General Terms & Conditions
Qundo Technology GmbH

 

A. General Terms and Conditions of Qundo GmbH

1 Subject Matter and Validity of the Terms and Conditions

(1) These terms and conditions are an integral part of the contractual relationship between the parties and govern the cooperation of the parties with regard to the services to be provided by Qundo. These include, in particular:

Provision of services and software solutions in the field of KYC identification and verification

Provision of services in the field of payment transactions

the processing of data of the partners (including the data of their customers) in the data center of Qundo,

the provision of consulting, education and training,

the provision of other services and services

 

(Hereinafter collectively referred to as “Services” or “Products” of Qundo).

 

(2) All services, deliveries and offers of Qundo are made exclusively on the basis of these terms and conditions. These are an integral part of all contracts between the customer and Qundo. They also apply to all future services, deliveries and offers, even if they are not agreed separately again or are not expressly referred to.

 

(3) Terms and conditions of the customer shall not apply, even if Qundo does not separately object to their validity in individual cases. Even if Qundo refers to a letter that contains or refers to the customer’s terms and conditions, this does not constitute an agreement with the validity of those terms and conditions.

 

2 Structure of the Contract Documents and Components of the Contract / Individual Contracts

(1) These terms and conditions are an essential part of the contractual relationship of the parties. Further components of the contract are – depending on the service provided in each case – the service contract as well as other individual contracts including any applicable product-specific service certificates or other supplementary product descriptions.

 

(2) These terms and conditions are divided into a general part and a special part. The regulations contained in the general part form the basis of the cooperation and apply to all services provided by Qundo. In addition and in case of doubt, the performance-specific regulations of the special part apply to those services or parts of the service that fall within the respective scope of application.

 

(3) In the service contract, the basic cooperation of the parties at the time of signing the service contract is agreed and its essential contents are specified. The service contract contains, among other things, provisions regarding the services agreed between the parties at the time of conclusion of the contract as well as the design of the remuneration.

 

(4) If the customer commissions or orders further services or products of Qundo at a later date, this is agreed by supplementary individual contracts between the parties.

 

(5) Specific regulations for the respective service resultfrom the respective individualcontract including a product-specific service certificate, if necessary, another supplementary product description or further contractual documents. If a service certificate, a supplementary product description or another contractual document apply, this will be agreed in the individual contract between the parties. In the case of follow-up orders (e.g. increase in the scope of use, ordering of further identical services/products), all documents included shall apply, even if they are not made available to the customer again. They can be called up electronically by the customer at any time in the current version. The performance characteristics defined in an individual contract define the scope of the service owed in each case.

 

(6) For individual services, the validity of additional license terms of a third licensor may be agreed between the parties in an individual contract.

 

(7) Qundo will continue to provide further documents for individual services that are not part of the contract, e.g., application manuals, circulars and other supplementary documents. These documents only serve to de-tail and concretize the scope of services specified in the respective individual contract.

 

(8) Supplementary special regulations regarding the IT security of the services provided, including the applicable obligations to cooperate, are contained in Qundo’s IT security guidelines, which must also be observed and complied with.

 

(9) In the event of contradictions or doubts, the following documents shall apply in the order in which they are mentioned, whereby the aforementioned document shall prevail:

Service contract or respective individual contract

Respective service certificate or other supplementary product description or, if applicable, other contractual documents

these General Terms and Conditions

 

3 Changes to the Terms and Conditions

(1) These General Terms and Conditions may be amended by mutual agreement. A change will be offered to the Customer at least three (3) months before the proposed date of its effective date.

 

(2) The customer’s consent to the change shall be deemed to have been given if he has not notified his rejection in writing within eight (8) weeks of receipt of the notification. The customer will be informed of this right separately with notification of the change.

 

(3) If the customer rejects the amendment of the terms and conditions, the unchanged terms and conditions shall initially continue to apply. If the parties do not agree on the changes to the terms and conditions proposed by Qundo within six (6) months of the declaration of rejection, either party is entitled to terminate the contractual relationship with a notice period of three months to which the change relates, provided that the continuation on unchanged terms is unreasonable for them. If the change affects the entire contractual relationship, the parties may terminate the contractual relationship altogether within a reasonable period of time under the conditions described above – taking into account regulatory requirements.

 

4 Principles of the Provision of Services by Qundo

(1) Qundo undertakes to provide its services with the necessary care.

 

(2) The services agreed with the customer are provided by the Qundo in compliance with the relevant laws and other mandatory regulations applicable in Germany. Upon notification of the amendment of such laws and regulations, Qundo shall immediately take measures to make appropriate adjustments within a reasonable period of time for the changes to take effect.

 

(3) The Qundo does not operate any partner business, financial services and investment services within the meaning of the activities listed in § 1 KWG or § 1 WpHG.

 

(4) In so far as the Qundo has to pay a statutory minimum wage (for example, in accordance with the provisions of the Minimum Wage Act), it ensures that its employees as well as the employees of any subcontractors receive the statutory minimum wage. In the event of a breach by Qundo of an obligation to pay a statutory minimum wage, it shall indemnify the customer from the claims of its employees or subcontractors employed by employees based on this in accordance with § 13 of the Minimum Wage Act.

 

5 Regulatory Provisions

The following provisions apply to all services of Qundo that are relevant under supervisory law in accordance with § 25b (1) KWG (“substantial outsourcing”).

 

5.1 Existence of the Required Permits

Qundo has the necessary permits for the respective outsourcing activity. If further permits are required in the future, Qundo undertakes to obtain them immediately.

 

5.2 Management and Control of the Outsourced Area

The customer is legally obliged to include outsourced activities and processes (operating areas) in his internal control procedures in order to be able to ensure the regularity of the relevant management and the retention of the management’s control and control options (§ 25b KWG, if applicable in § 80 (6) WpHG). In addition, audit rights and control options of the Federal Financial Supervisory Authority (BaFin) must not be affected by the outsourcing.

 

5.2.1 Ongoing Internal Control / Information Obligations

The obligation to conduct ongoing internal control during the process (identification, testing and elimination of errors/defects; “ongoing control”) of the area outsourced by the customer is taken over by Qundo. It shall immediately notify the Customer of material errors/defects (“material defects”) and their processing/elimination. In addition, Qundo reports all other developments that may affect the proper execution of the outsourced activities and processes accordingly.

 

5.2.2 Internal Control System

Qundo maintains an internal control system and supportsappropriate process management and instructions.

 

5.2.3 External Certification

Qundo undertakes to carry out the relevant tests in the area of Certified Data Protection and Verified App Security by suitable auditors and to receive the corresponding certificates. The audit reports must be made available to the customers promptly and unsolicited.

 

5.2.4 Bank Supervision / BaFin Audit Measures

To the extent permitted by law, Qundo declares its willingness to tolerate without restriction any audit measures taken by the ECB, BaFin and bodies commissioned by them with the audit with regard to the outsourced area.

 

5.2.5 Access / Inspection and Access Rights as well as Information Obligations

In order to exercise all the powers referred to in sections A.5.2.1 to A.5.2.4, Qundo grants the persons authorized to inspect or inspect all their business premises, rights of inspection or access to the files or data carriers/stocks as well as the right to make copies of the documents inspected, in each case to the extent necessary for the control activity. For the same purpose, Qundo also undertakes to provide additional information to the persons authorised to carry out checks or inspections – also irrespective of access and inspection measures. Qundo has the right to supervise access.

 

5.3 Performance and Quality Standards

When providing the outsourced activity, Qundo undertakes to comply with the standards prescribed by law or otherwise for the customer in Germany, including the provisions on data protection and banking secrecy, even if these go beyond the specifically agreed standards. It guarantees that it provides its service in a form that enables the customer to comply with his legal obligations towards customers and supervisory authorities in Germany. Further standard changes/improvements are subject to a consensual agreement between the contracting parties or a coordination in the committees set up at Qundo and responsible for this purpose, in which customers are represented accordingly.

 

5.4 Relocation

Qundo is only entitled to outsource the activities assumed to third parties in whole or in part by means of a written contract if it is ensured that the activity taken over is performed by the third party according to the same standards and in the same quality as under the respective contract. In particular, this presupposes that the third party contractually enters into Qundo’s obligations in such a way that the customer, its internal auditors, auditors or BaFin can, if necessary, directly assert their rights granted under this contract.

The customer must be informed in good time before the completion of a relocation to third parties. The customer has the right to object to the relocation for important reasons. An important reason is in particular if there are justified reasons for doubt that the third party provides the agreed service properly – especially according to the necessary standards – the assertion of the aforementioned rights is not ensured or if BaFin denies the admissibility of the concrete relocation – for whatever reason. The customer will give Qundo the opportunity in advance to remedy the important reason given.

 

The data protection agreements existing between the parties (see Section A.10) remain unaffected by the provisions in this section.

 

5.5 Emergency Planning

Qundo undertakes to include the services entrusted to it in its emergency concepts and to carry out appropriate emergency preparedness to comply with the contractually guaranteed availability. This is ensured in particular by carrying out emergency tests. The effectiveness of emergency preparedness is regularly checked by Qundo certification. The customer will be informed about the relevant emergency concept as well as any significant change in the context of an emergency preparedness report.

 

Qundo strives to reduce any impairments occurring during emergency exercises, e.B limitations of redundancies or service impairments, the performance-providing IT systems, to a minimum by carefully preparing the emergency exercises and to hedge remaining risks through fallback scenarios.

 

5.6 Continued Effect of Rights and Obligations

The rights and obligations agreed in accordy with Section A.5.2 shall continue to exist for a period of two financial years after the end of the financial year in which the respective contract – whether by termination or for any other reason – otherwise ceases to be valid. Fiscal year within the meaning of the above regulation is the customer’s fiscal year.

Insofar as the customer has a statutory retention obligation for all or parts of documents and databases with regard to the outsourced tasks (e.B. according to § 257 HGB, § 25a Abs. 1 KWG, § 147 AO), Qundo undertakes to store these documents and databases in accordance with these obligations (in accordance with the provisions in Section A.8) or – at the request of the customer – to hand over these documents, in each case even after the contract loses its validity (in accordance with the provisions in Section A.20).

 

If necessary, Qundo will provide the customer with unrestricted ownership of the documents.

 

5.7 Duty of Confidentiality

Qundo is obliged to maintain secrecy in accordance with the provisions of Section A.19. If the outsourcing activity concerns the processing of data of natural persons, the provisions in Section A.10 apply.

 

5.8 Other Safety Requirements

Qundo is obliged to comply with the access regulations to the rooms and buildings as well as access authorizations to software solutions for the protection of personal data as well as essential data and information specified in the appendix “Technical-organizational data protection measures and security of processing in accordance with Article 32 GDPR” to the existing data protection framework agreement with the customer.

 

6 Service Changes / Modification of Individual Contracts

(1) The services to be provided by Qundo are specified for each product/service in an individual contract. The performance characteristics defined there define the scope of the service owed in each case.

 

(2) In the case of services to be provided continuously, changes to the individual contract are possible unilaterally by Qundo if one or more of the following conditions are met:

a) The change represents an editorial or other change to the text of the contract without affecting the agreed scope of services.

b) The change serves to improve performance, e.B. improve user-friendliness, improve the implemented safety level, adapt to the state of the art, expand the range of functions or update software provided or used for the provision of services.

c) The change concerns obligations to cooperate or conditions to be created by the customer and this change is necessary due to adaptation to the state of the art, due to – according to this section permissible – changes to the service itself or for other comparable reasons.

d) The amendment serves to implement legal, regulatory or other regulations that are decisive for the respective service.

e) The change serves the purpose of troubleshooting, e.B. compliance with Qundo’s obligation to maintain the usability of the service in accordance with § 535 BGB.

f) The provision of the unchanged service is no longer possible due to measures taken by a third-party supplier, e.g., due to service changes, discontinuations or maintenance settings of a supplier.

g) The change is necessary due to asserted claims of third parties due to infringement of property rights and the conditions mentioned in Section A.18 are met.

 

Qundo will always take into account the interests of the customer in the trouble-free maintenance and performance of the partner operation in the event of service changes.

 

(3) Qundo will adapt the individual contracts on which the changed service is based, or the service certificates or other product descriptions referenced therein accordingly and provide the customer with the adapted version, e.B. electronically. Notification of the change shall be made at least 3 months in advance. In the event of a change in performance, the customer is entitled to terminate the affected service with a notice period of 2 months to the entry into force of the service change.

 

(4) Changes to the application manuals, documentation and other relevant documents do not constitute a change in the agreed scope of services, but merely document the adaptation of the concrete design and use of the services provided by Qundo. Changes to these descriptions are therefore possible at any time unilaterally by Qundo. These do not constitute changes in performance within the meaning of this regulation. They will be notified to the customer, e.B. electronically.

 

7 Customer’s Obligations to Cooperate

7.1 General

(1) A proper and timely provision of services by Qundo requires that the customer provides the general cooperation services described below as well as any other special cooperation services that are regulated in the special part of these terms and conditions or in individual contracts in good time. Required cooperation services can also be agreed after conclusion of the respective individual contract.

 

(2) If obligations to cooperate are not provided in time, the customer shall bear the associated risks and Qundo shall be liable for damages culpably caused by this. If delays and/or additional expenses arise, Qundo may – without prejudice to further legal rights – demand a change in the schedule and appropriate compensation.

 

7.2 Creation of Conditions in the Customer’s Sphere of Operation

(1) The customer shall create free of charge all conditions in the area of his sphere of operation that are necessary for the proper execution of the contractual services by Qundo.

 

(2) The customer checks on weekdays whether Qundo has provided information by electronic means concerning the contractual services.

 

(3) The customer is responsible for the provision, correctness and completeness of all information, work documents and work equipment that Qundo needs from the sphere of the customer for the execution of the services. It grants Qundo and subcontractors commissioned by Qundo access to buildings and premises to the extent necessary for the provision of services and provides Qundo with the necessary infrastructure.

 

7.3 Training of Employees

The customer shall ensure that his employees are sufficiently trained before using the applications approved by Qundo. In the case of training by third parties or internal training, it must be ensured that the content, scope and quality correspond at least to any training offers offered and communicated by Qundo.

 

7.4 Grid Connection

(1) Prerequisite for the use of the services of Qundo is a sufficiently dimensioned network connection between the customer and Qundo in accordance with the respective corresponding specifications of Qundo. The customer can order the installation of a connection or extension of an existing connection from Qundo for a fee.

 

(2) From network connections of the customer to networks of third parties (for example, group networks, local Internet providers) outside the network for which Qundo is responsible, considerable risks may arise for the infrastructure, the customer’s data, as well as for the entire network, including all institutions connected to it and their data. The customer therefore undertakes not to connect systems and networks with direct or indirect network access to a third party without appropriate protective measures. The framework conditions for setting up a third-party network connection from individual or all locations of the customer are defined by the corresponding current IT security specification of Qundo. This must be adhered to.

 

(3) The components of the customer’s own network must comply with the specified conditions of use defined by Qundo and notified to the customer, insofar as Qundo’s services are used in this way. If the customer integrates unleased decentralized systems (hardware and software) with other specifications into his own networks, he bears the associated risks and is liable for damages incurred by Qundo or, if applicable, third party customers of Qundo. A claim to support does not exist in this respect.

 

7.5 Operation of Decentralized Systems

Access protection to the customer’s decentralized systems and access protection to decentralized applications and databases must be ensured by the customer in accordance with his specific security requirements. In particular, the customer must issue guidelines for the handling of the decentralized components and check their compliance.

 

7.6 Reporting of Security Incidents

(1) The customer is obliged to inform Qundo immediately of significant disturbances in the integrity, reliability, authenticity or availability in his area of responsibility that may or have led to an impairment of the functionality or information security of the IT systems operated or provided by Qundo.

 

(2) Likewise, the customer is obliged to inform Qundo immediately of significant disruptions that may or have led to an impairment of the integrity, confidentiality, authenticity or availability of the data exchanged between the contracting parties via defined interfaces or IT systems. A corresponding malfunction exists, for example, if the data exchanged via defined interfaces has become known to unauthorized third parties (violation of confidentiality) or has been manipulated (violation of integrity/authenticity) or has been lost (violation of availability).

 

8 Customer Data

(1) If necessary, the customer is entitled to process data and content on Qundo’s IT systems provided for this purpose.

 

(2) In doing so, the customer is responsible for the storage of this data and content, if necessary, in accordance with the relevant commercial and tax regulations. Something else only applies if Qundo has been expressly commissioned with a corresponding storage of documents within the framework of an individual contract.

 

In this case, Qundo will store the data and content (including the procedural documentation) in accordance with the relevant legal provisions (in particular in accordance with the principles for the proper management and storage of books, records and documents in electronic form as well as for data access – GoBD) for the duration of the statutory periods.

If this contractual relationship ends, Qundo will hand over the stored data to the customer. For this purpose, the provisions on termination support in Section A.20 apply.

 

(3) In order for Qundo to be able to provide its services, the customer grants it the non-exclusive, free right of use within the meaning of the Copyright Act, limited in time to the duration of the respective contractual relationship, to use the data stored, processed and createdby him on Qundo’s IT systems (including, if applicable, endcustomer data), databasesand other content within the scope of the purpose of the contract to the extent necessary. This right of use exists insofar as this is appropriate or necessary for the provision of the agreed services (in particular within the framework of individual contracts). The customer will ensure in relation to third parties that he is authorized to grant these rights.

 

This right of use entitles Qundo within the scope of the service contract in particular also, in particular, to data of the customers

for the internal development and maintenance of customer applications, e.B. forecasting systems,

for the provision of benchmark or key figure systems for customers in anonymous form (without conclusions about individual customers),

and in anonymous form (without conclusions about individual customers) for structured evaluations and comparisons with regard to possible fields of action or sales approaches of the customers. The data protection provisions in Section A.10 remain unaffected by this granting of rights of use.

 

(4) The customer undertakes not to store, process or create any content on Qundo’s IT systems that violates applicable law, official requirements or the rights of third parties or to use the IT systems for this purpose.

 

(5) Qundo is entitled to block access to data and content immediately, to remove this data from all Qundo IT systems and to terminate the affected contractual relationship without notice in the event of continuous or repeated violations, if this violates applicable law, official requirements or the rights of third parties or if there is a justified suspicion of illegality or infringement of property rights. A justified suspicion exists if Qundo receives a corresponding instruction/order from a court, an authority or another state body or receives a written warning from a third party.

 

The measures are carried out considering the legitimate interests of the customer and in compliance with the data protection requirements. The customer will be informed about the measures. Qundo is not liable for any data loss that may arise as a result.

 

(6) Paragraph 5 shall apply mutatis mutandis if the customer data or content endangers or impairs the operation of Qundo’s IT systems, the communication network or the functionality, security or integrity of the data or applications of other Qundo customers or if this is imminent.

 

9 Technical and Organizational Equipment of IT Systems and Processes

(1) The scope and quality of Qundo’s technical and organizational equipment is based in particular on internal requirements, business activities and the risk situation of Qundo and its customers.

 

(2) Qundo guarantees that the IT systems (hardware and software) and the associated IT processes

integrity,

availability,

the load capacity,

authenticity,

as well as confidentiality

of the data is ensured. The corresponding design of the respective IT systems and processes is based on common standards.

 

In particular, Qundo has processes in place for an appropriate allocation of IT authorizations, which ensure that each Qundo employee only has the rights he or she needs for his or her respective activity.

 

The corresponding suitability of the IT systems and processes is regularly checked, evaluated and evaluated by the responsible employees or partners of Qundo.

 

(3) The IT systems used are tested before their first use and after significant changes by Qundo and approved by both the technically and technically responsible employees. The corresponding development, testing and approval activities as well as the implementation in the production processes are based on a control process established at Qundo. Production and test environments are basically separate from each other. The development and modification of programmatic specifications on the IT systems are carried out with the participation of Qundo’s technical and technical staff.

 

The customer’s obligation to check the Qundo’s work results in accordance with section A.7.3 remains unaffected by the provisions in this paragraph.

 

10 Protection of Personal Data

(1) Insofar as Qundo processes personal or related data of the customer in the provision of the agreed services, this shall be done on behalf of and in accordance with corresponding instructions given by the customer.

 

(2) The data protection agreements between the parties shall apply to all order processing referred to in paragraph 1.

 

11 Intellectual Property Rights and License Management

11.1 Property Rights

Subject to supplementary and/or deviating provisions in the particular part of these terms and conditions or individual contracts, the following applies to the handling of property rights:

 

(1) The entire intellectual property of Qundo or its licensors remains the sole ownership of Qundo or its licensors. This applies in particular to the intellectual property of Qundo or its licensors in software provided or used, in concepts, descriptions and documentation. The entire intellectual property of the customer or its licensor remains in the sole ownership of the customer or its licensors.

 

(2) The intellectual property of work results created in the context of the execution of the contract lies exclusively with Qundo.

 

(3) “Intellectual property” means all current and future (i) trademark rights, copyright and related rights, design, utility model and patent rights, registered designs and comparable property rights and (ii) rights of use and exploitation of such property rights.

 

(4) Upon conclusion of the respective individual contract, the contracting parties grant each other the simple, revocable right to use the intellectual property of the other contractual partner, limited in time to the respective agreed contract term, insofar as this is necessary for the execution of the contract or for the intended use in accordance with the respective purpose of the contract. The granting of rights to the customer is subject to full payment of the respective service.

 

11.2 License Management

(1) The use of the software provided by Qundo by the customer may require the assignment of licenses to individual systems/devices (device-based licenses) or users (user-based licenses) due to corresponding manufacturer/supplier specifications. The customer hereby authorizes Qundo to assign software licenses to systems/devices or users in such a way as is necessary for a correct licensing of the software provided by Qundo. The customer shall fulfil any agreed obligations to cooperate in the recording and assignment of licenses in good time.

 

(2) For software not provided by Qundo, the customer fulfils all obligations in connection with licensing on his own responsibility.

 

12 Monitoring and Remote Maintenance

(1) Qundo monitors the availability, stability, quality, performance and utilization of applications and IT systems, including the customer’s systems managed by Qundo. The customer does not receive any evaluations of the data collected in this way; Individual contractual provisions on Qundo’s reporting services remain unaffected by this.

 

14 Audit Suppliers and Qundo

(1) Contractual terms and conditions of software manufacturers and software suppliers of Qundo may provide that audit may be carried out for the purpose of ensuring compliance with contractual conditions. Qundo strives to make such audits dispensable or to limit their scope.

 

(2) Qundo is also entitled to carry out audits of the customer itself in order to ensure compliance with the terms of the contract by the customer. Qundo will only exercise this right if there is reason to doubt the customer’s compliance with the terms of the contract or if the customer has been selected to carry out a random examination.

 

(3) Should a check of the customer’s conformity with the contract be carried out, the customer will tolerate this audit and support Qundo appropriately. Customer will provide the information necessary to verify contractual compliance, including system and installation information. The obligation to provide information only extends to information that can be provided by the customer without violating data protection regulations or the partner secret.

 

(4) Qundo shall ensure compliance with the relevant data protection regulations in its sphere of risk.

 

15 Remuneration

15.1 Principles of Remuneration

(1) The remuneration to be paid by the customer results from the respectively valid general price list of Qundo as well as any individual contracts concluded, e.g., service contract.

 

(2) All prices are exclusive of the applicable statutory value added tax.

 

15.2 Billing According to Expenditure

If billing is agreed for services according to actual expenditure, the following applies:

(1) If the amount of the person-day rate has not been agreed in the case of billing according to person-days, the daily rate shown in the current price list at the time of the respective conclusion of the contract shall apply.

 

(2) A person’s day comprises eight (8) working hours. Non-full person-days are billed pro rata based on an hourly calculation. Travel times are also billed as working time. Expenses will be charged additionally.

 

(3) Qundo will show the expenses made in a separate statement.

 

15.3 Price Adjustments

(1) Qundo is entitled to unilaterally adjust the remuneration for services to an appropriate extent if its costs for the provision of these services change.

 

(2) Cost increases and thus price increases may lead in particular to:

Increase in costs for (further) development of the provided software, in particular the partner procedure, e.B. due to implementation of legal, regulatory or other requirements

Increase of maintenance and care costs

Wage increases

Increase in costs for the purchase, operation and maintenance of hardware and/or software used

Increase in purchase prices

 

(3) Price adjustments will be announced by Qundo in text form 3 months before their effectiveness. The customer is entitled to terminate the product affected by the price adjustment in writing within a period of 2 months from the announcement of the price adjustment at the time of the effectiveness of the adjustment.

 

15.4 Billing

(1) Qundo’s services shall be billed in accordance with the provisions of the respective individual contract. Services rendered on an ongoing basis are usuallybilledmonthly according todaily. All invoices are payable immediately without deductions.

 

(2) Qundo’s remuneration claims shall be collected by SEPA direct debit mandate. The customer hereby revocably authorizes Qundo to collect the payments to be made by direct debit from the customer’s account when due.

 

16 Material Defects and Defects of Title (Warranty)

(1) Claims for defects by the customer shall become statute-barred 12 months after the respective beginning of the limitation period.

 

(2) Liability for defects does not include the elimination of errors or the resulting additional expenses caused by external influences, operating errors and changes or installations and installations not carried out by Qundo.

 

(3) Qundo is not responsible for ensuring that the services it provides meet certain expectations of the customer or are suitable for certain purposes of the customer, unless these are agreed in the respective individual contract between the parties.

 

(4) The assignment of claims for defects to third parties is excluded.

 

(5) Unless otherwise agreed between the parties in these terms and conditions or in an individual contract, the statutory warranty provisions shall otherwise apply to the services of Qundo.

 

17 Liability

(1) Qundo shall be liable without limitation for damages alike injury to life, limb or health that are based on an intentional or negligent breach of duty by Qundo, a legal representative or a vicarious agent as well as for other damages based on an intentional or grossly negligent breach of duty by Qundo, a legal representative or a vicarious agent.

 

(2) If Qundo assumes a guarantee, Qundo is liable within the scope of this guarantee.

 

(3) Qundo is liable for “other damages” in accordance with paragraph (1), 2nd half sentence, which are caused by slight negligence only in cases of breach of obligations, the fulfillment of which makes the proper execution of the contract possible in the first place and on the observance of which the customer may regularly rely (cardinal obligations). In these cases, liability is limited to the typical damage foreseeable at the time of conclusion of the contract.

 

(4) In the event of liability of Qundo pursuant to paragraph 3, Qundo’s liability per claim shall be limited to a maximum amount of EUR 1 (one) million, and for all damages per calendar year to a maximum amount of EUR 3 (three) million.

 

(5) In the event of liability on the part of Qundo in accordance with paragraph 3, Qundo’s total liability in the event of serial damage, i.e., a case of damage affecting at least five of Qundo’s customers, shall be limited to EUR 3 (two) million for all injured parties. The available liability sum is distributed among the injured parties as a percentage in proportion to the proven amount of damage.

 

(6) In the event of data loss, Qundo shall only be liable for the effort required for the reconstruction of the data in the event of contractual data backup by the customer.

 

(7) The above limitations of liability also apply to claims arising from tort, insofar as these compete with excluded or limited contractual claims.

 

(8) Claims arising from the Product Liability Act or due to fraudulent intent on the part of Qundo remain unaffected by the above limitations of liability.

 

(9) Damages to be paid by Qundo to the customer shall be reduced by a possible contributory negligence share of the customer in accordance with the detailed requirements of § 254 BGB (German Civil Code). Contributory negligence within the meaning of this provision shall be deemed to be in particular if the customer does not immediately report detected defects in the provision of services to Qundo or if the customer does not immediately notify Qundo of recommendations for action and information and therefore recognizable defects in the services. Qundo’s liability shall be reduced to the extent that the failure to report detected or – in compliance with the recommendations for action and indications – recognizable defects in the service was partly the cause of the damage incurred.

 

18 Property Rights of Third Parties

If a third-party assert claims against the customer due to the infringement of property rights by the software provided by Qundo and the use of this software is thereby impaired or prohibited, the following applies:

 

(1) Qundo will try to obtain a license for use from the owner of the property right or to change the software provided at its own expense or replace it – if necessary, with alter-native software – in such a way that there is no longer any infringement of property rights, but the software essentially still corresponds to the agreed functional and performance characteristics in a reasonable manner for the customer.

 

(2) If Qundo does not succeed in this under reasonable conditions, it will inform the customer of this and may prohibit him from using the software provided from a point in time determined by qundo. Qundo will make reasonable efforts to keep impairments of the customer’s operability due to failure or restrictions of essential software as low as possible. The customer is obliged to ensure that in the event of a prohibition of use by Qundo, the software provided, including the documentation, can no longer be used. A claim to remuneration only exists for the period in which the software provided could be used by the customer. The customer’s right to claim damages in accordance with the following provisions remains unaffected by this.

 

(3) In the event of damages based on a culpable infringement of third-party property rights by Qundo, Qundo shall be liable in accordance with the additional conditions in A.17. of these Terms and Conditions.

 

(4) The customer is obliged to inform Qundo immediately of any claims of third parties. He is not entitled to acknowledge the alleged infringement of property rights and must either leave a dispute with the third party, including any out-of-court regulations, to Qundo or only in agreement with it. Qundo is obliged to support the customer in the defense or to take over this – as far as procedurally possible.

 

(5) Insofar as the customer is responsible for the infringement of property rights himself, claims against Qundo are excluded.

 

19 Confidentiality

(1) As part of the cooperation, the customer and Qundo disclose to each other information, documents and knowledge, hereinafter referred to as “confidential information”. Confidential information is without limitation all trade and business secrets of the parties as well as other business, financial, technical or other information requiring confidentiality, regardless of whether it is communicated in writing, orally or in any other form. Confidential information is information that is either marked as confidential or whose need for secrecy for the receiving party results from the circumstances. The provisions on the protection of personal data, see Section A.10, remain unaffected by the provisions in this section.

 

(2) In particular, these include:

Information about inventions, processes, software, specifications and other know-how regardless of whether they are eligible for intellectual property rights

Documentation, process descriptions, application manuals, training documents, organizational descriptions

Methods, procedures or tools based on this paragraph 2 lit. a. or lit.b. obtain the information described

Information about financing, business plans, suppliers, customers, contract partners, products, business processes, sales secrets,

Partner data and other information subject to thepartner’s secret.

 

(3) Confidential information shall not include information which can be shown to be:

were already publicly available at the time of their disclosure or became publicly available at a later date without violating the provisions of this section,

the receiving party has received from third parties who have not breached any obligation of confidentiality vis-à-vis the disclosing party, or

have been independently developed by the receiving party without recourse to or use of confidential information of the disclosing party.

 

(4) Any party may disclose confidential information if and to the extent that it is obliged to do so by law, regulation, final judgment or final official decision, provided that it – subject to legal admissibility –

immediately informs the other party of the obligation to disclose, and

has given the other party an appropriate opportunity to attack the sovereign measures listed above and has provided it with appropriate assistance in preventing the passing on of the confidential information.

 

In addition, Qundo is entitled to pass on confidential information to German security and law enforcement authorities for prevention purposes, provided that the information does not relate to personal data and not to individual customers of Qundo, and the requesting authority justifies its legitimate interest in the information in a comprehensible manner and the customer does not suffer any disadvantage as a result.

 

(5) The parties undertake to maintain strict confidentiality with regard to the confidential information received and to use it only for the execution of the contract. In particular, Qundo undertakes to maintain this confidentiality through special technical, personnel and organizational measures, also in the relationship between different customers.

 

(6) In the context of the use of confidential information for the execution of the contract, a transmission of this information to third parties may be necessary. The customer therefore agrees to:

that confidential information is passed on by Qundo to third parties involved in the execution of the contract (e.g., service providers, suppliers) and those commissioned with consulting services as well as to affiliated companies within the meaning of §§ 15ff AktG,

that confidential information that is necessary for the execution of Qundo’s contract with manufacturers/suppliers/licensors of provided software or IT systems (e.g., company, address, scope of use of software) will be passed on by Qundo to these third parties,

that in the event of an audit in accordance with Section A.14, the required confidential information (e.g., company, address, scope of use of software) will be passed on by Qundo to its respective contractual partners/software suppliers. In the event of an audit, Qundo is also entitled to pass on the necessary information (e.g., company, address, scope of use of software) to a third party commissioned by Qundo with the provision of consulting and support services.

 

(7) The transmission of confidential data to third parties otherwise requires the prior written consent of the disclosing party.

 

(8) Any transfer also presupposes that the third parties are obliged to maintain confidentiality accordingly (which must be proven to the disclosing party on request) and that the transfer complies with the relevant regulatory and data protection requirements.

 

(9) The parties will oblige their own employees to whom confidential information and/or information is handed over in writing to confidentiality and, in the case of information subject to the partner’s secret, to comply with the banking secret.

 

(10) The obligation of confidentiality under this Section A.19 shall apply indefinitely.

 

(11) All Confidential Information, regardless of its embodiment, remains the property of the disclosing party; in this respect, the latter reserves all rights thereof (e.B. copyrights and industrial property rights) of any kind. This also applies to all reproductions of the confidential information.

 

(12) Insofar as the confidential information is personal data within the meaning of the data protection laws, the provisions in Section A.10 also apply for this purpose.

 

20 Contract Term/ Termination Support

(1) The entry into force, the notice periods and, if applicable, agreed minimum contract periods result from the respective contract. If no notice periods and no fixed terms have been agreed in the contract, this can be terminated with a notice period of 12 months to the end of a calendar month.

 

The following provisions apply to the termination of all contracts.

 

(2) The right to extraordinary termination of contracts for good cause remains unaffected. An important reason exists for Qundo in particular if the customer violates not only insignificant contractual conditions and he does not refrain from these violations even after a notice by Qundo and the expiry of a reasonable period of time for remedy.

 

(3) With the termination of the respective contractual relationship, all granted rights that were granted for the duration of the contract end. If necessary, Qundo will take (technical) measures to prevent the customer from continuing to use the respective services of Qundo after the end of the contract.

 

(4) After termination of the respective contractual relationship, the customer and Qundo are obliged to hand over IT systems and other objects that are the property of the other parties within the framework of the contractual relationship to them after further agreement.

 

(5) Qundo supports the customer in providing the services affected by the termination of the contract itself or having them provided by a third party.

 

In particular, Qundo will hand over the customer’s data and content stored on its IT systems to the customer at the request of the customer with a reasonable deadline. The assertion of a right of retention on this data according to § 273 BGB on the part of Qundo is excluded. Other data that is only related to the provision of services to the customer, such as configurations, authorization concepts, etc., will not be released to the customer.

 

The release of the data takes place in a customary format to be agreed between the parties, which enables the intended further use of the files and databases in an IT system of the customer or a third-party provider.

 

(6) Unless otherwise agreed in the context of termination support, Qundo will completely uninstall the customer applications installed on Qundo’s IT systems immediately after termination of the respective contractual relationship or after provision of the agreed termination support and completely delete stored data and content of the customer.

 

Qundo is entitled to store documentation and data that serve as proof of order and/or proper data processing beyond the end of the contract in accordance with the respective statutory or contractual retention periods.

 

(7) With regard to the deletion or disclosure of personal data, the agreed data protection regulations also apply (see Section A.10).

 

(8) The details of the services to be provided within the framework of the termination support shall be determined by the parties in a separate agreement, which regulates in particular the services to be provided in detail, the dates and the remuneration. If there is no separate agreement on the remuneration, Qundo shall invoice the services according to expenditure in accordance with the provisions in Section A.15.2.

 

(9) The existing agreements on data protection between the parties (see Section A.10) remain unaffected by the provisions in this section 20.

 

21 Set-off and Retention, (Non-)Assignment of Claims

(1) The customer is only entitled to offset against claims of Qundo or assertion of a right of retention if and to the extent that his claim is undisputed, or his counterclaim has been legally established.

 

(2) The customer is not entitled to assign claims to which he is entitled against Qundo or the contractual relationship as a whole to a third party without the prior written consent of Qundo.

 

22 Use of Subcontractors

(1) Qundo is entitled to provide services owed by it with the help of subcontractors.

 

(2) The special rules for the use of subcontractors in the case of relocations relevant to KWG (see Section A.5.4) and for the processing of personal data (see Section A.10) remain unaffected by the provision in paragraph 1.

 

23 Changes in Company Law

(1) The customer shall inform Qundo in good time in advance of any upcoming changes in corporate law, in particular changes in name and planned mergers as well as changes of affiliation to a banking association.

 

(2) In the event of a merger with an institution that is also a customer of Qundo, the existing contracts of the merging institutions with Qundo shall remain in force. The parties will agree by mutual agreement on the modalities of merging the contracts. For the implementation of a project for the technical merger of the institutions, the parties will conclude a contract that regulates in particular the contents of the project, the schedule and the remuneration.

 

24 Final Provisions

(1) Declarations by the parties in connection with the conclusion of contracts, terminations or other declarations with legally binding content must be made in text form or in a stricter form in order to be effective. These requirements meet all declarations that meet the requirements of §§ 126, 126a and 126b BGB, in particular declarations, letters or other permanently reprehensible documents without signature or with facsimile signature, e-mails, faxes or computer faxes as well as declarations made within the portals provided (e.g. webshop). Furthermore, this form is preserved by publications of the Qundo by electronic means. The receipt of declarations that are announced electronically shall be deemed to have taken place upon publication by Qundo. In the case of publication outside the usual partner working hours, access shall be deemed to have taken place at the beginning of the next partner working day.

 

If “written form” or “written” conclusion has been agreed in these General Terms and Conditions or individual contractually, the form specified in this Section A.24 (1) shall be deemed to have been agreed in case of doubt. If a stricter form has been expressly agreed, this shall apply.

 

(2) Should individual provisions of these terms and conditions be invalid or void or if these terms and conditions have gaps, this shall not affect the validity of the remaining provisions. The parties shall replace or supplement the ineffective, void or missing provisions by mutual agreement with legally effective provisions corresponding to the economic purpose of the contract.

 

(3) The place of performance for the services to be provided by Qundo is the respective location of Qundo, unless otherwise stipulated in individual cases.

 

(4) All contracts of the parties are subject to the law of the Federal Republic of Germany to the exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The place of jurisdiction for all disputes between the parties arising from or in connection with this contract is Berlin.

 

B. Performance-specific regulations for the use of the QID identification service

1. Contracting Parties and Subject Matter of the Contract

The Identification Services are used to identify end users and verify your identification documents to third parties with whom you intend to enter into a business relationship or have a business relationship, such as banks, financial institutions, insurance companies, online platforms, car sharing providers, car rental providers and operators of entertainment platforms (“Partners”). As a rule, they carry out such verification of the end user in order to comply with legal requirements (in particular the Money Laundering, Telecommunications and Road Traffic Act, the eiDAS Ordinance or the Inter-State Treaty on the Protection of Minors in the Media) or to increase security with regard to the identity of their users. In this respect, Qundo acts as an independent identification service provider and only provides the respective identification service for and on behalf of the respective partner. Depending on the regulatory requirements and the service agreed with the partner, either the provisions of sections 4, 5 or 6 are decisive for you.

 

2. Qundo KYC Identification Process

The identification service for Qundo KYC is provided by Qundo as part of a process between the end user and an automated sequence of instructions. As part of such a process, the identity of the end user is verified on the basis of identity documents, depending on the specifications of the partner. The individual steps of the identification process are coordinated with the partner and recorded in the service contract.

 

3. Identification Process Qundo NFC KYC

The Qundo NFC KYC identification service is made available to the end user via a mobile app. Qundo NFC KYC serves to prove the identity of natural persons on the basis of an electronic proof of identity according to § 18 of the Identity Card Act by reading and transmitting certain data from the electronic storage and processing medium (“chip”) of the German so-called electronic identity card (“eID identity card”).

 

The processing of your personal data in the context of carrying out the electronic proof of identity only takes place in the autonomous technical functionalities of the service provider integrated into the app and the technical infrastructure (eID server) connected to them via a secure Internet connection, the secure communication with the chip of your eID identity card and the necessary connection to the infrastructure for the electronic Proof of identity is guaranteed. Further information on the procedure can be found on the Internet portal operated by the responsible Federal Ministry under www.personalausweisportal.de.

The identification process with the corresponding steps and the associated data processing is coordinated with the partner and recorded in the service contract.

 

4. Storage of a User Profile

Upon successful completion of the identity check, Qundo creates a user profile based on the information and personal data collected and stores it for the purpose of enabling the user to provide future proof of identity to other partners.  The actual use of the data from the user profile for a future identity check will only take place with the express consent of the user.

 

By creating the user profile, Qundo transmits a corresponding transaction number to the user or uses personal data for the unambiguous user assignment. The user can use this transaction number or this user assignment for future proof of identity via Qundo to partners, unless in individual cases further information about the user or other personal data of the user is required for the purpose of proof of identity.

 

The user is entitled to demand the deletion of his user profile from Qundo at any time without observing a notice period. Qundo may also block or delete the user profile immediately if the user seriously violates the legal basis of identity verification or the provisions of these GTC, in particular his obligations to cooperate. In these cases, Qundo will delete or destroy the respective user profile as well as the stored information and personal data as well as the photographs and documents obtained, subject to legal or contractual retention periods, and immediately block the user’s transaction number. A restore of the user profile is then not possible.

 

Qundo will also confirm the identification to other existing or future partners if the user authorizes Qundo to do so and the partner requests identification within the meaning of section 2.3 a. In this case, the provisions in Section 2.3 d. to g. shall apply accordingly. If the available information is not sufficient for identification, the additional information required will be requested.

 

The requirements for the creation of the user profile and the associated data processing are coordinated with the partner and laid down in the service contract.

 

5. Remuneration

Qundo shall provide the identification service to the end-user free of charge. Qundo receives a fee from the partners. Any charges for a data connection to the Internet necessary for the use of the identification service shall be borne by the end-user.

 

6. Cancellation policy

Withdrawal

You can revoke your contractual declaration within 14 days without giving reasons in text form (e.B. letter, fax, e-mail). The period begins after receipt of this instruction in text form, but not before conclusion of the contract and also not before fulfillment of our information obligations according to Article 246 § 2 in conjunction with § 1 paragraph 1 and 2 EGBGB as well as our obligations according to § 312g paragraph 1 sentence 1 BGB in conjunction with Article 246 § 3 EGBGB. To comply with the revocation period, the timely dispatch of the revocation is sufficient. The revocation must be sent to:

 

Qundo Technology GmbH,
Hardenbergstraße 27, 10623 Berlin

Tel: +49 69-713-7989-70Email:
kontakt@qundo.de

 

Consequences of revocation

In the event of an effective revocation, the services received by both parties must be returned and any benefits (e.B. interest) must be surrendered. If you are unable to return or surrender to us the received service and benefits (e.B. benefits of use) or only partially or only in a deteriorated condition, you must pay us compensation for the value in this respect. This may mean that you must nevertheless fulfil the contractual payment obligations for the period up to the revocation. Obligations to refund payments must be fulfilled within 30 days. The period begins for you with the dispatch of your declaration of revocation, for us with its receipt.

 

Special Notes

Your right of withdrawal expires prematurely if the contract has been fully fulfilled by both parties at your express request before you have exercised your right of withdrawal.

 

Exclusion of the right of withdrawal:

The right of revocation does not exist if you are acting in the predominant exercise of your commercial or independent professional activity when concluding the legal transaction and you are therefore to be regarded as an entrepreneur (§ 14 BGB).

 

Another important note:

You expressly agree that we will begin to perform the service before the end of the withdrawal period.