free of viruses, KWS cannot guarantee that they are virus-free. KWS accepts no liability in this context. Before downloading KWS Content or User Con-tent, the User is obliged to ensure appropriate security measures and virus scanners for his own protection.

6.2. User liability; indemnification

The User shall be liable for any damage caused to KWS and/or the KWS companies by exceeding and/or violating the rights of use granted to him or her under these Terms of Use and/or by improper use of the Databases for which he or she is responsible and/or by a breach of his or her obligations under these Terms of Use.

The User shall indemnify KWS and the companies affiliated with KWS against all third-party claims, irrespective of legal grounds, type and amount, including the associated costs, upon first request, insofar as such claims are based on the fact that the User violates these Terms of Use and/or otherwise uses KWS BrandNet or the KWS Media Database improperly.

Each User is responsible for all activities that take place via his or her access to the Databases. This does not apply if the User is not responsible for the possible misuse of his access because he or she has not breached any duty of care. The User is obliged to inform KWS immediately if there are any indications of misuse of his or her access by third parties.

7. Final provisions
KWS is entitled to make changes or additions to these Terms of Use at any time at its own reasonable discretion or due to legislative amendments, changes in jurisdiction and/or changes in market conditions, provided that this does not unreasonably disadvantage the User contrary to good faith.

Should any of the above provisions be or become invalid in whole or in part, this shall not affect the remaining provisions or parts thereof. In place of the invalid provision, the provision that comes closest to the economic purpose of the invalid provision shall be deemed to have been agreed. This shall apply accordingly to any contractual gaps encountered.

German law shall apply, excluding the provisions of international private law and the UN Convention on Contracts for the International Sale of Goods.