General terms and conditions for customers using the services of opushero

This is a translation of the German Allgemeine Geschäftsbedingungen, provided for convenience. In case of any difference, the German version is the binding one.

Version: 1 March 2019

Preamble

Hero-Apps Betriebs UG, Rothenbaumchaussee 107, D-20148 Hamburg (hereinafter: "OPUSHERO") operates an online platform, www.OPUSHERO.com, on which its customers (hereinafter: "customers") can post requests for the procurement of services (hereinafter: "services" or "request"). Through the online platform, customers can receive offers from service providers and intermediaries of services (hereinafter: "service providers"). The contracting parties are always the customer and the service provider.

Section 1 – General provisions

Visitors and users of the online offering (hereinafter we also refer to the persons concerned collectively as "users").

§ 1 Scope
These general terms and conditions (hereinafter: "terms") apply to all contracts concluded in connection with the OPUSHERO platform.

§ 2 Permitted contracting parties
(1) Contracts with OPUSHERO are concluded exclusively through the online platform and only with customers and service providers registered there (hereinafter also: "users").
(2) Registration is open exclusively to natural or legal persons, or partnerships with legal capacity, who act at the time of registration in the exercise of their commercial or independent professional activity and are therefore entrepreneurs within the meaning of § 14 of the German Civil Code (BGB). Registration and use of the online platform by a person pursuing a purpose that can predominantly be attributed neither to their commercial nor to their independent professional activity is not permitted. Registration and use by minors is likewise not permitted.
(3) The customer represents and warrants that there are no factual or legal obstacles to receiving the services to be contracted. This includes in particular all laws, regulations, recommendations and instructions concerning the protection of the person carrying out the work.
(4) The service provider represents and warrants that there are no factual or legal obstacles to offering the service to the customer, contracting for it and providing the services, or having them provided by the chosen agents. This applies in particular to all tax and employment law circumstances. The service provider warrants that it holds all necessary permits, approvals and licences and keeps them current at all times.

§ 3 Costs
(1) OPUSHERO charges a platform usage fee for registration and for the use of the functions of the online platform. Costs are also incurred by users when users conclude a contract with one another (hereinafter: "transaction fee"). Prices are those in the current OPUSHERO price list available online at the time the platform is used or at the time the users conclude their contract. Where fees have only been partly used or drawn upon by the user at the time use of the platform ends, they are not refunded.

§ 4 Conclusion of contracts through OPUSHERO
(1) OPUSHERO brokers contracts between customers and service providers. OPUSHERO itself concludes only platform usage contracts with its users.
(2) OPUSHERO has no obligation, but has the right, to review the requests of customers and the offers of service providers before they are published. Users have no claim to publication.
(3) Only those service providers who have supplied the evidence required by OPUSHERO of lawful activity and lawful provision of services are entitled to submit offers. OPUSHERO has the right to examine that evidence. There is no claim to a review of rejected evidence.
(4) Once a declaration of intent has been submitted, it can no longer be changed or withdrawn for 48 hours or for another period specifically stated. In exceptional cases in which the declaring party is not at fault, OPUSHERO may cancel the declaration without acknowledging any legal obligation to do so. OPUSHERO may refuse the cancellation if the reasons given are not sufficiently set out and proven.

§ 5 Abusive conduct
It is prohibited to use the online platform in any way other than as described here and for any purpose other than the one set out in these terms. In particular it is prohibited:
to circumvent the technical measures that protect against misuse;
to manipulate or fix the prices of one's own or other parties' offers by using several user accounts or by acting together with other users;
to systematically read out and store the information about users available on the online platform, or to use it for any purpose other than initiating a contract with OPUSHERO;
to use the online platform with the intention of avoiding the brokerage fee due to OPUSHERO.

§ 6 Services that are not offered and may not be advertised
(1) OPUSHERO neither actively nor passively offers services that are contrary to public policy or that infringe the rights of third parties or the law. OPUSHERO also neither actively nor passively offers services that require a particular public-law or professional authorisation.
(2) It is not permitted for a customer to advertise any of the services described in paragraph 1.
(3) It is likewise not permitted for a service provider to offer or promote such a service.
(4) OPUSHERO reserves the right to make the admissibility of services subject to conditions going beyond those named in paragraph 1.

§ 7 Customer protection / non-competition
(1) From the moment a contact is first named by OPUSHERO (which may be another user, a service provider or the person carrying out a brokered service), the user undertakes neither directly nor indirectly to approach that contact in circumvention of the OPUSHERO rules, to agree prices or contractual terms with them, or to conclude agreements or contracts with them.
(2) This obligation applies on both sides and also to all affiliated companies.
(3) This obligation applies to all services that can be commissioned through OPUSHERO.
(4) The duration of this obligation is determined separately for each contact made known. The obligation ends one year after the last interaction in which the contact was shown or made known.
(5) An exception applies to users already known, or who became known by another route. The burden of proving that the contact was established permissibly lies with the user relying on that fact.
(6) If a user contacts a contact in circumvention of this customer protection, a contractual penalty of EUR 1,000.00 is incurred by that approach alone. The contractual penalty is due immediately without a reminder being required. The right to claim further damages is reserved.

§ 8 Indemnity
The user indemnifies OPUSHERO against all claims asserted against OPUSHERO by other users or third parties on account of the infringement of their rights by services advertised or offered by the user through the online platform, or on account of the user's other use of the online platform. The user bears the cost of OPUSHERO's necessary legal defence, including all court and lawyers' fees at the statutory rate. This does not apply where the user is not responsible for the infringement. In the event of a claim by a third party, the user is obliged to provide OPUSHERO without delay, truthfully and in full with all information required to examine the claims and to mount a defence.

§ 9 Liability for damage and duties of care
(1) OPUSHERO is not liable for damage based on a slightly negligent breach of duty by OPUSHERO or its agents, insofar as the occurrence of such damage could not reasonably have been expected within the respective contractual relationship. As a rule, the occurrence of damage need not be expected where it results only indirectly from the breach of duty.
(2) Paragraph 1 does not apply to damage arising from injury to life, body or health, or from the breach of cardinal obligations.
(3) Where a user's damage results from a breach of duty by another user, OPUSHERO assigns to the injured user, as a precaution, all of its own claims arising from the same set of facts against the user who caused the damage. A claim against OPUSHERO by the injured user is permissible only after the injured user has first pursued the user who caused the damage in court, and then only insofar as those proceedings did not provide redress and this is not due to a culpable omission by the injured user.
(4) OPUSHERO need not perform and may withdraw from the contract where OPUSHERO for its part cannot perform the contract, even though OPUSHERO contracted with carefully selected contractual partners.
(5) OPUSHERO gives no warranty as to the selection of customers or service providers. Customers and service providers choose their contractual partners on their own responsibility.
(6) When entering data onto the online platform, the user respects all copyright, the rights of third parties and the applicable laws.

§ 10 Special provisions on rights in respect of defects
(1) Where OPUSHERO owes the production of a work under this contract, the user must examine it without delay after delivery with reasonable thoroughness and, if a defect appears, notify OPUSHERO without delay. If such a defect appears later, the notification must likewise be given to OPUSHERO without delay after discovery.
(2) If the user has not notified the defect within 5 working days from the point at which they could reasonably have become aware of it, the notification is deemed late. What matters is the receipt by OPUSHERO of the user's declaration together with a description of the defect.
(3) If the user fails to give the notification without delay where it is required, any assertion of the defect is excluded, unless OPUSHERO fraudulently concealed the defect.
(4) Without prejudice to paragraphs 1 to 3, a work that is free of defects apart from immaterial ones is deemed accepted after 14 days at the latest.
(5) If a work provided by OPUSHERO is defective and the user remedies the defect themselves, OPUSHERO owes reimbursement of the user's expenses, without prejudice to paragraphs 1 to 4, only insofar as OPUSHERO consented to the self-remedy in advance. OPUSHERO will not refuse its consent where refusal would be disproportionate on a balance of the parties' interests.
(6) Where a work is defective, OPUSHERO always has the right to choose between remedying the defect and producing a new work. Withdrawal from the contract by the user, reduction of the remuneration owed by the user, or a claim for damages on account of a defect is not permissible before subsequent performance has failed a second time or OPUSHERO has refused subsequent performance.

§ 11 No application of differing terms
Differing, conflicting or supplementary general terms and conditions or terms of use of the contractual partners do not apply.

§ 12 Changes to these terms
OPUSHERO reserves the right to change these terms at any time and without stating reasons, with effect for the future. OPUSHERO will notify its contractual partners of the intended changes by email at least four weeks before they take effect and will make the amended terms available to them. The changes are deemed approved if the contractual partner does not object in writing within four weeks of receiving the notification. The notification will contain a corresponding reference to this period and to the consequences of not objecting. What matters for observing the period is the receipt of the objection by OPUSHERO. If an objection is made in time, both parties have the right to terminate the contracts concerned.

§ 13 Invalidity of individual clauses
Should individual provisions of these terms be or become void or ineffective in whole or in part, the validity of the remaining provisions is not affected. Statutory law takes the place of provisions of these terms that are not incorporated or are ineffective. Where no such statutory law is available (a gap in the rules) or where it would lead to an untenable result, the parties will enter into negotiations to agree an effective provision, in place of the one not incorporated or ineffective, that comes as close as possible to it in economic terms.

§ 14 Data protection
(1) OPUSHERO collects, processes and uses personal data in accordance with the applicable statutory data protection provisions, in particular the GDPR, the German Telemedia Act (TMG) and the German Federal Data Protection Act (BDSG). The OPUSHERO data protection provisions apply, available at: https://preview.OPUSHERO.com/info/disclaimer. The data collected is not passed to third parties outside the subsidiaries and parent companies of OPUSHERO.
(2) The user consents to their personal data being passed to other users in the ordinary course of OPUSHERO's business.
(3) The user may object to the use of the data in accordance with the statutory provisions. An informal declaration to OPUSHERO is sufficient for this. The contact details can be found at https://preview.OPUSHERO.com/info/contact.

§ 15 Applicable law
German law applies exclusively to the contracts concluded in connection with the use of the online platform, to the exclusion of the rules of private international law and of the UN Convention on Contracts for the International Sale of Goods.

§ 16 Place of jurisdiction
The exclusive place of jurisdiction for all disputes arising from contractual relationships concluded in connection with the use of the online platform, or with a contract concluded through it, is Hamburg. This does not apply where another exclusive place of jurisdiction is established by statute.

Section 2 – Use of the platform

§ 17 Scope
The provisions of this section supplement those of section 1 and govern the use of the online platform by users.

§ 18 Conclusion of the contract
(1) The contract for the use of the online platform offered by OPUSHERO is concluded when the user completes registration on the online platform, agreeing to these terms and acknowledging the privacy policy.
(2) There is no claim to the conclusion of a usage contract.

§ 19 Registration
(1) To use the services of OPUSHERO, the user must register on the online platform and create an account. This also includes registration with the payment service chosen by OPUSHERO (see also § 27 of these terms).
(2) Registration is only successfully completed once OPUSHERO has checked the data it received on the master data form, has received and checked the evidence requested, and the user has received confirmation of approval.
(3) The user must provide the data requested on the master data form and the additional evidence requested completely and truthfully.
(4) On receipt of the confirmation of approval from OPUSHERO, the user gains access to all essential functions of the online platform.
(5) OPUSHERO reserves the right to delete the accounts of users who have not completed registration, after a reasonable period.

§ 20 User account
(1) The user is obliged to keep their account information current at all times and to update it without delay when something changes, or to notify OPUSHERO of changes immediately.
(2) Users must keep their password secret and adequately secure access to their user account on the online platform. They must inform OPUSHERO without delay if there is any indication that their account on the online platform has been misused by a third party.
(3) An OPUSHERO account is not transferable.

§ 21 Term of the contract
The platform usage contract between OPUSHERO and the customer is concluded for an indefinite period.

§ 22 Ending the contractual relationship
(1) The user may terminate the platform usage contract at any time, without notice and without stating reasons, in writing or by email.
(2) OPUSHERO may terminate the platform usage contract at any time without stating reasons, giving 14 days' notice to the end of the month. Where OPUSHERO terminates, the usage fee paid by service providers may be refunded pro rata for the service not drawn upon.
(3) On termination the user loses access to their account.
(4) Termination of the platform usage contract does not affect contracts concluded through the online platform.

§ 23 Sanctions
(1) Where there are well-founded indications that a user is infringing these terms, statutory provisions or the rights of third parties, OPUSHERO may, depending on the seriousness of the infringement:
exclude the user concerned from further transactions, and/or
block their user account or individual functions for a limited period or permanently, and/or
terminate the platform usage contract without notice.
(2) OPUSHERO reserves the right to take legal action.
(3) After the platform usage contract has been terminated by OPUSHERO, registering again, including under another name, is prohibited.

§ 24 Extent of guaranteed operation
(1) OPUSHERO does not guarantee the permanent, uninterrupted operation of the online platform and guarantees nothing beyond the facilities and measures available under the current state of the art.
(2) OPUSHERO may temporarily restrict the services it offers on the online platform where this is necessary in view of capacity limits, the security or integrity of the servers, or in order to carry out technical measures, and where it serves the proper or improved provision of the services (maintenance work). In such cases OPUSHERO takes account of the legitimate interests of users, for example by announcing the measure in good time.

Section 3 – Contract between the customer and the service provider

§ 25 Scope
The provisions of this section supplement those of section 1 and concern the contract between the customer and the service provider.

§ 26 Basis of the contract
(1) OPUSHERO requires evidence from users intended to demonstrate that the offering of the service provider's services is in principle permissible and lawful.
(2) The evidence received by OPUSHERO from the service provider is made available to the customer. OPUSHERO gives no guarantee as to the accuracy or currency of the evidence, or as to its correct legal effect. Users alone are competent and responsible for this; each must assess the information presented to them and decide independently whether to enter into a contract with the respective contractual partner.

§ 27 Conclusion of the contract and contractual content
(1) The contract between the customer and the service provider is concluded as follows:
a) The request submitted by the customer, or the first offer submitted by the service provider, constitutes a legally non-binding invitation to an indeterminate group of users to make a legally binding offer.
b) Where applicable, OPUSHERO reviews these requests and first offers and shows them, in a legally non-binding manner, to the users OPUSHERO considers suitable.
c) The service provider makes the customer a legally binding offer to conclude a contract with the customer on the terms arising from the customer's request and from the remuneration set out, including the remuneration for OPUSHERO. The service provider is bound by its offer for 48 hours, or for the period specifically stated in the request, from the time it is submitted, and cannot revoke it during that time.
d) During that time the customer may accept the service provider's offer.
e) If the customer takes step d), a contract between the customer and the service provider comes into being when a corresponding declaration of acceptance from the customer, or from OPUSHERO acting on the customer's authority, reaches the service provider. Acceptance by OPUSHERO is always subject to the proviso that effective authority to act exists between OPUSHERO and the service provider chosen by the customer. At the same time the customer gives a declaratory acknowledgement of debt as to the existence of a claim by OPUSHERO against them for payment of an amount equal to the transaction fee under the price list in force at the time.
(3) The customer has no claim that OPUSHERO make any service provider at all available for selection, nor that OPUSHERO make a particular one available. This applies in particular where one service provider asks for lower remuneration than another.
(4) The specific contractual details exchanged through the platform, the transaction fee under the price list in force at the time, these terms and the statutory provisions become part of the contract, insofar as they are not replaced by specific agreements.
(5) Where offered by OPUSHERO, the service provider instructs OPUSHERO to produce an electronic invoice and to send it electronically to the customer. The customer confirms that they will receive the electronic invoice from OPUSHERO in their user profile.
(6) Both parties consent to OPUSHERO sub-contracting a payment service that handles the parties' payments for a transaction. The payment service currently used can be found online in the user profile. The user accepts the terms of the payment service in each case; where they do not do so explicitly, acceptance by conduct is hereby declared through use of the service.
(7) Oral side agreements do not become part of the contract.

§ 28 Payment terms, handling of complaints about the service
(1) Unless agreed otherwise, OPUSHERO invoices the services provided immediately after the service has been completed.
(2) The customer must dispute the invoice amount within 24 hours in order to stop the payment process.
(3) Where OPUSHERO has received no complaint from the customer within 24 hours of the invoice amount being notified, collection of the invoice amount through the payment service is triggered from the means of payment given by the customer at registration.
(4) Where the customer wishes to raise complaints about the invoice amount after 24 hours have passed, they remain free to do so, with the exception of the debit of the invoice amount by the payment service, which can no longer permissibly be refused. The right to reclaim the invoice amount from the service provider is unaffected.
(3) The customer is in default without a further reminder 30 days after the invoice amount was notified.

§ 29 Term of the contract
The term of the contract between the customer and the service provider is determined by the content of the contract concluded. The contract ends with the complete provision of the service described in the contract.