Finui GmbH | General Terms and Conditions (GTC)
Part A - Introductory provisions
1. General | Scope
- These General Terms and Conditions ("GTC") apply to all contracts between Finui GmbH, Blumenstraße 47, 10243 Berlin , Germany ("Finui") and customers of Finui who are entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB) ("Customers") and to whom Finui grants access to its Finui Services (as defined below).
- These GTC apply to all contracts concluded between Finui and the customer upon registration on the Finui website or by e-mail (each an "Assignment"). These GTC shall become part of each Assignment.
- These GTC shall also apply to future contracts between Finui and the customer without the need for a corresponding reference by Finui in individual cases. These GTC are deemed to be confirmed by the customer at the latest when the customer uses the Finui services.
- These GTC apply to the exclusion of all other GTC of the customer or third parties. Deviating, contradictory or supplementary general terms and conditions of the customer or third parties shall only become part of an order if Finui has agreed to them in writing.
- Insofar as the terms 'in writing', 'in written form' or similar are used in these GTC, these refer to the written form within the meaning of § 126 BGB. The electronic exchange of copies of handwritten signed documents as well as documents with a simple electronic signature (such as by means of DocuSign or Adobe Sign) shall be sufficient in this respect. Unless otherwise expressly stipulated in these GTC, the exchange of simple e-mails shall be sufficient.
- All notices and declarations given by the customer to Finui, in particular notices of termination and setting of deadlines, must be given at least in text form within the meaning of § 126b BGB (for clarification: a simple e-mail is sufficient), unless otherwise stipulated in these GTC.
- References in these GTC to the applicability of statutory provisions are for clarification purposes only. Consequently, the statutory provisions shall apply even if such clarification is not made, unless the statutory provisions are supplemented or expressly excluded in these GTC.
- For reasons of practicability, these GTCs do not use the feminine, masculine and diverse forms of language simultaneously and use the generic masculine. All personal terms apply equally to all genders.
- The provisions of these GTC in the German language shall apply exclusively. Insofar as Finui provides versions of these GTC in other languages, these are merely non-binding translations.
Part B - Finui services
2. Finui Services | Customer Account | Sample Use
- To the extent agreed in an Order, Finui grants the Customer access to Finui's software platform offered as Software as a Service, including all related websites, services, applications and the respective content and functions to the extent designated on the website ("Finui Services"), in accordance with the Order. The Finui Services may include one or more Finui Products, each of which is currently described on Finui's website. As commissioned, the Finui Services are provided against payment of a fee (as defined on the Website or via email) with certain agreed features. Despite the use of state-of-the-art technologies, transmission errors cannot be excluded during digitization. Any error leading to unauthorized access to data will be corrected by Finui immediately after detection. Furthermore, Finui will inform the customer about the error so that the customer can initiate any further measures.
- Based on communicated content on the Website, Finui may provide the Customer with access to the Finui Services free of charge or at reduced fees for trial purposes ("Trial Use"). Finui has the right to reduce, limit or otherwise modify the Finui Services provided for Trial Use at any time without prior notice. Subject to the provisions in clause 16, Finui shall have no warranty, indemnity, maintenance or support and availability obligations for the Sample Usage. Finui has the right to revoke or terminate the Sample Use at any time with immediate effect. The trial use does not constitute a warranty for (future) product features.
- Finui digitizes invoice documents. During the readout of the documents, errors may occasionally occur, for which Finui cannot be held liable. In addition, Finui does not check invoices for tax or accounting purposes.
3. Rights of use | Permitted users | Restrictions on use
- Subject to the relevant Order, Finui grants to Customer during the Initial Term and the Extended Term (each as defined below) a non-exclusive, non-transferable, non-sublicensable, worldwide right to use the Finui Services solely for Customer's internal business purposes ("License"). The Finui Services are offered as currently described on Finui's website including the on-boarding process ("Documentation").
- The Customer may only allow its employees (including employees and freelancers) (collectively "Authorized Users"), and contracted service providers such as tax advisors, to use the Finui Services. In doing so, the Client shall ensure that (a) the Client has obtained a license for each such User; (b) such Users fully comply with the provisions of these TOS; (c) the Client is responsible to Finui for all acts and omissions of all such Users; and (d) the Finui Services are used solely for the benefit of the Client.
- The Customer shall not, without Finui's written consent (and shall not permit any third party, including Authorized Users, to do so), directly or indirectly: (a) sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, outsource, use on a timeshare or service bureau basis, or use the Finui Services in an application service provider or managed service provider environment or, except as otherwise expressly agreed, otherwise generate revenue from the Finui Services; (b) copy the Finui Services onto a public or distributed network; (c) decompile, reverse engineer, disassemble or otherwise attempt to obtain source code, object code or underlying structural idea(s), know-how or algorithm(s) or other functional mechanism(s) of the Finui Services, except as permitted in a particular case by mandatory legal requirements; (d) modify, adapt, translate or create derivative works based on all or any part of the Finui Services (except to the extent permitted by Finui or where authorized under the Finui Services); (e) modify any proprietary rights notices appearing in the Finui Services or any part thereof; (f) use the Finui Services in a manner that violates applicable laws and regulations (including export rules and restrictions, national security controls and regulations) or use outside the scope of the license described in this Section 3; (g) configure the Finui Services to collect the following data: (i) data that is considered sensitive personal data or 'special categories of data' within the meaning of the General Data Protection Regulation ("GDPR") or applicable national data protection legislation; (ii) passwords or other authentication data; (iii) payment or other financial data, biometric data or genetic data; or (iv) data relating to an individual who is under the age of sixteen (16) (collectively, "Illicit Data"); or (h) use the Finui Services to (i) store, download or transmit infringing, defamatory or otherwise unlawful or tortious material or malicious code or malware; or (ii) engage in phishing, spamming, denial of service attacks or other fraudulent or criminal activity; (iii) interfere with or disrupt the integrity or performance of any third party systems or the offerings or data contained therein; (iv) attempt to gain unauthorized access to the Finui Services or Finui's systems or networks; or (v) conduct, or engage any third party to conduct, penetration testing, vulnerability analysis or other security assessments.
- The Customer and/or Authorized Users may not copy, process, share or publicly reproduce the content of the Finui Services without the written consent of Finui, unless this is expressly permitted by functions integrated in Finui Services.
- Finui may monitor the Customer's use of the Finui Services and may prohibit and/or suspend any use of the Finui Services if Finui believes that the Customer and/or an Authorized User is in breach of the provisions of this Clause 3.
4. Duties of the customer
- The Customer represents and warrants that the Customer and the Authorized Users will use the Finui Services solely in full compliance with all applicable laws and regulations.
- The Customer is responsible for procuring and maintaining, at its own expense, technical equipment and related ancillary services required to connect to, access or otherwise use the Finui Services.
- The Customer is also responsible for the security of the technical equipment, its customer account, passwords (in particular administrator and user passwords) and files, as well as any use of its customer account or technical equipment known or unknown to the Customer. The Customer and Authorized Users may not disclose passwords or access codes to unauthorized third parties.
- The Customer is solely responsible for the content of all data and other material displayed, published, uploaded, stored, exchanged or transmitted by the Customer or Users through or by means of the Finui Services (collectively "Content"). Finui is not able to control or ensure the accuracy of the information submitted by the Customer or Users during the use of the Finui Services. Finui may - without notice and without liability - investigate complaints or suspected violations of the Assignment and may take actions Finui deems appropriate. This includes rejecting Content, removing Content, and restricting, blocking or terminating the Customer's or any User's access to the Finui Services.
- The Customer shall provide Finui in a timely manner with all information reasonably required by Finui to implement an Assignment. The Customer shall ensure that the information in its Customer Account is current and accurate. In the event of any unauthorized use of a password or account or any other known or suspected breach of security or misuse of the Finui Services, the Customer shall immediately notify Finui thereof.
- The customer is obliged to notify Finui immediately of any malfunctions of the server-based software provided by Finui.
- Finui digitizes invoice documents. A service description of this function can be found on Finui.de. The customer is responsible for checking the digitized invoice documents before an export and/or payment is carried out.
5. Interaction of customers with other customers or third parties
- Finui may offer the Customer in the Finui Services the possibility to interact with other Customers or with third parties, for example to exchange data and information or to conclude contracts.
- In this respect, too, the customer acts on its own responsibility and is in particular solely responsible for the content of the declarations it makes to other customers or third parties and for the completeness and accuracy of the data or information it exchanges with other customers or third parties.
6. Maintenance and support for Finui services
- Subject to payment of the fees by the Customer, Finui will provide maintenance and support services for the Finui Services to the extent resulting from the Order. In this context, "Support" means Finui's obligation to respond to justified support requests by the Customer by cooperating in the identification of faults , providing support and promptly rectifying faults if these are due to incorrect settings of the Finui Services. "Maintenance" means Finui's obligation to fix malfunctions and so-called bugs and to provide the updates and upgrades published by Finui at its sole discretion.
- Finui undertakes to inform the customer about technical errors or technical faults immediately after becoming aware of them.
- Support is available to the Customer by e-mail via email@example.com, via the Finui Software or via the telephone number indicated on Finui's website, in any case from Monday to Friday during regular business hours (from 9:00 to 18:00 CET).
- Finui shall use reasonable efforts, consistent with applicable industry standards, to maintain the Finui Services in a manner that minimizes disruptions and interruptions to the Finui Services. Customer may report disruptions to Finui by email via firstname.lastname@example.org or any other Finui email address provided by Finui for this purpose. Finui shall use commercially reasonable efforts to correct all reported faults promptly after becoming aware of them. To the extent possible, Customer shall provide Finui with a detailed description of the Error and its reproducibility and (b) this shall be done subject to the priority of the Error as determined by Finui in its sole discretion.
- If Finui's analysis shows that a fault reported by the Customer has not actually occurred or is not attributable to the Finui Services, Finui may charge the Customer for the costs that Finui can prove to have incurred in connection with such analysis.
- Maintenance and support costs are included in the fees.
7. Availability of Finui services
- Subject to payment of the fees by the Customer, Finui will provide the Finui Services to the Customer in accordance with the provisions of this Clause 7.
- Finui shall use reasonable efforts to ensure that the Finui Services are available to Customer via the Internet no less than ninety-nine point five percent (99.5%) of the calendar year (based on twenty-four (24) hours per day and seven (7) days per week), except for (a) temporary unavailability due to scheduled or unscheduled maintenance by Finui or by Third Party Providers, and (b) unavailability for reasons beyond Finui's control. Finui will use reasonable efforts to provide advance notice of any scheduled interruptions to the Finui Services.
- The Customer is aware and the Customer acknowledges that customer-side access to the Finui Services, such as an Internet access of the Customer, cannot be guaranteed by Finui and that Finui is not liable for failures of the Internet connection or the Customer's technical devices and equipment.
- The Customer has the additional option to send documents to the Finui Services by e-mail. The user is advised that the delivery of e-mails to the recipient takes place via the public infrastructure of the Internet. Finui does not owe the successful receipt of the documents.
8. IT Security
- The Customer warrants that user IDs and passwords received by the Customer together with its registration for the Finui Services are stored, kept and used in a secure manner and that third parties do not have access to them and consequently cannot use them. The Customer is liable for any unauthorized use of the Finui Services.
- If there is a suspicion that an unauthorized person has gained knowledge of a user ID and/or password, the customer is obliged to inform Finui immediately and furthermore to change the user ID and/or password in question.
- The Customer shall be liable for any loss or damage incurred by Finui as a result of the Customer intentionally or negligently disclosing any User ID/Password to any third party or as a result of any User ID/Password becoming known to any unauthorized party, unless the Customer notifies Finui immediately if the Customer suspects that such an event may have occurred.
- Finui shall take reasonable measures to ensure that the security of the Finui Services meets market industry standards.
9. Limited Warranty for Finui Services
- The customer is aware of the essential functions and features of the Finui services. The scope, nature and quality of the Finui Services are determined by these GTC, the Assignment and the Web Site. Other information or GTCs will only become part of the Assignment if expressly agreed in writing by the Customer and Finui or if expressly confirmed in writing by Finui. Product descriptions, illustrations, test programs etc. are not guarantees or agreements on quality. The issuance of a warranty is only effective if confirmed in writing by Finui's management.
- Finui warrants that the Finui Services will have the essential functions described on the Website. In the event of a breach of this warranty, Finui shall use commercially reasonable efforts to modify the Finui Services to substantially conform to the Website. Unless Finui is able to substantially restore such function within thirty (30) days after written notice of the breach, Client shall be entitled to terminate the engagement by written notice and receive a pro rata refund of any fees paid by Client in advance, if any, for unused access to Finui Services. The Customer may exercise the foregoing rights only if the Customer notifies Finui of such violations in writing and has installed and configured the Finui Services in accordance with the Documentation. Finui's strict liability for the existence of initial defects according to § 536a BGB is excluded. Claims for damages by the Customer based on a breach of this warranty are subject to the limitations set out in clause 16.
- The Customer is not entitled to receive the source code of the Finui Services under any circumstances.
Part C - General provisions
10. Fees | Terms of payment
- Customer shall pay to Finui the fees for Finui Services ("Fees") specified in the Assignment.
- The Customer is obligated to pay Finui all fees that have arisen at the time of registration based on the information on the website or via e-mail, this also includes price reductions.
- Finui reserves the right to increase the fees with a lead time of ninety (90) days. In the event of price increases, the Customer may exercise a special right of termination and cancel at any time without incurring additional costs.
- Unless otherwise stated, the customer is obliged to make all payments by invoice. Finui may also choose the option of payment by invoice sent electronically, in which case full payment must be received by Finui within thirty (30) days from the date of invoice dispatch.
- The fees are exclusive of all applicable taxes, duties and levies of any kind, which shall be borne by the customer.
- Finui is entitled to block the Customer's access to the Finui Services by notification in text form (a simple e-mail is sufficient) in accordance with Section 320 of the German Civil Code (BGB) if payments are not received by Finui within fourteen (14) days after their due date.
11. Term | Termination
- The term begins with the commissioning.
- Each Assignment shall remain in effect for the duration of the initial term set forth therein ("Initial Term"). Unless otherwise agreed in writing, the Initial Term shall be automatically and continuously renewed for an additional period equal to the duration of the Initial Term (each an "Extended Term"), unless the Assignment is terminated by either party with one (1) month's notice to the end of the then-current Term. Customer shall not be entitled to terminate an Order with effect prior to the expiry of the Initial Term or the respective Extended Term.
- The right of the Parties to terminate the Assignment for cause shall remain unaffected. Such good cause shall exist in particular if (a) one of the parties breaches the commission in a material way and such breach is not cured within thirty (30) days after receipt of a written notice (a simple e-mail shall be sufficient) of such breach; (b) the Customer is in arrears for more than forty-five (45) days; (c) the Customer breaches the restrictions on use pursuant to Section 3; or (d) the Customer ceases its due payments or a material deterioration of its financial situation occurs.
- Finui will store the information provided by the Customer within the scope of the Finui Services in an audit-proof manner for 10 years after termination of the relevant Assignment upon request or for a maximum period of three (3) months and will delete the information permanently and irretrievably after expiry of this period. As long as Customer Information is available, Customer shall have access to it at any time.
12. Confidentiality | Customer data
- Customer and Finui understand that they have shared or will share with each other certain business, personal, technical or financial information relating to Finui's or Customer's business ("Confidential Information"). Finui Confidential Information includes, but is not limited to, non-public information relating to features, functions and performance of the Finui Services. Customer Confidential Information includes any non-public data Customer provides to Finui to enable the provision of the Finui Services or Customer provides during the use of the Finui Services ("Customer Data").
- The Client and Finui shall use reasonable efforts to protect each other's Confidential Information and shall not use or disclose such Confidential Information to any third party (other than to provide the Finui Services or in any other manner permitted under these TOS). This shall not apply after the expiration of two (2) years after the disclosure of such information and with respect to information that Customer or Finui can each demonstrate (a) is or becomes generally available to the public; or (b) was already in the possession of Customer or Finui, respectively, prior to its receipt; or (c) was lawfully made available to Customer or Finui without restriction by a third party; or (d) was independently developed without the use of Confidential Information; or (e) is required to be disclosed by law.
- Notwithstanding anything to the contrary, Finui shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Finui Services and related systems and technologies (including without limitation information relating to, and data derived from, Customer Data), and Finui shall be free (during and after the end of the Assignment) to (a) use such data and information to improve and develop the Finui Services and to use the same for the purpose of other development, diagnostic and corrective actions related to the Finui Services and other Finui offerings; and (b) share such data and information only in aggregated or otherwise anonymized form in connection with Finui's business operations.
13. Proprietary rights | Work results | Brand names and logos | Updates | Feedback
- Finui and Finui's contractors, if any, are and shall remain the owner of all proprietary rights, including copyrights, database rights, patents, trade secrets, trademarks and all other intellectual property rights and technical solutions in and relating to the Finui Services. The Customer acknowledges that the rights granted after an Assignment do not give the Customer any ownership rights in the Finui Services.
- All rights to the Customer Data and all Content, as well as to data based on or derived from the Customer Data or Content, shall remain with the Customer. The customer grants Finui a simple, non-transferable, sub-licensable (right of use), unlimited in terms of space and content, to use the customer data and content exclusively in connection with the provision of Finui services. Finui is not liable for the customer data or content.
- Finui reserves the right to make new versions and updates of the Finui Services, including without limitation changes to the design, operational procedure, technical specifications, systems and other features of the Finui Services, at any time and without prior notice.
- The Customer agrees that Finui may refer to the Customer in marketing materials, in social media marketing measures and on Finui's website by mentioning the Customer's company name, the image of its logo and a short description. This consent of the Customer is revocable at any time.
- The Customer may occasionally make suggestions to Finui for new features or functions of the Finui Services or provide other feedback on the Finui Services. Finui is free to consider such suggestions or feedback. The Customer grants Finui, free of charge, a fully compensated, perpetual, sublicensable right to use such feedback for any purpose.
- The Customer and Finui will at all times comply with the requirements of applicable data protection law, in particular the GDPR.
- In the event that the provision of Finui Services involves the processing of personal data relating to the Customer, Finui shall process such data exclusively as a 'Processor' on behalf of the Customer acting as the 'Controller' of the processing, in each case as defined in applicable data protection law, in particular the GDPR. To the extent required by law, Finui shall enter into a written order processing agreement with the Customer.
- The Customer shall be solely responsible for ensuring that the processing of personal data of the Customer's employees by Finui is in compliance with all relevant employment relationships, collective bargaining agreements, works agreements and applicable labor law.
15. Indemnification obligation
- Without prejudice to the Customer's other contractual or legal liability, the Customer shall defend, indemnify and hold Finui and any Finui Affiliates, employees and subcontractors as well as suppliers and distributors of Finui harmless, at the Customer's expense, against any third party claim to the extent that such claim arises or is asserted as a result of a breach of Clause 3 by the Customer or otherwise in connection with the provision of the Finui Services. The Customer shall pay in full all costs and damages finally determined by a court of competent jurisdiction to be to Finui's disadvantage as a result of any such claim. "Affiliate" means any entity that Finui directly or indirectly controls, is controlled by, or is under direct or indirect common control with Finui, or is a wholly owned subsidiary of Finui, where 'control' means direct or indirect ownership of at least fifty-one percent (51%) of the stock or beneficial interest in an entity.
- In connection with a claim for indemnification under this clause 15, Finui shall promptly inform the Customer of any third party claim on the basis of which Finui assumes to be entitled to claim indemnification from the Customer. Finui's failure to provide such information shall not release the customer from its obligations under this clause 15, unless the failure to provide such information materially impairs the customer's legal defense against such claim. Finui may, at its own expense and discretion, assist in the legal defense, but it shall be the Customer's responsibility to take appropriate measures to defend itself and to conduct any settlement negotiations. Any settlement that would legally bind Finui shall only become effective after Finui has consented to it in writing; such consent shall not be unreasonably withheld, subjected to GTC or delayed by Finui.
- Finui will defend the Customer at its own expense against (or, at Finui's option, settle by compromise) any third party claim to the extent that, in connection with such claim, the Finui Services are alleged to infringe or misappropriate any patent, copyright, trademark or trade secret of any third party. Finui will settle all costs and damages obligations determined by a court of competent jurisdiction as a result of such claim to the detriment of the Customer. To the extent that use of the Finui Services is, or in Finui's sole discretion may become, the subject of such a claim, Finui may, at its option and expense, (a) replace the relevant Finui Services with functionally equivalent technology that does not infringe any Rights; (b) obtain a right for Customer to continue to use the relevant Finui Service; or (c) immediately terminate the engagement in whole or in part and refund fees on a pro rata basis (from the effective date of termination) that may have been paid in advance for the relevant Finui Services. This obligation of Finui shall not apply: (i) if the Finui Services have been modified by Customer or by a third party under Customer's responsibility; (ii) if the Finui Services have been combined with other products, applications or processes not provided by Finui, if the alleged breach has been caused by such combination; or (iii) in case of any unauthorized use of the Finui Services or Services. This clause 15.3 conclusively governs Customer's rights with respect to claims based on infringement of third party intellectual property rights and trade secrets.
16. Limitation of liability
- Finui shall be liable without limitation for (a) injury to life, body or health caused by Finui, Finui's legal representatives or vicarious agents; (b) damage caused intentionally or by gross negligence by Finui, Finui's legal representatives or officers; (c) damages caused intentionally by Finui's vicarious agents not mentioned in (b); (d) damages due to the absence of a guaranteed quality; and (e) claims under the Product Liability Act (Prod HaftG).
- Finui shall be liable for damages resulting from the breach of cardinal obligations by Finui, Finui's legal representatives, executive employees or vicarious agents. Cardinal obligations are those obligations the fulfillment of which enables the proper performance of the assignment and the compliance with which the Customer regularly relies on and may rely on. If the breach of cardinal obligations is caused by (a) slight negligence of Finui, Finui's legal representatives or executives or (b) slight or gross negligence of Finui's vicarious agents not mentioned in (a), Finui's liability shall be limited to the amount which was foreseeable for Finui at the time of performance of the respective service.
- Subject to the provisions in clauses 16.1 and16.2, Finui shall not be liable for damages resulting from the breach of obligations other than cardinal obligations caused (a) by slight negligence by Finui, Finui's legal representatives or executive employees; or (b) by slight or gross negligence by Finui's vicarious agents not mentioned in (a).
- Finui shall not be liable for any loss, damage or harm suffered by the Customer caused directly or indirectly by the Customer's unauthorized use of the Finui Services for the processing of Unauthorized Data.
- Finui shall only be liable for data loss up to an amount covering the typical costs of recovery that would have been incurred if the customer had made proper and regular data backups.
- Except as provided in Section 16, Finui's liability for damages arising out of or in connection with any Assignment, whether in contract, tort or otherwise, shall be limited to an amount equal to one hundred fifty percent (150%) of the total fees under the affected Assignment.
- Any liability of Finui beyond the cases regulated in this clause 16 is excluded.
- The Customer agrees and acknowledges that the Finui Services are substantially based on data and information submitted by the Customer. As a result, Finui is not responsible for (a) the correctness, completeness, integrity and accuracy of the data submitted to Finui or uploaded by the Customer to the Finui Services; (b) content as defined in para. 4.4; (c) any conclusions drawn by the Customer or any third party from the use of the Finui Services; (d) the technical, scientific, legal and commercial feasibility of projects, products and undertakings of the Customer or any third party; and (e) the economic and financial viability of projects, products and undertakings of the Customer or any third party.
- Before the customer can claim damages from Finui due to an alleged bad performance, the customer is obliged to give Finui the opportunity in text form (a simple e-mail is sufficient) to correct the alleged bad performance within a reasonable period of time.
17. Limitation of set-off | Limitation of the right of retention
The customer is only entitled to set off its own claims against claims of Finui or to assert rights of retention if its claims (a) have been legally established; (b) are undisputed; or (c) have been acknowledged by Finui.
18. Transfer | Novation
- The Customer may not assign an Assignment without Finui's prior written consent and any assignment in breach of this Clause 18 shall be void. Finui may assign or transfer an Assignment and/or all related rights in whole or in part to third parties at its sole discretion.
- Upon Finui's request, the Customer shall promptly, and in any event within fourteen (14) days, enter into a novation agreement in a reasonable form specified by Finui to enable Finui to exercise the rights under this Clause 18.
19. Complete Agreement | Severability Clause | Amendments | Updates
- An Assignment, including these T&Cs, constitutes the entire agreement between the Client and Finui with respect to its subject matter and supersedes and excludes all prior written or oral negotiations, arrangements, understandings, exercises or agreements between the parties with respect to the subject matter of the Agreement.
- Should any provision of an assignment, including these GTC, be or become invalid or void in whole or in part, this shall not affect the validity of the remaining provisions. In this case, the invalid or void provision shall be replaced by a provision that comes closest to what the parties would have agreed in a legally permissible manner according to the meaning and purpose of the original provision and the assignment if they had recognized the invalidity or voidness of the original provision. If the ineffectiveness or invalidity of a provision is based on a measure of performance or time (deadline or date) specified therein, it shall be replaced by a provision with a legally permissible scope that comes closest to the original scope. The foregoing shall also apply to any loophole in the assignment, including these GTC, not intended by the parties. It is the express intention of the parties that this severability clause does not result in a mere reversal of the burden of proof, but that § 139 BGB is waived in its entirety.
- Changes or additions to an order must be made in writing (the exchange of simple e-mails is sufficient). The same applies to agreements to deviate from this written form requirement or to waive it completely.
- Finui may amend and/or update these GTC with effect for an ongoing order if this is necessary for technical, economic or legal reasons. Any such amendment to these GTC will be announced to the Customer in text form (a simple email is sufficient) at least six (6) weeks before its intended effective date. The Customer may agree or object to the amendment prior to the date of its intended entry into force. The amendment shall be deemed accepted by the customer if the customer does not object to the amendment before the day of its intended entry into force. Finui will expressly inform the customer of this in the relevant announcement. With effect for future orders Finui may amend and/or update these GTC at any time without notice.
20. Governing Law | Jurisdiction
- Any assignment and any disagreement, dispute or claim (whether contractual or non-contractual) arising out of or in connection with the assignment or the subject matter or conclusion thereof shall be governed by and construed in accordance with the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
- The courts in Berlin (Germany) shall have exclusive jurisdiction to settle any contractual or non-contractual disputes or claims arising out of or in connection with an Assignment or its subject matter or conclusion.
21. Final provisions
- The person signing or otherwise accepting an Assignment, including these GTC, on behalf of the Customer represents and warrants that he or she has been duly authorized by all necessary and appropriate corporate action to enter into the Assignment on behalf of the Customer.
- Without prejudice to § 354a of the German Commercial Code (HGB), the Customer may not assign its rights or obligations under an Assignment and these GTC without Finui's prior written consent.
- No agency relationship(s), partnership, holding company or employment relationship(s) shall be established by an Assignment and the Customer shall not be authorized to legally bind Finui in any way. There shall be no employee leasing within the meaning of the German Personnel Leasing Act (Arbeitnehmerüberlassungsgesetz, AÜG).
Berlin Charlottenburg Local Court, Germany, HRB 246754 B