apinity GmbH | Status: 12.09.2023
Terms of Distribution of Services
These Terms of Distribution of Services (“TDS”), in connection with the respective Order Form and the General Terms and Conditions (“GTC”), form a binding agreement between the Customer (“Customer”) and apinity GmbH (“apinity”) (Customer and apinity both referred to as “Party” or “Parties”) for the Distribution of Services by the Customer to Third Party Customers through apinity.
If this agreement is translated into a language other than English and there is a conflict between the English version and its translation, the English version shall prevail. The Customer is responsible for retaining the version of the TDS in effect at the time of entering the TDS. apinity reserves the right to reasonably modify the TDS from time to time in its sole discretion, provided that disputes arising under the TDS shall be resolved in accordance with the terms of the TDS in effect at the time the dispute arises. apinity will provide reasonable notice to Customer following any modification, and the Customer should review the posted TDS from time to time to be aware of any changes. Material changes to the TDS will be effective upon the Customer’s first use of any apinity Software-as-a-Service product (all such products collectively called “apinity Software”) once the Customer becomes aware of the change. Any use of the apinity Software by the Customer after the effective date of the amended TDS shall constitute the Customer’s acceptance of the amended TDS. If the Customer does not accept the amendments to the TDS, the TDS shall automatically terminate in accordance with the right of termination without notice for good cause.
1. Usage Rights of the apinity Software
apinity authorizes the Customer to use the apinity Software for the purpose of acquiring Third Party Customers and will facilitate the presentation, sale, and distribution of the Contractual Software Services towards Third Party Customers through the apinity Software. apinity Software is provided as an open platform operated by apinity through which the Customer can offer and Third Party Customers can use Contractual Software Services. Contractual Software Services means all software application services which are operated on Customer’s IT-systems and offered and distributed by the Customer to Third Party Customers via the apinity Software. Third Party Customer means an end-customer of the Customer who has entered into a contract or similar arrangement with the Customer (i) via the apinity Software and/or (ii) after an Introduction pursuant to Section 4.
If this Agreement is terminated or expires, the Customer shall no longer be entitled to offer and/or provide Contractual Software Services to its Third Party Customers via the apinity Software.
2. Use of Customer’s Intellectual Property Rights
The Customer grants apinity the limited, revocable, non-exclusive, non-transferable, non-sublicensable right for the duration of this Agreement to use the Customer’s Intellectual Property Rights related to the Customers products/services with regards to marketing materials and the Contractual Software Services in connection with apinity´s sales and/or advertising measures. apinity will adhere to the Customer’s brand guidelines as communicated to apinity.
The Customer shall indemnify and hold harmless apinity against all claims or litigation made or brought by any third party against apinity due to an actual or alleged infringement resulting from apinity’s use of the Intellectual Property Rights in accordance with the Agreement which inter alia includes reasonable attorneys’ fees required to defend against such claims (“Claims”). apinity shall inform the Customer without delay of any Claims asserted against it by Third Party Customers and shall cooperate with the Customer in the defense against the Claims to a reasonable extent.
3. Customer Obligations
The Customer shall provide the Contractual Software Services to Third Party Customers in accordance with reasonable market standards.
The Customer shall provide to apinity all information data and documents required by apinity to perform the Services and to calculate the remuneration. In particular, the Customer shall inform apinity without undue delay (i) of any contract with a Third Party Customer which was introduced by apinity and (ii) of any changes of its prices and its terms and conditions towards Third Party Customers and (iii) the Customer shall submit to apinity copies of the invoices sent to Third Party Customers as well as a corresponding credit note for the respective remuneration, no later than on the 5th day of the following month.
The Customer will inform apinity in text form four (4) weeks in advance about any substantial modification of the Contractual Software Services.
4. Scope of the apinity Services
apinity shall, at its own discretion (but without being obliged to do so), (i) use its network to acquire Third Party Customers for the Customer’s Contractual Software Services, (ii) act faithfully and diligently towards the Customer when seeking prospective Third Party Customers, (iii) upon the Customer’s reasonable request, report in text-form to the Customer on progress made with prospective Third Party Customers, and (iv) comply with all laws and regulations (as they may change from time to time) relating to its activities under this Agreement.
apinity will use reasonable efforts to mediate contracts between the Customer and Third Party Customers and/or to give an Introduction to the Customer, either via the apinity Software or via other channels (“Mediation Activities”). Introduction means that the Customer receives from apinity contact details of a potential Third Party Customer which has been advised by apinity regarding the Contractual Software Services.
apinity will conduct negotiations only if authorized by the Customer and only on the basis of the prices, contract terms and conditions set by the Customer and using the contract documents provided by the Customer.
If the Contractual Software Services are made available to Third Party Customers via the apinity Software, apinity may, upon the Customers’s request, report to the Customer the consumptions rates as determined by the apinity metering-services as a free on-top service.
The Services rendered by apinity are non-exclusive, i.e. the Customer may acquire Third Party Customers acting by himself or through other agents and/or distributors.
apinity performes its Services also for other Customers and may act for those other Customers, even if those are considered competitors of the Customer.
To the extent that claims for damages or the compensation for wasted expenses are concerned, apinity shall be liable for all damages based on contractual and non-contractual liability in accordance with the following provisions:
(a) In case of willful misconduct, claims under the German Product Liability Act, fraudulent concealment of defects, a guarantee for a certain quality of the apinity Software and in case of injury to life, body, or health, apinity shall be liable pursuant to the relevant statutory provisions.
(b) In all remaining cases, the following provisions shall apply:
(i) In the event of gross negligence, apinity’s liability shall be limited to the compensation of the typical and foreseeable damages.
(ii) In the event of slight negligence, apinity shall only be liable if it has breached a material contractual obligation. In this case, its liability shall be limited to the typical foreseeable damage. ‘Material contractual obligation’ means an obligation which is necessary for the proper performance of the agreement and on compliance with which the other Party usually relies on and can rely. In all other cases of slight negligence, apinity’s liability shall be excluded.
(iii) In the event of strict liability for an impediment to performance occurring during a delay, apinity’s liability shall be limited to the typical foreseeable damage.
(iv) apinity’s strict liability (verschuldensunabhängige Haftung) for defects that existed already at the time of conclusion of the respective agreement according to Sec. 536a, paragraph 1, alt.1, BGB (German Civil Code) is excluded.
(v) Where the liability of apinity is excluded or limited, this also applies to the personal liability of apinity employees, members of staff, representatives, and vicarious agents.
(vi) With the exception of the cases described under Section 5(a) above, all Customer claims for damages or compensation for wasted expenses, shall become time-barred after one year, calculated from the beginning of the statutory limitation period.
This Agreement embodies and sets forth the entire agreement and understanding of the Parties and supersedes all prior oral or written agreements, understandings or arrangements relating to the subject matter of this Agreement. Amendments or supplements to this Agreement must be made in writing and signed by both Parties to be effective.