General terms and conditions
The KERBEROS Compliance-Managementsysteme GmbH,
Im Zollhafen 24, D-50678 Cologne,
hereinafter: "Contractor”
(as of November 2021)
1. Scope
The following terms and conditions shall apply to the entire business relationship between the Contractor and the Client. In addition, special terms and conditions shall apply to the provision of an external money laundering officer, if applicable, which contain deviations from or supplements to these General Terms and Conditions; they shall be agreed separately with the Client.
2. Method and manner of service provision
2.1. The Contractor is independent in the design of his activities and is only subject to the legal requirements, in particular those of the MLA and the applicable data protection laws. He makes decisions at his own discretion and is in principle not subject to any instructions from the client.
2.2. The Contractor shall provide the services as an independent contractor and not as the employee, agent, partner or coentrepreneur of the Client.
2.3. The services shall be provided by the Contractor with reasonable care and to the best of his knowledge and belief exclusively for the Client.
2.4. The Contractor is entitled to subcontract parts of the services to third parties. The responsibility for the services of the third party lies exclusively with the Contractor. Such subcontracting must be carried out in accordance with the Contractor's obligations towards the Client.
2.5. The Contractor shall provide the Client with Compliance Services as well as the technical possibility and authorization for online access to the digital platform via secure Internet access. Access to the digital platform and to the compliance services shall be provided by the Contractor at his own discretion
2.6. The Customer is not entitled to access and retrieve the services without access authorization. The use of the digital platform is a license limited in time and space, revocable at any time, within which the platform is used as agreed and services of the Contractor are retrieved by the Customer.
2.7. Any further use requires a separate written agreement between the Client and the Contractor. The Contractor shall be entitled to take appropriate technical measures to protect against non-contractual use and to temporarily or permanently block the Client in the event of a significant violation of the terms of use of these GTC.
2.8. The Client is aware that the use of the digital platform entails hardware and software requirements. The full scope of services can only be made available to the Client and his users if the hardware and software used is up to date in terms of type and condition.
2.9. The scope of functions, the technical requirements for use and further details are set out in the service description and the respective documentation for the respective service. These form the basis for the provision of the service by the Contractor. The information in that documentation does not constitute a quality guarantee for the respective service unless it is expressly designated as such.
3. Cooperation obligations of the customer
3.1. The Client shall provide the Contractor in due time with all data, information and access necessary for the performance of the services and shall grant the powers, authorizations and rights necessary for the performance or exercise of the services owed under this agreement.
3.2. The Client undertakes to provide the Contractor with the necessary support, in particular to collect the documents and data required for the performance of the activity and to transmit them truthfully, punctually and completely or to grant the Contractor access rights to them as well as to provide the Contractor with the required information.
3.3. All information provided to the Contractor must be correct and complete. The Client shall ensure that the information provided does not infringe any copyrights or other rights of third parties.
3.4. The Client shall inform the Contractor without delay if
a. Facts indicate the existence of a business relationship or the Client’s transaction that could serve to finance terrorism or that is intended to evade the access of law enforcement authorities to possibly incriminated funds
or to conceal the origin of illegal assets; or
b. the Client, his shareholders, his beneficial owners or other persons acting on behalf of the Client are associated in public, in particular through media reporting, with terrorist financing or with the withdrawal of illegal
funds from the reach of law enforcement authorities or with the concealment of the origin of illegal assets, unless there are reasonable doubts about the reliability of the publicly reporting medium or report; or
c. the Client, his shareholders, his beneficial owners or other persons acting on behalf of the Client are urgently suspected of committing or aiding and abetting money laundering as defined in Section 261 of the German Criminal Code (StGB), of participating in the financing of terrorism, of participating in the withdrawal of illegal funds from the access of the law enforcement authorities or of participating in the concealment of the origin of illegal assets. Urgent suspicion exists if, based on the results of the investigation to date, it cannot be ruled out that the accused committed the alleged offense as a perpetrator or participant.
3.5. The Contractor is entitled to rely on the information provided and, unless expressly agreed otherwise, is not responsible for evaluating it or verifying its accuracy.
3.6. The Client shall always provide a person in his company as a qualified contact person for the contractor in order to accelerate the communication channels between the Client and the Contractor (contact person with power of attorney). In addition, the Client shall appoint a member of the business level as the person responsible at management level for risk management within the meaning of the MLA. The contact person and the person responsible at management level can be the same person. The Client is responsible for all management decisions in connection with the Contractor's services, the use and implementation of the results of the services.
4. Prices, reimbursement of expenses and terms of
payment
4.1. The Client's payment obligation includes payment of the remuneration and certain expenses for the services. The Client is obliged to reimburse the Contractor for reasonable out-of-pocket expenses incurred by the Contractor in the course of rendering the services. The Contractor may demand reasonable advances and reimbursement of expenses and may make the handover of the results of the performance conditional upon full satisfaction of the payment claims.
4.2. Proven expenses caused by the provision of services (e.g. travel expenses) shall be reimbursed to the Contractor by the Client.
4.3. Travel expenses to be reimbursed are in particular:
a. all accommodation costs in lodgings with at least 4 stars - the selection is made under economic, transparent and reasonable aspects;
b. Travel costs for 2nd class train journeys, cab journeys and public transport costs;
c. Airfare in economy class and d. EUR 0.50 for each kilometer driven by car.
The Contractor reserves the right to choose the means of transport. However, the Contractor is obliged to calculate travel costs according to the shortest distances in each case and to minimize the costs of travel so that no disproportionate costs arise.
4.4. Prices are net prices without any applicable sales tax.
4.5. Price changes caused by changes in the contractual services or by changes in the legal framework, in particular the MLA, are negotiated and determined jointly.
4.6. Payments are due and payable within 14 days from the date of invoice and performance.
4.7. If, after conclusion of the contract, it becomes apparent (e.g. by filing for insolvency proceedings) that payment claims of the Contractor are jeopardized by the Customer's inability to pay, the Contractor shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (Section 321 BGB).
5. Force majeure/interruption of operation
5.1. Neither of the contracting parties shall be responsible for any breach of the Contract Agreement (except for payment obligations) if such breach is caused by circumstances beyond the control of the Contracting Parties ("Force Majeure").
5.2. Interruptions in the operation of one, several and/or all locations for which the Contractor is not responsible and which are not due to a breach of duty for which the Contractor is responsible shall not affect the Client's obligation to pay remuneration. This applies in particular, i.e. not conclusively, to demonstrations, events, traffic detour, construction work on public roads, pandemics or epidemics and/or (temporary) closures due to official orders. The associated risk shall be borne by the Client.
6. Confidentiality
6.1. The contracting parties undertake to use all confidential information received only within the scope and for the purpose of the execution of the contract and to keep it secret and to exercise the same care as with regard to their own information of similar importance, but at least an appropriate degree of care. Any other use or disclosure of confidential information shall only be permitted if and to the extent that the contractual partner has given its prior written consent.
6.2. "Confidential Information" means commercially, legally, fiscally or technically sensitive or advantageous information of the party that becomes known to the other party. Confidential information may be such information that is in any way identifiable as confidential or legally protected or whose confidential content is obvious. The term includes any visual material such as documents, writings, notes, documents, digital records, etc. as well as oral communications.
6.3. Confidential information or parts thereof may only be disclosed to external consultants who are bound to confidentiality or such representatives who are required for the relevant order execution and have been informed of the confidentiality of the information given. The contracting parties expressly declare to be liable for any culpable violation by their representatives.
6.4. This obligation to protect confidential information does not include information that is publicly known. Publicly known information is information which demonstrably was already accessible to the contracting party or its organs, employees and agents prior to its disclosure or which became publicly known through no fault of the contracting party during the term of the contractual relationship. Furthermore, the term "confidential information" shall not include such information which the contracting party has obtained itself, provided that this is proven by written records of the contracting party or in any other way and no contractually stipulated obligations are undermined.
6.5. The obligation to maintain confidentiality shall not apply to courts and authorities insofar as there is a legal obligation (including under criminal law) to disclose/issue such information or the respective information is relevant in a civil lawsuit between the parties or between one of the parties and a third party. The other party shall be notified immediately of any disclosure of confidential information.
6.6. The contracting parties are permitted to use electronic media for the exchange and transmission of information. Such use shall not constitute a breach of confidentiality obligations per se. The contracting parties are aware that the electronic transmission of information (in particular by email) involves risks.
7. Liability
7.1. Unless otherwise stated in these GTC, the Contractor shall be liable for a breach of contractual and non-contractual obligations in accordance with the statutory provisions. The Contractor shall be liable for damages - irrespective of the legal grounds - within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence, the Contractor shall be liable, subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty), only
a. for damages resulting from injury to life, limb or health,
b. for damages resulting from the breach of an essential contractual obligation (obligation, the fulfillment of which enables the proper execution of the contract in the first place and on the observance of which the contractual partner regularly relies and may rely); in this case, however, the liability of the Contractor shall be limited to the compensation of the foreseeable, typically occurring damage.
7.2. The limitations of liability resulting from the above numbers shall also apply in the event of breaches of duty by or in favor of persons for whose fault the Contractor is responsible in accordance with statutory provisions.
The claim shall expire if no action is brought within a period of six months after the written rejection of the compensation, provided that the Contractor has been advised of this consequence. This shall not apply to claims for damages which are attributable to intentional conduct and in the event of culpable injury to life, limb or health. The right to assert the defense of limitation shall remain unaffected.
7.3. The Customer may only rescind or terminate the contract due to a breach of duty if the Contractor is responsible for the breach of duty. A free right of termination of the Client (in particular according to § 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
7.4. The Contractor shall only be responsible and liable to the Client. The Client shall indemnify the Contractor against all claims asserted by third parties against the Contractor in connection with this agreement. In particular, the responsibility for the proper fulfillment of the obligations of the MLA shall remain with the Client.
8. Privacy
8.1. The contractual assignment includes the processing of personal data pursuant to Art. 4 No. 1 GDPR. The parties shall comply with all data protection requirements within the scope of the execution of the contract, in particular from the GDPR, the BDSG and the MLA. This includes in particular ensuring sufficient technical and organizational measures pursuant to Art. 32 GDPR.
8.2. The parties agree that the Contractor, in the course of providing support in the planning and implementation of the obligations under the AMLA to manage and mitigate the risks of money laundering and terrorist financing and in the course of providing a money laundering officer and a deputy money laundering officer within the meaning of Section 6 (2) No. 2 and Section 7 AMLA, shall not act as a processor of the Client pursuant to Art. 28 GDPR, but shall be responsible for the data processing pursuant to Art. 4 No. 7 GDPR. The Contractor shall act as a processor pursuant to Art. 28 GDPR when providing the due diligence, e-learning and whistleblowing system services.
8.3. The Client shall take all precautions to ensure the legality of the data transfer to the Contractor. In particular, the Client undertakes to inform his end customers of any data transfer to the Contractor as part of the data subject information. In the course of this, the Client also undertakes to inform his customers about the data processing by the Contractor. For this purpose, it shall refer in an appropriate manner to a data protection declaration of the Contractor, which the Contractor shall make available to the Customer in its current version.
9. Term and termination
9.1. The terms and conditions of the contract agreement shall apply to the services under the contract agreements (including such services provided prior to the signing of the Contract Agreement) regardless of the date of their execution.
9.2. The contractual agreement shall end upon completion of the services, unless otherwise agreed in the contractual agreement. In addition, the Contractor shall be entitled to terminate the contractual agreement or a specific service without notice if the Contractor concludes on reasonable grounds that it can no longer provide the services in accordance with applicable law.
9.3. The Contractor shall be entitled to terminate the entire business relationship or parts thereof without notice if the Client fails to comply with one or more of his obligations to cooperate under the preceding clause and fails to do so within two weeks even after a warning. This right to extraordinary termination without notice also includes, in particular, the provision of a money laundering officer and the deputy money laundering officer, if applicable.
9.4. In the event that the Client should close one or more locations during the term of the contract, the Client shall be granted a special right of termination with a six-month notice period with respect to the closed location(s). This special right of termination shall be exercised in writing vis-à-vis the Contractor within three months of closure. If it is not exercised within the aforementioned three months after closure, it shall be forfeited and can no longer be exercised. The parties clarify that a. a closure in the aforementioned sense shall only be understood as the complete discontinuation of business. If the Client changes to another franchise partner or otherwise operates a business at this location, whereby it remains an obligated party within the meaning of the same group of obligated parties under the MLA, the Customer shall not be entitled to the special right of termination. However, he shall notify the Contractor of the change to another franchise partner without delay;
b. with the closure of one or more sites, the Contractor's performance obligations for the sites concerned shall automatically expire without any declaration by the parties being required.
9.5. The Client is obliged to compensate the Contractor for services already commenced or completed, as well as to reimburse expenses incurred (by the Contractor) up to the date of termination of the contractual agreement.
9.6. The right to terminate for cause shall remain unaffected.
9.7. Any notice of termination must be in writing to be effective and must be delivered to the other party by registered mail.
9.8. After termination of the contract, the Contractor shall continue to be entitled to use the data received from the Client in order to comply with the statutory duties then still applicable, in particular the statutory duty to retain data. For the period in which these obligations apply, the Client's audit rights shall continue to exist after the termination of the contract.
9.9. The respective confidentiality obligations under the contractual agreement shall continue to apply for a period of two years after termination of the contractual agreement.All other provisions of the contractual agreement which establish rights and obligations of the contracting parties beyond the termination of the contractual agreement shall continue to apply for an unlimited period of time after the termination of the contractual agreement.
10. Necessary contract amendments
The Contractor shall be entitled to unilaterally change, extend or adapt the services (hereinafter referred to as "Changes"). Changes that do not have a material impact on the Contractor's performance of the services do not require the prior consent of the Client. The same shall apply to changes made based on adjustments to the statutory or regulatory framework conditions, court decisions or official requirements. Significant changes to the contractual services are only possible with the prior consent of the Client. All changes to the contractual services shall be notified by the Contractor. In the case of insignificant changes, the consent of the Client shall be deemed granted if the Contractor does not receive a written objection from the Client within one month after notification of the changes. An objection shall entitle both the Client and the Contractor to terminate the contract as of the effective date of the change.
11. Other
11.1. These GTC shall apply exclusively. Deviating, conflicting or supplementary GTC of the Customer shall only become part of the contract if and to the extent that the Contractor has expressly consented to their application. This consent requirement shall apply in any case, for example even if the Contractor provides the services to the Client without reservation in the knowledge of the Client’s GTC.
11.2. The contractual agreement and all non-contractual matters or obligations arising from the contractual agreement or the services shall be governed by German law, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
11.3. The exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Cologne. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.
11.4. Unless the parties have agreed otherwise, the place of performance shall be Cologne.
11.5. An assignment of the rights, obligations or claims arising from the contractual agreement is not permitted. Offsetting against the Contractor's claims for remuneration and reim-
bursement of expenses is only permissible with undisputed or legally established claims.
11.6. Should a provision in these GTC or a provision within the scope of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.
11.7. In the event of contradictions or ambiguities between the provisions of the contractual agreement, the following order of precedence shall apply (unless expressly agreed oth-
erwise): (a) the contract / order, (b) the relevant service description, (c) these GTC and (d) the other annexes to the contractual agreement.
11.8. The parties shall be entitled to use or refer to each other's name, logo or trademark for informational and marketing purposes until such use is prohibited in writing by the other
party.