General Terms & Conditions
of CdC3 GmbH/Mercanis for Customers (Supplier Terms)

DATED: February 2021

1. Scope

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 to customers for collaboratively scouting, sourcing, buying and managing service providers, freelancers and suppliers (“Suppliers”) and their respective engagements (“Platform”; customers that have registered to the Platform “Customers”). Further abilities of the Platform are the order management, and the invoicing and customer administration. These are the general terms and conditions for the business relationship between Mercanis and Suppliers (“Supplier Terms”; Mercanis and Suppliers “Parties”, each a “Party”).

1.2 Mercanis provides its services exclusively to Suppliers which are entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB).

1.3 These Supplier Terms apply unless the parties have agreed on different regulations in the specific contract. Deviating, opposing or supplementary general terms and conditions of Suppliers 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 Supplier’s general terms and conditions.

2.  Object of the Contract

2.1 The platform is an internet application. The Supplier does not download the software which underlies the platform (such software, as far as covered by the contractual service, “Software”). Instead, the Supplier only uses the software on Mercanis’ IT infrastructure (the use of the Platform is the “Service” and/or, respectively, the “Contract Purpose”).

2.2 For Suppliers, the Service is free of charge. Mercanis reserves the right to introduce fees pursuant to Section 17.

2.3 Mercanis reserves the right to remove certain features from the Service at its own discretion.

2.4 The Supplier may add and remove other users to the workspace which is allocated to him, to which the Supplier may invite other users to collaborate (such workspace “Supplier Account”, each such user an “Authorized User”).

2.5 A Customer may invite one or more Suppliers to register to the Platform. The research of and/or the proposal of and/or the onboarding of customers with which the Supplier is interested to cooperate is not part of the Service. However, Mercanis may support the onboarding process on demand of the Customer and/or the Supplier at Mercanis’ own discretion. To the business relationship between Mercanis and the Customer, specific Customer Terms shall apply.

3. Additional services

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 Supplier, and/or other additional services. The conditions on these services shall be set up by separate service agreement between the Parties.

4. Conclusion of the Contract

4.1 To access the Service, the Supplier must first select a supported login method to start the signup process. Subsequently, by checking the respective boxes, the Supplier accepts the then current versions of Mercanis’ Supplier Terms, privacy policy (https://mercanis.com/privacy-policy), and data processing agreement (https://mercanis.com/dpa). By clicking on the button "Next", the Supplier provides to Mercanis an offer to conclude a contract ("Contract") including these Supplier Terms. The Contract is concluded only if Mercanis creates and opens a Supplier Account.

4.2 In subscribing, the Supplier guarantees that it acts in the capacity as entrepreneur. The user who subscribes on behalf of a company as Supplier guarantees by his subscribing to be legally authorized to act for the company.

5. Use of the Software by the Supplier

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 Supplier 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 Supplier's side shall be borne by the Supplier. 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 Supplier.

5.4 The Supplier may only use itself the access to the Software, and only for the contractually agreed purpose.

5.5 Unless otherwise agreed, the Supplier 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 Supplier Terms and according to and for the Contract Purpose. In particular, the Supplier 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 Supplier 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 Supplier is legally entitled without any restrictions.

Unless otherwise agreed, for the term of the respective individual contract, the Supplier grants Mercanis a simple, transferable, sublicensable right to use the data entered by the Supplier on the Platform for the purpose of performing the Service and any additional services according to these Supplier Terms and the respective individual contract.

5.7 The Supplier 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 Supplier by infringing applicable law or these Supplier Terms.

6. Cooperation Obligations of the Supplier

6.1 The Supplier has – besides the general contractual side obligations (vertragliche Nebenpflichten) pursuant to statutory law – the following cooperation obligations:

(a) Any user which the Supplier has authorized to use the Supplier Account (hereinafter “Authorized User“) must be named, and any changes must be reported promptly.

(b) The Supplier must protect the access details assigned to him or the Authorized User (username and password) against third-party access and must not pass on this data to third parties.

(c) The Supplier must instruct the Authorized User appropriately, particularly if the Supplier permits him/her to use the Platform on his/her own end device.

(d) In case of suspected abuse, the Supplier must inform Mercanis without undue delay.

6.2 As soon as Mercanis obtains knowledge of unauthorized use, Mercanis will block the access of the Supplier in question. Mercanis also reserves the right to change the access details of Suppliers or Authorized Users for reasons pertaining to security; in such cases, Mercanis will promptly inform the Supplier of this fact.

6.3 Breaches of cooperation obligations can lead to extra expenses for Mercanis. The Supplier must repay these extra expenses according to the applicable pricing page (available at www.mercanis.com/pricing) in the respective current version (“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. Service level

7.1 Mercanis does not owe any availability as far as the Service is free of charge for the Supplier.

7.2 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.

7.3 If Mercanis plans to decommission the Platform in part or in whole at other times, Mercanis must announce this three business days before the planned decommissioning. The Supplier 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.

7.4 The Supplier is not entitled to compensation for damages due to restrictions or exclusions relating to the usability of the Platform.

8.Changes to the Software

8.1Mercanis 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 Supplier in text form of the introduction of the Material Change at least four weeks prior to it becoming effective (a “Change Notice”). If the Supplier 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 Supplier of the Supplier’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 Supplier objects to the Material Change, Mercanis shall further provide the Software for use to the Supplier 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 Supplier is entitled to terminate the Contract extraordinarily for good cause within four weeks (the “Exercise Period”). If the Supplier 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 Supplier in text form of (i) the non-continuability of the Contract without the Material Change, (ii) the Supplier’s extraordinary termination right and (iii) the legal consequences of the expiry of the Exercise Period.

9. Warranty for Material and Legal Defects

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 Supplier 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. Liability and Damages

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 Supplier 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 Supplier 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.

10.7 The Supplier 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 Supplier.

10.8 The Supplier 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 Supplier’s use of the Software insofar as such claims do not result from willful 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 Supplier, the Supplier 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 Supplier reserves the right to prove that the Supplier 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. Limitation of Claims

11.1 Claims of the Supplier 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 Supplier 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 Supplier has become time-barred.

12. Remuneration and payment conditions

12.1 The Service is for the Supplier free of charge. The compensation for additional services and the respective terms of payment shall be based on the Pricing Page in its current version at the time the Contract is concluded.

12.2 All prices are listed before legal VAT in the respective amount owed.

12.3 The payment period is 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 Supplier 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. Duration, Termination and Cancellation of Service

13.1 The term of 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, inter alia, the lack of willingness to cooperate on the part of the Supplier and resulting difficulties for Mercanis to perform the Service.

13.3 Each termination must be declared in text form.

14. Data Protection and Data Security

14.1 The Mercanis servers are secured according to the latest technological standards, particularly using firewalls. However, the Supplier 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 Supplier bears sole responsibility for securing the information received or obtained when using the Platform. The Supplier 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 Supplier.

14.3 Mercanis treats the Supplier's personal data in accordance with data protection standards and specifications. The data protection regulations applicable for the use of the Platform can be found in Mercanis privacy policy, as mentioned in Section 4.1.

14.4 Insofar as the Supplier enters personal data on the Platform, the Supplier 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 Supplier allows Authorized Users to use the Platform on the Authorized Users’ personal end devices, the Supplier 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 Supplier is obliged to comply with applicable data protection laws with respect to the personal data of third parties, such as other suppliers, which the Supplier may obtain when using the Platform. The Supplier will only use this data for contractual communication or for communication prior to entering into a contract. The Supplier will instruct all members of executive bodies, employees, representatives, authorized users and agents accordingly.

14.7 The Supplier agrees that Mercanis may freely use, exploit and further develop any feedback provided by the Supplier. This agreement may be revoked at any time.

15. Confidentiality

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 Supplier 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 Supplier,

(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 Supplier consents that Mercanis may disclose the collaboration between Mercanis and the Supplier for marketing purposes and in this connection also use the company logo of the Supplier. The Supplier may revoke this consent at any time by declaration in text form (e.g. via e-mail to privacy@mercanis.io).

15.6 The Supplier is obliged to comply with applicable data protection laws with respect to the personal data of third parties, such as other suppliers, which the Supplier may obtain when using the Platform. The Supplier will only use this data for contractual communication or for communication prior to entering into a contract. The Supplier will instruct all members of executive bodies, employees, representatives, authorized users and agents accordingly.

16. Non-solicitation clause

16.1 The Supplier 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 Supplier is obliged to pay a contractual penalty to Mercanis matching the employee’s last gross annual salary at Mercanis.

17. Changes to these Supplier Terms

17.1 Mercanis reserves the right to change or amend these Supplier 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, or in order to guarantee the future functionality of the Service provided by Mercanis, or to introduce fees. Mercanis will inform the Supplier 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 Supplier if the Supplier 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. Final provisions

18.1 The Supplier 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 Supplier may only exercise a right of retention if the counterclaim is based on the same contractual relationship. The Supplier's right to reclaim remuneration not actually owed shall remain unaffected by the limitation of Section 11.1.

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 Supplier Terms is Berlin. However, Mercanis is entitled to bring legal action at the registered seat of the Supplier.

18.5 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).

18.6 The Supplier 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.