Terms and Conditions

Preamble

The following Terms and Conditions (“T&C”) govern the contractual relationship between Brainlancer GmbH (“BL”) and the users (“Users”) of the Brainlancer platform (“Brainlancer Platform”).

1. Use of the Brainlancer Platform

1.1. Use of the Brainlancer Platform is reserved for entrepreneurs as defined in Section 14 of the German Civil Code (BGB). According to this provision, an entrepreneur is a natural or legal person or a partnership with legal capacity that, when entering into a legal transaction, acts in the exercise of its commercial or self-employed professional activity.

1.2. Users may use the Brainlancer Platform either as providers of services and works (“Brainlancers”) or as purchasers of such services and works (“Clients”). Through the Brainlancer Platform, Brainlancers and Clients can find one another and enter into contracts for project-related work (“Core Service Agreement”) and ongoing support.

1.3. Use of the Brainlancer Platform requires registration.

1.4. Use of the Brainlancer Platform is only possible after approval by BL. For this purpose, BL may request further information and documents from the User. It is at the sole discretion of BL whether a specific User is approved for use of the Brainlancer Platform. There is no right to be approved.

1.5. Approved Brainlancers may select a number of services (“Services”) determined by BL from the service areas (“Categories”) defined by BL, in which they may then offer their services on the Brainlancer platform (“Core Services”). In addition to these Core Services, the Brainlancer may offer support services on the Brainlancer Platform, provided that these are related to an order of Core Services that the Brainlancer has agreed upon with a Client (“Care Packages”). Moreover, Client may order add-on services from Brainlancer (“Add-ons”).

1.6. Brainlancers may only have a certain number of active contracts for Core Services. Once this limit is reached, the Brainlancer cannot offer any further Core Services on the Brainlancer Platform until an active Core Service Agreement has ended.

1.7. Only individuals based in certain countries may become Brainlancers.

1.8. Brainlancers owe BL a commission fee in the amount of 20% of the Brainlancer’s fees (including VAT if applicable) for Basis Services and Care Packages plus VAT if applicable.

2. Contractual Relationships Regarding Orders

2.1. BL enables Users to conclude orders for Core Services and Care Packages and Add-ons via the Brainlancer Platform. The contracting parties to such agreements are exclusively the two respective Users, namely the Client and the Brainlancer (“Contracting Parties”). Under no circumstances does BL become a party of this agreement.

2.2. The Brainlancer’s offer of Core Services constitutes a firm offer pursuant to § 145 BGB (offerta ad incertas personas). Offers for Core Services using the Brainlancer Platform must meet at least the following criteria and be specified on the Brainlancer Platform:

a) Specification of a deadline of no more than 30 days from the conclusion of the contract within which the Brainlancer must provide the Core Service to the Client.

b) Specification of the payment amount.

2.3. BL may specify additional requirements on the Brainlancer Platform. In the execution of Core Service Agreement and contracts for Care Packages and Add-ons, BL assists the Contracting Parties with payment processing. The rights and obligations arising in this regard exist exclusively on the basis of these Terms and Conditions and in the relationship between BL and the respective User. This does not affect any claims that the Contracting Parties may have against each other based on a Core Service Agreement.

2.4. The Core Service Agreement is automatically concluded upon the Client’s acceptance of the proposal. Acceptance occurs upon payment for the Core Service by the Client. After the Client has selected and paid for a Core Service, it must complete the briefing form sent by Brainlancer within 5 days. If it fails to do so, the Core Service Agreement is automatically canceled, and BL reserves the right to block the client on the Brainlancer Platform.

2.5. After the completed briefing form has been submitted to the Brainlancer, the Brainlancer must perform the Core Service based on the information in the completed briefing form within the delivery time specified in the offer. If this delivery time is exceeded by 5 days, the Core Service Agreement is automatically canceled, and BL reserves the right to block the Brainlancer on the Brainlancer Platform.

2.6. The Client undertakes towards BL to review and accept the Core Service within 5 days of receipt. If the acceptance period expires without a response from the Client, the service is deemed accepted with effect towards BL. The Client is only entitled to reject acceptance of the service under a Core Service Agreement vis-à-vis BL if they demonstrate that the service owed by the Brainlancer based on the order was not fully performed. In this case, the Brainlancer has three opportunities to make corrections. The Client undertakes to review and accept the corrected services within 5 days of receipt. If the acceptance period expires without a response from the Client, the service is deemed accepted with effect towards BL. If the Client refuses acceptance even after the third opportunity to rectify the work, the fee which was paid by Client will be refunded to the Client. The Brainlancer remains free to assert civil claims against the Client, for example on the grounds that the refusal of acceptance was unlawful.

2.7. The Brainlancer has a special right of termination at any time with respect to a Core Service Agreement. If the Brainlancer exercises this right, BL will refund the amount paid by the Client to the Client.

2.8. The Contracting Parties may additionally enter into a contract for Care Packages or Add-ons. Care Packages or Add-ons may be terminated at any time effective at the end of the month.

2.9. These provisions do not affect any statutory warranty claims, rights of retention, or other legal claims and rights that exist between the Client and the Brainlancer regarding the Core Service Agreement.

3. General Rights & Obligations of the User

3.1. Users agree to conclude and execute only those contracts via the Brainlancer Platform that do not violate applicable law. In particular, Users are obligated to comply with their obligations under applicable law (especially those of a tax nature) on their own responsibility.

3.2. An agreement is considered to have been concluded via the Brainlancer platform if the initial contact took place via the Brainlancer Platform, or if the Users subsequently transfer the assignment to the Brainlancer Platform for execution.

3.3. Users agree to include the Brainlancer Platform in the payment processing for all orders concluded via the Brainlancer Platform.

3.4. Users agree to rate the respective contractual partner of the job via the rating portal available on the Brainlancer Platform after the completion of a job concluded via the Brainlancer Platform. Rating another User is only possible after the completion of a job. BL is entitled, but not obligated, to check the ratings for plausibility.

3.5. Users are prohibited from using the Brainlancer Platform for third-party services.

3.6. Users are obligated to protect their own login credentials for the Brainlancer Platform from access by third parties.

3.7. Users who have been put in contact via the Brainlancer Platform are prohibited to process Core Services outside of the Brainlancer Platform in order to avoid payment of Service Fees. In case of violation of this section, the Brainlancer and the Client jointly and severally owe BL payment of twice the Service Fees which would have been due had the order been processed through the Brainlancer Platform.

4. Payment Processing via the Brainlancer Platform

4.1. Each User has a platform payment account associated with them, which BL operates using the services of Stripe Technology Company Limited, One Wilton Park, Wilton Place, Dublin 2, D02 FX04, Ireland (“Platform Payment Account”). Payment transactions are conducted via the Platform Payment Accounts in accordance with the following provisions, which govern the relationship between the respective User as the Platform Payment Account holder and BL.

4.2. The Client agrees to transfer the payment amount resulting from an order to the Brainlancer’s platform payment account upon conclusion of the contract (“Payment Initiation”). The Client will receive a receipt for this transaction.

4.3. BL is obligated to the Client and entitled vis-à-vis the Brainlancer to withhold the payment amount transferred by the Client to the Platform Payment Account, so that the Brainlancer does not yet have access to it.

4.4. BL will release the payment amount to the Brainlancer, minus a fee of 20% plus any applicable sales tax (“Service Fee”), after the Client has declared acceptance of the service to BL or the service is deemed accepted. The release shall take place no later than 90 days after the Core Service Agreement was concluded between the Contracting Parties. The Brainlancer shall receive an invoice from BL for the Service Fee withheld.

4.5. Payments to the Brainlancer’s bank account are made automatically once a week. All amounts available at that time are paid out. These include all payments for Care Packages or Add-ons as well as all accepted Core Service Agreements of which the order date is at least 45 days old.

5. Cancellation of Payment Processing

5.1. Users accept the cancellation provisions in this Agreement for payment processing in relation to BL, which result in the Brainlancer’s claim against BL being forfeited and entitle BL to refund the payment to the Client.

5.2. Cancellation of payment processing may occur or will occur in the cases specified in these Terms and Conditions.

6. Support Services on the Brainlancer Platform

In addition, the Brainlancer Platform offers support services that users may utilize as needed (“Support Services”). There is no obligation to do so.

7. Termination

7.1. The contractual relationship between the respective User and BL may be terminated in writing at the end of the month, subject to one month’s notice, without stating a reason.

7.2. If the User still has outstanding Core Service Agreements or contracts for Care Packages or Add-ons, the contractual relationship between the User and BL shall remain in effect until all orders have been completed and all payments have been made.

7.3. These provisions do not affect the right to terminate the contract for cause.

8. Liability

8.1. BL is liable in accordance with statutory provisions for damages to life, limb, and health resulting from a culpable breach of duty. Furthermore, BL is liable in accordance with statutory provisions for other damages resulting from intentional or grossly negligent breaches of contract. BL is also liable without limitation in accordance with the provisions of the Product Liability Act.

8.2. Insofar as none of the aforementioned cases applies and damage results from a breach of a material contractual obligation due to simple negligence, i.e., an obligation whose fulfillment is essential for the proper performance of the contract, whose breach jeopardizes the achievement of the contract’s purpose, and on whose compliance the User may reasonably rely, BL’s liability is limited to foreseeable and contract-typical damages. If, in this case, the damage results from a breach of an obligation to perform a service free of charge, liability for simple negligence is excluded.

8.3. No further claims for liability against BL exist.

9. Final Provisions

Substantive German law applies, excluding German conflict of laws provisions and the UN Convention on Contracts for the International Sale of Goods. To the extent that a place of jurisdiction may be validly agreed upon, the place of jurisdiction is Hamburg.