Status: January 2017
GENERAL TERMS OF REGISTRATION AND USE
FOR CLUSTERMARKET (CLUSTERMARKET LTD.) ONLINE PORTAL
I. CONTRACT SUBJECT
§ 1 Subject of General Conditions
1.1 Clustermarket Limited, a company registered in England and Wales under the regis-tration number 09485659 with administrative offices at, Devonshire House, 582 Honeypot Lane, Stanmore, Middlesex, HA7 1JS, London (hereinafter „Clustermar-ket“), makes an internet platform available at
(hereinafter referred to as „Platform“ or „Portal“), which grants properly registered users (“Participant(s)”) access to an online marketplace and toolkit which enables the Participants, being providers who have resources in the scientific and technologi-cal area, such as equipment, laboratory and services, to share and customers who wish to make use of such resources, to establish contact and contract directly with each other.
1.2 When registering with Clustermarket and creating a personal account, the users of the Portal agree to be bound by and act in accordance with these General Terms of Registration and Use (“These Terms”) that regulate the services by Clustermarket as well as the use of those services by properly registered participants.
1.3 These Terms shall be superseded by individual agreement(s) entered into by and be-tween Clustermarket and a Participant in writing.
§ 2 Definitions
2.1 “Agreement” means an agreement entered into between a Provider and a Customer through the Portal for Renting or provision of Services.
2.2 “Contents” means text, graphics, images, software, audio, video, information or oth-er material or content uploaded to, displayed on or exchanged through the Portal, whether by posting, uploading, publishing, messaging, submitting, transmitting or otherwise;
2.3 “Customer” means a Participant who requests and makes use the of the rentable Equipment or Laboratory or Services provided by a Provider from time to time via the Platform and/or through the Clustermarket services;
2.4 “Database” is a collection of works, data or other independent elements that are systematically or methodologically ordered; they are accessible with the help of elec-tronic means or in other ways. Depending on their kind and volume, the procurement of databases, their checking or representation requires major investments.
2.5 “Equipment” means the equipment being offered by a Provider for Renting, option-ally along with supporting services, via a Listing through the Portal;
2.6 “Intellectual Property Rights” means all rights in copyright and related rights, pa-tents, know-how, trade secrets, Confidential Information, rights to inventions, data-base rights, internet domain names, web site addresses, rights in computer software, rights in trademarks and designs (whether registered or unregistered), trade names, moral rights, rights in get-up, rights in goodwill or to sue for passing off and all other intellectual property rights, in each case whether registered or unregistered and in-cluding all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world;
2.7 “Laboratory” means the laboratory, wholly or partly, being offered by a Provider for Rent for scientific or technological research, experiments and measurement via a Listing through the Portal.
2.8 “Listing” means a list of Equipment/Laboratory available for Rent and/or Services to be provided, to be published by a Provider on the Platform;
2.9 “Participant” means a user of the Platform who has completed an account registra-tion and consented to these Terms;
2.10 “Provider” means a Participant who creates a Listing on the Platform offering Rent of Equipment or Laboratory and/or Services to a Customer from time to time;
2.11 “Rent/Renting” means, in respect of these Terms and an Agreement, the making available of Equipment or Laboratory by a Provider to a Customer (whether for use by the Customer himself, or by the Provider on behalf of the Customer as agreed) for timely-limited use in the booked hours and on the site of the Provider;
2.12 “Service” means the services in scientific and technological area, either standard or customized, being offered by a Provider via a Listing or in form of a description through the Portal.
2.1 “Total Charge” shall have the meaning prescribed in § 17.1.
II. GENERAL CONDITIONS OF USE
§ 3 Authorization of Log-on and Participation
3.1 Participants must be registered to be able to use the available services on the Portal. There is no entitlement to participate in the Portal’s content. Clustermarket is author-ised to partially or wholly reject registrations for portal access without giving rea-sons.
3.2 In principle, companies and business entities in the scientific and technology sector are eligible for registration. In all cases, however, Clustermarket consistently re-serves the right to local restrictions as far eligibility is concerned, especially with re-gard to companies outside European Union, public authorities and public bodies.
3.3 With public authorities and companies the questionnaire needs to be filled in by an authorised representative. Upon demand of Clustermarket, proof of such authority to sign must be presented without delay.
3.4 Consumers are not eligible for registration.
§ 4 Registration and Enrolment
4.1 Registered Participants have free access to the Platform of Clustermarket. A Partici-pant can be both Provider and Customer concurrently.
4.2 For the purpose registration, the Participant shall state his company name, contact person, email address and telephone number, as well the profile of the company with a brief description of rentable Equipment and/or Laboratory and/or Services to be provided or searched for on the Platform.
4.5 Clustermarket retains the rights to check Participant’s details upon them sending off their registrations. In this case, the Participants do not obtain access to the Portal un-til Clustermarket grants clearance.
4.6 Upon completion of registration, a user´s account, optionally comprising of an ad-ministrative account (main account) for settings, monitoring and contract manage-ment functions and a scientist account (sub-account) for uploading of materials, will be created for the Participant, granting access to the services and functionality avail-able on the Portal. The registration and account are not transferable.
4.7 By registering, the Participant grants Clustermarket the right to refer to his company as client of Clustermarket for the purpose of advertising and promotion. Notwith-standing any other contractual provisions set out in individual case, Clustermarket is authorized to refer to the company name and logo of the Participant on its webpage(s).
§ 5 Responsibility Concerning Access Data
5.1 Participants need to ensure that any information (including the contact) stated in their registration do not violate any rights, especially copyright and trademark rights of third parties. They must neither be in any way immoral or illegal.
5.2 Participants shall keep their access data and passwords secret and protect them against any unauthorised use or access by third parties.
5.3 While being registered, Participants shall ensure their data are up to date at all times.
5.4 Participants must ensure their access to the portal and the use of any of the services made available on the portal takes place solely by themselves or persons authorised by them. If there is any reason to fear that unauthorised third parties gained or will gain knowledge of Participants´ access data, Clustermarket needs to be informed immediately.
5.5 Participants shall be unrestrictedly liable for any use and/or other activity that is car-ried out with the use of their access data.
5.6 Contact data, company details and any other required information stated by Partici-pants required for registration must be complete and correct.
§ 6 Protection of Content, content responsibility of third parties
6.1 Contents available on the Portal are protected by copyright and other property rights. They are owned by Clustermarket, other Participants or other third parties who made the respective contents available. The compilation of contents as such is possibly protected as a Database or Database plant in the sense of §§ 4 paragraph 2, 87a para-graph 1 Copyright Law. The Participant may use these contents merely in accordance with these Terms and in compliance with third party property rights.
6.2 Contents available on the Portal are derived in part from Clustermarket and from other Participants or other third parties. For the Contents provided by Participants or other third parties, Clustermarket does not carry out any checks in terms of com-pleteness, accuracy and legitimacy. As a result, Clustermarket does not bear any re-sponsibility in this regard.
§ 7 Scope of the Utilisation Permitted; Supervision
7.1 Participant’s user authorisation is restricted to accessing the Portal and the utilisation of the respective services available there within the scope of the provisions of these Terms.
7.2 Clustermarket draws attention to the fact that Participant’s activities may be traced and monitored to a legally permissible extent. This may include the logging of IP connection data and courses of conversation as well as their analysis in the event of definite suspicions concerning violation of these Terms at hand and/or, in case of definite suspicion, that an unlawful act or criminal offence may have been commit-ted.
§ 8 Services of Clustermarket; Change of Service
8.1 The opportunity to use the services available on the Portal is given only within the context of technical and operational possibilities on the part of Clustermarket. To the extent possible, Clustermarket will endeavour to ensure uninterruptible usability of its services. However, at times technical incidents may cause restrictions or interrup-tions.
8.2 On the Portal, Clustermarket makes various information service and other services available. Clustermarket shall, at any time, be entitled to change the services offered on the Portal and make new services available as well as suspending their availabil-ity.
§ 9 Contents Placed by Participants; Advertisement
9.1 In accordance with the provisions in these Terms, Participants may place Contents on the Portal and make these available to other Participants.
9.2 The Participants are aware that Contents placed on the Portal can be seen by the oth-er, registered and not registered, users of the Portal. Granting any other Participants or third parties access to business secrets, know-how or any other confidential infor-mation, especially by way of communication vis-à-vis or invitations extended to any other Participants or third parties to the Portal and its Contents, shall be at the Partic-ipant’s own risk.
9.3 By placing Contents, the Participant ensures that he owns all rights to the Contents submitted (as well as the relevant Equipment or Laboratory, technologies, know-how, services, license, authorization, etc.), alternatively that he is authorised, e. g. based on an effective permission of the right-holder, to place such Contents on the Portal. The Participant himself is responsible for any Contents he placed and shall bear any and all legal consequences and liabilities arising therefrom and exempts Clustermarket from possible claims made by third parties against Clustermarket due to him violating their rights.
9.4 By placing Contents, the Participant grants Clustermarket a royalty-free and timely-unlimited right of use concerning the respective Contents. This applies especially to the storage of the respective Contents on the server of Clustermarket, the perfor-mance and documentation of consultations, quality assurance by Clustermarket and related external service providers.
9.5 Unless otherwise provided in individual agreement(s) with Clustermarket, the Partic-ipants are not authorised to place Contents of advertising nature on the Platform, containing contacts or links to external websites or resources or soliciting the other users to business contract or transaction outside the Portal in any other way. Partici-pants may enter into individual agreement(s) with Clustermarket for placing adver-tisement(s) on the Platform. In case of unauthorized advertisements, Clustermarket is entitled to: i) delete such items without notice; and ii) claim ads fees at its regular rates from such Participants, without prejudice to any other rights and remedies available.
9.6 Clustermarket does not carry out any checking of Contents with a view to their com-pleteness, accuracy, legitimacy, timeliness or quality. However, Clustermarket re-tains the right, without assuming an obligation, to determine the Content, appearance, design, functionality and all other aspects of the Platform, including the right to re-design, modify, remove and alter the content, appearance, design, functionality, and other aspects of the Platform and any element, aspect, portion or feature thereof, from time to time.
§ 10 Right of Use Regarding Available Contents on the Portal
10.1 Unless further utilization is explicitly permitted in these Terms or on the portal, Par-ticipants may use Contents available on the Platform only for their own purposes re-lated to the business collaboration through the Portal, calling them up and displaying them.
10.2 As far as the utilisation for the purposes related to the business collaboration through the Portal is concerned, the Participant receives a limited, non-exclusive, non-transferable and revocable right to download and print out the Contents of the Plat-form, whereby the Participant is not allowed to remove or change any copyright no-tices, logos and other marks and protection notes. Participants are also not allowed to wholly or partially edit, change, present, publish, exhibit, duplicate, pass on or dis-seminate any available content on the Portal not placed by himself.
10.3 The Participant’s indispensable mandatory legal requirements, including legitimate duplication for private and other uses of his own according to § 53 Copyright Law, shall remain unaffected.
§ 11 Illicit Activities
11.1 Participants may not engage in any activities on or associated with the Portal that violate applicable law, infringe the rights of any third party or are in breach of juve-nile code principles.
11.2 In addition, Participants may not engage in any activity prone to disrupt the smooth operation of the Portal, especially in terms of excessively burdening the services of the Provider.
11.3 Upon gaining knowledge of any illegal or abusive utilisation contrary to contract or unauthorised use of the Portal, the Participant commits to inform Clustermarket via email at
11.4 If there is suspicion of unlawful or punishable acts, Clustermarket shall be entitled, and possibly obligated by law, to examine the Participant’s activities and to take le-gal action, if needed.
§ 12 Termination and Blocking
12.1 A Participant may terminate the use of the portal by deleting his registration.
12.2 Upon termination and expiration of any statutory time limits for record-keeping, Clustermarket shall be authorised to irretrievably delete any data created as part of the registration.
12.3 Clustermarket may delete the Participant’s access to the portal or block it on a tem-porary or permanent basis, if there is tangible evidence that the Participant contra-venes or has contravened these Terms and/or applicable law, or if Clustermarket has other justified interests in either blocking access or deletion. On deciding concerning blocking, Clustermarket will give adequate consideration to the justified interests of the Participant. Participants blocked on a permanent basis are permanently excluded from using the portal and may not renew their registration on the portal.
III. TRANSACTION ON THE PLATFORM
§ 13 Role of Clustermarket
Clustermarket provides a platform that helps effective collaboration among the Par-ticipants. Clustermarket is not, and shall not be, a party to any agreements or contrac-tual relationship entered into between/among the Participants and/or any users of the Platform, including without limitation to the Agreement(s) entered into between a Customer and a Provider. Clustermarket is not involved in the actual transaction be-tween Provider and Purchase, except as set out in Section IV.
§ 14 Profile and Listing
14.1 A Participant may upload his profile as Provider and create a Listing of his (option-al): (i) rentable Equipment; (ii) rentable Laboratory; (iii) Services, for publishing on the Platform, which will be seen by the other Participants.
14.2 To create a Listing of rentable Equipment or Laboratory, the Provider shall, follow-ing the instruction of the procedure on the Platform, provide a variety of information about the Equipment or Laboratory to be listed, including but not limited to:
- Equipment name (or available equipment and devices in the Laboratory), tech-nical specification, features;
- Location (valid physical addresses is required);
- Rental security deposit (optional);
- Ancillary service, guidance or support available for the use of Equipment or La-boratory (should extra costs be charged, the price or billing methods therefore shall be provided);
- Related rules, e. g. rental conditions, rules of the house (where the of Equipment or Laboratory is located), refund policy, etc.
14.3 For provision of Services, the Provider may upload a Listing (or a description) of available Services, e. g. lab and testing services, technical support, standard or cus-tomized, to be charged with lump-sum fee or at hourly basis, as may be agreed in an Agreement between the Provider and the Customer.
14.4 A Provider may list any equipment and/or services in the scientific and technological area on the Platform unless it is a prohibited item as defined in the published guide-lines of Clustermarket, if any, or otherwise prohibited by law. Without limitation, Provider shall not list any item or link or post any related material that:
- in respect of which the Provider does not have permission, or is legally not al-lowed to, make available for an offer;
- contains false or misleading information, whether in terms of pricing or descrip-tion;
- infringes any third-party intellectual property rights (including copyright, trade-mark, patent, and trade secrets) or other proprietary rights (including rights of publicity or privacy);
- constitutes libel or slander or is otherwise defamatory; or
- is counterfeited, illegal, stolen, or fraudulent.
The Provider shall assume full responsibility for the correctness, accuracy and time-liness of his profile, Listing and description. Furthermore, the placement of advertis-ing material shall be in compliance with § 9.5.
14.5 Participants agree that a Listing or description shall be deemed to be an ‘invitation to treat’ only, which merely invites a potential Customer to make an offer or to enter in-to negotiations and does not, of and in himself, indicate the Provider's intention of being contractually bound.
14.6 Clustermarket reserves the right to edit, block or remove any Contents or item of listing placed by the Provider in its sole discretion at any time and without prior noti-fication, especially in case the placing of Contents by the Provider or the placed Con-tents themselves are unlawful or liable to prosecution, or if there are concrete indica-tions that unlawful or punishable actions will occur.
§ 15 Booking; Conclusion of Agreement
15.1 A Customer may submit a request for intended Equipment, Laboratory or Services subject to listed price to particular Provider, providing the necessary information for desired booking (date, time, duration of use, specific requirements, etc.) to such Pro-vider through the Platform. For Services at flexible rate or subject to individualized charge, the Customer may submit a request for quote with description of the services required.
15.2 Upon request by Customer, Provider may pre-approve the requested booking using functionality enabled on the Platform, including the offer for an Agreement based upon the Listing, booking schedule and, where applicable, quote for the required Services and/or details determined by the contracting parties in individual case, e. g. regarding the relevant requirements and specifications of performance, which the Customer may accept by confirming (Acceptance of Agreement). Following the Ac-ceptance of Agreement, the Customer shall make the payment pursuant to § 18. A Provider may withdraw an offer without penalty or liability at any time prior to the Customer accepting the offer by making payment. However, the Provider is aware and agrees that Clustermarket may, at its discretion, publish a negative review on his Listing indicating that a contract offer was withdrawn by the Provider; the Provider shall be given the opportunity to explain the reasons for withdrawal.
15.3 With the Acceptance of Agreement by Customer using functionality enabled on the Platform, the Agreement shall be effective and binding upon the relevant Provider and Customer as contracting parties. The payment shall be due and processed in ac-cordance with § 18.
§ 16 Form Agreements; Disclaimer
CLUSTERMARKET PROVIDES CLUSTERMARKET FORM AGREEMENTS AS AN INFORMA-TIONAL RESOURCE TO HELP THE PARTICIPANTS EFFECTIVELY ESTABLISH AN COLLABO-RATION AND FOSTER CONTRACTUAL RELATIONSHIP IN ACCORDANCE WITH COMMON IN-DUSTRY PRACTICES, WHICH ARE TO BE ADOPTED AT FREE OPTION AND SUBJECT TO RE-VIEW AND AMENDMENT BY THE PARTIES INVOLVED. THE PARTICIPANTS ARE ADVISED THAT THE CLUSTERMARKET FORM AGREEMENTS ARE NOT SUITABLE FOR USE IN ALL CIRCUMSTANCES AND MAY NOT MEET THE SPECIFIC NEEDS OF THE PARTIES INVOLVED IN INDIVIDUAL CASES. THE FORM AGREEMENT ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND SHALL NOT BE A SUBSTITUTE FOR LEGAL COUNSEL’S REVIEW AND OPINION IN CONNECTION WITH THE CONTRACTUAL RELATIONSHIP BETWEEN THE PRO-VIDER AND PURCHASER. THE PROVISION OF FORM AGREEMENT SHALL NOT BE DEEMED AS ANY KIND OF ATTORNEY-CLIENT RELATIONSHIP, AND CLUSTERMARKET EXPRESSLY DISCLAIMS ANY LIABILITY RELATING TO THE CLUSTERMARKET FORM AGREEMENTS AND THE USE THEREOF.
IV. PAYMENT CONDITIONS
§ 17 Fees and Total Charge
17.1 Customer will be invoiced a Total Charge consisting of:
- a fee charged by the Provider for Rent of Equipment or Laboratory in accord-ance with the Listing price and/or provision of Services at the Listing rate or as may be agreed to by the contracting parties in the Agreement (collectively re-ferred to as “Provider Fee”),
- a fee charged by Clustermarket for providing the Platform services (“Cluster-market Service Fee”), calculated as 10% of the Provider Fee, unless otherwise stipulated in individual agreement(s) between Clustermarket and the relevant Participant, and
- where applicable and if required to be charged separately, any shipping costs and applicable taxes in connection with the performance of the agreement.
17.2 In the event that the Provider and Customer agree upon a security deposit for the Rent, such security deposit will be charged in addition to the Total Charge.
17.3 All fees are exclusive of VAT, with VAT added if appropriate at the prevailing rate at the invoicing stage.
17.4 Any costs arising from the remittance of payment to Clustermarket, including the bank charges, shall be borne by the Customer.
17.5 The Total Charge shall be due upon the Acceptance of Agreement under § 15.3 and be paid by the Customer immediately, in the event credit card has been chosen as payment method, or via bank transfer at latest within 3 days after Acceptance of Agreement.
§ 18 Payment Transaction Processing
18.1 The Provider authorizes Clustermarket to act on his behalf for purposes of receiving and holding Provider Fees, taxes and rental security deposit, where applicable, and remitting such to his bank account registered with Clustermarket, for the purpose of which Clustermarket may appoint a third-party online payment processor at its sole option from time to time. A reference to a payment to or from Clustermarket under these Terms shall be deemed to include a payment to or from as applicable Cluster-market’s appointed payment processor handling on its behalf. The Customer con-sents to the aforementioned payment processing.
18.2 Unless otherwise stipulated in individual agreement(s) between Clustermarket and the relevant Participant, the payment transfer shall be processed as follows: After the Total Charges, taxes and rental security deposit, if applicable, have been collected from the Customer, the Provider will be notified. Clustermarket will forward the Provider Fees, taxes and rental security deposit, where applicable, to the Provider's designated bank account, less any applicable fees or other amounts Clustermarket may collect from the Provider or Customer, in one of the following cases: i) upon confirmation by both Provider and Customer using features on the Portal that the Rent has been completed or the booked Services have been delivered; ii) where a booking schedule has been used to determine the fixed date/term for Rent or Ser-vices, three (3) working days after the last day of booking schedule, provided that the Customer has not raised a complaint within the said period of time; or iii) where no booking schedule has been used, ten (10) calendar days after the Provider has marked the Services as completed, provided that the Customer has not raised a com-plaint within the said period of time The obligation of Clustermarket to remit funds received on behalf of the Provider is limited to the funds that Clustermarket has actu-ally received, less amounts owed to Clustermarket, subject to chargeback or reversal or withheld for anticipated claims.
In case of payment by bank transfer, the payment obligation of Clustermarket is punctually adhered to when its remittance order has been transmitted to the bank within the terms stated.
18.3 It is the Provider's responsibility to determine whether and which taxes apply to the transactions and to collect, report, and remit the correct taxes to the appropriate tax authority, and that Clustermarket is not obligated to determine whether taxes apply and is not responsible to collect, report, or remit any taxes or duties arising from or in connection with the offer, sale or transaction on or through the Portal, except to the extent Clustermarket expressly agrees to receive taxes or other transaction-based charges in connection with tax calculation services made available by Clustermarket and used by Provider.
18.4 The rental security deposit submitted by the Customer, if any, shall be retained by Clustermarket during the term of performance of Agreement. Unless otherwise stipu-lated in the Agreement between the Provider and Customer, the rental security de-posit shall be refunded after fourteen (14) calendar days after the last day of booking schedule, provided that the Provider has not raised a complaint within the said period of time. Unless otherwise notified to Clustermarket by the Customer, the rental secu-rity deposit will be retained, if a new booking has been confirmed within the afore-mentioned period of time, for offset against the rental security deposit for the upcom-ing booking, if any.
18.5 Clustermarket will inform the contracting parties of each completed transaction using its standard procedures. In addition, the parties can access the transaction information online in their respective accounts.
18.6 All notices will be sent by e-mail or will be posted on the Platform or by any other means then specified by Clustermarket. Clustermarket will send notices to Provider at the e-mail address maintained in the records for Provider. Provider will monitor his e-mail messages frequently to ensure awareness of any notices sent by Cluster-market.
18.7 The risk of fraud or loss, including risk of credit card fraud (i.e., fraudulent purchase arising from the theft and unauthorized use of a third party's credit card information) occurring in connection with the transactions will be borne by the Provider.
18.8 Provider Fees, taxes and rental security deposit, where applicable, will be held in an account with Clustermarket and will represent an unsecured claim against Cluster-market. Provider (or Customer) will not receive any interest or any other earnings on any of such funds.
§ 19 Cancellation of Agreement and Refund
19.1 Rights to cancel an Agreement on confirmed booking and consequences of cancella-tion, including without limitation to the refund of Provider Fees, shall be individually regulated in the Agreement between the Provider and Customer, or in the refund pol-icy published by the respective Provider on the Platform.
19.2 In case of cancellation by the Provider, the Customer will be refunded with the Total Charge collected. The Provider is aware and agrees that Clustermarket may apply penalties or consequences to him or his Listing in this case, including: (i) publishing a negative review on his Listing indicating that a booking was cancelled; (ii) keeping the calendar for his Listing unavailable or blocked for the date(s) of the cancelled booking; and (iii) imposing a cancellation fee equivalent to the Service Fee of Clus-termarket for the cancelled booking.
19.3 In case of cancellation by the Customer:
- Provider Fee will be refunded under the conditions contractually regulated pur-suant to § 19.1, using functionality enabled on the Platform or by notification to the Clustermarket in individual case;
- Service Fees of Clustermarket are non-refundable and non-transferable except as expressly guaranteed by Clustermarket, or offered at Clustermarket’s sole dis-cretion.
- The refund will be proceeded upon confirmation of the cancellation, less amounts charged in process of transfer, e. g. foreign exchange and bank transfer fees, and amounts owed to Clustermarket, e. g. losses incurred due to the cancel-lation. In all cases, Clustermarket shall neither be obligated to provide, nor be li-able for any refund or credits for its own account.
19.4 The deletion of registration pursuant to § 12.1 leads to cancellation of all pending bookings. The provisions above shall apply accordingly.
§ 20 Commitment
20.1 The Participants agrees and commits not to, nor advocate, encourage or assist any third party to use the Platform or Clustermarket Services to find or transact, interact or otherwise deal with another user of the Platform with the intention of entering into an arrangement regarding the Rent and Services presented on the Platform, in such a way as to be independent of the Platform in order to circumvent the obligation to pay any Service Fees to Clustermarket. In such cases, Clustermarket is entitled to claim Service Fee on such transactions under the same conditions as if they were concluded through the Platform, for which the involved Participant(s) shall bear joint liability.
20.2 Nor shall the Participants transmit any payment of monies to or receive from through the Platform in breach of money laundry regulations. Clustermarket reserves the right to make due diligence enquiries and/or implement further controls and monitor-ing systems in respect to relevant transactions and Participants.
V. DATA PROTECTION & CONFIDENTIALITY
§ 21 Data Protection
21.1 Clustermarket observes the applicable data protection regulations, especially those of the Federal Data Protection Act. More details regarding personal data protection are available online at
21.2 Each Participant ensures that all data provided to Clustermarket and/or on the Plat-form comply with the EU statutory regulations on data privacy. Clustermarket relies on the expectation that all data received from the Participants and/or entered by Par-ticipants on the Platform are collected in legal way and handled by the Participants in compliance with the EU statutory requirements; otherwise, the Participant commits to hold Clustermarket harmless from any liability and claims arising from non-compliance.
21.3 Personal data shall be collected, stored and/or processed to the extent that this is le-gally permissible or ordered, or as far as explicitly approved by the owner of such data. The owner of personal data shall be entitled to revoke any given consent to pro-cessing of his personal data at any time. Personal data must be blocked, deleted or corrected if found to be incorrect or collected in an illicit manner, if storage is no longer required or if blocking, deletion or corrections for other reasons are ordered by law.
§ 22 Confidentiality
22.1 Each Participant commits to treat the business secrets, know-how as well as other confidential information (jointly referred to as “Confidential Information”), includ-ing all documentation, materials, drawings, data and articles, etc., of other Partici-pants as well as Clustermarket (“Disclosing Party”), whether available on the Plat-form or gained in other ways in the course of contract initiation, conclusion and per-formance, in strict confidence (“Confidentiality Obligation”). Equally covered by this obligation to secrecy concerning know-how are any verbal declarations made towards co-workers or vicarious agents.
22.2 For the avoidance of any doubt, Confidential Information pursuant to § 22.1 shall particularly include without limitation: (i) technical information, including but not limited to technology plan, standards of technology, record of research and develop-ment, technology report, inspection report, experimental data, experimental outcome, computer software, database, blueprint, sample, model, mold, operation manual, technology file and relevant correspondences, (ii) operational information including but not limited to documents concerning the business, management knacks in the op-eration, operational data, list of provider, list of sales merchant and consumer, mar-keting strategy, sales schedule, composition of the cost, policy of price fixing, mar-keting data and procurement data and (iii) financial information, including but not limited to documents of banking account, reckonings, bills, financial statements, ac-counting book, accounting certificates, credit certificates, taxation certificate, finan-cial report, budget statements, balance conditions, credit conditions, audit reports and financial documents, which is not known to the public and profitable for the con-cerned party.
22.3 The following Confidential Information shall be exempt from the Confidentiality Obligation:
- the information demonstrably already known to the recipient at the time of con-clusion of this Agreement, or thereafter known from a third party without violat-ing any confidentiality agreement, statutory regulations or official orders;
- the information public known at the time of conclusion of this Agreement, or thereafter becomes public known without a breach of this Agreement;
- the information to be disclosed pursuant to statutory obligation or upon order of a court or authority. To the permitted and possible extent, the Party underlying the disclosure obligation shall notify the other Party thereof in advance and give the other Party the chance to take actions against the disclosure.
22.4 To comply with the Confidentiality Obligation, the Participants shall especially, without limitation: i) not disclose Confidential Information to any third party without prior written consent of the Disclosing Party; ii) maintain reasonable security measures to protect the Confidential Information against loss, theft or destruction; iii) return or destroy all Confidential Information of the Disclosing Party at the direction and upon request of the Disclosing Party.
22.5 A Participant may make the Confidential Information available only to the consult-ants, contractors or employees underlying professional confidentiality obligation or already under confidentiality obligation in conformity with these Terms.
22.6 Any documentation, drawings and other information received by a Participant through the Portal or from the other Participants in the course of transactions or for the purpose of performing contractually agreed services or duties may only be used within the boundaries of the respectively agreed contract or promoted purpose.
22.7 Without prejudice to the provisions set out in these Terms, a Participant shall pay to the Disclosing Party whose Confidential Information is disclosed in violation of the-se Terms a contractual penalty for each individual breach of its obligation by fault, the amount of which shall be subject to the discretion of the Disclosing Party and can be reviewed by court upon request of the party. The contractual penalty shall be set off against the liability for damages.
VI. INTELLECTUAL PROPERTY RIGHT
§ 23 Intellectual Property Right
23.1 All Intellectual Property Rights, including but not limited to copyrights, patents, utility models, designs and trademarks, are expressly reserved, unless otherwise ex-plicitly determined by the relevant parties. Participants shall not make any copies or authorize any copying of anything supplied in the course of contract negotiation or performance, such as product designs, diagrams, circuitry, hardware, software pro-grams and operating manuals except with the prior written authority of the rightful owner.
23.2 Each Participant shall not in any way infringe the Intellectual Property Rights of Clustermarket or the other Participant(s), or use for the purposes of its own business the Intellectual Properties of the other party to which it has granted access in connec-tion with this Agreement. Each Participant shall contractually obligate its related per-sons, especially its employees, directors, agents, advisers and supplier/distributors, to abide by the provision above.
VII. LIABILITY & INDEMNITY
§ 24 Liability
24.1 ANY PARTICIPANTS’ CLAIMS TO COMPENSATION SHALL BE EXCLUDED. EXCLUDED ARE CLAIMS FOR COMPENSATION ON THE PART OF THE PARTICIPANT ARISING FROM INJURY TO LIFE, BODY AND HEALTH. OR RESULTING FROM VIOLATION OF ESSENTIAL CONTRAC-TUAL DUTIES (CARDINAL OBLIGATIONS) AS WELL AS LIABILITY FOR OTHER DAMAGES BASED ON BREACHES OF DUTY DUE TO WILFUL INTENT OR GROSS NEGLIGENCE ON THE PART OF CLUSTERMARKET, HIS LEGAL REPRESENTATIVES OR VICARIOUS AGENTS. ES-SENTIAL CONTRACTUAL OBLIGATIONS SHALL BE THOSE WHOSE FULFILMENT IS NECES-SARY TO REACH THE OBJECTIVE OF THE CONTRACT.
24.2 IN THE EVENT OF SIGNIFICANT CONTRACTUAL DUTIES CLUSTERMARKET SHALL ONLY BE LIABLE FOR FORESEEABLE DAMAGE TYPICAL OF THE CONTRACT CONCERNED IF DAMAGES WERE CAUSED DUE TO SIMPLE NEGLIGENCE, UNLESS DAMAGE CLAIMS OF THE PARTICIPANTS ARE BASED ON INJURY TO LIFE, BODY OR HEALTH.
24.3 RESTRICTIONS STATED IN PARAGRAPHS 1 AND 2 SHALL ALSO APPLY IN FAVOUR OF LE-GAL REPRESENTATIVES AND VICARIOUS AGENTS OF CLUSTERMARKET IF CLAIMS ARE RAISED DIRECTLY AGAINST THEM.
24.4 IN THE EVENT OF LOST DATA, CLUSTERMARKET IS ONLY LIABLE FOR WILFUL INTENT AND GROSS NEGLIGENCE, AND LIMITED TO DAMAGES THAT MIGHT HAVE OCCURRED, HAD THE PARTICIPANT PROPERLY SAVED HIS DATA AT LEAST ONCE PER WEEK.
24.5 REGULATIONS OF PRODUCT RELIABILITY AND INDEPENDENT PROMISE OF GUARANTY REMAIN UNAFFECTED.
§ 25 Indemnity
25.1 SINCE CLUSTERMARKET IS NOT A PARTY IN THE CONTRACTUAL RELATIONSHIP BE-TWEEN THE PROVIDERS AND CUSTOMERS, NOR IN ANY OTHER DEALINGS OR BUSINESS BETWEEN/AMONG THE PARTICIPANTS, IN CASE A DISPUTE ARISES FROM THE AFORE-MENTIONED RELATIONSHIP OR DEALINGS, EACH OF THE PARTICIPANTS SHALL RELEASE CLUSTERMARKET FROM CLAIMS, DEMANDS, DAMAGES AND LIABILITIES OF EVERY KIND AND NATURE, ARISING OUT OF OR IN CONNECTION WITH SUCH DISPUTES, WHICH SHALL NOT APPLY TO THOSE OBLIGATIONS AND LIABILITIES EXPLICITLY ASSUMED BY CLUS-TERMARKET .
25.2 EACH PARTICIPANT AGREES AND COMMITS TO DEFEND, INDEMNIFY AND HOLD HARM-LESS CLUSTERMARKET, ITS PAYMENT PROCESSOR, AS WELL AS THEIR RESPECTIVE EM-PLOYEES, DIRECTORS, AGENTS AND REPRESENTATIVES, FROM AND AGAINST ANY AND ALL CLAIMS, COSTS, LOSSES, DAMAGES, JUDGMENTS, PENALTIES, INTEREST AND EX-PENSES (INCLUDING REASONABLE ATTORNEYS' FEES) ARISING OUT OF ANY CLAIM, AC-TION, AUDIT, INVESTIGATION, INQUIRY OR OTHER PROCEEDING INSTITUTED BY A PER-SON OR ENTITY, THAT ARISES OUT OF OR RELATES TO:
- ANY CONTENT PLACED ON THE PLATFORM, ANY ACTUAL OR ALLEGED INFRINGE-MENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR
- ANY TAXES OR DUTIES ARISING FROM OR IN CONNECTION WITH THE OFFER, SALE OR TRANSACTION ON OR THROUGH THE PORTAL, OR THE COLLECTION, PAYMENT OR FAILURE TO COLLECT OR PAY SUCH TAXES OR DUTIES,
WITH EXCEPTION AND TO THE EXTENT OF THE OBLIGATIONS/GUARANTEES CLUSTER-MARKET EXPRESSLY AGREES TO ASSUME IN FORM OF A WRITTEN AGREEMENT IN INDI-VIDUAL CASE.
§ 26 Severability
Should one provision of these Terms be or become ineffective, this shall not affect the validity of the other provisions. The invalid pro-vision will be replaced by a valid provision that most closely reflects the intent on both sides. This shall also apply in the case of a regulatory gap.
§ 27 Applicable Law
These Terms are subject to the jurisdiction of the Federal Republic of Germany ex-cluding the UN-Convention for the sale of goods.
§ 28 Settlement of Disputes
28.1 Any disputes arising from or in connection with the Agreements between the Provid-ers and Customers or any other dealings or business between/among the Participants using the Portal shall be settled directly and exclusively between/among the con-cerned Participants. The Participants hereby agree to give their best effort in the event of dispute, claim, question, disagreement or breach to consult and negotiate in good faith to reach a solution satisfactory to all parties. If the contracting parties reach an agreement upon resolution, they will promptly notify Clustermarket in writ-ing or using features available on the Portal. Clustermarket may provide its assis-tance in negotiation and help the parties finding an amicable solution, however, Clus-termarket shall not be liable for any error in judgment, for any act taken or not taken, or for any error of factual or legal grounds, with exception as provided in § 24. In principle, Clustermarket may rely upon any notice, letter, certificate, demand, re-quest, agreement or any other document which purports to have been transmitted or signed by or on behalf of a Participant indicated as the sender or signatory thereof, where the Agreement as well as the communication through the Platform will be primarily taken into consideration, and shall have no duty to make any inquiry or in-vestigation. In case of doubt or uncertainty, Clustermarket is entitled, but not obligat-ed to: (i) consult with counsel of its choice (including its own attorneys), and remit or otherwise dispose of the funds received following the advice of its counsel; or (ii) deposit all funds received, less the due amounts owed to Clustermarket, with a court of competent jurisdiction in accordance with the Agreement between the Provider and Customer; or (iii) refrain from taking any action other than retaining the funds in escrow for delivery in accordance with the settlement agreement later achieved by the Provider and Customer, or a final, non-appealable judicial decision or arbitration award. The Participants hereby consent to all acts taken or not taken by Clustermar-ket in above mentioned cases and discharge Clustermarket from any liabilities there-from, without prejudice to any legal claims or remedies available to the Provider and/or Customer against each other.
28.2 In the event of any dispute arising from or in connection with the relationship be-tween a Participant and Clustermarket, the parties shall first attempt to resolve the dispute through friendly consultations. In the event that no satisfactory resolution is reached within sixty (60) days after commencement of such consultation, the dispute shall be submitted to Deutsche Institution für Schiedsgerichtsbarkeit (“DIS”) for ar-bitration in accordance with the procedural rules of the Commission, which are in ef-fect at the time of the application for arbitration. The arbitration place shall be Stuttgart, Germany. The arbitration language shall be English. The arbitral award shall be final and binding upon the Parties. Arbitration fees as well as attorney costs shall be borne by the losing party, unless otherwise ruled by the arbitration tribunal.
Upon occurrence of any disputes or during the pending arbitration, except for the matters under dispute, the parties shall continue to perform their respective rights and obligation under these Terms.