Platform Terms of Use for ESG Peers

Please read these terms carefully before using our community.

Preamble

The following general terms and conditions (“GTC”) apply to the use of the ESG.Peers platform for the exchange, collaboration and knowledge sharing on ‘Environmental, Social and Governance‘ (“ESG”) topics (hereinafter the “Platform”), accessible via the website esgpeers.org, and to related services provided by osapiens Holding GmbH, Julius-Hatry-Straße 1, 68163 Mannheim, Germany (“osapiens”).

The GTC govern both the provision of the Platform and the relationship as well as the rights and obligations of the organizations that offer ESG-related insights, expertise or resources on the Platform (“osapiens Partners”) and the organizations that engage with such insights, expertise or resources or seek information or collaboration opportunities related to ESG topics on the Platform (“Participants”). osapiens Partners and Participants are hereinafter collectively referred to as “Peers.” Peers and osapiens are hereinafter collectively referred to as “Parties”.

1. Definitions
   1. Unless otherwise stated or the context requires otherwise, words in the singular include the plural and vice versa. The terms “including” or “in particular” are used to illustrate examples and are not to be construed as limiting the scope or meaning of the surrounding text. Headings and captions are for reference only and shall not affect the interpretation of these.
   2. The following definitions apply to the contractual relationship between the Parties:
      • a) “Affiliated Companies” means companies affiliated with a Peer within the meaning of §§ 15 et seq. of the German Stock Corporation Act (Aktiengesetz).
      • b) “Cardinal Obligations” has the meaning given to it in section 9.2.
      • c) “End User” means each employee, freelancer, agent or any other individual natural person who applies for a Platform Account on behalf of a Peer and, if such Platform Account is approved, uses the Platform in the name of the Peer in accordance with these GTC.
      • d) “ESG” has the meaning given to it in the Preamble.
      • e) “ESG Information Portal” has the meaning given to it in section 4.
      • f) “Force Majeure Event” has the meaning given to it in section 12.1.
      • g) “Intellectual Property Rights” or “IP” means any and all intellectual property or industry proprietary rights, such as copyright rights (including rights in audiovisual works and in software code) and rights of data base makers, moral rights, patent rights (including patent applications and disclosures), know-how, rights of priority, trademark rights and trade secret rights recognized in any country or jurisdiction in the world.
      • h) “Membership Agreement” means the completed contractual process of requesting the creation of a Platform Account and, upon review and confirmation of such request by osapiens, being admitted to use the Platform as an End User on behalf of a Peer, as set out in detail in section 5.
      • i) “Open Source Software” or “OSS” means software licensed for use in compliance with the respective licensing requirements (such as providing license information, disclosing modifications or delivering the source code) and which is made available to the public for unrestricted use, including modification and distribution, without royalties.
      • j) “osapiens” has the meaning given to it in the Preamble.
      • k) “osapiens Partners” has the meaning given to it in the Preamble.
      • l) “Participants” has the meaning given to it in the Preamble.
      • m) “Parties” has the meaning given to it in the Preamble.
      • n) “Peer” has the meaning given to it in the Preamble.
      • o) “Personal Data” means personal data as defined under the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016.
      • p) “Platform” has the meaning given to it in the Preamble.
      • q) “Platform Account” has the meaning given to it in section 5.1.
      • r) “Service Generated Data” means data or information relating to the operation, delivery, usage or performance of the Platform, including, for clarity, activity logs or other data or information relating to the End User’s and the Peer’s usage of the Platform. Such data or information may be generated or derived automatically by the Platform or tools associated with it or manually by or on behalf of osapiens.
      • s) “User Content” means all content and data posted, uploaded and made available on the Platform (whether manually or automatically through APIs) by an End User on behalf of a Peer or generated by an End User’s use of the Platform on behalf of a Peer in accordance with the Agreement, including any modifications to such content and data. User Content may take various forms (e.g., documents, photos, videos, links or frames). To clarify, Service Generated Data is not User Content.
      • t) “Peer Marks” means a Peer’s trademarks, trade names, service marks, logos, and/or service names.
2. General provisions, conclusion of contract and further provisioning of Platform Accounts
   1. osapiens provides the Peer with access to the Platform through the End Users within the framework of a platform use agreement in accordance with the provisions of each Membership Agreement and these GTC (together the “Agreement”)
   2. The Agreement between osapiens and a Peer is concluded with the conclusion of the first Membership Agreement, in which the request for the creation of a Platform Account by the End User on behalf of a Peer constitutes a binding offer (as set forth in section 5.2b). osapiens accepts this offer for a Membership Agreement by activating the respective Platform Account and notifying the Peer accordingly (as set forth in section 5.3). Any subsequent Membership Agreement initiated by an End User on behalf of a Peer only result in the provision of additional Platform Accounts under the existing Agreement between osapiens and the Peer and do not constitute a new agreement. For clarity, osapiens reserves the right to refuse any request for a Membership Agreement without giving reasons.
   3. The Platform is only available to Peers who qualify as entrepreneurs within the meaning of § 14 of the German Civil Code (Bürgerliches Gesetzbuch). Consumers within the meaning of § 13 of the German Civil Code are not permitted to use the Platform.
   4. osapiens is not obligated to provide any services related to onboarding, training, education, consulting or any other services, unless expressly agreed between the Parties in the Membership Agreement. Any such services, if agreed upon, are subject to the specific terms and conditions outlined in the Membership Agreement.
   5. Deadlines and periods are non-binding unless expressly agreed upon in writing. osapiens is only in default if the Peer has given written notice of default and set a reasonable grace period for performance, which osapiens has failed to meet.
3. Provision of the Platform by osapiens
   1. Provision of the Platform:
      • a) Platform provision: The Platform facilitates the connection and interaction between osapiens Partners and Participants and provides opportunities for communication and collaboration as well as resources related to ESG issues. The Platform is not designed as a marketplace and does not provide any functionality for osapiens Partners and Participants to enter into separate contractual agreements for the purchase and provision of commercial services related to ESG. Furthermore, osapiens itself does not offer any products and/or services against payment via the Platform.
      • b) General functionalities: The Platform provides a range of services to support knowledge sharing, networking and collaboration on ESG issues. Key functionalities include: (i) knowledge sharing and collaboration (e.g., asking questions through a Q&A process, posting User Content, forum discussions); (ii) networking and engagement (e.g., customizing Platform Accounts, joining groups, connecting with Peers, organizing events); (iii) access to the ESG Information Portal as per section 4.
      • c) Differentiation between functionalities for Participants and osapiens Partners: The functionalities available on the Platform may differ for Participants and osapiens Partners, reflecting their different roles and functions. While Participants primarily access resources, engage in networking and use the Platform for accessing ESG resources, osapiens Partners are provided with extended or additional functionalities, such as the ability to organize events, upload documents and videos or create trainings. osapiens will, at its sole discretion, expand the functionalities available to Participants and osapiens Partners as part of the ongoing development and improvement of the Platform. While certain features may initially be offered
      • d) Access via Platform Accounts: osapiens requires the Peer to create a Platform Account to obtain permission from osapiens to access certain functions through the End Users and areas of the Platform as described in section 5. osapiens may also impose other conditions regarding the use of the Platform, such as the type of use (e.g., for osapiens Partners or a Participants).
   2. Platform provision according to state of the art: osapiens provides the Platform in line with the current state of technology. osapiens may temporarily restrict access to the Platform in order to handle capacity limits, to ensure the security or integrity of the servers or to carry out necessary technical measures. In such cases, osapiens will take into account the legitimate interests of the Peer, e.g. by announcing planned maintenance work in advance.
   3. Availability of the Platform: osapiens does not warrant or guarantee any specific availability of the Platform but will strive to make the Platform available to a reasonable extent during business hours. The Platform may be unavailable under the following circumstances without constituting a breach of contract: (i) unavailability due to scheduled or unforeseen maintenance; (ii) unavailability due to circumstances beyond osapiens’ control; or (iii) unavailability due to a Force Majeure Event. The Peer are responsible for measuring availability.
   4. Access for internal business purposes: Subject to compliance with the contractual obligations under the Agreement, the Peer may access the Platform for internal business purposes only. The Peer does not acquire any rights beyond those explicitly granted, in particular with respect to the software, related IT services or infrastructure provided by osapiens.
   5. Service delivery point: The delivery point for the Platform is the output/exit of the router at the data center used by osapiens. osapiens is not responsible for failures or unavailability of hardware, software, telecommunication networks or other infrastructure beyond this point. The connection to telecommunication networks, network availability and the procurement of necessary hardware and software are the sole responsibility of the Peer.
   6. Provision of the Platform by subcontractors: osapiens may delegate the provision of the platform in whole or in part to subcontractors. If the use of the services of subcontractors is subject to additional conditions, such as licensing conditions or conditions of third parties, osapiens will make these available to the Peer upon request. The Peer agrees to comply with such terms and conditions.
   7. Third-party components: The Platform may contain third party components (including Open Source Software) that are subject to separate license terms from their respective rights holders. Such license terms shall prevail over any rights of use granted under the Agreement, including any warranty or liability limitations set forth in the applicable OSS license. Any conflicting provisions of these Terms shall be void to the extent they conflict with the OSS licensing terms.
   8. Backups: The Peer is solely responsible for independently exporting and archiving any information it accesses via the Platform and that is stored by osapiens, especially for purposes such as evidence storage, accounting or other legal requirements.
   9. Right to modify the Platform: osapiens reserves the right to modify the content and structure of the Platform and related user interfaces, provided that such modifications do not significantly impair the fulfillment of the purpose of the Agreement. osapiens will inform the Peers of any changes as appropriate.
4. Provision and use of ESG Information Portal
   1. Provision of the ESG Information Portal: As part of the Platform, osapiens provides the Peer with access to general information (e.g., insights, resources and guidance) on ESG matters (e.g., via blogs, documents, know-how, videos, webinars or training) through the End User (“ESG Information Portal “). osapiens may allow User Content to be posted by either osapiens Partners or Participants within the ESG Information Portal. Certain features or areas of the ESG Information Portal may require a Platform Account, in accordance with section 5.
   2. No specific recommendations: All information provided within the ESG Information Portal, including recommendations from osapiens and Peers, in particular from osapiens Partners, are based on general experience and does not constitute specific recommendations tailored to the individual circumstances and needs of any Participant. If a Participant requires specific services related to ESG issues, it must acquire such separately.
   3. No warranty and right to adjust: osapiens does not warrant the accuracy, completeness or timeliness of the information provided via the ESG Information Portal. osapiens reserves the right to change, supplement or delete User Content and information provided by osapiens on the ESG Information Portal at any time without prior notice.
5. Admission and access to the Platform
   1. General: The creation of an account by an End User on behalf of a Peer, including the approval of such account and the provision of access to the Platform by osapiens (the “Platform Account”), is a prerequisite for the admission of osapiens Partners to the Platform and for Participants to access restricted areas of the Platform. There is no entitlement to admission or use of the Platform. A Platform Account is not transferable.
   2. Requesting creation of a Platform Account
      • a) The request for the creation of a Platform Account may only be carried out by an End User duly authorized to represent the respective Peer, who must be named.
      • b) In order to initiate the request for the creation of a Platform Account, the End User must submit the required information via the electronic registration form provided on the Platform (e.g., End User details, Peer details and any other necessary details).
      • c) The creation of a Platform Account for an osapiens Partner is subject to further requirements due to the special significance of this role. In particular, becoming an osapiens Partner requires the conclusion of a separate partnership agreement between osapiens and the prospective osapiens Partner. Admission as an osapiens Partner is not guaranteed and is subject to osapiens’ sole discretion.
      • d) The Peer guarantees that the information provided when creating a Platform Account is true and complete. If the data provided changes after registration of a Platform Account, the Peer is obliged to update the information in the Platform account immediately.
   3. Review of the request for creation and admission of a Platform Account
      • a) After submission of the electronic registration form and any additional information and documents (in particular, the conclusion of a separate partnership agreement between osapiens and osapiens Partners), osapiens will review the information provided and verify its completeness, accuracy and compliance with these GTC and decide whether to admit and activate the relevant Platform Account and thereby grant access to the Platform or to reject the request. osapiens reserves the right to request additional information or documentation as part of this review process.
      • b) Upon successful review and admission by osapiens, the Platform Account is activated for the respective End User in the name of the respective Peer. osapiens will send a confirmation email to the End User, which completes the process of creating a Platform Account. At this point, the End User is granted access to the Platform, in accordance with these GTC.
      • c) osapiens is entitled to revoke an End User’s and/or a Peer’s admission or block access to the Platform if there is reasonable suspicion that the End User and/or the Peer has violated these GTC. The Peer may prevent such measures by providing appropriate evidence at their own expense to resolve the suspicion.
      • d) All login credentials are individualized and may only be used by the respective authorized End User. The Peer must keep login credentials and passwords confidential and protect them from unauthorized access by third parties. The Peer is also responsible for instructing End Users accordingly. If there is any suspicion of misuse by a third party, the Peer must immediately inform osapiens. If osapiens becomes aware of unauthorized use, it will block the access of the unauthorized Platform Account. osapiens reserves the right to change the login credentials of any End User; in such cases, osapiens will immediately inform the respective Peer and/or End User.
      • e) osapiens may delete Platform Accounts that have not been fully completed within a reasonable time or that have not been used for an extended period. Before deleting such accounts, osapiens will inform the respective Peer and provide a reasonable period to reactivate or complete the account creation.
6. Rights and obligations when using the Platform 
   1. Reporting and measures regarding moderation of User Content
      • a) The Peer is prohibited from posting on the Platform any User Content through an End User that violates any applicable laws, regulations, official orders or public decency (gute Sitten). The Peer is also prohibited from posting content via an End User that infringes on the rights of others, particularly, Intellectual Property Rights. For clarity, the Peer is responsible for ensuring that User Content is accurate, complete, lawful and comply with legal requirements, third-party rights and these GTC.
      • b) Under applicable law, osapiens is not obligated to proactively monitor User Content posted by End Users in the name of the Peer for legality or compliance with third party rights, the Agreement, including these GTC. However, osapiens reserves the right, at its own discretion, to voluntarily review User Content to identify and remove illegal or non-compliant content.
      • c) The Peers, End Users and third parties may report User Content or any other content on the Platform they believe violates these GTC to osapiens via email at esgpeers@osapiens.com 
      • d) In case of a report according to section 6.1c), osapiens is free to forward the content of the report as well as the data submitted with the report to the Peer who posted the User Content (through an End User). The identity of the reporting person will only be disclosed to the Peer if this is absolutely necessary.
      • e) As part of the voluntary reviews according to section1b) and the reports according to section 6.1c), osapiens uses various procedures and tools to identify, review and moderate User Content. Depending on the individual case, this may include a human review, an automated review or a combination of human and automated review. If automated means have been used to review User Content and osapiens has subsequently taken action with respect to that User Content, osapiens will notify the Peer who posted the User Content (through an End User) of the use of automated means, unless the legitimate interests of osapiens and other Peers prevent such notification.
      • f) If a Peer posts User Content through an End User that violates legal provisions, third-party rights, the Agreement, including these GTC, osapiens may take the following actions: (i) remove illegal or non-compliant User Content; (ii) block access to specific User Content; (iii) hide specific User Content from search results; (iv) delay the publication of User Content; (v) restrict the use of the Platform, including the ability to post additional or other User Content; and (vi) temporarily or permanently suspend Platform Accounts, subject to section 10.
      • g) In addition to the regulations stipulated in section 6.1a) to 6.1f), osapiens reserves the right to delete unsolicited User Content, in particular User Content that is harmful or detrimental to osapiens (such as User Content that contradicts osapiens reasonable economic interests as a company). In all cases, osapiens will act carefully, objectively and proportionately, taking into account and including the relevant interests and rights of Peers and End Users.
   2. Acceptable use: The Peer further acknowledges and to access and use the Platform through its End Users only in accordance with the terms set out in Appendix – Acceptable Use Policy.
   3. Further collaboration between osapiens Partners and Participants:  
      • a) The Platform does not provide a designated marketplace functionality for Participants and osapiens Partners to conclude or execute separate agreements for any products or services related to services in connection with ESG issues or any other topics. If, however, osapiens Partners and Participants choose to do so, the conclusion and execution of such agreements is solely the responsibility of the respective osapiens Partner and Participant.
      • b) osapiens is not a party to agreements concluded between Partners and Participants and does not provide warranties or assume liability for any defects in the products or services advertised on the Platform and performed. osapiens has no obligation to ensure the fulfillment of agreements concluded between osapiens Partners and Participants.
      • c) osapiens does not guarantee the identity or authority of neither osapiens Partners, Participants and End Users. In case of doubt, osapiens Partners and Participants are responsible for verifying the identity and authority of their respective contracting party.
   4. Further obligations of the Peers: The Peer is obligated to: (i) implement and maintain the necessary data security measures when using the Platform and related services through End Users, including careful handling of logins and passwords; (ii) immediately notify osapiens of any technical changes within their domain that could affect the performance or security of the Platform; (iii) assist in investigating third-party attacks on the Platform, where such assistance is required; and (iv) use the Platform solely for purposes within the scope of their internal business operations.
   5. Right to block access
      • a) osapiens is entitled to block access to the Platform Account and related services with immediate effect if there are concrete indications of (i) a violation of the section 6; (ii) a violation of applicable law; or (iii) a material breach of other obligations of the Peer or if osapiens has another legitimate interest in blocking access.
      • b) Prior to a blocking of access due to the posting of illegal User Content, osapiens will issue a warning to the Peer and the respective End User concerned, provided that this does not conflict with the purpose of the blocking of access.
      • c) When deciding on a blocking of access, osapiens will take into account the circumstances of the individual case and in particular, as far as osapiens is aware, the severity, frequency and duration with regard to the posting of illegal User Content and the violations committed; the relationship of the posted User Content or the violations committed to other User Content and related conduct; the intentions pursued with the posting of User Content or the violations committed, as far as osapiens is able to determine.
      • d) When deciding on whether to block the access, osapiens will inform the Peer in advance of any such action with an appropriate period of notice in text form. In individual cases, the blocking may be caried out without prior notice if immediate action is necessary to protect osapiens’ legitimate interests, provided that such notice is not required by law or for other legal reasons.
      • e) The blocking of access to the Platform Account does not automatically constitute a termination of the Agreement. osapiens may only maintain a non-terminating blocking of access for a reasonable period, which is not to exceed three (3) months.
7. Intellectual property
   1. Grant of rights: osapiens grants the Peer a non-exclusive, non-transferable, and non-sublicensable right to access and use the Platform solely for the purposes defined in these GTC and in accordance with the functionalities provided on the Platform.
   2. Retention of rights: Save as expressly set out in these GTC or elsewhere in the Agreement, neither Party will receive any right, title or interest in or to any Intellectual Property Rights owned by the other Party (including any modifications or enhancements made thereto). All rights not expressly granted in the Agreement are reserved by the Parties or their respective licensors. For the avoidance of doubt, osapiens (or its suppliers, where applicable) owns any Intellectual Property Rights in the Platform and the ESG Information Portal and related documentation as well as all modifications, enhancements, improvements, derivative works, upgrades, new releases and other alterations of either of the foregoing (even if paid for, requested or directed by a Peer).
   3. User Content: Unless otherwise stipulated in the Agreement, the Peer retains all rights to its User Content and is solely responsible for the legality, accuracy and maintenance of its User Content. Notwithstanding the foregoing, the Peer grants osapiens the right to process, store, make available and perform any other necessary activities with respect to its User Content within the Platform, the ESG Information Portal and related services as described in the Agreement. osapiens will under no circumstances not be deemed to adopt any User Content as its own (kein Zueigenmachen).
   4. Service Generated Data: osapiens may aggregate, store and evaluate Service Generated Data. During and after termination of the Agreement, osapiens may (i) use Service Generated Data to further develop and improve the Platform and related services as well as for other internal business purposes; and (ii) disclose Service Generated Data in anonymized form.
   5. Data Processing: The Peer is responsible for complying with all applicable data protection laws, particularly with regard to the legality of data transmission and processing of Personal Data of End Users in connection with the use of the Platform.
   6. Feedback license: The Peer grants to osapiens a worldwide, royalty-free, transferable, sublicensable, irrevocable, perpetual license to use and incorporate into the Platform and the related documentation and otherwise to freely exploit without restriction, any recommendations, enhancements, requests, corrections, suggestions or other feedback provided by or on behalf of the Peer relating to the functionality or operation of the Platform and the related documentation.
   7. Use of the Peer’s name and Peer Marks: The Peer agrees that osapiens may use the Peer’s name and Peer Marks and may disclose that the Peer is using the Platform in advertising, press, promotion and similar public disclosures. The Peer also hereby grants osapiens a non-exclusive license during the term of the Agreement to list the Peer’s name and display Peer Marks in the “partner,” “User” or similar sections of the osapiens website. osapiens may also publicly issue and distribute a ‘case study’ relating to the Agreement and the Peer’s use of the Platform, provided that it first obtains Peer’s prior written consent, such consent not to be unreasonably withheld or delayed.
8. Remuneration:
   1. Remuneration: Whether remuneration is required for the use of the Platform and, if so, the amount of such remuneration will be determined on the basis of the terms and conditions set out in the Membership Agreement, in particular the tiers, packages and price lists referred to therein. If the Membership Agreement does not provide for any remuneration, osapiens will not charge the Peer for the use of the Platform during this period (e.g. during an initial period after the launch of the Platform). If osapiens changes its pricing policy, the scope and amount of the remuneration will be determined by osapiens and duly communicated in advance and, if necessary, these GTC will be amended in accordance with section 13.1.
   2. VAT: Insofar osapiens requires remuneration for the use of the Platform as specified in Membership Agreements, such remuneration is subject to VAT at the applicable rate. The Peer shall pay the fee to osapiens without deduction of any withholding tax or similar deductions.
   3. Invoicing and late payment: Insofar osapiens requires remuneration for the use of the Platform as specified in Membership Agreements, all invoices are payable within fourteen (14) calendar days of receipt. Unless otherwise agreed in the Membership Agreement, osapiens will invoice the user monthly for the previous month. In the event of late payment, the statutory default interest apply.
   4. Set-off and rights of retention: The Peer may only set off claims that have been legally established or are undisputed. Furthermore, the Peer is only entitled to assert rights of retention against osapiens if the asserted counterclaim is undisputed or legally binding.
9. Liability:
   1. Unlimited liability: The Parties are liable without limitation under statutory provisions for:
      • a) injury to life, body or health caused by the fault of one of the Parties or their legal representatives or vicarious agents;
      • b) intent or gross negligence;
      • c) claims under the German Product Liability Act (Produkthaftungsgesetz);
      • d) breach of a quality guarantee provided by the respective Party; and
      • e) fraud or fraudulent misrepresentation.
   2. Limited liability for simple negligence: In cases of simple negligence, the Parties are only liable if an obligation essential to achieving the purpose of the Agreement is breached (“Cardinal Obligations“). Cardinal Obligations are those obligations whose fulfillment is essential for the proper execution of the Agreement and on whose compliance the Parties regularly rely. Cardinal Obligations include the provision of the Platform services on time and free from legal defects, as well as advisory, protective and custodial duties intended to enable the Peer to use the Platform in accordance with the Agreement or to protect the Peer’s from significant damage.
   3. Foreseeable damage and limitation: In the event of a breach of a Cardinal Obligation, liability is limited to the damage that was foreseeable at the time of the conclusion of contract of the Agreement. If the Peer owes remuneration for the use of the Platform as per the relevant Membership Agreement (see section 8 for details), the damage is limited pro rata temporis for the duration of the Membership Agreement.
   4. Further limitations of liability: Subject to the section 9.1, neither Party is liable for the following:
      • a) loss of anticipated savings;
      • b) loss of anticipated profits;
      • c) damage to reputation or reduction in goodwill;
      • d) consequential damage or damage caused by further consumption; and
      • e) in the event of data loss or data destruction, osapiens is liable within the scope of the above provisions, limited to the amount of damage that would have occurred even in the event of proper data backup by the Peer.
   5. Third party services and content: To the extent that there is any possibility that the Peer may be redirected to databases, website, services offerings or content of third parties via the Platform (e.g., as a result of the inclusion of links or hyperlinks), osapiens is not liable either for the accessibility, existence or security of such databases, websites, service offerings or content. In particular, osapiens will bear no liability for the legal propriety, substantive correctness, completeness or timeliness thereof.
   6. Exclusion of further liability: Any further liability of the Parties is excluded.
   7. Additional Liability Provisions 
      • a) Defenses and objections arising from and/or in connection with the Agreement are also available to osapiens against third parties.
      • b) The limitations of liability also apply to the personal liability of osapiens employees, representatives and officers.
      • c) Claims for damages and reimbursement of futile expenses expire after one (1) year; the start of the statute of limitations is determined by § 199 para. 1 of the German Civil Code. This does not apply to claims for damages and reimbursement of futile expenses due to injury to life, body or health, claims under the German Product Liability Act or breach of a guaranteed characteristic or warranty. The statute of limitations also does not apply to claims based on intentional or grossly negligent violations by osapiens, its legal representatives or vicarious agents.
10. Indemnification: 
    1. Indemnification and User Content: The Peer agrees to indemnify osapiens from all claims made by third parties against osapiens due to violations of their rights or legal provisions arising from or in connection with User Content posted by the Peer through its End Users, if the Peer is responsible. The Peer will also bear the costs of osapiens’ legal defense, including all court and attorney fees. Upon request, the Peer will assume the legal defense against such third-party claims or administrative orders and beat the associated costs (including customary lawyers’ fees), if the Peer is responsible for the violation.
    2. General compensation and indemnification: The Peer agrees to compensate osapiens for any damages arising from the Peer’s failure to comply with the obligations set forth in these GTC and further agrees to indemnify osapiens from all third-party claims, including legal and court fees, resulting from the Peer’s breach of these obligations. Upon request, the Peer will assume the legal defense against such third-party claims or administrative orders and beat the associated costs (including customary lawyers’ fees), if the Peer is responsible for the violation.
11. Term and termination 
    1. Term: The Agreement between the Parties is concluded for an indefinite period, starting from completion of the first Membership Agreement or acceptance of these GTC by the Peer, whichever occurs first.
    2. Termination: Either Party may terminate the Agreement at any time by providing fourteen (14) days’ notice to the end of the month.
    3. Form: Any notice of termination must be provided in writing or in text form (e.g., email), unless a stricter form is required by law.
    4. Termination for cause: Either Party may terminate the Agreement for good cause in accordance with § 314 of the German Civil Code. Good cause exists if facts arise that make it unreasonable for the terminating Party to continue the Agreement, considering all circumstances of the individual case and weighing the interests of the other Party.
    5. Data Migration and deletion rights: After notice of termination by osapiens or the Peer, the Peer must promptly ensure that all User Content and any other information and data managed through the Platform is backed up and migrated to the Peer’s system before the end of the Agreement. A transition period required by the Peer for migrating data after the termination of the Agreement must be agreed separately with osapiens. After the agreed transition period, osapiens will delete the User Content and any other information and data of the Peer in compliance with legal obligations.
12. Force majeure  
    1. Force Majeure Event: Neither Party shall be liable for any failure to perform or delay in performing any of its obligations under the Agreement (except for payment obligations) if such failure or delay is caused by events beyond the reasonable control of that party, in particular acts of God, natural disasters (e.g., earthquakes, floods, storms), war, military actions, terrorism, civil unrest, pandemics, strikes, lockouts, labor disputes, government actions or restrictions, embargoes, failures or interruptions in electricity, internet service provider failures, telecommunication disruptions, cyberattacks (in particular DDoS attacks), hardware or software failures not caused by the Party’s own negligence and any other technical or infrastructure-related failures that prevent the operation of the Platform (each a “Force Majeure Event“).
    2. Notification: The affected Party shall promptly notify the other Party in writing as soon as reasonably practicable following the occurrence of a Force Majeure Event. The notice must include details of the Force Majeure Event and its expected impact on the performance of that Party’s obligations under this Agreement.
    3. Suspension of obligations: The obligations of the affected Party under the Agreement will be suspended to the extent that performance is prevented, hindered or delayed by the Force Majeure Event. The affected Party shall take all reasonable steps to mitigate the effects of the Force Majeure Event and resume performance of its obligations as soon as reasonably practicable.
    4. Termination right: If the Force Majeure Event continues for a period exceeding sixty (60) days, either Party may terminate the Agreement by giving written notice to the other Party. Upon such termination, neither party shall have any liability to the other party, except for any obligations that have accrued prior to the occurrence of the Force Majeure Event or due to any payments that remain outstanding.
    5. Resumption of performance: As soon as the Force Majeure Event ceases to affect the performance of the affected Party, that Party shall promptly resume its obligations under the Agreement and notify the other Party accordingly.
13. Final Provisions  
    1. Amendments to these GTC 
       • a) osapiens reserves the right to amend or update these GTC at any time if this is necessary for legal, technical or operational reasons. Amendments to these GTC will be communicated to the Peer at least sixty (60) days before they enter into force.
       • b) The amended GTC shall become part of the Agreement, provided that the Peer agrees to the amendments. If the Peer does not agree to the amendments within a period specified by osapiens, which shall be at least thirty (30) days, the Agreement will remain unchanged. In this case, osapiens will be entitled to termination for cause of the Agreement with sixty (60) days’ notice if, for technical or legal reasons, the continued contractual performance is impossible or cannot reasonably be expected without the amendments to the GTC.
       • c) In the notification concerning the GTC amendments, osapiens will inform the Peer of the possibility of termination for cause.
    2. Entire agreement: The Agreement, including the Membership Agreement(s) and these GTC, constitute the complete and exclusive agreement between osapiens and the Peer in connection with the business relationship between the Parties with regard to the subject matter of the Agreement. All previous assurances, discussions and documents have been incorporated in the Agreement and are replaced by it. However, any confidentiality agreements that have been concluded shall continue to apply. Unless expressly agreed otherwise, the Agreement can only be amended by mutual agreement and in writing. General terms and conditions of the Peer shall not apply. This shall apply even if the Peer refers to his own terms and conditions, e.g. in the context of orders or purchase orders, and osapiens does not expressly object to these or otherwise accepts the order.
    3. Severability: Should any provision of the Agreement turn out to be invalid, ineffective or unenforceable, this will not affect the validity, effectiveness and enforceability of the other provisions of the Agreement. The Parties undertake to replace the invalid, ineffective or unenforceable provision with a legally permissible one that comes as close as possible to the purpose of the original provision.
    4. Formal requirements: Signatures in any commonly accepted electronic form (including e-mail or dedicated signature solutions) will be considered original signatures.
    5. Notifications: Unless expressly agreed otherwise, all notifications must be made electronically and be sent to the contact details specified in the Membership Agreement. Notifications from osapiens with respect to the operation, modification, update or support of the Platform may be made in the form of an electronic notification to the End User as authorized representative or administrator of the Peer and as specified in the Membership Agreement.
    6. Assignment and set-off: 
       • a) Without the prior written consent of osapiens, the Peer may not assign or transfer the Agreement (or his rights and obligations under the Agreement or in connection with the Agreement) to any other party. osapiens may assign the Agreement to one of its Affiliated Companies.
       • b) The Peer shall only be entitled to exercise a right of setoff against osapiens on the basis of counterclaims which are undisputed or have been adjudicated with res judicata effect.
    7. Relationship of the Parties: The Parties operate as contracting partners that are independent from each other. This Agreement does not establish any partnership, franchise, joint venture, agency, trust or employment relationship between the Parties.
    8. Applicable law and venue 
       • a) The Agreement concluded between osapiens and the Peer and all claims related to its subject matter shall be governed exclusively by the laws of the Federal Republic of Germany, under exclusion of the provision of the UN Convention on Contracts for the International Sale of Goods (CISG) and under exclusion of private international law.
       • The courts of Mannheim, Germany, will have exclusive jurisdiction over all disputes that arise from or in connection with the Agreement or its validity.

Appendix – Acceptable Use Policy

1. General  

1. 1. In order for osapiens to provide Platform to the Peer, the Peer agrees to access and use the Platform through End Users only in accordance with the terms of this Appendix – Acceptable Use Policy, as set out in section 6.2 of the main body of the GTC.
   2. All terms defined elsewhere in the GTC apply mutatis mutandis to this Appendix – Acceptable Use Policy.
   3. The Peer must address the provisions contained hereunder or any similar acceptable use policy, which contains at least the same level of provisions and obligations as this Appendix – Acceptable Use Policy to its Affiliated Companies, if applicable.
   4. For clarity, any failure to comply with the provisions of this Appendix – Acceptable Use Policy by the Peer, an End User or any other unauthorized third party for which the Peer is responsible may result in suspension or termination of the Platform Account and/or the Agreement in relation to such non-compliance in accordance with the Agreement. In such case, osapiens will not be liable to the Peer for any claims and/or allegations of such Peer resulting from or related to the exclusion from the Platform. The Peer is responsible for violations of the provisions of this Appendix – Acceptable Use Policy and must take best efforts to prevent such violations

2. No misuse

The Peer must ensure that it doesn’t use and doesn’t allow End Users or unauthorized third parties to use the Platform:

a. to probe, scan or test the vulnerability of any system or network in connection with the Platform;

b. to conduct performance, load or stress testing on the Platform or otherwise test the Platform’s capacity limits;

c. to test or reverse-engineer the Platform in order to find limitations, vulnerabilities or evade filtering capabilities;

d. to interfere with the use of the Platform or the equipment used to provide the Platform;

e. to monitor data or traffic on any network or system without authorization of the respective owner of the system or network;

f. to collect or use information, such as email addresses, nick names or other identifiers, by deceit (for example, by phishing, scamming, password robbery, spidering and harvesting);

g. to promote any behavior that may result in retaliation against the Platform or osapiens’s services, network or website or osapiens’s employees, officers, agents, affiliates (for example, denial of service attacks);

h. to arrange directly or indirectly that any of osapiens’s IP is listed on an abuse database;

i. where failure or fault of the Platform could lead to death or injury of any person or to physical or environmental damages;

j. to allow access by persons, organizations, companies or any other legal entities, including affiliates, which are involved or suspected of involvement in activities or causes relating to illegal gambling, terrorism, narcotics trafficking, arms trafficking or proliferation, development, design, manufacture, production, stockpiling or use of nuclear, chemical or biological weapons as well as weapons of mass destruction or missiles; this applies to any affiliation or part taking in such activities whatsoever; and

k. to create an unusual level of load on the Platform via nonintentional use of the products included in the Platform or by using scripts or applications to access the APIs of the Platform.

3. No circumvention

The Peer must ensure that it doesn’t use and doesn’t allow End Users or unauthorized third parties to use the Platform:

a. to breach or otherwise circumvent any security or authentication measures;

b. to alter, disable, interfere with or circumvent any aspect of the Platform;

c. to access, tamper with or use non-public areas of the Platform or shared areas of the Platform the Peer and its End Users has not been invited to;

d. to access or search the Platform by any means other than osapiens’s publicly supported interfaces (for example, by ‘web scraping’);

e. to actively withhold or disguise identity or contact information, such as omission, deletion or misreporting of identification or transmission information; and

f. to access or use the Platform in a way intended to avoid incurring any applicable fees or charges or purchasing additional licenses or access rights, if applicable.

4. Spam, privacy, marketing and unsolicited content

The Peer must ensure that it doesn’t use and doesn’t allow End Users and unauthorized third parties to use the Platform:

a. to overload, flood spam, overloading, broadcast attacks or mail-bomb any part of the Platform;

b. to send unsolicited communications, promotions or advertisements or spam;

c. to send altered, deceptive or false source-identifying information, including ‘spoofing’ or ‘phishing’;

d. to promote or advertise products or services other than its own without appropriate authorization by osapiens;

e. to promote and/or foster in any way businesses relating to gambling, multi-level-marketing, credit repair, list brokers or rental services, pharmaceutical products or social media related services like selling retweets, fake users, likes, etc.; and

f. to violate export laws, -controls, -regulations or sanction policies of the applicable jurisdiction.

5. Prohibited content

The Peer must ensure that it doesn’t use and doesn’t allow End Users and unauthorized third parties to use the Platform:

a. to violate or encourage the violation of the legal rights of any third parties;

b. for any unlawful, invasive, infringing, defamatory or fraudulent purpose or other malicious or morally repugnant purposes;

c. to intentionally distribute viruses, worms, trojan horses, corrupted files, hoaxes or other terms of destructive or deceptive nature;

d. to impersonate or misrepresent any affiliation with any person or entity;

e. to publish or share materials that are unlawfully pornographic or indecent or that advocate bigotry, religious, racial or ethnic hatred;

f. to publish or share content or links to content that is excessively violent or promotes, contains or incites violence, hate speech or creates risks for the safety or health of a person or the public as well as for national security or interferes with an investigation by law enforcement;

g. by distributing software that covertly gathers or transmits user information; and

h. to defame or violate a person’s privacy.

6. Intellectual property and other proprietary rights

The Peer must ensure that it doesn’t use and doesn’t allow unauthorized third parties to use the Platform:

a. to infringe or misappropriate any Intellectual Property Rights of a third party;

b. to assist in such behavior by displaying another person’s trademark without permission;

c. to publish another person’s trade secrets or violate confidentiality duties; and

d. to use the Platform to download, publish, torrent, distribute, use or otherwise copy in any manner any text, music, software, art, image or other work protected by copyright law unless permission from the owner of the work to use or copy the work in that manner was obtained or can be derived otherwise from established intellectual property law to copy or use the work or rights in that manner.