Preamble. Sharpist GmbH (“Sharpist or Service Provider”) is a B2B provider of a mobile platform for professional growth and individual web-based coaching. Sharpist supports companies to have employees that are more balanced and successful via one-on-one video-coaching and individualized exercises on a data-driven, mobile platform.
Section 1 General. The present General Terms and Conditions are a component part of any contractual agreement between Sharpist as service provider and the respective Customer regarding the usage of the „Sharpist Spark“ program. Any terms and conditions of the Customer that contradict the present General Terms and Conditions shall be excluded.
Section 2 Rights of use. With regard to the Sharpist-App and the included services for Sharpist Spark, the Service Provider shall grant the Customer a basic, non-transferrable, non-sublicensable access and usage right to the App (and the software included) for the contractually agreed duration and for the fees agreed in each individual offer.
Section 3 Customer obligations and restrictions.
Customer shall not, directly or indirectly:
(2) Customer represents, covenants, and warrants that Customer shall use the Services only in compliance with these General Terms and Conditions, with the concluded contract that incorporates them and all applicable laws and regulations. The Customer hereby agrees to indemnify and hold harmless Sharpist against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Sharpist has no obligation to monitor the Customer’s use of the Services, Sharpist may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
(3) Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).
(4) Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of a Customer account or the Equipment with or without Customer’s knowledge or consent.
Section 4 References. Sharpist is entitled to use the name of Customer as well as Customer’s logo for reference purposes, in particular, on the homepage of Sharpist and its official social media websites. Hereunto Customer grants Sharpist a simple right to use its name and logo. Any further usage will be agreed with the Customer in advance.
Section 5 Late payment. No Payment. Sharpist shall not provide its service until the Customer has made the payment. The Customer must have made his payment at the latest upon commencement of the program; if the Customer is in default of payment, he shall have no claim to the subsequent provision of program parts in which he was unable to attend due to his default of payment.
Section 6 Access information, technical prerequisites. The Customer shall receive the necessary access information after payment has been made in full. It is the Customer’s responsibility to keep the access information protected from access by third parties. If a third party uses the access information, the Service Provider may preclude simultaneous access by the Customer.
Using the agreed services requires that the Customer has an internet-capable terminal with camera, microphone and audio output capability, as well as an internet connection with a bandwidth of at least 6 MBit/s for download and upload.
Section 7 Liability. Sharpist shall be liable without limitation for intent or gross negligence, for injury to life, body or health, under the provisions of the German Product Liability Act, and to the extent of any guarantees assumed by Sharpist.
In case of a slightly negligent violation of duty which is essential for achieving the purpose of the contract (material duty), the liability of Sharpist shall be limited in amount to the damage which is foreseeable and typical according to the nature of the transaction concerned.
In all other respects, the liability of Sharpist shall be excluded. In particular, no-fault liability for any defects already existing at the time of conclusion of the contract (Sec. 536a (1) 1st alt. of the German Civil Code) does not exist on the part of Sharpist, save where the conditions set forth in subsections 6(1) or (2) above are fulfilled.
The above limitation of liability shall also apply to the personal liability of the employees, representatives and bodies of Sharpist.
Section 8 Confidentiality. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Sharpist includes but is not limited to non-public information regarding features, functionality and performance of the Service.
Confidential Information of Customer includes non-public data provided by Customer to Sharpist to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without the use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
Section 9 Ownership and Intellectual Property. Customer shall own all rights, title and interest in and to the Customer Data. Sharpist shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
Section 10. Usage of data. Notwithstanding anything to the contrary, Sharpist shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Sharpist will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Sharpist offerings, and (ii) disclose such data solely in aggregate or other de-identified forms in connection with its business. No rights or licenses are granted except as expressly set forth herein.
Section 11 Warranty. Warranty claims shall be governed by the statutory regulations.
Section 12 Data protection. Sharpist and Customer shall comply with any applicable data protection laws. Sharpist determines the purposes and means of processing personal data within the scope of the service provided and thus acts as an independent controller. The details on the processing of personal data (Privacy Notice) can be found on Sharpist`s website at https://www.sharpist.com/legals/privacy-policy.
Customer shall provide Service Provider with the personal and non-personal data required for the performance of Services under this Agreement. This includes in particular the personal data mentioned in the Privacy Notice. The data may be either provided directly by Customer or by Data Subjects at the instigation of Customer.
Section 13 Final provisions. If any provision of these General Terms and Conditions is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the rest will otherwise remain in full force and effect and enforceable.
All notices between the parties will be in writing and will be deemed to have been duly given when received if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail;
The laws of the Federal Republic of Germany shall apply, to the exclusion of the UN Convention on the International Sale of Goods (UNCISG) and to the exclusion of the conflict of laws provisions of German private international law. Place of performance and place of jurisdiction is 12043 Berlin, Germany