General Terms & Conditions
1. DEFINITIONS AND SCOPE OF APPLICATION
1.1. For the purposes of these General Terms and Conditions the following phrases are assigned the following meanings:
1.1.1. “Agreement” shall mean service contract or any other agreement concluded between the Service Provider and the Client pursuant to which the Service Provider shall provide Services for a fee according to the subject matter of the Agreement and/or transfer the ownership title or rights to use Work Product.
1.1.2. “Services” shall mean the actions as to:
the creation, change or improvement of software, tool or model according to the requirements of the Client and in line with the Agreement agreed between the Client and the Service Provider;
integration, testing of the developed software (tools or models);
resetting of the developed software (tools or models), maintenance, technical support of the software;
data analysis, data processing and consultation in field of information technology and data analysis;
any other additional services in field of informatization, provision of which are agreed by the Parties;
audit of the business processes and services of the Client;
technical support of the software.
1.1.3. “Service Provider” means Colobridge GmbH, a legal entity duly incorporated and validly existing under the laws of Germany, located at the address Scharfe Lanke 109-131, 13595, Berlin, Germany which provides Services under the trademark “Beinf”.
1.1.4. “Client” shall mean any entity ordering or seeking to order the Services of the Service Provider.
1.1.5. “Work Product” means all inventions, ideas, creations, discoveries, computer programs, models, source code, works of authorship, data, developments, technology, designs, innovations and improvements (whether or not patentable and whether or not copyrightable), Documentation, all the information and materials, including without limitation, which are made, conceived, created, written, designed or developed by the Service Provider, solely or jointly with involved Subcontractors during the Term according to the order of the Client accepted by the Service Provider.
1.1.6. “Client Data” shall mean all data and meta data collected, used, processed, stored, produced, derived or generated as the result of the activity of the Client and/or consumers of its services, including Personal Data, as well as categories, dashboards, advertisement and marketing data, consumer’s backend data etc. provided by or with the help of the Client.
1.1.7. “Personal Data” means any information relating to any natural person that can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
1.1.8. “Documentation” shall mean any files in paper or electronic form, user manuals and all other written (including electronic) materials relating to the Work Product, including materials useful for design and manufacture thereof (e.g., logic manuals, flow charts, principles of operation, visualisations, instructions, reports).
1.1.9. “Confidential Information” means any information relating to the subject matter of the Agreement or the Client or the Client’s customers, all copies and derivative works thereof, and all Intellectual Property Rights therein; all designs, concepts, scientific, algorithmic and structural information; information of a business and commercial nature (such as financial and marketing information) of the Parties and information regarding plans for research, development, new products, marketing and selling, business plans, budgets and unpublished financial statements, pricing strategies, licenses, prices and costs, suppliers and customers, disclosed by another Party in any form or medium whatsoever including in written, physical, digitalized, oral or visual form. All Confidential Information belongs to the disclosing Party, is confidential and constitutes the trade secret of the disclosing Party. The Client Data belong to Confidential Information.
1.1.10. “Intellectual Property Rights” shall mean patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection, which subsist or will subsist now or in the future in any part of the world.
1.1.11. “Subcontractors” mean any legal entities or natural persons involved by the Service Provider to provision of the services or performance of works relevant to Services hereunder.
1.1.12. “Term” means the term of the Agreement.
1.1.13. “Party” shall mean the Service Provider or Client, collectively referred to as “Parties”.
1.2. The General Terms and Conditions (hereinafter - the “GTC”) regulate the provision of paid Services by the Provider to the Client and cover all services and all business relationships between the Provider and the Client.
1.3. The application of the Client’s general terms and conditions is hereby excluded, unless anything to the contrary is agreed in writing.
1.4. GTC shall apply to the relations between Service Provider and the Client save as otherwise is expressly envisaged by the Agreement. In case of discrepancies between the provisions of GTC and the Agreement, the provisions of the Agreement shall prevail.
1.5. Possible deviations from the present GTC shall only be valid provided they have been explicitly agreed upon in writing.
2. ORDERING AND CONCLUSION OF AGREEMENT
2.1. The Service Provider shall provide to the Client the Services as requested by the Client by means of orders which are accepted by the Service Provider, and the Client undertakes to pay for such Services. The Parties shall agree specific Services, their prices and terms of provision by concluding the Agreement in written form. The requests for provision of Services can be made via:
e-mail to the following addresses:
filling the application form at the web-site.
2.2. Any request (order) of the Client for the Services does not constitute binding obligations for the Parties, unless:
the Parties conclude written Agreement; and
the order is explicitly accepted by the Service Provider.
2.3. The Service Provider is entitled to involve Subcontractors in providing of the Services without prior written consent of the Client. The Service Provider shall be fully responsible for the actions, as well as for the Services of such Subcontractors as for its own.
2.4. For the purposes of provision of the Services, along with the request the Client should provide the Service Provider with the data or access thereto (which may include Confidential Information) required for evaluating the scope of the Services in a way specifically agreed by the Parties (e.g. by using cloud stores or any other systems).
2.5. Based on the information received from the Client as to the scope of Services and Work Product required by the Client, the Service Provider gives to the Client commercial offer which indicates the service fee and approximate terms of provision of the Services. If the Client accepts the commercial offer for provision of Services by the Service Provider, the Parties conclude the Agreement. Upon conclusion of the Agreement, these GTC constitute the integral part of the Agreement.
2.6. The term of provision of Services is agreed by the Parties or specified by the Service Provider when the commercial offer to the Client is provided.
3. DILIGENCE AND COOPERATION
3.1. The Service Provider shall use its best efforts in the provision of the Services, rendering Services with diligence.
3.2. The Service Provider shall respond without delay to any reasonable and lawful request that may be addressed by the Client to the Service Provider, and provide it with all information and advice pertaining to the progress of the performance of the Services.
3.3. The Parties enter into the Agreement as independent contractors and nothing within the Agreement shall be construed to create a joint venture, partnership, agency, or other employment relationship between the Parties. The Parties conclude the Agreement as entrepreneurs pursuant to Section 14 of the German Civil Code (BGB), legal persons under public law or special funds under public law pursuant to Section 310, Paragraph 1 BGB but not in relationships with consumers.
3.4. Neither Party shall have the authority to make financial or legal commitments on behalf of the other Party, nor shall either Party have the authority to incur any financial or legal obligations in the other Party's name without the express written approval of the other Party or as expressly stated herein.
3.5. The Service Provider shall ensure that during the Term the Services are performed by a sufficient number of Client’s personnel, or Subcontractor involved in Services performance who:
are bound by equal confidentiality agreements to the same extent as the Service Provider is bound;
are suitably qualified and experienced for the role which they are required to undertake;
act in accordance with all applicable rules and regulations;
only use the Client Data including permitted access to such data and Confidential Information for the purpose of delivering the relevant Services and for no other purposes;
shall not attempt to access any Client Data without Client’s prior authorization.
3.6. Insofar as the Service Provider is unable to meet binding terms of provisions of Services for reasons beyond its control (impossibility of performance), the Service Provider shall inform the Client promptly and disclose the expected new date of completion of the Services at the same time. If performance is not possible within the new term, the Service Provider have the right to withdraw from the Agreement in whole or in part.
4. FEES AND PAYMENT TERMS
4.1. In consideration for the Services performed by the Service Provider, the Client shall pay to the Service Provider a payment agreed by the Parties in the Agreement depending on the scope of the Services ordered by the Client (hereinafter – the “Fees”).
4.2. Save as otherwise will not be envisaged by specific Agreement, the Service Provider provides Services based on partial pre-payment conditions.
4.3. The currency of the Agreement and the payment currency shall be Euro.
4.4. Payment for the rendered Services shall be made by bank transfer to the Service Provider’s account within the terms indicated by respective Agreement.
4.5. Subject to the terms and conditions of respective Agreement, the regularly provided Services (such as technical support or maintenance of the Client’s software or any other regular Services) shall be paid by the Client to the Service Provider within 14 (fourteen) days after the invoice date.
4.6. All bank expenses, fees (including charges of correspondent banks) related to the Agreement performance shall be borne by the Client save as otherwise agreed by the Parties in writing.
5. INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
5.1. Confidential Information.
The Parties hereby undertake not to disclose or make available Confidential Information disclosed by the other Party to any person or entity other than its personnel on a strict need-to-know basis or use the same for any purposes other than in the provision of the Services, without written approval of the other Party, or to procure any commercial advantage over the other Party.
The receiving Party shall not, without the prior written consent of the disclosing Party, disclose any of the Confidential Information either in writing or orally to any person other than the directors, employees and professional advisers necessarily required to receive and consider the Confidential Information for the purpose of fulfilling the Services and will ensure that those to whom the Confidential Information is disclosed to, observe and abide by the terms and conditions set forth in the Agreement in all respects as if they are parties to it.
The receiving Party shall protect the Confidential Information in the same way that its own confidential information is protected.
The Parties shall not, without prior written consent, disclose to any person, other than directors, employees and professional advisers necessarily required in the course of their duties to be aware of it, the fact that a relationship exists between the Parties.
The receiving Party may be legally bound to disclose Confidential Information to regulatory authorities, legally authorised to obtain such information. In such circumstances, the receiving Party shall promptly notify the disclosing Party of such authority request, or provide a copy of the same, to the extent not prohibited from doing so by applicable laws. The receiving Party will cooperate with the disclosing Party to obtain an appropriate protective order or appropriate remedy and if disclosure takes place, such disclosure shall be limited to the extent strictly necessary to allow the recipient Party to comply with its legal obligations.
The receiving Party shall label all tangible Confidential Information as “Confidential” and all intangible Confidential Information shall be identified and treated as such.
The receiving Party shall not obtain any rights to Confidential Information, including any Intellectual Property Rights.
Confidential Information is considered the exclusive property of the disclosing Party to be used only in the performance of the Agreement and shall not be copied or transferred except as for the purposes of provision of Services or under the disclosing Party’s permission.
Upon disclosing a Party's request, the receiving Party shall return all Confidential Information and/or materials reflecting any Confidential Information in possession or control of the disclosing Party, and destroy all material copies that include such Confidential Information.
After such delivery, the receiving Party shall not retain any such materials or copies thereof or any such tangible property.
5.2. Client Data.
The Client shall make available, provide the Client Data or provide access to such Data for use by the Service Provider to provide the Services on the following conditions:
The Service Provider shall treat the Client Data confidential as envisaged by clause 5.1 hereof.
The Client is solely responsible for the accuracy of the Client Data. The Service Provider shall not be responsible for the content of the Client Data, including if it violates the right of third parties.
The Client guarantees that it possesses and processes the Client Data based on the legal grounds according to applicable laws (including personal data protection requirements, if any) and that the Client has the rights and all permissions for provision of such Client Data to the Service Provider.
The Service Provider and/or any Subcontractors shall retain or acquire no right and/or title to Client Data.
The Service Provider has no right to transfer Client Data or access to such Data to any third party except as to Subcontractors engaged in the provision of Services.
The Service Provider is not responsible for any loss of the Client Data or confidentiality breach, if it occurs due to the negligence of the Client, its related parties and any other third parties engaged by the Client, other service providers (e.g. cloud storage providers or any other systems (applications or tools) used by the Client for storage of the Client Data or their transfer to the Service Provider.
5.3. Work Product. The Service Provider shall provide the Client with the right to use the Work Products as mentioned in clause 5.5 hereof. At Client’s sole, absolute and unfettered discretion, the Client may make any changes in, deletions from, or additions to the Work Product upon their transfer to the Client exclusively for its personal use.
5.4. The Service Provider will ensure that all employees, Subcontractors, and any party, which contributes to or otherwise participates in providing the Services shall enter into such agreements with the Service Provider or otherwise granting the right to use the Work Product to the Client as indicated herein.
5.5. Subject to the conditions agreed by the Parties in the Agreement, the Service Provider grants to the Client the non-exclusive license for the Intellectual Property Rights as to the Work Product, which provides to the Client the following rights:
the right to use Work Product by the Client;
reproduction of Work Product;
public demonstration and display of Work Product;
making versions, adaptations, arrangements, and other similar alterations to Work Product for the personal use by the Client;
including Work Product as part of other intellectual property objects.
5.6. Termination effect. After the termination of the Agreement the Service Provider is obliged within five (5) business days from the date of termination of the Agreement:
to return to the Client all Confidential Information including all Client Data received from or acquired directly or indirectly on behalf and/or at the expense of the Client under the Agreement.
upon Client’s permission to destroy Confidential Information or Client Data as expressly indicated by the Client, if the return is not feasible.
5.7. Survival. The provisions of this Section 5 shall survive the termination of the Agreement save as otherwise will be indicated in the Agreement.
6. DATA PRIVACY AND INFORMATION SECURITY
6.1. Data Privacy. In performing the Services, the Service Provider may receive Personal Data in the form of information relating to an identified or identifiable natural person controlled or processed by the Client. The Service Provider warrants that it has in place appropriate technical and organisational measures against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access and adequate security programs and procedures to ensure that unauthorised persons will not have access to the Personal Data and that any persons it authorises to have access to the Personal Data will respect and maintain the confidentiality and security of the Personal Data.
6.2. The Client guarantees that it processes the Personal Data in accordance with applicable laws, has all legal grounds for the data processing pursuant to EU Regulation 2016/679 (the General Data Protection Regulation or “GDPR”), including transfer of data to the Service Provider, within appropriate purposes, adheres to all requirements of GDPR (if applicable), duly complies with data subject’s rights.
6.4. If due to provision of Services the Service Provider becomes the processor of personal data controlled by the Client, the Service Provider will process Personal Data only on documented instructions from the Client, unless required to do so by applicable laws to which the Service Provider is subject. The Service Provider shall only grant access to the Personal Data processed on behalf of the Client to persons under the Service Provider’s authority bound by the same confidentiality obligations and only on a need-to-know basis.
6.5. The internal transfers of Personal Data shall only take place in compliance with Chapter V GDPR.
7. TERM AND TERMINATION OF THE AGREEMENT
7.1. Term of the Agreement. Save as otherwise will be expressly indicated in the Agreement, the Agreement shall commence on the date of its signing in written form and shall continue for a period of 1 year (the Initial Period), with automatic renewal for successive periods of 1 year each (each a Renewal Period) unless 30 days prior written notice of termination by either Party is provided before the end of the Initial Period or before the end of each Renewal Period.
7.2. Termination. The Agreement may be early terminated by mutual agreement of the Parties in writing.
7.3. Upon termination of the Agreement, the Service Provider shall promptly deliver to Client all Work Products (whether complete or incomplete) as set forth in clause 5.7 hereof.
8.1. The Service Provider shall be solely liable for, and shall defend, hold harmless and indemnify the Client, its successors and assigns, from any claims, suits, judgments or causes of action initiated by any third party against the Client where such actions result from or arise out of the Services performed by the Service Provider.
8.2. The Client shall be solely liable for, and shall defend, hold harmless and indemnify the Service Provider, its successors and assigns, from any claims, suits, judgments or causes of action initiated by any third party against the Service Provider where such actions result from or arise out of the use of Client Data or and fulfilling Client's instructions and requirements provided by the Client to the Service Provider
8.3. Each Party shall further defend, hold harmless and indemnify the other Party, its successors and assigns, from and against any and all loss or damage resulting from any misrepresentation, or any non-fulfilment of any representation, responsibility, covenant or agreement on part of such Party, as well as any and all acts, suits, proceedings, demands, assessments, penalties, judgments of or against the other Party relating to or arising out of the activities of the Party and such Party shall pay reasonable attorneys' fees, costs and expenses incident thereto.
9. ANTI-BRIBERY AND ANTI-CORRUPTION
9.1. Each Party warrants to the other that it will at all times during the Term of the Agreement comply with all applicable laws, rules and regulations and that it will not use the funds to be provided under the Agreement for any activity which is prohibited under the United Nations, the European Union, or any other applicable laws or make available any funds received under the Agreement to any person, entity or body which is designated by the United Nations, the European Union, or in any other applicable sanctions laws as the target of an asset freeze or otherwise subject to restrictive measures.
10. REPRESENTATIONS AND WARRANTIES
10.1. The Service Provider represents and warrants that:
it is a business duly formed/incorporated, validly existing, and in good standing under the laws of its place of formation/incorporation;
it has all requisite corporate power, financial capacity, and authority to execute, deliver, and perform its obligations under the Agreement;
it shall comply with all applicable laws and regulations and shall obtain all applicable permits, rights and licences required of it in connection with its obligations under this Agreement.
10.2. The Client represents and warrants that:
he/she has all requisite power, financial capacity, and authority to execute, deliver, and perform the obligations under the Agreement;
he/she shall comply with all applicable laws and regulations and shall obtain all applicable permits, rights and licences required of it in connection with its obligations under the Agreement;
the provision of Services and any other work performed by the Service Provider hereunder by means of use of the Client Data and according to the client's requirements shall not infringe upon any third parties’ rights, including requirements of personal data protection regulations, any copyright, patent, trade secret, or other proprietary right.
11.1. Severability. If any provision of this GTC is held to be unenforceable for any reason, it shall be adjusted by the Parties by means of the Agreement rather than voided, if possible, in order to achieve the intent of the Parties to the fullest extent possible. In any event, all other provisions of this GTC shall remain valid and enforceable to the fullest extent possible.
11.2. Notices. All notices and requests required or permitted under these GTC and the Agreement shall be given in written or electronic form and be deemed given as follows: (a) with respect to notices given by email or any other means of electronic communication, on the date the recipient has acknowledged receipt by replying thereof (which shall not include an automated reply), or (b) with respect to notices delivered by hand or courier, the date received.
11.3. No Waiver. The failure of any of the Parties to enforce any of the provisions of this GTC or any rights with respect thereto shall in no way be considered as a waiver of such provisions or rights. The waiver of any breach of these GTC by any Party shall not be construed as a waiver of any other prior or subsequent breach.
11.4. No Third Party Beneficiaries. These GTC shall be binding and inure solely to the benefit of the Parties (and their respective lawful successors and assigns) upon conclusion by the Parties of the Agreement. Nothing in these GTC is intended to or shall confer upon any third party rights, benefits or remedies of any nature.
11.5. Assignment. The Parties may not assign or transfer, in whole or in part, or delegate all or any portion of his rights or obligations under the Agreement without the prior written consent of the other Party (except the engagement of Subcontractors to performance of the Agreement).
11.6. Amendments. The Service Provider shall be entitled to unilaterally amend these GTC. The amendments of the GTC together with the indication of the date of their entry into force shall be delivered to the Client upon Service Provider’s choice via mail, email, by courier. In case the date of coming into force of the amended GTC is not indicated in the manner specified above, it is assumed that the amended GTC shall come into force 30 calendar days following their receipt by the Client. The amendment of the GTC shall not effect the Service fee, terms of provision of the Services and any other conditions agreed by the Parties in specific Agreement.
12. GOVERNING LAW AND JURISDICTION
12.1. Governing Law. These GTC and the Agreement concluded based on GTC shall be governed in all respects by, and interpreted in accordance with the laws of Germany. Application of the United Nations Convention on Contracts for the International Sale of Goods is excluded. The contract language is English.
12.2. Jurisdiction. All disputes and differences arising out of or relating to these GTC and the Agreement with the Client or to its interpretation, shall be solely determined and settled by Charlottenburg District Court in Berlin save as applicable law requires otherwise.