Terms and Conditions
1. Scope of Application of the Terms and Conditions
1.1 Scope of Application of the User Terms.
These Terms and Conditions for Users (“User Terms”) regulate the contractual relationship between Chattyco GmbH, Torstr. 41, 10119 Berlin (“Chattyco”) and all Users of the ‘Chattyco’ app made available by Chattyco (“Chattyco App”). Users, who use the Chattyco App to request content, are hereinafter referred to as “Fans.” Users, who provide content in the form of videos, photographs, documents, sound files or texts via the Chattyco App or respond to requests of Users, are hereinafter referred to as “Stars.” Fans and Stars are hereinafter jointly referred to as “Users.” The use of Chattyco shall take place exclusively on the basis of these User Terms.
1.2 Separate conditions.
Separate conditions apply to stars before they begin their activities (see point 11).
1.3 Amendment of the Terms.
Chattyco will notify its Users of any amendments of the User Terms no later than one week before they become effective. If the User does not object to the application of the new terms and conditions, the amended conditions shall be deemed agreed. Chattyco will inform its Users of the significance of this deadline for objecting separately in the notification containing the amended terms and conditions and reserves the right to terminate the relationship with the User in the case of an objection.
2.1 Object of Agreement.
The object of this agreement is the use of the Chattyco App for communications between Fans and Stars, including the functions made available within the Chattyco App, subject to technical and operational feasibility. Chattyco thereby provides a platform that enables Fans and Stars to communicate from a technical point of view only. A right to use the Chattyco App does not exist. Chattyco does not assume any responsibility for the initiation, maintenance or technical quality of the communications. A right to the conveyance of communications does not exist. The User is responsible for maintaining the necessary Internet access and a suitable end device at its own expense. Chattyco grants the User a simple, non-transferable right to install and use the Chattyco App on suitable end devices of the User.
2.2 Video Replies and Premium Content.
The response of user messages by stars is called video replies. Stars can provide exclusive content in their profiles, which must be activated by users. This exclusive content is called Premium Content.
2.3 Public and Private Communications.
Fans can decide during the request for a video response whether a star’s video reply is public and therefore visible to other users. The public video reply of a star is available in the star profile for all users. If a fan decides to request a private video reply, this will only be displayed in the private communication between the fan and the respective star. The guidelines for public video replies and private video replies displayed in the Chattyco App apply. The guided communication is shown to the User in the Inbox and can be managed there. Non-registered visitors of the Chattyco App can follow public video replies anonymously.
All Chattyco App Users can find Stars and Fans using the search function or in previous communications logs.
2.5 Legal Relationship between Fans and Stars.
Any rights and obligations shall be created exclusively between Fans and Stars through the exchange of messages.
2.6 Responsibilities of Chattyco.
Chattyco does not verify the identity and legal capacity of Fans and Users; only the functioning of the payment method specified by a Fan is verified. Chattyco does not assume any responsibility for the accuracy or quality of the communications. Fans are responsible for the content of messages sent from a Fan to a Star, and Stars are responsible for whether a message is answered and the content of the response. Chattyco does not check the messages or responses. Chattyco does not assess the reliability or the value of messages.
2.7 No Substitute for Professional Advice.
Messages that receive responses are not suitable or intended as a substitute for professional advice provided by members of the respective profession. Any actions taken are at the Fan’s own risk.
2.8 Changes to the Chattyco App.
Chattyco may make additions or changes to the functions offered in order to improve them or adjust them to technical developments, provided that this is reasonable and taking into consideration the interests of the Users and Chattyco. Ongoing maintenance and further development may temporarily restrict or interrupt the use of the Chattyco App. No claims shall exist in this regard. The User acknowledges that updates to the Chattyco App may be downloaded on the device being used by the User.
2.9 Permitted Use.
The Chattyco App may only be used in accordance with the User Terms as well as the additional instructions for using certain functions, which are displayed near the function, e.g., upload sizes. It is not permitted to spread viruses, trojans, worms or other malicious content via the Chattyco App or use the Chattyco App if there is a risk that the use could lead to damages to technical equipment or software. In particular, the data volume restrictions must be observed.
3. Rules of Conduct for All Users
3.1 Age Limit of 18 Years.
Only persons who are at least 18 years old with full legal capacity are allowed to use the Chattyco App. Each User may register for only one account by providing the personal data requested completely and truthfully. Multiple registrations are not permitted. The sale or transfer of an account is not permitted.
3.2 Account Protection.
Every User must securely store his/her access data for the use of the Chattyco App in such a manner that it cannot be accessed by third parties and must immediately notify Chattyco via email in the case of any suspicion of unauthorized access. The User remains logged in to the Chattyco App; in the case of any use of a User’s smartphone by a different person, the User is liable for their activities to the extent that the User is responsible in this regard.
3.3 Rights of Third Parties.
The User must have the necessary rights to upload and use photographs, videos, audios or texts (collectively “User Generated Content”). A User often only has the necessary rights if the User has created the User Generated Content or acquired these rights from third parties. This includes the consent of any persons depicted in photographs. Rights of third parties may also exist with respect to objects depicted in the background. The User is responsible for verifying and, if appropriate, acquiring the necessary rights.
3.4 No Further Commercial Use.
Users are not allowed to use Chattyco’s platform for promotional purposes or to conclude contracts, which go beyond sending messages and responses. Chattyco is entitled to terminate the relationship after issuing a warning.
4. Rules of Communication
4.1 Prohibited Conduct.
Users will not conduct any communications via the Chattyco App, which violate the rights of third parties, contain content that is harmful to young people or right-wing extremist content, breach applicable laws, or are deceptive, insulting, pornographic, offensive or glorify violence. In particular, the following conduct is prohibited (“Intolerable Conduct”):
- Inappropriate Member Names: Chattyco does not permit any linguistic obscenity, insults, defamations, tackiness, discrimination or abuse in member names.
- Harmful Content: Chattyco endeavors to protect its Users against offensive content. Consequently, any content unsuitable for minors may not be requested on Chattyco. In particular, requests for sexual services are prohibited.
- Insults or Abuse: Chattyco does not tolerate discrimination, defamation, insults or abuse of individual Users on the grounds of ethnic origin, religion, gender, nationality, sexual orientation or belief.
- Harassment of Other Users: Users must respect the privacy of other Users. Sending unrequested messages, chain letters or invitations to participate in sweepstakes is prohibited when communicating via Chattyco.
Intolerable Conduct will result in the User being blocked or, if appropriate, the termination of the relationship with the User in accordance with clause 10.
4.2 Identification of Intolerable Conduct.
Users must report or block Intolerable Conduct using the functions available (“Identification”). Chattyco will react to such Identification within 24 hours. Chattyco filters the current content on the Chattyco App in order to prevent, detect and stop Intolerable Conduct.
4.3 Other Illegal Activities and Improper Use.
All Users are prohibited from participating in fraudulent or illegal activities or supporting such activities when using the Chattyco App. In the case of suspected misuse or potential legal infringements (e.g., copyright infringements or infringements of personal rights) on the part of other Users, the User is requested to provide Identification immediately or otherwise send notification to firstname.lastname@example.org.
Chattyco is authorized to temporarily block the use of the Chattyco App or the existing data on the Chattyco App, or parts thereof, if there is concrete evidence that the User is engaging in Intolerable Conduct or is otherwise violating these User Terms or applicable laws, or if reasonable suspicions exist in this respect, or if any other justified interests in such blocking exist, e.g., in the case of any suspicion of misuse by unauthorized third parties. If, after assessing the circumstances and considering the legitimate interests of the User and third parties, unblocking is not an option, Chattyco is authorized at its own discretion to permanently block or delete the access or existing data, in whole or in part.
5.1 Submitted Ratings.
Chattyco may provide a system, which can be used by Users to rate public video replies and by Fans to rate Stars; Chattyco reserves the right to edit and configure such ratings. Users can view the ratings. Ratings submitted by a User may be displayed in connection with products or services that can be purchased for a fee without the User receiving any consideration in this regard.
5.2 Misuse of the Rating System.
By rating a Star, Fans share their experience with the Star and the quality of the Star’s messages with other Users. Fans are prohibited from using a different or fake user name or specifying a third person or fictitious person to
- make a negative or wrong judgment about another Star,
- make a negative judgment about a Star because the Star did not want to respond to a message in violation of the User Terms.
Chattyco reserves the right to refrain from publishing ratings.
Chattyco reserves the right to create a ranking of Content Stars based on the ratings of Fans and additional qualitative and quantitative criteria. This ranking influences the order in which and how Content Stars are displayed on the platform.
6. Liability of Chattyco and Indemnification
6.1 No Liability for Content.
Because Chattyco is not a party to the communication contract between Stars and Fans, Chattyco is not liable for the responses conveyed through the communications. In particular, Chattyco is not liable for any damages, which may result from the advice or suggestions of Stars being followed.
6.2 Unlimited Liability.
Chattyco, its legal representatives, executives or vicarious agents shall have unlimited liability according to the statutory provisions of the Federal Republic of Germany
a) for damages resulting from injury to life, body or health,
b) in the case of intent or gross negligence,
c) according to the Product Liability Act (Produkthaftungsgesetz), and
d) in the case of an assumption of guarantees.
6.3 Limited Liability.
In the case of slight negligence, Chattyco, its legal representatives, executives or vicarious agents shall only be liable in the case of a breach of “essential” duties resulting from these User Terms. “Essential” duties are such duties, which are necessary for the fulfillment of the contract to use the Chattyco App and if breached, would question the attainment of the contractual purpose so that the User may regularly rely on the fulfillment of such duties. In these cases, the liability is limited to typical and foreseeable damages.
6.4 Indemnification against Claims.
To the extent that the User is at fault, the User shall indemnify Chattyco against any claims asserted by third parties due to the conduct of the User in connection with the use of the Chattyco App and shall bear the costs incurred for the legal defense according to the statutory fees. In the case of any claims asserted by third parties, the User is obligated to provide Chattyco immediately, truthfully and completely with all information, which is required for assessing the claims and the defense against such claims.
7. Prices and Billing for Use
The request of video answers as well as the activation of premium content contributions from stars are subject to a fee. Stars determine the fees for the request of video responses and the activation of premium content posts, which are specified in the Chattyco app. The stated fees include the applicable value added tax. The User must also pay the fees arising from unauthorized use of his account if and insofar as he is responsible for such use.
7.2 Payment with credits.
Fans can request a Video Reply and unlock the Premium Content posts by using a valid payment card through the appropriate third party payment provider (for iOS Apples in-app payment mechanism; for our website and Android App, the payment provider we have selected). You must provide valid payment information to the third-party payment provider. You may not return or exchange a Video Reply or unlocked Premium Content posts, and no refunds will be given.
7.3 Payment Obligation and Expiration of the Right of Withdrawal.
By requesting a Video Reply or activating a Premium Content, the Fan acknowledges his payment obligation and authorizes Chattyco to deduct the amount using the selected payment method. By sending the message, the Fan expressly agrees that the execution of the contract will begin before the end of the withdrawal period and that he loses his right of withdrawal.
7.4 Claims of Payment Providers against Chattyco.
The User is liable for any claims of payment providers, which are asserted against Chattyco due to any failure on behalf of the User to render full payment, e.g., due to a lack of creditworthiness or improper use of the payment methods, if and to the extent that the User is responsible in this regard.
8. Content Protection and Rights of Use
8.1 Content Protection.
Photographs, audios, videos or textual content made available on the Chattyco App (collectively “Chattyco Content”) may be protected by personal rights, data protection law, copyright law or other regulations, e.g., as business or trade secrets. Chattyco Content may only be used for the purposes being pursued through the operation of the Chattyco App under the User Terms.
8.2 Granting of Rights to Chattyco to Operate the Chattyco App.
By sending communications via the Chattyco App, including uploading content, the User grants Chattyco free of charge the right to use comprehensively all copyrights and related rights under the German Copyright Act (Urheberrechtsgesetz, “UrHG”), without restrictions in terms of time, territory or content, from the time of uploading for the purposes of operating the Chattyco App, including advertising, further development, asserting legal rights and maintaining IT security, without any additional consent and free from the rights of third parties. The granting of rights shall include in particular the right to reproduce, distribute, lease and loan, including the right to use in connection with databases, exhibitions, presentations, performances and demonstrations, broadcasting, reproduction through image and sound recording mediums, reproduction through radio broadcasts and communication to the public. It also includes the right to edit and redesign, filming and film adaptations as well as rights to photographs. Chattyco is granted the right to use such rights in Germany and abroad in material and immaterial form and to make content publically available. This shall also apply, regardless of the transmission, carrier and storage technology, for data carriers (e.g., magnetic, optical, magneto-optical and electronic storage media), telecommunication and data networks as well as databases, including online services. The granting of rights shall also include unknown rights of use and any exercise in electronic and digital form. The moral rights to content shall remain unaffected. Through this granting of rights, Chattyco is permitted to fulfill requests for the portability of personal data under the General Data Protection Regulation. The User shall ensure that no rights will be exercised under Sections 12, 13 sentence 2 and 25 UrhG, i.e., the rights of the author relating to publication, being named as the author and access to workpieces.
8.3 Transfer of Rights of Use.
The User grants Chattyco the right to also allow third parties to use the aforementioned rights for the same purpose in Germany and abroad by granting corresponding rights of use, or to transfer the rights to affiliated companies under Section 15 of the German Stock Corporation Act (Aktiengesetz).
8.4 Right to Share Content.
Stars grant Fans the right to share private video replies with others and thereby reproduce content, in whole or in part, and to disseminate content and make content publically available through online services, especially on the Internet or via apps, also using social networks (collectively “Electronic Media”), without any further consent and free from rights of third parties, or to make content available on demand to a large number of individuals. This may also lead to further sharing and therefore further dissemination by Users of this Electronic Media. This right shall be granted according to the scope described in clause 6.3 with respect to sharing on Electronic Media.
9. Handling of Personal Data
Users are obligated to treat as confidential any personal data of other Users, which comes to their knowledge in connection with the use of the Chattyco App, and may only process such data for the use of the Chattyco App to the extent that this is required.
9.2 Transaction-related Data.
If a User’s account is deleted upon request, the User’s communications with other Chattyco Users will be deleted. However, any data required to process transactions and data, which must be available for the purposes of traceability under tax law, shall only be deleted upon expiration of the retention requirement.
This agreement shall be valid for an indefinite period and can be terminated by the User at any time without observing a notice period. A termination can be made by deleting the account or via email to email@example.com. Chattyco may terminate the agreement in observance of a notice period of four weeks. The right to terminate without notice in the event of any breach of applicable law, these User Terms shall remain unaffected.
11. Separate Conditions for Stars
a) No Relationship under Employment or Company Law. A relationship under employment or company law shall not be established between Chattyco and Stars through these Terms and Conditions.
b) Contract Conclusion. Every Star is required to register by providing truthful and complete description of all selection criteria and must promptly provide notification of any changes. The contract to join Chattyco as a Star becomes effective when the Star’s account goes live. Registration as a Star only represents a contractual offer of the Star, which Chattyco can accept within four weeks.
c) Presentation of Stars. Chattyco will present the Star on the Chattyco App, direct messages from Fans to the Star and enable a response from a technical perspective.
(i) Stars will have the possibility to record an introduction video in the app, which will appear for all fans when they open their Chattyco profile. It is proposed to record a video of about 30 seconds in selfie mode, mentioning that the star is on Chattyco and what fans can expect. E.g. that fans wish greetings for birthdays, invitations to parties, weddings, etc. – and can ask personal questions to the star.
(ii) Stars will be depicted in groups according to categories. Stars can make suggestions concerning their grouping, which are not binding for Chattyco. Chattyco may supplement or change the selection of categories available in order to improve them or adjust them to strategic developments or demand trends if this is reasonable, taking into account the interests of Stars and Chattyco. A Star may be presented in a highlighted way by booking corresponding packages, which are displayed on the Chattyco App.
11.2 General Rules of Conduct.
- Obligations of Stars. Stars are obligated to write responses conscientiously, promptly and carefully and address the message received within 7 days. If a Star has any doubts about the correctness of his/her response, he/she must make this clear and refuse to respond to messages for which he/she lacks the necessary expertise. Stars will observe all applicable laws, professional regulations, trade regulations, competition law, rules of criminal law, as well as these Terms.
- No Promotional Use. Stars are not permitted to use the Chattyco App for promotional purposes or to enter into contracts, which will be executed outside of the Chattyco App. In particular, Stars are prohibited from advertising for competing providers through the Chattyco App. In the event of a first-time culpable breach, Stars are obligated to pay Chattyco a one-off penalty for damages in the amount of 50% of the earnings over the last 30 days; in the event of a second culpable breach, the amount to be paid is 100% of the earnings that have not been paid out. Chattyco is entitled to terminate the relationship after issuing a warning; any demand made for the payment of the one-off penalty for the first time shall be considered a warning. Stars have the right to prove that fewer damages have been suffered, and Chattyco may prove that greater damages have been suffered. Chattyco shall have a right to offset in this regard.
- No Irrelevant or Unspecific Offers. Chattyco endeavors to keep the quality of the services offered by Stars high. Therefore, it is prohibited to provide irrelevant responses of any kind, which do not contain any relevant content in terms of the message received or reflect the category in which they are offered.
- False or Incorrect Descriptions. Stars must present their characteristics, interests, skills, qualifications and other information in the descriptions truthfully, correctly and completely. The guidelines for creating a profile within the Chattyco App must be observed.
- Exerting Pressure on Fans. Stars should not obligate or urge Fans in any form to send messages subject to a fee again or to do other things, which solely serve the economic interests of the Star.
- No Side Agreements. Stars are prohibited from making agreements with Fans during the term of the contract, which will be executed outside of the Chattyco App.
- Handling Emergency Situations. If a Star becomes aware in the course of communications that an acute danger to the life or limb of a Fan exists, the Star must provide assistance immediately and inform the corresponding public authorities. Furthermore, every Star is advised to give the Fan a crisis hotline number, if appropriate. National emergency and crisis hotline numbers are available at https://www.deutsche-depressionshilfe.de/depression-infos-und-hilfe/wo-finde-ich-hilfe/kri sendienste-und-beratungsstellen for Germany and at https://www.psychguides.com/hotlines/depression/ for the USA.
- Tax Liabilities. It is the Stars own responsibility to pay taxes and duties. The income of Stars is subject to tax in general. Stars, who are obliged to pay VAT, must pay VAT to their tax office. In cases of doubts, Stars should discuss their tax liability with their tax advisor. At the request of the tax authorities, Chattyco must make the invoices of the Star available to the corresponding tax offices and provide other information.
- Minimum Turnover. A minimum amount of turnover is not guaranteed.
- Remuneration. The gross amount of the fee to be paid for a video reply and premium content activation is determined by the star. The star can determine his or her own desired revenue. The currency displayed on the Chattyco app depends on the country in which the star has registered. The actual payout amount after settlement (see 11.3 (e)) may differ from the payout amount displayed on the dashboard due to currency conversion fees and exchange rate fluctuations.
- Forwarding of Fees. Chattyco forwards the fees for responses to Stars after deducting a fee for the use of the Chattyco App (“Chattyco Fee”). The Chattyco fee is determined by Chattyco and includes 50% of the price in net, i.e. less 19% German sales tax, of the message.
- Statement of Account. Unless otherwise agreed and subject to tax requirements, the Star shall issue an online invoice to Chattyco at the end of the month and then provide it to Chattyco within the Chattyco App. The calculated claim amount will be settled within forty (40) business days from the date of invoicing. The payment shall be made via PayPal or bank transfer. Payments will only be made starting from a minimum disbursement amount of EUR 15.00. Otherwise, the credit will be retained without interest until the minimum disbursement amount has been reached at the end of the month. Any credit that cannot be paid out shall expire at the end of the third year in which the credit is earned, unless the contract is terminated sooner.
- Offsetting. Chattyco shall be entitled to offset against any claims of a Star that are uncontested or have been recognized by a court of law.
- Protection of Business and Trade Secrets. Business and trade secrets as well as confidential information may only be disclosed to employees, engaged third parties, cooperation partners, etc. to the extent necessary for fulfilling this agreement. Moreover, Stars are obligated to keep confidential any business and trade secrets as well as confidential information of Chattyco even after the termination of this contract and to take security measures to protect this information against theft, loss or unauthorized access of third parties, and to refrain from exploiting, reproducing, altering or disclosing to third parties business and trade secrets as well as confidential information of Chattyco.
- Data Protection. Stars are obligated to protect personal data of Users, which Chattyco makes available to them in connection with the use of the Chattyco App, in accordance with the General Data Protection Regulation.
12 Final Provisions
12.1 Online Dispute Resolution.
The European Commission provides a platform for extra-judicial online dispute resolution (OS Platform), which is available at www.ec.europa.eu/consumers/odr. Our email address can be found in the legal notice (Impressum) on our website. We are neither obligated nor willing to participate in a dispute resolution procedure.
12.2 Transfer of Rights.
Chattyco is entitled to transfer its rights and obligations resulting from this contractual relationship, in whole or in part, to a third party in observance of a notice period of four weeks.
This agreement shall be governed exclusively by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG). The place of performance for this agreement shall be the location of the registered office of Chattyco. If the User is an entrepreneur, the agreed legal venue shall be the location of the registered office of Chattyco. Entrepreneur means any natural or legal person or a partnership with legal capacity that concludes a legal transaction in the course of carrying out its commercial or independent professional activities. The invalidity of any individual provisions shall not affect the validity of the remaining provisions.
RIGHT OF WITHDRAWAL OF CONSUMERS FOR PAID SERVICES
For all Users, whose habitual residence is within the European Union, the following shall apply: You have a right of withdrawal if video replies and activated premium content posts are purchased.
INSTRUCTIONS ON WITHDRAWAL
Right of Withdrawal
You have a right to withdraw from this contract within fourteen days without giving any reason.
The withdrawal period will expire fourteen days from the date of entering into the contract.
To exercise your right of withdrawal, you must inform us (Chattyco GmbH, Torstr. 41, 10119 Berlin, telephone: +491625930899, email: firstname.lastname@example.org) of your decision to withdraw from this contract by an unequivocal statement (e.g., a letter sent by post, fax or email). You may use the provided model withdrawal form, but it is not obligatory.
To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
Effects of Withdrawal
If you withdraw from this contract, we will reimburse to you all payments received from you, including delivery charges (except for the additional costs arising from your choosing a different delivery method than the most favorable standard delivery we offer) without undue delay and in any event no later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.
If you requested to begin the performance of services during the withdrawal period, you shall pay us an amount, which is in proportion to what has been provided until you have communicated to us your withdrawal from this contract, in comparison with the full coverage of the contract.
END OF THE INSTRUCTIONS ON WITHDRAWAL
Model Withdrawal Form
(If you want to withdraw from the contract, please complete this form and return it to us.)
To: Chattyco GmbH, Torstr. 41, 10119 Berlin, email: email@example.com
I/We (*) hereby give notice that I/We (*) withdraw from my/our (*) contract of sale of the following goods (*)/for the provision of the following service (*)
Ordered on (*)/received on (*)
Name of consumer(s)
Address of consumer(s)
Signature of consumer(s) (only if this form is notified on paper)
(*) Delete as appropriate
(hereinafter, the »Agreement«)
concluded by and between the Star
-hereinafter, the »Company«-
and Chattyco GmbH
-hereinafter, the »Supplier«-
– both Company and Supplier hereinafter individually referred to as a »Party«, and jointly referred to as the »Parties« on contract data processing on behalf as referred to by section 11 paragraph 2 of the German federal data protection act (»Bundesdatenschutzgesetz«, hereinafter »BDSG«)
This annex details the obligations of the Parties related to the protection of data resulting from the scope of the processing of personal data on behalf as defined in detail in the additional terms and conditions for Stars. It shall apply to all activity within the scope of and related to the Agreement, and in whose context the Supplier’s employees or subcontractors may come into contact with Company’s personal data.
§ 1 Scope, Duration and Specification as to Contract Data Processing on Behalf
Except where this annex expressly stipulates any surviving obligation, the term of this annex shall follow the term of the Agreement.
§ 2 Scope of Application and Distribution of Responsibilities
(1) Supplier shall process personal data on behalf of Company. The foregoing shall include the activities enumerated and detailed in the Agreement and its scope of work. Within the scope of the Agreement, Company shall be solely responsible for complying with the statutory data privacy and protection regulations, including, but not limited to, the lawfulness of the transmission to the Supplier and the lawfulness of processing; Company shall be the responsible body (»verantwortliche Stelle«) as defined in section 3 paragraph 7 BDSG.
(2) Any instruction by Company to Supplier related to processing (hereinafter, a »Processing Instruction«) shall, initially, be defined in the Agreement, and Company shall be entitled to issuing changes and amendments to Processing Instructions and to issue new Processing Instructions. Parties shall treat any Processing Instruction exceeding the scope of work defined in the Agreement as a change request.
§ 3 Supplier’s Obligations and Responsibilities
(1) Supplier shall collect, process, and use data related to data subjects only within the scope of work and the Processing Instructions issued by Company.
(2) Supplier shall, within Supplier’s scope of responsibility, structure Supplier’s internal organisation so it complies with the specific requirements of the protection of personal data. Supplier shall implement and maintain technical and organisational measures to adequately protect Company’s data in accordance with and satisfying the requirements of the BDSG (annex to section 9 BDSG). These measures shall be implemented as defined in the following list:
a) physical access control
b) logical access control
c) data access control
d) data transfer control
e) data entry control
f) control of Processing Instructions
g) availability control
h) separation control
Supplier shall be entitled to modifying the security measures agreed upon, provided, however, that no modification shall be permissible if it derogates from the level of protection contractually agreed upon.
(3) Upon Company’s request, and except where Company is able to obtain such information directly, Supplier shall provide all information necessary for compiling the overview defined by § 4g paragraph 2 sentence 1 BDSG.
(4) Supplier shall ensure that any personnel entrusted with processing Company’s data have undertaken to comply with the principle of data secrecy in accordance with § 5 BDSG and have been duly instructed on the protective regulations of the BDSG. The undertaking to secrecy shall continue after the termination of the above-entitled activities.
(5) Supplier shall, without undue delay, inform Company of any material breach of the regulations for the protection of Company’s personal data, committed by Supplier or Supplier’s personnel. Supplier shall implement the measures necessary to secure the data and to mitigate potential adverse effects on the data subjects and shall agree upon the same with Company without undue delay. Supplier shall support Company in fulfilling Company’s disclosure obligations under section 42a BDSG.
(6) Supplier shall notify to Company the point of contact for all issues related to data privacy and protection within the scope of the Agreement.
(7) Supplier represents and warrants that Supplier complies with Supplier’s obligations under sections 4f and 4g BDSG (section 11 paragraph 2 no. 5 in connection with section 11 paragraph 4 BDSG). The foregoing shall include in particular, but not be limited to, Supplier’s obligations to appoint a data protection official where required by law.
(8) Supplier shall not use data transmitted to Supplier for any purpose other than to fulfil Supplier’s obligations under the Agreement.
(9) Where Company so instructs Supplier, Supplier shall correct, delete or block data in the scope of this Agreement. Unless stipulated differently in the Agreement, Supplier shall, at Company’s individual request, destroy data carrier media and other related material securely and beyond recovery of the data it contains. Where Company so instructs Supplier, Supplier shall archive and/or provide to Company, such carrier media and other related material.
(10) Supplier shall, upon Company’s order, provide to Company or delete any data, data carrier media and other related materials after the termination or expiration of the Agreement.
§ 4 Company’s Obligations
(1) Company shall, without undue delay and in a comprehensive fashion, inform Supplier of any defect Company may detect in Supplier’s work results and of any irregularity in the implementation of statutory regulations on data privacy.
(2) Company shall be obliged to maintain the public register of processing in accordance with section 4g paragraph 2 sentence 2 BDSG.
§ 5 Enquiries by Data Subjects
(1) Where, in accordance with applicable data privacy laws, Company is obliged to answer a data subject’s enquiry related to the collection, processing or use of such data subject’s data, Supplier shall support Company in providing the required information. The foregoing shall be apply only where Company has so instructed Supplier in writing or in text form, and where Company reimburses Supplier for the cost and expenses incurred in providing such support. Supplier shall not directly respond to any enquiries of data subjects and shall refer such data subjects to Company.
(2) Where a data subject requests Supplier correct, delete or block data, Supplier shall refer such data subject to Company.
§ 6 Audit Obligations
(1) Company shall, prior to the commencement of the processing of data and at regular intervals thereafter [alternatively, an interval may be expressly stipulated], audit the technical and organisational measures implemented by Supplier and shall document the result of such audit.
In the course of such audit, Company may, in particular, conduct the following measures, but shall not be limited to the same:
- Company may obtain information from Supplier.
- Company may request Supplier to submit to Company an existing attestation or certificate by an independent professional expert.
- Company may, upon reasonable and timely advance agreement, during regular business hours and without interrupting Supplier’s business operations, conduct an on-site inspection of Supplier’s business operations or have the same conducted by a qualified third party which shall not be a competitor of Supplier.
(2) Supplier shall, at Company’s written request and within a reasonable period of time, submit to Company any and all information, documentation and other means of factual proof necessary for the conduction of an audit.
§ 7 Subcontractors
(1) Supplier shall not subcontract any part of the scope of work defined in the Agreement to a subcontractor except with Company’s prior written approval* for each individual act of subcontracting. Supplier shall diligently select any subcontractor, duly taking into account their qualification.
(2) Company consents to Supplier’s subcontracting, to the subcontractors enumerated in the following table, the scope of work defined in the Agreement, and/or the individual deliverables enumerated below, as the case may be:
|Subcontractor name and address||Description of the individual deliverables|
|Mixpanel Inc., 405 Howard Street, Floor 2, San Francisco, CA 94105||Logging of page views and page activities|
(3) Where Supplier subcontracts deliverables to subcontractors, Supplier shall be obliged to extend any and all of Supplier’s obligations under the Agreement to all subcontractors. Sentence 1 shall apply in particular, but not be limited to, the requirements on the confidentiality and protection of data as well as data security, each as agreed upon between the Parties. Company shall be entitled to auditing Supplier’s subcontractors only upon prior agreement with Supplier to that effect.
At Company’s written request, Supplier shall be required to provide to Company comprehensive information on the obligations of all subcontractors as they relate to data privacy and protection; this information shall, where necessary, include Company’s right to inspect the relevant contract documents.
(4) The approval requirements for subcontracting shall not apply in cases where Company subcontracts ancillary deliverables to third parties; such ancillary deliverables shall include, but not be limited to, the provision of external contractors, mail, shipping and receiving services, and maintenance services.
Supplier shall conclude, with such third parties, any agreement necessary to ensure the adequate protection of data.
§ 8 Duties to Notify, Mandatory Written Form, Choice of Law
(1) Where Company’s data becomes subject to search and seizure, an attachment order, confiscation during bankruptcy or insolvency proceedings, or similar events or measures by third parties while in Supplier’s control, Supplier shall notify Company of such action without undue delay. Supplier shall, without undue delay, notify to all pertinent parties in such action, that any data affected thereby is in Company’s sole property and area of responsibility, that data is at Company’s sole disposition, and that Company is the responsible body in the sense of the BDSG.
(2) No modification of this annex and/or any of its components – including, but not limited to, Supplier’s representations and warranties, if any – shall be valid and binding unless made in writing and then only if such modification expressly states that such modification applies to the regulations of this annex. The foregoing shall also apply to any waiver or modification of this mandatory written form.
(3) In case of any conflict, the regulations of this annex shall take precedence over the regulations of the Agreement. Where individual regulations of this annex are invalid or unenforceable, the validity and enforceability of the other regulations of this annex shall not be affected.
(4) This annex is subject to the laws of the Federal Republic of Germany.