1.1 CdC3 GmbH, registered with the Commercial Register of the Local Court of Charlottenburg in Berlin (Amtsgericht Charlottenburg) under HRB 221095, with business address at Schönhauser Allee 22 d, 10435 Berlin (“Mercanis”), provides a Software-as-a-Service (“SaaS”) platform for collaboratively scouting, sourcing, buying and managing service providers and their respective engagements (“Platform”). These are the general terms and conditions for the business relationship between Mercanis and its customers (“Customer Terms”; customers to this business relationship “Customers”; Mercanis and Customers “Parties”, each a “Party”).
1.2 Mercanis provides its services exclusively to entrepreneurs within the meaning of Section 14 of the German Civil Code (“BGB”).
1.3 These Customer Terms apply unless the Parties have agreed on different regulations in the specific contract. Deviating, opposing or supplementary general terms and conditions of Customers shall only become integral components of the contract if Mercanis agrees to their validity in text form. This requirement of approval also applies if Mercanis initiates the performance of services after becoming aware of a Customer’s general terms and conditions.
2.1 The Platform is an internet application. The Customer does not download the underlying software for the Platform; instead, the Customer only uses the software on Mercanis’ IT infrastructure (the use of the Platform is the “Service” and/or, respectively, the “Contract Purpose”).
2.2 Mercanis may offer plans providing parts of the Service free of charge (each a “Free Plan”) and plans providing parts of the Service to be remunerated (each a “Paid Plan”) for the subscription to the Service. The individually agreed scope of the Service shall be based on the respective Free Plan or Paid Plan as described on the applicable pricing page in the respective current version (“Pricing Page”) and selected by the Customer (such selected plan the “Plan”). “Software” means the software underlying the Platform as far as covered by the contractual Service.
2.3 Mercanis reserves the right to remove certain features from the Free Plans at its own discretion.
2.4 The Customer may add and remove other users to the workspace which is allocated to him, to which the Customer may invite other users to collaborate (such workspace “Customer Account”, each such user an “Authorized User”). On a Free Plan, adding additional users is free of charge. On a Paid Plan, adding additional users incurs costs as per the Pricing Page. Each user for which the Customer has to pay is referred to as a “Paid Seat”.
2.5 The Customer may upgrade from a Free Plan to a Paid Plan, or switch to a more comprehensive Paid Plan at any time; in this case, from the time of the switch the details concerning the scope of Service, remuneration, etc. of the new Plan stated on the Pricing Page shall apply. A switch to a more inexpensive Plan is only permissible with the consent of Mercanis or if the notice period specified in these Customer Terms or on the Pricing Page is observed.
2.6 The Customer may at any time decrease or increase the number of Paid Seats. Decreasing or increasing the number of Paid Seats does not affect the term or terminability of the Customer’s Plan. In case of increase, the cost for each increase is subject to the provisions of the Pricing Page and is calculated on a pro-rata basis under consideration of the billing period of the Customer’s Plan. In case of decrease, the compensation owed by the Customer under his Plan proportionately decreases with effect as of the next billing period of his Plan.
2.7 The research of and/or the proposal of and/or the onboarding of freelancers, service providers or suppliers with which the Customer is interested to cooperate (“Suppliers”, each a “Supplier”) is not part of the Service. However, Mercanis may support the onboarding process on demand of the Customer and at Mercanis’ own discretion. To the business relationship between Mercanis and the Supplier, specific Supplier Terms shall apply.
3.1 If agreed between the Parties, Mercanis shall, in addition to providing the Service, provide specific services to adapt the Software to the individual needs and wishes of the Customer, and/or other additional services. The conditions on these services shall be set up by separate service agreement between the Parties.
4.2 In subscribing to a Paid Plan, the Customer guarantees that the Customer acts in the capacity as entrepreneur. The user who subscribes to a Paid Plain on behalf of a company as Customer guarantees by his subscribing to be legally authorized to act for the company.
5.1 The Software is used by means of telecommunications via the browser or a stand-alone application.
5.2 Mercanis merely provides the IT functions of the Platform. Mercanis is not responsible for establishing and maintaining the data link between the Customer's IT systems and the router exit of the Mercanis data centre or its subcontractor's data centre through whose server the Software is operated (“Transfer Point”). Mercanis is not responsible for malfunctions beyond the Transfer Point.
5.3 The provision of the necessary internet access is not part of the Contract. The Customer is responsible for the procurement and maintenance of the necessary hardware and connections to public telecommunications networks. The costs of setting up the online connection and maintaining it on the Customer's side shall be borne by the Customer. Mercanis is not liable for the security, confidentiality or integrity of the data communication, which is conducted via third party communication networks. Mercanis is also not liable for malfunctions in data transmission caused by technical errors or configuration problems on the part of the Customer.
5.4 The Customer may only use itself the access to the Software, and only for the contractually agreed purpose.
5.5 Unless otherwise agreed, the Customer is granted a simple, non-transferable, non- sublicensable, revocable right, restricted to the term of the respective individual contract, to use the Platform on Mercanis’ IT infrastructure according to these Customer Terms and according to and for the Contract Purpose. In particular, the Customer is not entitled to make the Software accessible to third parties, to copy, decompile, reversely engineer or edit it beyond the Contract Purpose.
5.6 The Customer may only enter data, texts, pictures and other content (including custom fonts) to the Platform
(a) that comply with applicable law;
(b) that do not infringe third party rights; and
(c) to the entering of which the Customer is legally entitled without any restrictions.
Unless otherwise agreed, for the term of the respective individual contract, the Customer grants Mercanis a simple, transferable, sublicensable right to use the data entered by the Customer on the Platform for the purpose of performing the Service and any additional services according to these Customer Terms and the respective individual contract.
5.7 The Customer agrees not to upload, transmit, support, incite, promote or otherwise make available any content that is or could reasonably be viewed as unlawful, racist, hostile, violent, discriminatory (including relating to race, religion, sex, sexual orientation, age, disability, ancestry or national origin), harmful, harassing, defamatory, vulgar, obscene or otherwise objectionable or which contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
5.8 Mercanis may monitor the proper contractual use of the Platform by adopting suitable technical measures in compliance with data protection law and enforcing them if necessary, for instance by restricting access or blocking access or deleting content entered by the Customer by infringing applicable law or these Customer Terms.
6.1 The Customer has – besides the general contractual side obligations (vertragliche Nebenpflichten) pursuant to statutory law – the following cooperation obligations:
(a) All users that the Customer has authorized to use the Customer Account (hereinafter “Authorized Users“) must be named, and any changes must be reported promptly.
(b) The Customer must protect the access details assigned to him or the Authorized Users (usernames and passwords) against third-party access and must not pass on this data to third parties.
(c) The Customer must instruct the Authorized Users appropriately, particularly if the Customer permits them to use the Platform on their own end devices.
(d) In case of suspected abuse, the Customer must inform Mercanis without undue delay.
6.2 As soon as Mercanis obtains knowledge of unauthorized use, Mercanis will block the access of the Customer in question. Mercanis also reserves the right to change the access details of Customers or Authorized Users for reasons pertaining to security; in such cases, Mercanis will promptly inform the Customer of this fact.
6.3 Breaches of cooperation obligations can lead to extra expenses for Mercanis. The Customer must repay these extra expenses according to the Pricing Page except the Customer is not responsible for the extra expenses.
6.4 The Customer has to onboard the Suppliers to the Platform on its own. The Customer may introduce the Supplier to the Platform functionality, invite the Supplier to join the Platform and take similar measures.
7.1 The Software availability owed by Mercanis depends on the Plan chosen by the Customer and is specified on the Pricing Page. If the Pricing Page does not contain any regulations, the following applies: If the Customer has chosen a Free Plan, Mercanis does not owe any availability. If the Customer has chosen a Paid Plan, Mercanis shall owe an Availability of at least 99% in the Contract's yearly average. “Availability” means that the Customer may access and use the main features of the Software. Times during which the Software is not available due to an error or other reasons are deemed as “Downtime”.
7.2 For determining the Availability, Downtime is not taken into account
(a) in which the Software cannot be reached due to technical or other problems for which Mercanis is not responsible (force majeure, third-party fault, errors in the IT systems of the Customer or the third party service providers acting on his behalf, etc.);
(b) which is due to a breach of the Customer's obligation to cooperate, in particular to a delayed or incomplete transmission of an error message; or
(c) which is used for normal maintenance work of up to five hours a month.
7.3 Since the Platform is cloud-based, Mercanis can only eliminate faults if the cloud server is working without faults. Mercanis accepts no liability for faults in the cloud server. Mercanis will endeavour to rectify faults that are considered repairable within a period of two business days at most after receiving the fault notification.
7.4 If Mercanis plans to decommission the Platform in part or in whole at other times, Mercanis must announce that three business days before the planned decommissioning. The Customer may only object to this decommissioning if there is good cause, and this objection must be submitted without undue delay. If possible, Mercanis will name a replacement time unless the decommissioning cannot be postponed.
7.5 The Customer is not entitled to compensation for damages due to restrictions or exclusions relating to the usability of the Platform.
8.1 Mercanis intends to use state-of-the-art technology and shall be entitled to regularly carry out or introduce updates, new versions or upgrades of the Software (“Updates”) in order to adapt the Software to new technical or commercial requirements, to implement new features, or to make changes to existing features in order to improve the Software.
8.2 If and insofar as the suitability of the Software for the Contract Purpose is materially impaired by an Update (such an Update a “Material Change”), Mercanis shall inform the Customer in text form of the introduction of the Material Change at least four weeks prior to it becoming effective (a “Change Notice”). If the Customer does not object to the Material Change within two weeks after receipt of the Change Notice in text form (the “Objection Notice”), the Material Change shall become an integral component of the Contract. With each Change Notice, Mercanis shall inform the Customer of the Customer’s rights pursuant to this Section 8.2, in particular: (i) the objection right, (ii) the period foreseen for objection and (iii) the legal consequences of not declaring an objection to the Material Change in time.
8.3 If the Customer objects to the Material Change, Mercanis shall further provide the Software for use to the Customer without the Material Change unless this is impossible for technical or organizational reasons or Mercanis cannot reasonably be expected to do so. In the latter case, the Customer is entitled to terminate the Contract extraordinarily for good cause within four weeks (the “Exercise Period”). If the Customer does not make use of its termination right, the Material Change shall become an integral component of the Contract. The Exercise Period shall commence as soon as Mercanis has informed the Customer in text form of (i) the non-continuability of the Contract without the Material Change, (ii) the Customer’s extraordinary termination right and (iii) the legal consequences of the expiry of the Exercise Period.
9.1 Mercanis warrants that the Software corresponds to the agreed scope of Service when used in accordance with the Contract and that it is not encumbered with material or legal defects (“Defects”) which more than insignificantly impair the suitability of the Software for the Contract Purpose.
9.2 The Software includes open source software provided by third parties.
9.3 The Customer shall be obliged to communicate any Defect to Mercanis immediately upon appearance. Mercanis shall remedy any duly notified Defects appearing in the Software within a reasonable period of time.
10.1 Mercanis assumes unlimited liability for willful intent and gross negligence on the part of Mercanis, its agents and legal representatives; Mercanis only accepts liability for simple negligence in the event of breaches concerning Cardinal Contractual Duties. “Cardinal Contractual Duties” are defined as obligations which are indispensable for the fulfilment of the contract, and for which the Customer regularly relies and is entitled to rely on compliance.
10.2 Liability for breaches of such Cardinal Contractual Duties is restricted to the damages which are typical for this type of contract and which Mercanis should have been able to anticipate when establishing the contract based on the circumstances known at that time, up to the contract value at maximum.
10.3 The no-fault based liability pursuant to Section 536 a Paragraph (1) BGB for defects in the Software existing at the time of contracting shall be excluded, unless the defect relates to a feature of the Software essential for the Contract Purpose.
10.4 Mercanis is only liable for the loss of data according to the above paragraphs if the Customer could not have prevented this loss by adopting suitable data backup measures.
10.5 The present limitations of liability do not apply if explicit guarantees have been made, for claims due to a lack of warranted qualities or for damages due to injury of life, body or health. Liability according to the product liability law also remains unaffected.
10.6 Mercanis accepts no liability for breakdowns of the cloud. In the event of a breakdown lasting longer than 24 hours, the Customer is entitled to proportionately reduce the remuneration paid for the use of the Platform according to the duration of the breakdown.
10.7 The Customer is obliged to immediately notify any damage pursuant to the above liability provisions to Mercanis in text form or to have such damage documented by Mercanis, so that Mercanis is informed as early as possible and can possibly still mitigate the damage together with the Customer.
10.8 The Customer indemnifies and holds Mercanis harmless from all claims by third parties (in particular from claims arising out of breach of copyright, competition, trademark or data protection law) that are asserted against Mercanis in connection with the Customer’s use of the Software insofar as such claims do not result from wilful or grossly negligent behaviour of Mercanis or its legal representatives or agents (gesetzliche Vertreter oder Erfüllungsgehilfen). This indemnification obligation comprises the reimbursement for appropriate costs that Mercanis incurred in the course of asserting or defending its legal rights in this context.
10.9 For each case in which a contractual Service is used unauthorizedly under the responsibility of the Customer, the Customer shall pay damages in the amount of the compensation that would have been due for the contractual use under the minimum contract period applicable to this Service. The Customer reserves the right to prove that the Customer is not responsible for the unauthorized use or that there is no damage or considerably less damage. Mercanis remains entitled to claim further damages.
10.10 This liability arrangement is conclusive. It shall apply with respect to all damage compensation claims, irrespective of their legal ground, particularly also with respect to pre-contractual claims or collateral contractual claims. This liability arrangement shall also apply in favor of legal representatives and agents of Mercanis if claims are asserted directly against them.
11.1 Claims of the Customer based on the breach of any duty not consisting of a Defect become time-barred, except in the event of intention or gross negligence, within one year from beginning of the limitation period. This shall not apply if the damage in question incurred by the Customer consists in personal injury. Claims for personal injury become statute-barred within the statutory limitation period.
11.2 Any rescission of contract or reduction of payments shall be invalid if the claim to performance or subsequent performance of the Customer has become time-barred.
12.1 The compensation for the use of the Software by the Customer and the respective terms of payment shall be based on the Pricing Page in its current version at the time the Contract is concluded or if the switch to a more comprehensive Paid Plan or the upgrade from a Free Plan to a Paid Plan according to Section 2.2 is performed. In case of renewal of a Paid Plan according to Section 2.2, the version of the pricing page applicable to the plan chosen by the Customer does not change but remains the same.
12.2 All prices are listed before legal VAT in the respective amount owed.
12.3 The payment period is provided for by the Paid Plan chosen by the Customer and as set out on the Pricing Page. If the Pricing Page does not contain any provisions on the payment period, the compensation is to be paid monthly in advance upon receipt of the respective invoice issued by Mercanis. Invoices are sent by Mercanis to the Customer via email.
12.4 Unless otherwise agreed, invoices are due for payment within 10 days after receipt of the invoice without any deduction.
12.5 The available payment options are detailed on the Pricing Page. If the Pricing Page does not contain any provisions on the payment options, payments can be made via credit card.
13.1 The term of the Contract and terminability shall be governed by the provisions of the Pricing Page on the Plan chosen by the Customer. If the Pricing Page does not contain any provisions on the term, the Contract shall run for at least 12 months and is automatically renewed for each 12 further months, unless it is terminated effectively before. Either Party may terminate with 3 months’ notice with effect as of the end of each term.
13.2 The right to extraordinary termination for good cause remains unaffected. Good cause for Mercanis includes
(a) Payment default of more than two months with the payment of due fees or other remuneration, even after the expiry of a reasonable period set by Mercanis to remedy the situation,
(b) Lack of willingness to cooperate on the part of the Customer and resulting difficulties for Mercanis to perform the Service.
13.3 Each termination must be declared in text form.
14.1 The Mercanis servers are secured according to the latest technological standards, particularly using firewalls. However, the customer is aware of the general risk that transmitted data may be intercepted during transmission. This applies not only for the exchange of information via e-mails that leave the system, but also for all other data transmission. For this reason, the confidentiality of data transmitted when using the Platform cannot be guaranteed.
14.2 The Customer bears sole responsibility for securing the information received or obtained when using the Platform. The Customer will regularly back up this information/documents on an independent data storage medium/server. This particularly applies if authorized users also use the Platform on their own end devices on behalf of the Customer.
14.4 Insofar as the Customer enters personal data on the Platform, the Customer is considered a controller within the meaning of Art. 4 (7) GDPR, and Mercanis is considered a processor within the meaning of Art. 4 (8) GDPR. As part of the online registration process and a prerequisite for the Contract, the Parties conclude a data processing agreement pursuant to Art. 28 GDPR, see Section 4.1.
14.5 If the Customer allows Authorized Users to use the Platform on the Authorized Users’ personal end devices, the Customer is the sole controller for the processing of any personal data concerning these individuals within the meaning of Art. 24 GDPR. The processing agreement pursuant to Section 4.1 remains unaffected.
14.6 The Customer is obliged to comply with applicable data protection laws with respect to the personal data of third parties, such as other customers, which the Customer may obtain when using the Platform. The Customer will only use this data for contractual communication or for communication prior to entering into a contract. The Customer will instruct all members of executive bodies, employees, representatives, authorized users and agents accordingly.
14.7 The Customer agrees that Mercanis may freely use, exploit and further develop any feedback provided by the Customer. This agreement may be revoked at any time.
15.1 Within this agreement, “Confidential Information” means all business secrets, the existence and content of the business relationship between the Parties as well as all other information the customer places on the Platform that is non-public, confidential and/or protected.
15.2 The Parties are obliged
(a) To treat Confidential Information as strictly confidential, and only to use such information for the purpose of fulfilling contractual obligations resulting from the contractual relationship with the customer,
(b) To refrain from passing on or disclosing Confidential Information to third parties and to refrain from providing access to Confidential Information for third parties,
(c) To adopt appropriate measures to prevent unauthorized persons from obtaining access to Confidential Information, and
(d) To protect Confidential Information against unauthorized access by third parties using appropriate secrecy measures and to comply with the legal and contractual regulations concerning data protection when processing confidential information. This also includes the technical security measures adapted to the latest technological standards (Art. 32 GDPR) and the obligation of employees to observe confidentiality and comply with data protection regulations (Art. 28 (3)(b) GDPR).
15.3 The obligations listed in Paragraph 2 do not apply for Confidential Information
(a) that was general knowledge or generally accessible to the public before the communication or handover, or that becomes at a later date without violating any confidentiality obligations;
(b) that was already known to the receiving Party before the disclosing Party made the disclosure and it can be demonstrated that no confidentiality obligations were violated;
(c) that was developed independently by a Party without the use or reference of the other party’s Confidential Information;
(d) that is handed over or made accessible to a Party by an authorised third party without violating any confidentiality obligations;
(e) that must be disclosed due to mandatory statutory provisions or a court decision and/or a decision of an authority.
15.4 The Parties shall ensure through suitable contractual arrangements that the employees and contractors working for them shall also, without temporal restriction, refrain from individual use or disclosure of Confidential Information. The Parties shall only disclose to employees or contractors Confidential Information to the extent such employees or contractors need to know the information for the fulfilment of the Contract.
15.5 The Customer consents that Mercanis may disclose the collaboration between Mercanis and the Customer for marketing purposes and in this connection also use the company logo of the Customer. The Customer may revoke this consent pursuant to this Section 15.3 at any time by declaration in text form (e.g. via e-mail to email@example.com).
15.6 The obligations under Section 16 of this document continue to apply for a period of three years after the termination of the contractual relationship. Statutory provisions concerning the protection of business secrets remain unaffected.
16.1 The customer may not hire away employees from Mercanis. If this prohibition is violated and the employment relationship of a Mercanis employee is terminated for this reason, the customer is obliged to pay a contractual penalty to Mercanis matching the employee’s last gross annual salary at Mercanis.
17.1 Mercanis reserves the right to change or amend these Customer Terms in whole or in part with future effect for the following reasons: legal or regulatory reasons, security reasons, to further develop or optimize existing qualities of Mercanis services and to add additional qualities, to adapt to technical progress and make technical adjustments and in order to guarantee the future functionality of the Service provided by Mercanis. Mercanis will inform the customer of any changes, communicating the specific content of the modified provisions with sufficient advance notice at least two weeks before the planned entry into force of the changes. The changes are deemed as accepted by the customer if the customer does not object to them within two weeks upon receipt of the notification. In the change notification, Mercanis will separately inform the participant concerning the right of objection and the above-mentioned legal consequences of remaining silent.
18.1 The Customer shall only have a right of set-off, reduction and/or retention against Mercanis if its counterclaim has been legally established, undisputed or acknowledged by Mercanis. Furthermore, the Customer may only exercise a right of retention if the counterclaim is based on the same contractual relationship. The Customer's right to reclaim remuneration not actually owed shall remain unaffected by the limitation of Section 12.1.
18.2 All declarations concerning this contractual relationship must be submitted in text form (e.g. e-mail, fax) unless otherwise agreed.
18.3 If individual provisions of the Contract of use or other contractual documents are or become invalid or unenforceable in whole or in part or if they do not contain a necessary provision, this shall not affect the validity of the remaining provisions. In place of the invalid or unenforceable provision or to fill the loophole, the legally admissible provision shall be deemed to have been agreed retroactively which corresponds as closely as possible to what the Parties would have wished or would have been agreed in spirit and purpose by the Parties if they had considered the invalidity or unenforceability of the provision in question or the loophole.
18.4 The place of fulfillment and sole place of jurisdiction for all disputes arising from the contractual relationship including these Customer Terms is Berlin. However, Mercanis is entitled to bring legal action at the registered seat of the Customer.
The laws of the Federal Republic of Germany apply, to the exclusion of the conflict rules of international private law and the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).
The Customer Terms are written in both German and English. In case of discrepancies or contradictions between the German and the English version, the German version shall prevail.