Terms and conditions

1. Scope

(1) These terms and conditions apply to every contract between Brandmonks GmbH,Am Brand 41, 55116Mainz (the “provider”), and its contractual partners (the “customer”) concerning the provision of the flynne software for use over the internet and the services connected with it.

(2) The offering is aimed exclusively at entrepreneurs within the meaning of § 14 BGB, at legal persons under public law and at special funds under public law. No contract is concluded with consumers.

(3) Terms of the customer that deviate from, conflict with or supplement these terms do not become part of the contract unless the provider expressly agrees to their application in text form. That also applies where the provider performs without reservation in knowledge of such terms.

(4) Individually agreed arrangements take precedence over these terms. The version applicable at the time the contract is concluded governs.

2. Conclusion of the contract

(1) The presentation of services on the provider’s website is not a binding offer but an invitation to submit one.

(2) The contract is concluded through a written offer by the provider and its acceptance by the customer, at the latest when access is activated.

(3) The language of the contract is German. The provider stores the text of the contract.

3. Subject matter of the service

(1) For the term of the contract the provider makes the current version of flynne available to the customer for use over the internet. The scope and the modules follow from the offer.

(2) The provider develops the software continuously. Changes that do not restrict the agreed scope are permitted and are announced to the customer where they noticeably change the way of working.

(3) The software supports the organisation of aptitude assessment procedures. It makes no selection decision and does not judge participants. The provider warrants that flynne uses no AI system that rates, classifies or ranks people.

(4) Responsibility for the content of the procedures, for the choice of the test instruments used and for the decisions derived from them lies with the customer.

(5) The contract does not cover the procurement and licensing of third-party test instruments, integration with the customer’s systems beyond the agreed interfaces, or the data connection between the customer and the data centre.

4. Availability and operation

(1) The software is operated in data centres within the European Union.

(2) The provider owes an availability of 99.9 per cent as an annual average, measured at the handover point of the data centre to the internet.

(3) Planned maintenance windows, disruptions outside the provider’s sphere of responsibility and periods in which the software is unreachable because of force majeure do not count as downtime. Planned maintenance is announced at least five working days in advance and takes place outside normal business hours.

(4) The customer reports disruptions to support@flynne.de. For disruptions that prevent operation the provider responds within one hour during business hours and begins work within four hours. Different response and handling times may be agreed.

5. Rights of use and the customer’s cooperation

(1) For the term of the contract the customer receives the non-exclusive, non-transferable right to use the software as intended. Provision to third parties is permitted only where they are affiliated companies or service providers who take part in the customer’s procedures on the customer’s behalf.

(2) The customer names a contact person, maintains its master data, keeps access credentials confidential and ensures that only authorised people obtain access.

(3) The customer ensures that it is entitled to process the data it enters and that the individuals concerned have been informed where that is required.

(4) If the customer fails to meet its duties to cooperate, deadlines are extended appropriately. Additional effort arising for the provider as a result is remunerated on a time and materials basis.

6. Remuneration and payment

(1) The remuneration follows from the offer. It is based on the number of assessment participations in the billing period; the number of user accounts created is not taken into account. A participation means a person actually taking part in an appointment. Booked appointments at which the person does not appear are not charged.

(2) All prices are net and subject to statutory value added tax.

(3) Invoices are payable in full within 30 days of receipt.

(4) If the customer is in default with a not insignificant part of the remuneration for more than 30 days, the provider may suspend access after prior notice and an appropriate period of grace. The obligation to pay remains unaffected.

(5) The provider may adjust the remuneration with effect from the start of a renewal period. It announces the adjustment at least three months in advance in text form. Where the adjustment exceeds five per cent, the customer may terminate the contract with effect from the date the adjustment takes effect.

(6) The customer may set off against claims of the provider only with claims that are undisputed or have been established with final legal effect.

7. Data protection and processing on behalf of the customer

(1) Where the provider processes personal data on behalf of the customer, the parties conclude an agreement under Article 28 GDPR before the processing begins. That agreement takes precedence over these terms in matters of processing on behalf of the customer.

(2) The customer remains the controller within the meaning of the GDPR. It decides on the purposes and means of the processing.

(3) The provider maintains an information security management system to ISO/IEC 27001 and a quality management system to ISO 9001.

(4) After the contract ends, the provider hands over the customer’s data in a common format at the customer’s request and deletes it afterwards. Without such a request it deletes the data after 90 days, unless a statutory retention duty prevents deletion.

8. Rights in the software

(1) All rights in the software, in its documentation and in the flynne trade mark belong to the provider. The contract transfers none of those rights.

(2) The customer may not reverse engineer, decrypt or copy the software except where the law mandatorily permits it.

(3) Data that the customer enters, or that arises during use, remains attributed to the customer.

9. Confidentiality

(1) The parties treat as confidential all information received in the course of the cooperation that is marked as confidential or whose confidentiality follows from the circumstances.

(2) The duty continues for five years beyond the end of the contract. It does not apply to information that is generally known, that the receiving party developed independently or that has to be disclosed because of a legal obligation.

(3) The provider may name the customer as a reference only with the customer’s prior consent.

10. Defects and liability

(1) The provider is liable in accordance with statutory provisions for intent and gross negligence, for injury to life, body or health, under the Produkthaftungsgesetz (product liability act) and to the extent of any guarantee given.

(2) In cases of ordinary negligence the provider is liable only for breach of material contractual duties, that is duties whose fulfilment makes the proper performance of the contract possible in the first place and on whose observance the customer may regularly rely. In that case liability is limited to the damage typical of this type of contract and foreseeable at the time it was concluded.

(3) Strict liability for defects existing at the outset under § 536a(1) BGB is excluded.

(4) Within its own responsibilities the customer ensures that its data is backed up appropriately for the risk.

11. Term and termination

(1) The contract runs for the minimum term agreed in the offer, but for at least six months; without a deviating agreement, for twelve months from activation.

(2) It is extended by twelve months at a time unless it is terminated with three months’ notice to the end of the term.

(3) The right to terminate for good cause remains unaffected. For the provider, good cause exists in particular where the customer remains in default with a substantial part of the remuneration despite a reminder and a period of grace.

(4) Notice of termination must be given in text form.

12. Final provisions

(1) The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods.

(2) The exclusive place of jurisdiction for all disputes arising from this contract is Mainz, in so far as the customer is a merchant, a legal person under public law or a special fund under public law.

(3) Amendments and additions require text form. That also applies to any waiver of this requirement of form.

(4) If a provision of these terms is invalid, the remainder of the contract remains valid. The statutory rule takes the place of the invalid provision.

13. Authoritative version

This English text is a translation for information purposes. In the event of a dispute, the German version of these terms and conditions prevails.

Contact

Brandmonks GmbH
Am Brand 41
D-55116Mainz
Email: info@flynne.de
Telephone: +49 6131 62 35 610