General Terms and Conditions of UNIDY GmbH

Last updated August 2021

I Use of ID Solution / Software Services

I §1 Validity

• These General Terms and Conditions (GTC) are an integral part of all contractual relations entered into free of charge and against payment between Unidy GmbH as provider of a white label ID solution and connected service modules (together hereinafter: ID solution) and its customers and their sole basis. Conflicting terms and conditions of the customer do not apply even if Unidy does not expressly object to them and/or provides its services without reservation in the knowledge of the customer's terms and conditions.
• By using the ID solution, the customer affirms that he/she is not a consumer but an entrepreneur and a merchant within the meaning of the German Commercial Code (HGB).
• For creation services of Unidy GmbH and its clients, the General Terms and Conditions under "II Creation Services" apply.

I §2 Definitions

"ID Solution" or "Unidy Services" means all services, white-lable ID solutions and connected service modules offered by Unidy and made available on data networks or data carriers.

"Opt-ins" refer to any new active user consent in connection with the ID solution. For example: Both the registration of a user ID and channel opt-ins (e.g. newsletter) or service opt-ins (e.g. ticket shop) count as one opt-in.

I §3 Conclusion of contract

The contract is concluded when Unidy expressly confirms the booking of a service to the Customer in writing, in text form, e.g. by an offer to be accepted by the Customer, or by displaying a corresponding online dialogue or by unambiguous behaviour (e.g. start of providing the service).

I §4 Services, performances, subject matter of the contract

• Unidy provides its services to the customer to the extent corresponding to his booked. The establishment and maintenance of the data connection between the systems of the client and the transfer point operated by Unidy is not owed by Unidy.
• Unidy strives to constantly update and improve its services. If this process requires technical changes to the services associated with Unidy, Unidy will inform the Customer of this circumstance at least four weeks before the date of the change and will provide the Customer with all the necessary information regarding any technical adjustments required on the part of the Customer.

I §5 Term, termination

The contract term depends on the selected service. This can be terminated at any time at the end of the agreed minimum term; otherwise the contract term is extended in each case by the period corresponding to the agreed minimum term, provided this is a maximum of one year. In the event of a longer minimum term, the contract term shall be extended by one year in each case. The termination can be made by letter, fax, email or, if available, via a corresponding button in the Unidy application.

I §6 Special obligations of the customer

• The customer is obliged to keep access data to the Unidy services secret and not to communicate them to unauthorised third parties. If the customer has reason to believe that an unauthorised person has obtained knowledge of the access data, the customer is obliged to change his/her access data immediately. The Customer shall be responsible for ensuring that its use of the Services does not impair the functionality of the Services. The Customer shall maintain appropriate security standards for the use of the Services.
• The customer is obliged to carry out a regular, but at least daily, data backup of all his contents in order to keep the risk of final data loss low.
• The Customer is obliged to maintain appropriate insurance to cover damages caused by loss of data for all his projects operated using Unidy services.
• The customer is responsible for the contents on the maintained web offers; in particular he is responsible for the fact that possible personal data may be transmitted to Unidy in conformity with data protection. The customer assures that the contents are also legally harmless and free of viruses, for which the customer is liable according to the general laws. In particular, the customer undertakes not to use any content that violates applicable laws or impairs the rights of third parties. The customer is also obliged to point out the advertising content on his web offers maintained using the Unidy services, insofar as editorial and advertising contributions are mixed, as well as to clarify that he himself is responsible for the content of these web offers.
• If a claim is made against Unidy because of a breach of one of the aforementioned obligations, the customer is obliged to release Unidy from all claims of third parties on first demand, waiving the plea of action in advance. The customer will assume the reasonable costs of the legal defence of Unidy. Unidy is then also entitled to stop the service provision with immediate effect, to block and/or cancel plans as well as to remove affected content without being obliged to repay already paid fees. This § 6 No. 5 does not apply as far as the customer can prove that he is not (partly) responsible for the infringement.

I §7 Warranty

Warranty takes place primarily through rectification, for which the customer must grant Unidy a reasonable period of time. If this finally fails after two unsuccessful attempts, the customer is entitled to a reduction of the remuneration or to an extraordinary termination. Other rights of the customer remain unaffected. The period of limitation for deficiencies in performance of Unidy, as far as these are not based on intention, is hereby reduced to 12 months.

I §8 Impairment of services, exclusion of liability

• Liability for short-term, insignificant disruptions to the services or disruptions that cannot be influenced by Unidy is out of question. Liability is also precluded for any disruptions to services during scheduled maintenance work, of which the customer was notified in reasonable time beforehand. Such disturbances do not entitle to reduction, termination or assertion of claims for compensation. The prerequisite for the rectification of disruptions and defects is their immediate notification. Claims because of disturbances, which are not announced to Unidy in writing, by fax or e-mail within two weeks after the first possibility of the knowledge by the customer, are precluded.
• In all cases of contractual and non-contractual liability, Unidy will pay damages or compensation for futile expenses only to the extent determined below:

• Unidy is liable without limitation in the amount in case of intent, in case of gross negligence, in case of damage to health and physical integrity, in case of violation of the relevant product liability law and in case of absence of a quality expressly guaranteed by Unidy. In the case of the guarantee of quality, however, Unidy is only liable to the amount of the foreseeable damage that should be prevented by the guarantee.
• In all other cases Unidy is only liable in case of violation of an essential contractual obligation. A violation of an essential contractual obligation in the sense of this provision exists in case of violation of a contractual obligation, the fulfilment of which only enables the proper execution of the contract or the violation of which endangers the achievement of the purpose of the contract and on the observance of which the customer may regularly rely. Otherwise, liability for slight or simple negligence is precluded.
• The liability in the cases of § 8 No. 2 letter b is limited to 25 % of the planned remuneration for the planned service.
• Unidy is not liable if only free services are used by the customer. Liability is also precluded in the case of test use of services, since the customer is supposed to test and determine whether the services meet his/her requirements by using the test version.

• for damages arising from injury to life, limb or health, as well as
• in the event of fraudulent concealment of a defect by the operator or due to the absence of a quality for which the operator has assumed a guarantee.
• For these exceptions, the statutory regulation alone remains in place.

I §9 Rights of use

• The customer's copyrights to his content are not affected by the use of the services. A transfer of the right of use of this content to Unidy will only take place insofar as this is necessary for Unidy to be able to provide its agreed services to the client according to the booked service.
• Copyrights to the services remain solely with Unidy; the customer is only granted a simple, non-transferable right to use the services to an extent corresponding to the purpose of the contract and the booked service.
• Unidy may temporarily suspend the Customer's access (in particular usernames and passwords) to the Services for reasons of IT security, insofar as there is a sufficient probability that the Customer's access will be used by the Customer or an unauthorised third party in breach of the contract, which could have an adverse effect on the Services or the possibility of use for other Customers. Such temporary suspensions will only be carried out by Unidy if immediate action is necessary to avoid adverse effects. Unidy will immediately notify the Customer of such a suspension. If the circumstances allow it, Unidy will inform the Customer in advance in text form. Unidy will limit the suspension to the necessary period and extent. Further claims and powers of Unidy from the contract or due to law remain unaffected.

I §10 Reference customer clause, granting of rights

The Client grants Unidy the right, freely revocable at any time in the future, to use its company, product and service names as well as logos and other company marks within the services of Unidy as well as in other marketing materials with reference to the Unidy services with reference to the Client relationship, without being obliged to do so.

I §11 Payments, due date, delay, SEPA time limit reduction

• Invoicing takes place after the conclusion of the contract. Unidy is entitled to issue invoices also purely electronically. Payments are due within 14 days after receipt of the invoice. If the client is in arrears with payments or exceeds the limits of the service booked by him/her for a period of fourteen (14) calendar days or longer after the issuing of a corresponding warning, Unidy may, at its discretion, suspend the provision of the service in whole or in part, as well as initiate the judicial dunning or legal action procedure with regard to all existing debt relationships. Payment is considered to have been made as soon as Unidy can actually dispose of the amount (in the case of cheques: at the time of unconditional crediting).
• In case of default Unidy demands default interest according to § 288 II BGB (Federal law).
• If a cheque is not honoured or if payments are stopped, Unidy can - even if the cheque is accepted - make all remaining debts immediately due. Returned direct debits lead to the immediate maturity of all debts existing against the customer and will be invoiced in the amount of the costs actually incurred, but at least in the amount of EUR 10.00 each. A reduction of the advance information period for SEPA core direct debits to one (1) day is hereby agreed. Offsetting is only possible with undisputed or legally established counterclaims.

I §12 Price adjustment

In order to maintain a balanced relationship between performance and consideration, even in the case of long contract terms, Unidy reserves the right to increase the price of its plans or, if applicable, other services by up to 20 percent once per calendar year at the beginning of a renewal period in order to adjust to higher production costs, alternatively in the amount of the consumer price index related to the month of invoicing.

Unidy will announce the change to the customer two months in advance in text form. The change will be considered as agreed if the customer does not object in text form within three weeks after receipt of the announcement. If the customer objects, Unidy is entitled to an extraordinary right of termination. The termination will take effect at the time from which the change is to apply. Unidy will point out the period and the legal consequences of its neglect to the customer separately in the announcement.

I §13 Data processing, granting of rights

• only process them upon written instruction of the Customer, unless (i) it is necessary to process the Personal Data for the performance of the Contract or for the management of Service access rights, (ii) it is necessary to process the Personal Data for monitoring and scaling Service usage to enable effective resource allocation to the Customer, (iii) Unidy is required to process the Personal Data entered into the Service by the Customer, or (iv) Unidy is otherwise legally entitled to process the Personal Data.
• ensure that Unidy has appropriate technical and organisational measures in place to protect personal data against unauthorised or unlawful processing.
• conclude an order processing agreement with the customer if this is required in individual cases due to legal requirements and the specific subject matter of the agreed services.

I §14 Changes to GTC

These GTC may be amended for ongoing contractual relationships. Amendments shall be offered to the customer in text form no later than two months before their proposed date of entry into force. The customer's consent to the offer is deemed to have been given if he has not indicated his rejection in text form within three weeks after receipt of the offer. If the customer rejects the offer, Unidy is entitled to an extraordinary right of termination. The termination will take effect at the time from which the change is to apply. Unidy will inform the customer separately in the offer about the deadline and about the effect of approval in case of its neglect.

I §15 Choice of law, place of fulfilment, place of jurisdiction, text form clause

The law of the Federal Republic of Germany applies. Place of fulfilment and place of jurisdiction is the seat of Unidy GmbH. Unidy is entitled to sue customers also at the place where their assets are located. All changes of these general terms and conditions including this text form clause require the text form. The invalidity of individual provisions does not affect the remaining validity of the other provisions of these GTC.

II Creation services

These general terms and conditions apply to business relations in which Unidy GmbH provides creation services (service or work-contractual services) for a client (hereinafter also "AG"). For the use of the ID solution and software services of Unidy GmbH, the general terms and conditions under "I Services" apply.

II §1 Creation contract

• Essential details of the business relationship between the Client and Unidy, in particular, but without being limited to, a precise description of the services to be provided, the duration and the period of the provision of the service, the remuneration owed by the Client for the service of Unidy as well as, if applicable, specific obligations of the Client to cooperate, are to be agreed between the Client and Unidy in a written contract to be concluded separately (hereinafter referred to as "provision contract").
• As a rule, the creation contract comes about through an offer for the provision of creation services by Unidy to the Client and an acceptance of this offer (commissioning) by the Client.
• These GTC always apply to all offers made by Unidy, unless the validity of these GTC is explicitly excluded in the offer.
• Agreements of the creation contract take precedence over the provisions of these GTC.

II §2 Remuneration

• The remuneration for the services to be rendered by Unidy shall be based on the hours or days worked ("person-hours" or "person-days") according to the Unidy price list current at the time of the conclusion of the contract, unless the creation contract provides for a fixed price or different prices.
• Remuneration based on person-days worked shall be based on 8 working hours per person-day without breaks. Fractions of a person-day or working hours beyond the scope of eight hours in one day shall be charged at 1/16 of the price for a person-day per half hour or part thereof.
• For working hours outside the period of 9:00 - 18:00 on working days, the following surcharges will be added to the prices per person-day:

II §3 Third-party and ancillary costs

• The Client shall reimburse Unidy for external costs (image material, editorial material, plug-ins, software, etc.) plus an agency surcharge for handling and pre-financing of 15% on the respective invoice amounts. Copies of the invoices to Unidy are to be enclosed with the settlement of these amounts.
• Insofar as not expressly excluded in the contract, Unidy can also demand compensation for all ancillary costs connected with the execution of the contract, in addition to the remuneration.
• Incidental expenses include, but are not limited to, travel costs (travel/flight and accommodation costs, subsistence costs and other incidental travel costs). In principle, Unidy is responsible for the selection of the means of transport and the place of accommodation, whereby travel costs are to be reimbursed to an economically reasonable extent and expenses with the maximum tax limits. Train journeys are basically charged to the contractor with the flex price 2nd class incl. seat reservation.
• Travel time is charged at 50%, on weekends (Saturday and Sunday) at 100% as working time.
• Services and ancillary costs may be invoiced separately.

II §4 Terms of payment

• Unless otherwise agreed in the creation contract, Unidy is entitled to invoice the services rendered at least every four weeks.
• All claims shall become due upon receipt of the invoice. The statutory value added tax shall be added to all price quotations and shown separately in the invoices.
• The Client will be in default if Unidy does not receive payment within ten days of the due date, unless otherwise agreed in the creation contract.

II §5 Obligation to cooperate

• The Client shall be obliged to provide the following cooperation:
• Timely provision of employees, hardware and software, as far as these are not to be provided by Unidy, as well as of other material/information and telecommunication facilities to the extent necessary for the fulfilment of the contract. In this respect, the CL also provides for the necessary rights of use,
• Provision of all information about the system environment and the associated interfaces,
• Information about their own organisation, as far as this is necessary for the project,
• Timely provision of test data that is representative of the application in terms of scope, structure and design,
• Participation in technical tests, trial runs and collection of test data,
• Preparation and implementation of tests,
• Complete and sufficiently precise error messages,
• Timely issuance of releases for partial and interim services,
• Provision of content (texts, images, diagrams, etc.) in the format required by Unidy.
• Review of the planning, the conception, the technical statements and the quality assurances, if only the AG can provide these due to his special information situation.

II §6 Coordination

• The contracting parties shall name contact persons and their deputies to each other who shall manage the implementation of the contractual relationship for the contracting party naming them in a responsible and expert manner. These shall be specified in the creation contract.
• The parties shall notify each other immediately in writing of any changes in the designated persons. Until receipt of such notification, the previously appointed contact persons and/or their deputies shall be deemed to be authorised to make and receive declarations within the scope of their previous power of representation.
• The contact persons shall communicate at regular intervals on progress and obstacles in the implementation of the contract in order to be able to intervene in the implementation of the contract in a guiding manner if necessary.

II §7 Dates

• Deadlines for the provision of services may only be promised on the part of Unidy by the contact person named in the creation contract and should be fixed in writing.
• Dates, the non-observance of which causes a contractual penalty to fall into arrears without a reminder pursuant to Section 286 (2) of the German Civil Code (binding dates), must always be set out in writing and explicitly designated as "binding".
• Delays in performance due to force majeure (e.g. strike, lockout, official orders, general disturbances of telecommunication, etc.), due to circumstances in the area of responsibility of the client and delays in performance for which Unidy is not responsible, entitle Unidy to postpone deadlines by the duration of the hindrance plus a reasonable restart time.

II §8 Functional testing / acceptance

• Unidy will hand over the contractual performance results or parts thereof in a suitable form. The contractor has to confirm the handover in writing.
• The Client is obliged to check the contractual performance results immediately after handover for obvious defects and faults (functional test).
• The period within which obvious defects may be notified is as follows.
• For concepts, layouts, designs and similar services 5 working days
  
• For software and similar services 2 weeks
  

II §9 Particularities of agile development

• If it is agreed that Unidy will use an agile development process in the creation of software, this development process will be actively co-directed by a product owner appointed by the customer. The customer formulates requirements for the software. The parties map these requirements into stories, which the client's product owner formulates in consultation with Unidy and places in a product backlog that both parties can access and in which the client can prioritise tasks. Unidy develops the software according to the backlog in iterations. Until the start of each iteration, the client can request changes at any time, after which changes are only possible after explicit coordination with Unidy.
• The customer tests the services of Unidy continuously, also during ongoing iterations. At the latest after the completion of an iteration, the completion of which Unidy notifies to the Client, the Client is obliged to immediately test and release the result of the iteration or to communicate the reasons for a rejection. If the result is rejected, the further processing takes place in the next iteration step.

II §10 Warranty

• Unidy guarantees for a period of twelve months that the contractual performance results are free of defects. If the client demands subsequent fulfilment (removal of the defect or delivery of a defect-free object), Unidy can remove the defect or deliver defect-free performance results at its own choice.
• The enforcement of warranty claims is dependent on defects being reported in writing within one week of their first detection.
• Unidy can refuse the supplementary performance as long as the Client has not paid the remuneration owed for the rendered performance results, whereby he is entitled to retain a part of the remuneration appropriate to the defect.
• If the Client sets Unidy a deadline for subsequent performance, he can only use the unsuccessful expiry of this deadline to withdraw from the contract or to claim damages instead of performance if he has informed Unidy when setting the deadline that he no longer wishes to make use of its performance after the unsuccessful expiry of the deadline. If the client has to issue a warning instead of setting a deadline, he must also inform Unidy at the same time as the warning that he no longer wishes to make use of its performance after the warning has not been successful.
• The contractor can only withdraw because of a breach of duty not consisting in a defect of the object of purchase or the work if Unidy is responsible for this breach of duty.
• If the Client withdraws due to the breach of an obligation which relates to a delimitable service which can be provided independently of other services to be provided, taking into account the legitimate interests of the Client, the other services shall not be covered by this withdrawal.
• Unidy is not liable in the cases in which the Client has made changes to the creation services provided by Unidy, unless these changes were without influence on the creation of the defect.
• The contractor will support Unidy in the determination and elimination of the defect and immediately grant access to the documents from which the more detailed circumstances of the occurrence of the defect result.
• Insofar as an alleged defect cannot be attributed to a warranty obligation of Unidy after corresponding investigation, the CL can be charged with the expenses incurred by Unidy for the verification and rectification of defects at the respectively valid or agreed remuneration rates.

II §11 Liability

• Unidy is liable for intent and gross negligence. Unidy is only liable for slight negligence in case of violation of an essential contractual obligation (cardinal obligation) as well as in case of damages resulting from injury to life, body or health.
• In the event of slight negligence, liability shall be limited to the damage typical for this type of contract, which could have been expected at the time of the conclusion of the creation contract based on a reasonable commercial assessment, as well as in total to the order value.
• Unidy is not liable for the loss of data and/or programmes insofar as the damage is due to the fact that the Client has failed to carry out data backups and to ensure that lost data can be restored with reasonable effort.
• The above regulations also apply in favour of Unidy's vicarious agents.

II §12 Participation of third parties

For third parties who become active for him in the area of activity of Unidy at the instigation of or with the tolerance of the AG, the AG has to be responsible as for vicarious agents. Unidy is not responsible vis-à-vis the AG if Unidy cannot fulfil its obligations vis-à-vis the AG completely or partially or not in time due to the behaviour of one of the aforementioned third parties.

II §13 Changes to performance

• If the client wants to change his requirements resulting from this after the conclusion of the creation contract, Unidy will check whether the desired changes are feasible and reasonable for Unidy within the framework of the operational capacity.
• As far as the change requests of the client have an effect on the agreements made in the contract, in particular on remuneration and performance time, Unidy is entitled to demand a corresponding adjustment of the contract, even if a fixed price has been agreed for the services of Unidy. In this respect Unidy will send an offer about the changed achievements to the AG within an appropriate period. The agreed terms of delivery and performance are extended as a rule by the calendar days on which Unidy examines change requests of the AG, prepares change offers or leads negotiations about changes, plus a reasonable restart period.
• If the Client does not accept the offer submitted to him by Unidy concerning the changed services within a period of one week or if within the framework of negotiations on the changes commenced within this period an amicable settlement is not reached within two further weeks, Unidy can continue the implementation of the contract in accordance with the original individual contract.
• The desired changes have to be detailed by the contractor on request of Unidy up to the degree in which the task is detailed in the individual contract or other contract components.

II §14 Rights to performance results

• "Contractual overall product" in the sense of this contract is, subject to the following clause 3, the totality of the performance successes and results delivered by Unidy to the Client in fulfilment of this contract, consisting in particular of the respective overall concept, corresponding partial concepts, presented ideas and designs as well as their creative and/or (software) technical implementation.
• Individual technical and conceptual components of the delivered performance results and outcomes, in particular computer programs or parts thereof, do not count as part of the contractual overall product if Unidy has already developed or otherwise acquired such technical or conceptual components before, during or on the occasion of the fulfilment of the order (hereinafter "free components"). Technical or conceptual components, the exclusive development of which for the AG is expressly the object of the contract, are not free components, but components of the contractual overall product.
• Unidy hereby grants the client the following rights of use to the delivered performance results and results, subject to the regulation in the following clause 6:

• In accordance with the legal provisions and the following regulations, the Client is to be enabled to exploit the contractual overall product together with the documentation in unchanged or changed form commercially or in any other way in his own company to the exclusion of Unidy. Companies affiliated with the AG according to §§ 15 ff. Companies associated with the AG according to §§ 15 f. AktG count as the AG's own company. For this purpose Unidy grants the AG the exclusive, irrevocable, temporally and spatially unlimited right to use the contractual overall product and the documentation related to it in all known ways in his own company, in particular to use them in his own companies, to reproduce them, to distribute them, to present them, to translate them or to transmit them via long-distance lines or wirelessly.
• Unidy grants the client a temporally and spatially unlimited but non-exclusive and non-transferable right to use the free components. Unidy is entitled to use, exploit and market free components itself or to grant third parties simple rights of use related to them.

II §15 Other

• The assignment of claims is only permissible with the prior written consent of the other contracting party. Consent may not be unreasonably withheld. The provision of § 354 a HGB remains unaffected.
• A right of retention can only be asserted due to counterclaims from the respective contractual relationship.
• The contracting parties may only offset claims that have been legally established and are undisputed.
• Unidy may name the contractor as a reference customer on its website or in other media. Unidy may also publicly reproduce or refer to the services rendered for demonstration purposes, unless the contractor can claim a legitimate interest to the contrary.

II §16 Non-solicitation agreement

The Client acknowledges Unidy's legitimate interest in protecting its professional and technical know-how. During the collaboration and for a period of one year thereafter, the Client undertakes not to entice away any of Unidy's employees or freelancers used in the Client's projects or to hire or employ them without Unidy's consent, including as freelancers. For each case of culpable infringement, the Client shall pay to Unidy a contractual penalty to be determined by the latter at its reasonable discretion and, in the event of dispute, to be reviewed by the competent court with regard to its appropriateness.

II §17 Reference customers

Unidy is entitled to name the Client as a reference client on its website and in other media or marketing documents and to also use the Client's company logo or trademark for this purpose within the framework of a revocable, simple right of use. The Client undertakes to indicate in a suitable place, when distributing, publishing and/or making publicly available the services created by Unidy for him (e.g. websites, apps or similar), that Unidy was active as a service creator for the Client and to set a corresponding link to the website of Unidy, unless this would be unreasonable for the Client in the individual case.

II §18 All amendments and additions of a contractual nature

• Agreements must be recorded in writing for evidence purposes. Notice of termination must be given in writing.
• Insofar as these General Terms and Conditions provide for the submission of declarations in writing, Section 127 of the German Civil Code (BGB) shall apply.
• Should individual provisions of the party agreements be or become invalid in whole or in part, the validity of the remaining provisions shall not be affected thereby. In this case, the parties shall replace the invalid provision with a valid provision that comes as close as possible to the economic purpose of the invalid provision. The same applies to any loopholes in the agreements.
• General terms and conditions of the Principal shall not apply.
• The law of the Federal Republic of Germany shall apply.
• Place of performance and jurisdiction is Hamburg.