General Terms and Conditions for the usage of Sharpist
Preamble
Sharpist GmbH (“Sharpist or Service Provider”) is a B2B provider of a mobile platform for professional growth and individual web-based coaching. Sharpist supports companies to have employees that are more balanced and successful via one-on-one video-coaching and individualized exercises on a data-driven, mobile platform.
1. Objective and scope of the contract
1.1 The present General Terms and Conditions are a component part of any contractual agreement between Sharpist as service provider and the respective customer regarding the usage of the „Sharpist Spark“ program. Any terms and conditions of the customer that contradict the present General Terms and Conditions shall be excluded.
1.2 This contract is considered the legal framework for all future orders and agreements (hereinafter: “order”) between Sharpist and the Customer, even if this is not expressly reagreed on or reiterated.
1.3. The Services may be provided either on a proprietary Sharpist mobile App or via third-party providers for video-calls and exercises (“Provision Format”). Sharpist may change the Provision Format of the services.1.4. If ordered by the Customer and object of the contractual agreement, Sharpist will use commercially reasonable efforts to provide the Customer with the services described hereto (“Services”).
2. Payment
2.1. Customer will pay Sharpist the applicable fees described in the order in accordance with the terms therein. If Customer’s use of the Services exceeds the service capacity set forth on the contract or otherwise requires the payment of additional fees (per the terms of this contract), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein.
2.2. All prices and remunerations are subject to obligatory VAT, if applicable, as prevailing on the date of invoicing.
2.3. If the Customer fails to make payments within 30 days after the date shown on the invoice (the receipt in Sharpist’s account is decisive for timely payment), or within the payment period shown on the invoice or in a separate agreement (in writing by fax or email) made between the parties or if no debit is possible from his account, he shall be in default without further notice. In the event of default, Sharpist shall be entitled to claim the statutory default interest. The right of Sharpist to prove and claim higher default damages shall remain unaffected.
2.4. When a Customer is more than eight (8) weeks late in settling an invoice without citing any attenuating circumstances, Sharpist reserves the right, after a written warning with a grace period of no less than fourteen (14) days, to suspend or cease the Services specified in the contract until payment is made for the contractual work owed.
2.5 Sharpist may, from time to time, adjust the price for their services. In the case of an adjustment, Sharpist will inform the Customer of the intended change at least six weeks before the effective date. If the Customer has not objected to the change within four weeks of notification, the change becomes binding for both parties. Sharpist will advise the Customer of this legal consequence in the information of the intended change. An adjustment of price shall only become binding for the contract period that begins with or following the effective date. Sharpist shall not adjust the price for a period already invoiced for, unless that the change is necessary to comply with statutory changes, e.g., VAT or other tax regulations.
3. Cooperation and obligations
3.1. The performance of contractual Services requires close cooperation between Sharpist and the Customer. The Parties shall therefore inform themselves about any circumstances in their sphere that may affect their contractual Services or orderly operations.
3.2. Customer will not, directly or indirectly:
a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”);
b) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Sharpist or authorized within the Services);c) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
3.3. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with this contract and all applicable laws and regulations.
3.4 The Customer hereby agrees to indemnify and hold harmless Sharpist against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Sharpist has no obligation to monitor the Customer’s use of the Services, Sharpist may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
3.5. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).
3.6 Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of a Customer account or the Equipment with or without Customer’s knowledge or consent.
4. Term and termination
4.1 The initial contract term shall be 6 months (Initial Term) , and shall automatically renew for subsequent periods of 1 month (each Renewal Term) unless terminated by either Party with 30 days prior written (textform) notice before the end of the Initial Term or each Renewal Term. The termination for convenience during the Initial Term is excluded. The statutory rights to extraordinary termination shall remain unaffected.
4.2. In addition to any other remedies it may have, either party may also terminate this contract upon 30 days’ notice (or without notice in the case of nonpayment) if the other party materially breaches any of the terms or conditions of this contract and fails to cure the breach within 30 days from receipt of notice.
4.3. Customer will pay in full for the services up to and including the last day on which the Services are provided. All sections of this contract which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
5. Rights of use
5.1. With regard to the Sharpist-App and the included services, Sharpist shall grant the Customer a basic, non-transferrable, non-sublicensable user right to the App (and the software included), being of limited, contractually defined duration and for the applicable fees as agreed in each order.
5.2. The scope of the relevant services (e.g. Sharpist coaching, documentation), technical, temporal and financial details of these services (and the app), the number of permitted users and/or the type and scope of the respectively granted user rights and the relevant country companies, are established in the respective orders (together with the service description of the application), which are set as appendices to, and are part, of this framework contract.
5.3 A “License” is bound to one (1) individual employee unless otherwise agreed.
5.4. Customer shall implement the leased software and/or cloud-based services only for the purpose of internal and allied business operations pursuant to art. 15 AktG (“allied business”). Especially
a) a separate data processing centre for third parties or
b) a temporary handover of services (e.g. as application service provider-ASP) to other allied businesses or,
c) the utilisation of services for the training of persons who are not associates of the Customer or allied businesses are permitted only following prior written approval by Sharpist.
5.5. The Customer shall not sell, loan, lease out or otherwise sublicense the software or publish or generally make the App available.
6. Liability
6.1. Sharpist shall be liable without limitation for intent or gross negligence, for injury to life, body or health, under the provisions of the German Product Liability Act, and to the extent of any guarantees assumed by Sharpist.
6.2. In case of a slightly negligent violation of duty which is essential for achieving the purpose of the contract (material duty), the liability of Sharpist shall be limited in amount to the damage which is foreseeable and typical according to the nature of the transaction concerned.
6.3. In all other respects, the liability of Sharpist shall be excluded. In particular, no-fault liability for any defects already existing at the time of conclusion of the contract (Sec. 536a (1) 1st alt. of the German Civil Code) does not exist on the part of Sharpist, save where the conditions set forth in subsections 6(1) or (2) above are fulfilled.
6.4. The above limitation of liability shall also apply to the personal liability of the employees, representatives and bodies of Sharpist.
7. Confidentiality
7.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’sbusiness (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Sharpist includes non-public information regarding features, functionality and performance of the Service.
7.2. Proprietary Information of Customer includes non-public data provided by Customer to Sharpist to enable the provision of the Services (“Customer Data”). The Receiving Party agrees:
(i) to take reasonable precautions to protect such Proprietary Information, and
(ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.
The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document
(a) is or becomes generally available to the public, or
(b) was in its possession or known by it prior to receipt from the Disclosing Party, or
(c) was rightfully disclosed to it without restriction by a third party, or
(d) was independently developed without the use of any Proprietary Information of the Disclosing Party or
(e) is required to be disclosed by law.
7.3. Customer shall own all rights, title and interest in and to the Customer Data. Sharpist shall own and retain all right, title and interest in and to
(a) the Services and Software, all improvements, enhancements or modifications thereto,
(b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and
(c) all intellectual property rights related to any of the foregoing.
7.4. Notwithstanding anything to the contrary, Sharpist shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Sharpist will be free (during and after the term hereof) to
(i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Sharpist offerings, and
(ii) disclose such data solely in aggregate or other de-identified forms in connection with its business. No rights or licenses are granted except as expressly set forth herein.
8. Data protection
8.1. Concerning the protection of personal data, the parties are obligated to comply with the provisions of the EU General Data Protection Regulation and the German Federal Data Protection Act.
8.2. The parties are pledged to take appropriate protective measures against the abuse of personal data.
9. Miscellaneous
9.1 Sharpist is entitled to use the name of Customer as well as Customer’s logo for reference purposes, in particular, on the homepage of Sharpist and its official social media websites. Hereunto Customer grants Sharpist a simple right to use its name and logo. Any further usage will be agreed with the Customer in advance.
9.2. If any provision of this contract is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this contract will otherwise remain in full force and effect and enforceable.
9.3. This contract is not assignable, transferable or sublicensable by the Customer except with Sharpist’s prior written consent. Sharpist may transfer and assign any of its rights and obligations under this contract without consent.
9.4. This contract is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this contract, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
9.5. No agency, partnership, joint venture, or employment is created as a result of this contract and Customer does not have any authority of any kind to bind Sharpist in any respect whatsoever. In any action or proceeding to enforce rights under this contract, the prevailing party will be entitled to recover costs and attorneys’ fees.
9.6. All notices under this contract will be in writing and will be deemed to have been duly given when received if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail;
9.7. This contract shall be governed by the laws of Germany without regard to its conflict of laws provisions. The city of Berlin is the legal venue when the contracting party is a businessperson, legal entity, or special fund under public law.
Preamble
Sharpist GmbH (“Sharpist or Service Provider”) is a B2B provider of a mobile platform for professional growth and individual web-based coaching. Sharpist supports companies to have employees that are more balanced and successful via one-on-one video-coaching and individualized exercises on a data-driven, mobile platform.
1. Objective and scope of the contract
1.1 The present General Terms and Conditions are a component part of any contractual agreement between Sharpist as service provider and the respective customer regarding the usage of the „Sharpist Spark“ program. Any terms and conditions of the customer that contradict the present General Terms and Conditions shall be excluded.
1.2 This contract is considered the legal framework for all future orders and agreements (hereinafter: “order”) between Sharpist and the Customer, even if this is not expressly reagreed on or reiterated.
1.3. The Services may be provided either on a proprietary Sharpist mobile App or via third-party providers for video-calls and exercises (“Provision Format”). Sharpist may change the Provision Format of the services.
1.4. If ordered by the Customer and object of the contractual agreement, Sharpist will use commercially reasonable efforts to provide the Customer with the services described hereto (“Services”).
2. Payment
2.1. Customer will pay Sharpist the applicable fees described in the order in accordance with the terms therein. If Customer’s use of the Services exceeds the service capacity set forth on the contract or otherwise requires the payment of additional fees (per the terms of this contract), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein.
2.2. All prices and remunerations are subject to obligatory VAT, if applicable, as prevailing on the date of invoicing.
2.3. If the Customer fails to make payments within 30 days after the date shown on the invoice (the receipt in Sharpist’s account is decisive for timely payment), or within the payment period shown on the invoice or in a separate agreement (in writing by fax or email) made between the parties or if no debit is possible from his account, he shall be in default without further notice. In the event of default, Sharpist shall be entitled to claim the statutory default interest. The right of Sharpist to prove and claim higher default damages shall remain unaffected.
2.4. When a Customer is more than eight (8) weeks late in settling an invoice without citing any attenuating circumstances, Sharpist reserves the right, after a written warning with a grace period of no less than fourteen (14) days, to suspend or cease the Services specified in the contract until payment is made for the contractual work owed.
2.5 Sharpist may, from time to time, adjust the price for their services. In the case of an adjustment, Sharpist will inform the Customer of the intended change at least six weeks before the effective date. If the Customer has not objected to the change within four weeks of notification, the change becomes binding for both parties. Sharpist will advise the Customer of this legal consequence in the information of the intended change. An adjustment of price shall only become binding for the contract period that begins with or following the effective date. Sharpist shall not adjust the price for a period already invoiced for, unless that the change is necessary to comply with statutory changes, e.g., VAT or other tax regulations.
3. Cooperation and obligations
3.1. The performance of contractual Services requires close cooperation between Sharpist and the Customer. The Parties shall therefore inform themselves about any circumstances in their sphere that may affect their contractual Services or orderly operations.
3.2. Customer will not, directly or indirectly:a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”);b) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Sharpist or authorized within the Services);c) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
3.3. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with this contract and all applicable laws and regulations.
3.4 The Customer hereby agrees to indemnify and hold harmless Sharpist against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Sharpist has no obligation to monitor the Customer’s use of the Services, Sharpist may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
3.5. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).
3.6 Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of a Customer account or the Equipment with or without Customer’s knowledge or consent.
4. Term and termination
4.1 The initial contract term shall be 12 months (Initial Term) , and shall automatically renew for subsequent periods of 12 months (each Renewal Term) unless terminated by either Party with 30 days prior written (textform) notice before the end of the Initial Term or each Renewal Term. The termination for convenience during the Initial Term is excluded. The statutory rights to extraordinary termination shall remain unaffected.
4.2. In addition to any other remedies it may have, either party may also terminate this contract upon 30 days’ notice (or without notice in the case of nonpayment) if the other party materially breaches any of the terms or conditions of this contract and fails to cure the breach within 30 days from receipt of notice.
4.3. Customer will pay in full for the services up to and including the last day on which the Services are provided. All sections of this contract which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
5. Rights of use
5.1. With regard to the Sharpist-App and the included services, Sharpist shall grant the Customer a basic, non-transferrable, non-sublicensable user right to the App (and the software included), being of limited, contractually defined duration and for the applicable fees as agreed in each order.
5.2. The scope of the relevant services (e.g. Sharpist coaching, documentation), technical, temporal and financial details of these services (and the app), the number of permitted users and/or the type and scope of the respectively granted user rights and the relevant country companies, are established in the respective orders (together with the service description of the application), which are set as appendices to, and are part, of this framework contract.
5.3 A “License” is bound to one (1) individual employee unless otherwise agreed.
5.4. Customer shall implement the leased software and/or cloud-based services only for the purpose of internal and allied business operations pursuant to art. 15 AktG (“allied business”). Especially
a) a separate data processing centre for third parties or
b) a temporary handover of services (e.g. as application service provider-ASP) to other allied businesses or,
c) the utilisation of services for the training of persons who are not associates of the Customer or allied businesses are permitted only following prior written approval by Sharpist.
5.5. The Customer shall not sell, loan, lease out or otherwise sublicense the software or publish or generally make the App available.
6. Liability
6.1. Sharpist shall be liable without limitation for intent or gross negligence, for injury to life, body or health, under the provisions of the German Product Liability Act, and to the extent of any guarantees assumed by Sharpist.
6.2. In case of a slightly negligent violation of duty which is essential for achieving the purpose of the contract (material duty), the liability of Sharpist shall be limited in amount to the damage which is foreseeable and typical according to the nature of the transaction concerned.
6.3. In all other respects, the liability of Sharpist shall be excluded. In particular, no-fault liability for any defects already existing at the time of conclusion of the contract (Sec. 536a (1) 1st alt. of the German Civil Code) does not exist on the part of Sharpist, save where the conditions set forth in subsections 6(1) or (2) above are fulfilled.
6.4. The above limitation of liability shall also apply to the personal liability of the employees, representatives and bodies of Sharpist.
7. Confidentiality
7.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’sbusiness (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Sharpist includes non-public information regarding features, functionality and performance of the Service.
7.2. Proprietary Information of Customer includes non-public data provided by Customer to Sharpist to enable the provision of the Services (“Customer Data”). The Receiving Party agrees:
(i) to take reasonable precautions to protect such Proprietary Information, and
(ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.
The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document
(a) is or becomes generally available to the public, or
(b) was in its possession or known by it prior to receipt from the Disclosing Party, or
(c) was rightfully disclosed to it without restriction by a third party, or
(d) was independently developed without the use of any Proprietary Information of the Disclosing Party or
(e) is required to be disclosed by law.
7.3. Customer shall own all rights, title and interest in and to the Customer Data. Sharpist shall own and retain all right, title and interest in and to
(a) the Services and Software, all improvements, enhancements or modifications thereto,
(b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and
(c) all intellectual property rights related to any of the foregoing.
7.4. Notwithstanding anything to the contrary, Sharpist shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Sharpist will be free (during and after the term hereof) to
(i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Sharpist offerings, and
(ii) disclose such data solely in aggregate or other de-identified forms in connection with its business. No rights or licenses are granted except as expressly set forth herein.
8. Data protection
8.1. Concerning the protection of personal data, the parties are obligated to comply with the provisions of the EU General Data Protection Regulation and the German Federal Data Protection Act.
8.2. The parties are pledged to take appropriate protective measures against the abuse of personal data.
9. Miscellaneous
9.1 Sharpist is entitled to use the name of Customer as well as Customer’s logo for reference purposes, in particular, on the homepage of Sharpist and its official social media websites. Hereunto Customer grants Sharpist a simple right to use its name and logo. Any further usage will be agreed with the Customer in advance.
9.2. If any provision of this contract is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this contract will otherwise remain in full force and effect and enforceable.
9.3. This contract is not assignable, transferable or sublicensable by the Customer except with Sharpist’s prior written consent. Sharpist may transfer and assign any of its rights and obligations under this contract without consent.
9.4. This contract is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this contract, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
9.5. No agency, partnership, joint venture, or employment is created as a result of this contract and Customer does not have any authority of any kind to bind Sharpist in any respect whatsoever. In any action or proceeding to enforce rights under this contract, the prevailing party will be entitled to recover costs and attorneys’ fees.
9.6. All notices under this contract will be in writing and will be deemed to have been duly given when received if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail;
9.7. This contract shall be governed by the laws of Germany without regard to its conflict of laws provisions. The city of Berlin is the legal venue when the contracting party is a businessperson, legal entity, or special fund under public law.
