General Terms and Conditions of CdC3 GmbH (Mercanis) Customers (Customer GTC)

1 Scope

1.1 CdC3 GmbH, registered with the commercial register of the local court of Charlottenburg in Berlin under HRB 221095, Greifswalder Str. 208, 10405 Berlin (“Mercanis”), provides a Software-as-a-Service (“SaaS”) platform for the joint scouting, sourcing, buying and management of service providers and their respective orders (“Platform”). These are the general terms and conditions for the business relationship between Mercanis and its customers (“Customer GTC”; 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 GTC shall apply unless the Parties have agreed otherwise in the individual agreement. Deviating, conflicting or supplementary general terms and conditions of the Customer shall only become part of the agreement if Mercanis agrees to their validity in text form. This requirement of consent shall also apply if Mercanis commences the provision of services knowing of the Customer's general terms and conditions.

2 Object

2.1 The Platform is an Internet application. The Customer does not download the software underlying the Platform, but merely uses the software on Mercanis' IT infrastructure (the use of the Platform is referred to as a “Service” or “Contractual Purpose”). “Software” means the software underlying the Platform, to the extent that it is covered by the contractual service.

2.2 The individually agreed scope of Mercanis' services depends on the respective offer.

2.3 The Customer may add and remove further users to the workspace assigned to him (such workspace “Customer Account”, each such user an “Authorised User”). Each user for which the Customer must pay is referred to as a “Paid User”.

2.4 The Customer may also request a more extensive service at any time beyond the scope of Section 2.3. Mercanis will submit a corresponding offer upon request. A reduction in the scope of the agreement is only permitted with the consent of Mercanis or in compliance with the termination period specified in these Customer GTC.

2.5 The Customer may increase the number of Paid Users at any time. The increase in the number of chargeable users has no influence on the term or terminability of the offer. Mercanis' remuneration increases pro rata and is calculated on a pro rata basis, taking into account the billing period of the offer.

2.6 The research and/or suggestion and/or onboarding of freelancers, service providers or suppliers with whom the Customer wishes to work (“Suppliers”, each a “Supplier”) is not part of the Service. However, Mercanis may support the onboarding process at the Customer's request and at its own discretion. The business relationship between Mercanis and the Supplier is subject to its own terms and conditions of supply.

2.7 The scope of the agreement includes system maintenance and system improvements, but not system enhancements, in particular new features and modules.

3 Additional Services

If agreed between the Parties, Mercanis shall provide specific services in addition to the Service to customise the Software to the Customer's individual needs and wishes and/or other additional services. The conditions for these services shall be set out in a separate service agreement between the Parties.

4 Conclusion of the Agreement

4.1 Mercanis prepares a customised offer for the Customer. The Mercanis Customer GTC, the Privacy Policy (https://mercanis.com/privacy-policy) and the Data Processing Agreement (https://www.mercanis.com/data-processing-agreement) apply to this offer. The agreement is concluded as soon as the offer countersigned or electronically signed by the Customer has been received by Mercanis.

4.2 By accepting the offer, the Customer guarantees that he is acting as an entrepreneur. The user who accepts the offer for and on behalf of a company guarantees that he is authorised to act on behalf of this company.

5 Use of the Software by the Customer

5.1 The Software is used by means of telecommunication 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 connection between the Customer's IT systems and the router output of the Mercanis data centre or the data centre of its subcontractor via whose server the Software is operated (“Transmission Point”). Mercanis is not responsible for disruptions beyond the Transmission Point.

5.3 The provision of the required internet access is not part of the agreement. The Customer shall be responsible for procuring and maintaining the necessary hardware and connections to public telecommunications networks. The costs for setting up and maintaining the online connection on the part of the Customer shall be borne by the Customer. Mercanis is not liable for the security, confidentiality and integrity of data communication that takes place via third-party communication networks. Mercanis is also not liable for disruptions to data transmission caused by technical errors or configuration problems on the part of the Customer.

5.4 The Customer may only use access to the Software themselves and only for the Contractual Purpose.

5.5 Unless otherwise agreed, the Customer is granted a simple, non-transferable, non-sublicensable, revocable right, limited to the term of the respective individual agreement, to use the Platform on Mercanis' IT infrastructure in accordance with these Customer GTC and in accordance with and for the Contractual Purpose. In particular, the Customer is not authorised to make the Software accessible to third parties, to copy, decompile or reverse engineer it or to process it beyond the Contractual Purpose.

5.6 The Customer may only enter data, text, images and other content (including customised fonts) into the Platform that

(a) comply with applicable law;

(b) do not infringe the rights of third parties, and

(c) Customer is legally authorised to enter without restriction.

Unless otherwise agreed, the Customer grants Mercanis a simple, transferable, sub-licensable right for the duration of the respective individual agreement to use the data entered by the Customer on the Platform for the purpose of providing the Service and any additional services in accordance with these Customer GTC and the respective individual agreement.

5.7 Customer agrees not to upload, transmit, endorse, encourage, promote or otherwise make available any content that is unlawful, racist, hostile, violent, discriminatory (including with respect to race, religion, gender, sexual orientation, age, disability, ancestry or national origin), harmful, harassing, defamatory, vulgar, obscene or otherwise objectionable, or that contains software viruses or other computer code, files or programmes designed to interrupt, interfere with or limit the functionality of any computer software or hardware or telecommunications equipment.

5.8 Mercanis is entitled to monitor and, if necessary, enforce the proper contractual use of the Platform by means of suitable technical and data protection measures, e.g. by restricting access or blocking access or deleting content that the Customer has entered in violation of applicable law or these Customer GTC.

6 Customer’s Obligation to Cooperate

6.1 The Customer has the following obligations to cooperate - in addition to the general contractual ancillary obligations under statutory law:

(a) Each Authorised User must be named and any changes must be notified immediately.

(b) The Customer must protect the access data (user names and passwords) assigned to him or the Authorised Users from access by third parties and may not disclose this data to third parties.

(c) The Customer must instruct the Authorised Users accordingly, in particular if the Customer permits them to use the Platform on their own end devices.

(d) In the event of suspected misuse, the Customer must inform Mercanis immediately.

6.2 As soon as Mercanis becomes aware of unauthorised use, Mercanis will block the access of the Customer concerned. Mercanis also reserves the right to change the access data of Customers or Authorised Users for security reasons; in this case, Mercanis will inform the Customer immediately.

6.3 Breaches of obligations to cooperate may result in additional costs for Mercanis. The Customer must reimburse these additional costs, unless the Customer is not responsible for the additional costs.

6.4 The Customer must integrate the Suppliers into the Platform independently. The Customer may introduce the Supplier to the functionality of the Platform, invite the Supplier to join the Platform and take similar measures.

7 Service Level

7.1 The software availability owed by Mercanis is based on the offer selected by the Customer and, if concluded, on the Service Level Agreement (“SLA”). This also regulates details of troubleshooting. Unless otherwise agreed, the following shall apply: Mercanis owes an availability of at least 99% on an annual average of the agreement. “Availability” means that the Customer can access and use the essential functions of the Software. Times during which the Software is not available due to an error or for other reasons shall be deemed ‘’Downtimes‘’.

7.2 When determining Availability, Downtimes shall not be taken into account,

(a) during which the Software is unavailable due to technical or other problems for which Mercanis is not responsible (force majeure, fault of third parties not commissioned by Mercanis, errors in the IT systems of the Customer or of third-party service providers commissioned by the Customer, etc.);

(b) which are due to a breach of the Customer's obligation to cooperate, in particular a delayed or incomplete transmission of an error message; or

(c) which are used for normal maintenance work of up to five hours per month.

7.3 The Customer shall not be entitled to claim damages due to restrictions or exclusions of the usability of the Platform.

8 Changes to the Software

8.1 Mercanis intends to use state-of-the-art technology and is authorised 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, implement new functions or make changes to existing functions in order to improve the Software.

8.2 If and to the extent that the suitability of the Software for the Contractual Purpose is materially impaired by an Update (such Update a “Material Change”), Mercanis shall inform the Customer in text form of the introduction of the Material Change at least four weeks before it comes into effect (a “Change Notice”). If the Customer does not object to the Material Change in text form within two weeks of receipt of the Change Notice (the “Objection Notice”), the Material Change shall become part of the agreement. Mercanis shall inform the Customer of the Customer's rights under this Section 8.2 with each Change Notice, in particular: (i) the right of objection, (ii) the deadline provided for the objection and (iii) the legal consequences if the objection to the Material Change is not declared in due time.

8.3 If the Customer objects to the Material Change, Mercanis shall continue to provide the Customer with the Software for use even without the Material Change, unless this is not possible for technical or organisational reasons or is unreasonable for Mercanis. In the latter case, the Customer is entitled to terminate the agreement for good cause within four weeks (the “Exercise Period”). If the Customer does not exercise its right of termination, the Material Change shall become an integral part of the agreement. The Exercise Period begins as soon as Mercanis has informed the Customer in text form of (i) the impossibility of continuing the agreement without the Material Change, (ii) the Customer's extraordinary right of termination and (iii) the legal consequences of the expiry of the Exercise Period.

9 Warranty for Material Defects and Defects of Title

9.1 Mercanis warrants that the Software, when used in accordance with the agreement, complies with the agreed scope of performance and is free from material defects and defects in title (“Defects”) which more than insignificantly impair the suitability of the Software for the Contractual Purpose.

9.2 The Software contains open-source software provided by third parties. Upon request, the Customer shall receive a list of the open-source software used at the time the agreement has been concluded. The list is provided without any guarantee of completeness.

9.3 The Customer is obliged to notify Mercanis of any defect immediately upon its occurrence. Mercanis shall remedy duly notified defects in the Software within a reasonable period of time.

10 Liability and Compensation for Damages

10.1 Mercanis shall be liable without limitation for intent and gross negligence on the part of Mercanis, its vicarious agents and legal representatives; Mercanis shall only be liable for simple negligence in the event of a breach of cardinal contractual obligations. “Cardinal Contractual Obligations” are obligations whose fulfilment is essential for the proper performance of the agreement and on whose fulfilment the Customer regularly relies and may rely.

10.2 Liability for the breach of Cardinal Contractual Obligations shall be limited to the damage typical for the agreement, the occurrence of which Mercanis had to expect upon conclusion of the agreement based on the circumstances known at that time, up to a maximum of the value of the agreement.

10.3 Liability without fault pursuant to Section 536 a (1) of the German Civil Code (BGB) for defects in the Software existing at the time of conclusion of the agreement is excluded, unless the defect relates to a characteristic of the Software that is essential for the Contractual Purpose.

10.4 Mercanis shall only be liable for the loss of data in accordance with the above paragraphs if the Customer could not have prevented this loss by taking suitable data backup measures.

10.5 The above limitations of liability shall not apply in the event of the assumption of express guarantees, for claims due to the absence of warranted characteristics or for damages resulting from injury to life, limb or health. Liability under the Product Liability Act also remains unaffected.

10.6 Mercanis accepts no liability for cloud outages. In the event of an outage lasting longer than 24 hours, the Customer shall be entitled to reduce the remuneration paid for the use of the Platform pro rata in accordance with the duration of the outage.

10.7 The Customer is obliged to notify Mercanis immediately in text form of any damage within the meaning of the above liability provisions or to have such damage documented by Mercanis so that Mercanis is informed as early as possible and can limit the damage together with the Customer if necessary.

10.8 The Customer shall indemnify Mercanis against all third-party claims (in particular claims arising from infringement of copyright, competition, trademark or data protection law) asserted against Mercanis in connection with the Customer's use of the Software, unless such claims are based on intentional or grossly negligent behaviour on the part of Mercanis or its legal representatives or vicarious agents. This indemnification obligation includes the reimbursement of reasonable costs incurred by Mercanis in the assertion or defence of its legal rights in this connection.

10.9 For each case of unauthorised use of a contractual service for which the Customer is responsible, the Customer must pay compensation in the amount of the remuneration that would have been payable for the contractual use in accordance with the minimum agreement term applicable to this Service. The Customer reserves the right to prove that the Customer is not responsible for the unauthorised use or that no damage or significantly less damage was incurred. Mercanis remains entitled to claim further damages.

10.10 This liability provision is conclusive. It applies to all claims for damages, regardless of the legal grounds, in particular also to pre-contractual or ancillary contractual claims. This liability provision shall also apply in favour of Mercanis' legal representatives and vicarious agents if claims are asserted directly against them.

11 Limitation Period for Claims

11.1 Claims by the Customer due to a breach of duty that does not consist of a defect shall become time-barred within one year of the start of the limitation period, except in cases of intent or gross negligence. This does not apply if the damage suffered by the Customer is personal injury. Claims for personal injury shall become time-barred within the statutory limitation period.

11.2 Withdrawal from the agreement or a reduction in payments shall be ineffective if the Customer's claim for fulfilment or subsequent performance has been time-barred.

12 Remuneration and Payment Terms

12.1 The remuneration for the use of the Software by the Customer and the respective terms of payment are based on the offer.

12.2 All prices are subject to value added tax at the statutory rate.

12.3 The payment period is specified in the offer. If this does not contain a provision on the payment period, the remuneration shall be paid monthly in advance after receipt of the respective invoice from Mercanis. Invoices are sent by Mercanis to the Customer by e-mail.

12.4 Unless otherwise agreed, invoices are due for payment without deduction within 10 days of receipt of the invoice.

12.5 The prices agreed on the basis of the offer shall apply for the first half of the initial term. Thereafter, Mercanis is entitled to increase the prices for services once a year at its reasonable discretion, taking into account the inflation rate (consumer price index of the Federal Statistical Office) or an increase in Mercanis' costs, which Mercanis will explain. Mercanis shall notify the Customer of any intended price increase two months before the intended effective date. If the prices are to be increased by more than 5 per cent, the Customer has the right to terminate the agreement extraordinarily up to the time of the intended entry into force of the increase. If the Customer does not declare its acceptance of the intended price increase by the intended date of entry into force, the increase shall be deemed to have been accepted. Mercanis shall inform the Customer of this legal consequence when notifying the Customer of the intended price increase.

13 Term, Termination and Termination of Service

13.1 The term of the agreement and the terminability are regulated in the offer. If this does not contain any provisions on the term, the first term of the contract is 24 months (“Initial Term”). This shall be automatically extended by a further 24 months in each case unless the contract is effectively terminated beforehand. It can be terminated by either Party with a notice period of 3 months to the end of the respective term.

13.2 The right to extraordinary termination for good cause remains unaffected by this. Good cause for Mercanis is in particular:

(a) default of more than two months in the payment of due fees or other remuneration, even after the expiry of a reasonable deadline set by Mercanis to remedy the situation,

(b) Lack of cooperation on the part of the Customer and resulting difficulties for Mercanis in providing the Service.

13.3 Termination shall be made in text form.

14 Data Protection and Data Security

14.1 Mercanis' servers are secured using state-of-the-art technology, in particular firewalls. Mercanis is guided by the five principles of „SOC 2” and is audited accordingly. The Customer is aware of the general risk that transmitted data can be intercepted during transmission. This applies not only to the exchange of information via e-mails that leave the system, but also to all other data transmissions.

14.2 The Customer shall bear sole responsibility for backing up the information received or obtained when using the Platform. The Customer shall regularly back up this information/documents on an independent data carrier/server. This applies in particular if Authorised Users also use the Platform on their own end devices on behalf of the Customer.

14.3 Mercanis handles the Customer's personal data in accordance with the applicable data protection regulations. The data protection provisions applicable to the use of the Platform can be found in Mercanis' Privacy Policy (see Section 4.1).

14.4 If the Customer enters personal data on the Platform, the Customer is deemed to be the controller within the meaning of Art. 4 (7) GDPR and Mercanis is deemed to be the processor within the meaning of Art. 4 (8) GDPR. As part of the online registration and as a prerequisite for the agreement, the Parties conclude an Order Processing Agreement pursuant to Art. 28 GDPR (see Section 4.1).

14.5 If the Customer allows the Authorised Users to use the Platform on the personal devices of the Authorised Users, the Customer is the sole controller for the processing of the personal data relating to these persons within the meaning of Art. 24 GDPR. The Order Processing Agreement pursuant to Section 4.1 remains unaffected by this.

14.6 The Customer is obliged to comply with the applicable data protection laws with regard to the personal data of third parties, such as other Customers, which the Customer receives when using the Platform. The Customer shall only use this data for contractual communication or for communication prior to the conclusion of an agreement. The Customer shall instruct all board members, employees, representatives, authorised users and agents accordingly.

14.7 The Customer agrees that Mercanis may freely use, utilise and further develop the feedback provided by the Customer. This consent may be revoked at any time. Section 15 remains unaffected.

15 Confidentiality

15.1 “Confidential Information” within the meaning of this agreement means all business secrets, the existence and content of the business relationship between the Parties and any other information that the Customer places on the Platform that is not public, confidential and/or proprietary.

15.2 The Parties are obliged

(a) to treat Confidential Information as strictly confidential and to use it only to fulfil the contractual obligations arising from the contractual relationship with the Customer,

(b) not to pass on or disclose Confidential Information to third parties and not to grant third parties access to Confidential Information,

(c) to take appropriate measures to prevent unauthorised persons from gaining access to Confidential Information, and

(d) to protect Confidential Information from unauthorised access by third parties through appropriate confidentiality measures and to comply with the statutory and contractual regulations on data protection when processing Confidential Information. This also includes state-of-the-art technical security measures (Art. 32 GDPR) and the obligation of employees to maintain confidentiality and to comply with data protection regulations (Art. 28 para. 3 lit. b GDPR).

15.3 The obligations set out in Section 15.2 shall not apply to Confidential Information

(a) which was generally known or generally accessible prior to the communication or disclosure or becomes known at a later date without breach of confidentiality obligations;

(b) which was already known to the receiving Party before the disclosing Party made the disclosure and it can be demonstrated that no confidentiality obligations were breached;

(c) that was independently developed by a Party without using or referring to the other Party's Confidential Information;

(d) which is provided or made available to a Party by an authorised third party without breach of confidentiality obligations;

(e) which 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 by means of suitable contractual provisions that the employees and contractors working for them also refrain from using or disclosing Confidential Information on an individual basis without any time restrictions. The Parties shall only disclose Confidential Information to employees or contractors to the extent that these employees or contractors need to know the information in order to fulfil the agreement.

15.5 The Customer agrees that Mercanis may disclose the cooperation between Mercanis and the Customer for marketing purposes and may also use the Customer's company logo in this context. The Customer may revoke this consent in accordance with this Section 15 at any time by declaration in text form (e.g. by e-mail to privacy@Mercanis.io).

15.6 The obligations under Section 15 of these Customer GTC shall continue to apply for a period of three years after termination of the contractual relationship. Statutory provisions for the protection of business secrets remain unaffected.

16 Non-Solicitation Clause

The Customer may not entice employees away 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 Mercanis a contractual penalty in the amount of the employee's last gross annual salary at Mercanis.

17 Amendments to these Customer GTC

Mercanis reserves the right to amend or supplement these Customer GTC in whole or in part with effect for the future for the following reasons: for legal or regulatory reasons, for security reasons, to further develop or optimise existing qualities of Mercanis' Services and to add additional features, to adapt to technical progress and to make technical adjustments and to ensure the future functionality of the Services offered by Mercanis. Mercanis shall inform the Customer of the changes, stating the specific content of the amended provisions, with a reasonable notice period of at least two weeks before the planned entry into force of the changes. The changes shall be deemed approved by the Customer if the Customer does not object to them within two weeks of receipt of the notification. Mercanis shall inform the participant separately in the Change Notice of the right of objection and the aforementioned legal consequences of silence.

18 Final Provisions

18.1 The Customer shall only have a right of set-off, reduction and/or retention vis-à-vis Mercanis if its counterclaim has been legally established, is undisputed or has been recognised by Mercanis. In addition, the Customer shall only be authorised to exercise a right of retention to the extent that its counterclaim is based on the same contractual relationship. The Customer's right to reclaim any remuneration not owed shall remain unaffected by the limitation period pursuant to Section 11.1.

18.2 All declarations relating to this contractual relationship must be made in text form (e.g. e-mail, fax), unless otherwise agreed.

18.3 Should individual provisions of these Customer GTC, the individual agreement or other contractual documents be or become invalid or unenforceable in whole or in part or 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 gap, the legally permissible provision that comes closest to what the Parties would have wanted or what would have been agreed by the Parties in terms of meaning and purpose if they had considered the invalidity or unenforceability of the provision in question or the gap shall subsequently be deemed to have been agreed.

18.4 The place of fulfilment and exclusive place of jurisdiction for all disputes arising from the contractual relationship, including these Customer GTC, is Berlin. However, Mercanis is also entitled to file an action at the Customer's registered office.

18.5 The law of the Federal Republic of Germany shall apply to the exclusion of the conflict of laws provisions of private international law and the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).

18.6 The Customer GTC are written in both German and English. In the event of discrepancies or contradictions between the German and English versions, the German version shall prevail.

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