General Terms and Conditions of Cloudmaven GmbH

1.1 These General Terms and Conditions (“GTC”) apply to all services provided by Cloudmaven GmbH, Pappelallee 78/79, 10437 Berlin, Germany (registered in the commercial register of the District Court (Amtsgericht) of Charlottenburg under HRB 262064 B; VAT ID DE366804483) (the “Company”), to its business customers within the meaning of § 14 of the German Civil Code (BGB) and legal entities under public law (each a “Customer”). These GTC do not apply to consumers.

1.2 These GTC form part of every service agreement, licence agreement, framework agreement (Rahmenvertrag) or other separate agreement between the Company and the Customer that refers to them (each a “Separate Agreement”), and of every offer, statement of work, order form or change request issued under a Separate Agreement or these GTC (each a “Statement of Work”). A Statement of Work supplements the applicable Separate Agreement and these GTC and does not replace them. The Separate Agreement, any Statements of Work and these GTC together form the “Agreement”.

1.3 In the event of conflict, the following order of precedence applies: (i) the Separate Agreement, (ii) the Statement of Work, and (iii) these GTC. Any general terms and conditions of the Customer, including those in purchase orders, shall not apply.

1.4 The Company may amend these GTC from time to time. The version published at the date on which a Separate Agreement or Statement of Work is concluded applies to it.

2.1 The Company shall provide the Customer with the services specified in the Separate Agreement or Statement of Work and all other services as agreed from time to time under, or in connection with, these GTC or any Separate Agreement (“Services”). The Services do not include legal, tax, accounting or other professional advice. The Customer remains responsible for its own business decisions and for the accuracy and completeness of the data and information it provides.

2.2 The Company’s failure to perform its obligations under these GTC or any Separate Agreement will not be treated as a breach if and to the extent such failure is caused by the Customer’s failure to perform any of its obligations under these GTC or any Separate Agreement.

2.3 The Company shall perform the Services with due care, using appropriately qualified personnel and in accordance with generally recognised industry practice. Unless otherwise stated in the Separate Agreement or Statement of Work, the Services are provided on a time and material basis, and the Company does not guarantee any specific result or outcome unless expressly agreed in writing.

2.4 Effort estimates are given in good faith based on the information available at the time, but are not binding.

2.5 Any change to the scope, timeline or assumptions of the Services shall be agreed through a written change request setting out its impact on effort, fees and timeline, approved by both Parties before the work commences.

2.6 Delays caused by the Customer’s failure to provide timely input, data, decisions or resources shall extend the timeline accordingly, and any resulting additional effort shall be charged at the agreed rates. Deliverables submitted for sign-off are deemed accepted if the Customer does not raise documented objections within ten (10) business days, or upon their productive use (go-live).

2.7 The Company may use its Affiliates to perform the Services without further consent, and other subcontractors with the Customer’s prior consent, which the Customer may only refuse for objective reasons. The Company remains responsible for their performance.

2.8 The Company’s personnel remain exclusively subject to the Company’s direction and control. The Customer shall not issue instructions to, supervise or discipline the Company’s personnel, and no provision of temporary workers (Arbeitnehmerüberlassung) is intended.

3.1 In consideration for the provision of the Services by the Company, the Customer must pay the fees specified in the Separate Agreement or Statement of Work.

3.2 The Company is paid for services performed on an hourly basis, based on an eight-hour working day, unless otherwise specified in the Separate Agreement or Statement of Work. The rate of the expenses to be invoiced shall be stated in the Separate Agreement or Statement of Work.

3.3 Services are recorded and invoiced to the Customer monthly in arrears, unless otherwise stated in the Separate Agreement or Statement of Work.

3.4 Unless otherwise stated in the Separate Agreement or Statement of Work, all invoices are payable in cleared funds within fourteen (14) days after receipt of the invoice.

3.5 Unless otherwise stated in the Separate Agreement or Statement of Work, all fees are exclusive of reasonable out-of-pocket expenses, which shall be reimbursed by the Customer in addition to the fees. The Company shall provide receipts or other reasonable supporting documentation for such expenses together with the corresponding invoice.

3.6 If any payment due from the Customer is not received by the Company in cleared funds by its due date, the amount shall be deemed overdue without the need for further notice. The Company shall be entitled to charge interest at the higher of eight percent (8%) per annum and the statutory default interest rate under § 288 (2) of the German Civil Code (BGB) on the outstanding balance, accruing daily from the due date until the date of full payment, whether before or after judgment.

3.7 If any undisputed invoice remains unpaid for more than thirty (30) days after its due date, the Company may, after written notice to the Customer, suspend the Services until payment is received. Any agreed timelines shall be extended accordingly.

3.8 The Customer shall notify the Company in writing of any disputed invoice within fourteen (14) days of receipt, stating its reasons. The undisputed portion of any invoice shall remain payable when due.

3.9 All fees are exclusive of VAT, GST, withholding taxes, or any other applicable sales or turnover taxes, which shall be payable by the Customer in addition to the fees and on the same payment terms.

3.10 All payments under these GTC, Separate Agreement, or any Statement of Work shall be made free and clear of any present or future taxes, withholdings, deductions, or bank charges. If the Customer is required by law to withhold or deduct any amount from a payment due, the Customer shall pay such additional amounts as are necessary to ensure that the Company receives the full amount it would have received had no such deduction or withholding been required. The Customer shall provide the Company with official receipts or certified proof of payment of such taxes to the relevant authority.

3.11 All payments by the Customer shall be made in the currency in which the fees are quoted in the Separate Agreement or Statement of Work. Where an invoice is issued in a different currency, conversion shall be made at the euro foreign exchange reference rate published by the European Central Bank (ECB) on the invoice date.

3.12 For invoicing and VAT purposes, the Customer shall provide the Company with its VAT identification number or other applicable identification number without delay.

3.13 The Customer may only set off claims or exercise a right of retention to the extent that its counterclaim is undisputed or has been legally established, and a right of retention may only be based on claims arising from the same contractual relationship. This does not limit the Customer’s right to set off claims for the costs of remedying defects or for additional completion costs.

4.1 Each Party acknowledges that it may receive or have access to Confidential Information of the other Party and its Affiliates.

4.2 “Confidential Information” means all non-public commercial, financial, technical or other information of a Party or its Affiliates, in any form, including trade secrets, know-how, marketing plans, software, source codes, pricing, business plans, customer and supplier information, and any materials derived from such information.

4.3 “Affiliate” means any entity that controls, is controlled by, or is under common control with a Party. Control shall mean ownership of at least fifty percent (50%).

4.4 Each Party shall keep all Confidential Information strictly confidential and shall not disclose it to any third party except to its employees, Affiliates, subcontractors or advisers on a need-to-know basis, subject to equivalent confidentiality obligations.

4.5 Each Party shall use Confidential Information solely for purposes of these GTC or any Separate Agreement and shall take reasonable measures to protect it against unauthorised disclosure, copying or use.

4.6 Upon request, each Party shall return or destroy Confidential Information, unless required to retain it by law, save for copies held in routine back-up or archiving systems, which shall remain subject to this clause.

4.7 These obligations shall survive termination of the relevant Separate Agreement for a period of three (3) years and, in respect of trade secrets, for as long as they remain trade secrets.

4.8 The confidentiality obligations shall not apply to the extent disclosure is required by law or a competent authority, provided the disclosing Party (to the extent legally permitted) gives prior notice and limits disclosure to what is strictly required.

4.9 The obligations in this clause shall not apply to information that:

a) is or becomes publicly available other than through a breach of these GTC or any Separate Agreement;

b) was lawfully known to the receiving Party before disclosure;

c) is independently developed by the receiving Party; or

d) is lawfully received from a third party without a duty of confidentiality.

5.1 Each Party shall comply with all applicable data protection laws, including the EU General Data Protection Regulation (GDPR) and the German Federal Data Protection Act (BDSG), in connection with any processing of personal data arising from or related to these GTC or any Separate Agreement.

5.2 Where the Company processes personal data on behalf of the Customer, the Customer acts as Data Controller and the Company as Data Processor. The Company shall process personal data solely on the documented instructions of the Customer and only for the purposes of fulfilling these GTC or any Separate Agreement.

5.3 The Company shall implement and maintain appropriate technical and organisational measures (TOMs) to ensure a level of security appropriate to the risk, preventing unauthorised access, loss, or disclosure of personal data. All personnel or agents of the Company who have access to such data shall be bound by strict confidentiality obligations.

5.4 The Customer grants the Company general authorisation to engage sub-processors, including its Affiliates, for the provision of the Services. The Company shall make its current list of sub-processors available to the Customer on request and inform the Customer of any intended changes, giving the Customer the opportunity to object on reasonable data protection grounds. The Company shall impose on each sub-processor data protection obligations equivalent to those in this clause. Personal data shall only be transferred outside the European Economic Area (EEA) where an adequate level of protection is ensured, in particular by means of Standard Contractual Clauses, in accordance with Article 46 GDPR.

5.5 The Company shall assist the Customer, insofar as reasonably possible, in fulfilling its obligations relating to data subject rights, data protection impact assessments, and breach notifications. The Company shall notify the Customer without undue delay, and where feasible within forty-eight (48) hours, upon becoming aware of any personal data breach affecting the Customer’s data.

5.6 Personal data processed by the Company on behalf of the Customer shall be retained only for as long as necessary to fulfil the purposes of these GTC or any Separate Agreement or as required by law. Upon termination or expiry of the relevant Separate Agreement, the Company shall, at the Customer’s choice, return or securely delete all personal data (including any copies), unless retention is required by applicable law.

5.7 Where required by applicable law or requested by either Party, the Parties shall enter into a separate data processing agreement, which shall prevail over this clause 5 in the event of conflict.

6.1 “Intellectual Property” means all intellectual property rights of any nature, whether registered or unregistered, including patents, trademarks, designs, copyrights, know-how, trade secrets and any related applications or rights anywhere in the world.

6.2 Each Party retains ownership of all Intellectual Property owned or developed by it prior to, or independently of, these GTC or any Separate Agreement (“Background IP”).

6.3 Upon full payment of the fees for the relevant Services, the Company grants the Customer a simple (non-exclusive), irrevocable right of use, unlimited in time and place, to all deliverables created specifically for the Customer under these GTC or any Separate Agreement (including configurations, customisations, scripts, workflows, reports and project documentation) (“Customer Deliverables”), including the rights to reproduce, modify and make them available to the Customer’s authorised users. The Customer may transfer this right of use to its Affiliates. Until full payment, the Customer is granted a non-exclusive, non-transferable licence to use the Customer Deliverables for the purposes of the relevant Separate Agreement.

6.4 The Company retains all rights in its Background IP and in any generic tools, templates, methodologies, know-how and components of general application that it uses or develops in performing the Services, including where these are incorporated into the Customer Deliverables. Subject to full payment of the relevant fees, the Company grants the Customer a perpetual, non-exclusive, royalty-free licence to use such items, to the extent incorporated into the Customer Deliverables, for the internal business purposes of the Customer and its Affiliates.

6.5 The licensing of, and all Intellectual Property rights in, any third-party software and any add-on products, applications or bundles of the Company or third parties (such as the Cloudmaven Swiss-Plus Localisation) are governed exclusively by the Separate Agreement applicable to them (such as a product licence or subscription agreement), and are not transferred or licensed under these GTC.

6.6 The rights granted in clauses 6.3 and 6.4 do not permit the Customer or any third party to decompile, disassemble or otherwise reverse engineer any Background IP, generic tools or components or products of the Company, to extract, copy or use them separately from the Customer Deliverables, or to use them to develop a competing product, except as permitted under §§ 69d and 69e of the German Copyright Act (UrhG), which remain unaffected. The Customer shall ensure that any third-party service provider acting on its behalf is bound by these restrictions and by confidentiality obligations no less protective than clause 4, and shall be responsible for their compliance.

6.7 The Company shall have no liability, and no warranty or remedy obligations, for any defect, malfunction, loss of data or other damage to the extent caused by modifications to the Customer Deliverables or to the Company’s products made by the Customer or any third party other than the Company, by their use in combination with systems, data or configurations not provided or approved by the Company, or by updates to third-party platforms. Any work by the Company to investigate or remedy such issues shall be charged at the agreed rates.

6.8 This clause shall survive termination of any Separate Agreement.

7.1 Nothing in these GTC or any Separate Agreement shall exclude or limit either Party’s liability for:

a) intent or gross negligence;

b) injury to life, body or health;

c) liability under the German Product Liability Act (Produkthaftungsgesetz) or under an expressly assumed guarantee; or any other liability which cannot be excluded or limited by applicable law.

7.2 Subject to clause 7.1, neither Party shall be liable (whether in contract, tort, statute or otherwise) for any indirect, consequential or special loss, including loss of profits, revenue, business, goodwill, anticipated savings, business interruption or loss or corruption of data (save for the reasonable cost of restoring data from the Customer’s most recent back-up), whether or not foreseeable. In the event of a slightly negligent breach of a material contractual obligation (an obligation whose fulfilment is essential to the proper performance of the relevant Separate Agreement or Statement of Work and on whose fulfilment the Customer may regularly rely), the Company’s liability is limited to the foreseeable damage typical for this type of contract.

7.3 Subject to clause 7.1, and unless a Separate Agreement provides for a different limitation of liability (which shall then prevail), each Party’s total aggregate liability arising out of or in connection with these GTC or any Separate Agreement shall not exceed the fees paid and payable for the Services (excluding any third-party licence or subscription fees) in the twelve (12) months preceding the event giving rise to the claim. Claims of the Customer’s Affiliates shall be brought by the Customer and count towards this limit.

7.4 The limitation in clause 7.3 shall not apply to the Customer’s obligation to pay the fees and expenses due under these GTC or any Separate Agreement or to amounts payable under clause 8.2, or to either Party’s liability for breach of clause 4 (Confidentiality) or clause 6 (Rights to Intellectual Property).

7.5 In the event of defective Services, the Company shall first be given the opportunity to remedy the defect by re-performing the affected Services within a reasonable period. Subject to clause 7.1, any claim for damages must be notified in writing within twelve (12) months of the claiming Party becoming aware of the circumstances giving rise to it.

7.6 Any third-party products are provided under the terms of the respective third party. The Company is not responsible for their availability, performance, functionality or updates. Where the Company supplies software subscriptions or other third-party products to the Customer as a reseller, the Customer accepts the applicable end-user terms of the respective third party, which govern their use, availability and support. The Company passes on to the Customer the benefit of any warranties, service levels and remedies it receives from that third party, and its liability in respect of such products is limited to what it is able to recover from that third party. Subscription fees are payable for the agreed subscription term and are not refundable or cancellable except as permitted by the third party’s terms.

8.1 Each Party undertakes that, during the term of any Separate Agreement or Statement of Work and for twelve (12) months thereafter, it shall not, without the prior written consent of the other Party, directly or indirectly solicit, hire or engage any employee, contractor or consultant of the other Party who was involved in the performance of any Separate Agreement or Statement of Work or with whom it had contact in connection with it.

8.2 If a Party breaches this clause, it shall pay the other Party a contractual penalty equal to six (6) months’ gross remuneration or fees of the relevant individual (including variable compensation) for each breach. Payment of the penalty shall not release the breaching Party from its obligations under this clause, and the other Party remains entitled to claim further proven damages, against which any penalty paid shall be credited.

8.3 For the purposes of this clause, “hire” includes engagement as an employee, contractor, consultant or in any similar capacity, whether directly or indirectly.

8.4 This clause shall not apply to general recruitment advertisements not specifically targeted at the other Party’s personnel, or to individuals who apply on their own initiative without prior solicitation.

9.1 Should either Party (“the Defaulting Party”) be in breach of any material terms of these GTC or any Separate Agreement, the Non-Defaulting Party shall notify the Defaulting Party in writing of said breach and demand that the Defaulting Party remedies said breach within a period of fifteen (15) working days of receipt of said notice.

9.2 Should the Defaulting Party fail to remedy the breach as demanded, the Non-Defaulting Party shall be entitled, without prejudicing any of its other remedies in law, to:

a) terminate the relevant Separate Agreement or Statement of Work;

b) claim proven damages; and/or

c) enforce the terms of these GTC and the relevant Separate Agreement.

9.3 Notwithstanding the aforesaid, and unless the Separate Agreement or Statement of Work provides otherwise, either of the Parties may terminate any Separate Agreement or Statement of Work at any stage, for whatever reason, by giving the other 3 (three) calendar months’ written notice of its intention to do so.

9.4 The termination of any Separate Agreement or Statement of Work, for whatever reason, shall not affect the rights or obligations of either of the Parties:

a) that may have accrued before the termination; or

b) which specifically or by their nature survive the termination.

9.5 Either Party may terminate any Separate Agreement or Statement of Work with immediate effect by written notice if the other Party becomes insolvent, is declared bankrupt or enters into a composition with its creditors.

9.6 Upon termination for any reason, the Customer shall pay the Company for all Services performed and expenses incurred up to the effective date of termination.

10.1 By accepting these GTC or any Separate Agreement, the Customer agrees that the Company may identify the Customer as a customer of the Company and may use the Customer’s name and logo for marketing and promotional purposes, including on the Company’s website and in sales materials, presentations and customer lists.

10.2 The Company shall use the Customer’s name and logo in accordance with any branding guidelines provided by the Customer and shall not imply any endorsement beyond the existence of the business relationship.

10.3 The Customer may, at any time, revoke its consent in text form, and the Company shall cease such use within a reasonable period.

10.4 Case studies, press releases and quotes attributed to the Customer require the Customer’s prior written approval.

11.1 If any provision of these GTC or any Separate Agreement is or becomes invalid or unenforceable, the remaining provisions shall remain in force, and the Parties shall replace the invalid provision with a valid provision that comes closest to its economic purpose.

12.1 Each Party elects the address set out in the Separate Agreement or Statement of Work (or, for the Company, the address stated in clause 1.1) as its address for notices.

12.2 A Party may change its address for notices to another address by written notice, effective 7 (seven) calendar days after receipt by the other Party.

12.3 All notices must be in writing. Notices of breach or termination shall be sent by registered post or by email with confirmation of receipt.

12.4 A notice will be deemed received:

a) if sent by registered post, on the fifth (5th) business day after posting;

b) if delivered by hand during business hours (08:00 – 17:00 CET, excluding Saturdays, Sundays and public holidays in Berlin), on the date of delivery; and

c) if sent by email during business hours, on the date of transmission, or otherwise on the next business day.

12.5 Notwithstanding the above, any written notice actually received by a Party will be deemed validly given.

13.1 A Party shall not be liable for any delay or failure in performing its obligations to the extent caused by events beyond its reasonable control, including acts of God, war, riots, strikes, lockouts, fire, accidents, epidemics, pandemics, acts of government, cyber-attacks, failures of third-party platforms, hosting or telecommunications providers or similar events (“Force Majeure”), provided that it promptly notifies the other Party in writing. The affected Party’s obligations shall be suspended for the duration of the Force Majeure. Force Majeure shall not excuse any payment obligation.

13.2 The affected Party shall notify the other Party when the Force Majeure ends. If the Force Majeure continues for more than 90 (ninety) days, either Party may terminate the affected Separate Agreement or Statement of Work with immediate effect.

14.1 These GTC, together with any Separate Agreement and Statement of Work, constitute the entire agreement between the Parties and supersede all prior agreements, understandings and representations relating to their subject matter.

14.2 No amendment of any Separate Agreement or Statement of Work, and no deviation from these GTC, shall be valid unless made at least in text form (§ 126b BGB), for example by email or via an electronic signature platform agreed by the Parties.

14.3 Except as expressly set out in these GTC, any Separate Agreement or Statement of Work or in a duly executed written document, no warranties or representations are given by either Party.

15.1 The Customer may not assign or transfer any rights or obligations under these GTC or any Separate Agreement without the Company’s prior written consent, not to be unreasonably withheld or delayed. The Company may assign any Separate Agreement to its Affiliates.

16.1 No delay, extension or failure by a Party to enforce any provision shall constitute a waiver of, or affect, its rights, nor shall any waiver of a breach constitute a waiver of any subsequent breach.

17.1 These GTC, any Separate Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them shall be governed by and construed in accordance with the substantive laws of the Federal Republic of Germany, excluding its conflict of laws rules and the UN Convention on Contracts for the International Sale of Goods (CISG).

17.2 Where the Customer is a merchant (Kaufmann), a legal entity under public law or a special fund under public law, or has no general place of jurisdiction in Germany, the courts of Berlin, Germany, shall have exclusive jurisdiction to settle any such dispute or claim. The Company may also bring proceedings at the Customer’s registered seat.