Terms of Service
- General; Users; Agreement 1.1 These Terms of Service (“Cello-ToS”) govern the access and use of the Cello Online Platform available under www.cello.so or www.cello.to or www.cello.co which may be used to manage and participate in referral programs and to obtain further services and products, including the Cello Code (collectively, the “Platform”). The Platform is operated and provided by the PowerPlay GmbH, Philipp-Loewenfeld-Str. 19, 80339 München (“Cello” or “we”). 1.2 Users that use the Platform to create and manage a referral program in order to accelerate the sale of their SaaS products are referred to as “Customers” (see section 2 below). Users that use the Platform to participate in a referral program by referring the Customer’s SaaS products to their network are referred to as “Referral User” (see section 3 below). Users that receive a Referral from a Referral User are referred to as “Referees” (see also section 3 below). Unless expressly described differently, Customers and Referral Users are referred to collectively as “Users”. Cello and the Users are also referred to collectively as “Parties” or individually as “Party”. 1.3 The Platform may only be accessed and used by Users who are of legal age and have full legal capacity, by Customers that are entrepreneurs (in terms of Sec. 14 German Civil Code (BGB)) and by Referral Users that are consumers (in terms of Sec. 13 German Civil Code (BGB)) and only in accordance with these Cello-ToS. Any commercial use of the Platform as a Referral User (i.e. if the User Referral is to be considered an entrepreneur in terms of Sec. 14 German Civil Code (BGB)) requires the explicit consent of Cello in text form (e.g. email). Prerequisite for the authorization to access and use the Platform as a User is the registration for a User Account (see section 4 below) and the conclusion of an “Agreement” with Cello, of which these Cello-ToS are an essential part. The Agreement with Customers shall be concluded, when Cello by email accepts the offer of the Customer, that the Customer sends to Cello by filling out and submitting the corresponding form on the Platform and by clicking the “Register” button. The Agreement with Referral User shall be concluded when the Referral User accepts these ToS in the first referral request sent by Cello. The information provided during registration must be complete and correct. Each User may only register once. Cello will store the contract text of the User’s registration (i.e., these ToS) and send it to the User in text form (e.g., email). In addition, these ToS are available under cello.so/legal/tos. The User can save or print these Cello-ToS by using the respective function of the User’s internet browser. The English language is available for the conclusion of the Agreement.
- Referral Users; Referral; Referral Link, Referral Reward 3.1 The Referral User may use the functions of a given Customer Page or an integrated Components within a Customer’s SaaS Product in order to refer the specific SaaS Product of the specific Customer to friends and his/her network (“Referral”). Upon request of the Referral User an identifiable link is created by the Customer Page and or the Components that leads to the Platform, where a Referee is further linked to the Customer’s own website, where the Referee can subscribe for the Customer’s SaaS Product (“Referral Link”). The Referral User may copy the created Referral Link and send it in his/her own name and under his/her own responsibility using his/her own communication channels (e.g., email, social media messenger) to friends and peers of the Referral User’s network. Cello does not send Referral Links to the Referral User’s network or any other person. The Referral User is expressly not allowed to act on behalf of Cello or to send messages on behalf of Cello (e.g., as an agent or representative or vicarious). When sending messages containing the Referral Link, the Referral User shall comply with all applicable laws and in particular shall not send any unlawful or otherwise harassing messages (SPAM). The Referral User shall be solely responsible for the messages sent by him/her and shall indemnify Cello against any claims by third parties based on any unlawful messages sent by the Referral User containing the Referral Link, that results in a claim against Cello for which Cello is not responsible pursuant to section 10. 3.3 Nothing in these Cello-ToS or the Agreement is intended to create an employment or agency or vicarious relationship between Cello and the Referral User (e.g., in terms of § 276 German Civil Code (BGB)). The Referral User acts solely on its own behalf and in its own interest and for its own account. The Referral User himself or herself is responsible for complying with all legal and tax requirements. 3.4 The Referral User will receive a reward for each agreement regarding a subscription for a Customer SaaS Product, that a Referee signs after using a Referral Link, that the Referral User has sent to the Referee, that meets the referral conditions (“Referral Reward”). The referral conditions can be viewed on the specific Customer Page or in the Components. The exact content of the Referral Reward will be communicated to the Referral User. In all cases, the Referral must meet the following additional conditions:
- The Referral User must be registered (to be confirmed by Cello),
- The Referee may not be identical with the Referral User,
- The Referee may not be registered with Cello at the moment the Referee receives the Referral Link.
- The Referral must be traceable for Cello (see following Clause 3.4).
- User Account; System Requirements and Integrity 4.1 In order to use all functions of the Platform, a registration combined with the creation of an account is required (“User Account“), for which the User must provide certain data and information in a complete and truthful manner (mandatory information are labeled*). Users may also visit and use the Platform without registering or creating a User Account, however, this may cause limited availability of certain features or functions. 4.2 The User and each person that the User namely designates as being entitled to use the User’s User Account will be issued with a username and password login credentials (“Access Data”). 4.3 The Access Data must be kept confidential and duly secured at all times. The User shall be responsible and liable for the persons, the User designates for his or her User Account. In the event of a suspected abuse of Access Data, the User is obliged to inform Cello immediately. Cello does not disclose the password of a User to third parties and never requests the password from the Users via email or telephone. 4.4 Cello reserves the right to temporarily or permanently suspend individual Users from the Platform in the event that specific evidence is given that a User or a person namely designated by the User has violated statutory provisions or these Cello-ToS seriously or repeatedly. Cello will, in making the decision to block access, consider the justified interests of the affected User, in particular, whether there is evidence that the User is not culpable for the violation. Cello will remove the block immediately once the violation ceases.
- Term and Termination, Deletion of User Account 5.1 Unless otherwise expressly agreed between the Parties, the Term of the Agreement shall run for an indefinite period. The Parties may terminate the Agreement (including the User Account) with 30 days prior written notice using the respective function on the Platform or – as applicable – the User’s current email address specified in the User Account or Cello’s email address as stated in the imprint of the Platform. 5.2 Upon termination of the Agreement, all rights of use of the User to the Platform, the Cello Code, and all other services of Cello shall immediately cease and Cello may limit the access of the User to the Platform and deactivate the Cello Code. Upon termination of the Agreement, Cello may also delete the User’s User Account and all information of the User Account insofar as no contractual or legal obligation to retain data applies.. After such deletion, the User will not be able to access or use the functions of the Platform that are only provided to registered Users and not be able to access the data stored in the User’s User Account anymore. If the Customer still owes payments to Cello, the Agreement shall continue to apply only insofar as this relates to the payment of the outstanding debts (however, the Customer shall no longer have any rights of use during this period). 5.3 The right of each Party to terminate for good cause with immediate effect remains unaffected. An important reason for Cello exists in particular (i) if the User violates these ToS in a particularly severe or repeated manner and/or (ii) if the Customer is insolvent, subject to insolvency proceedings, insolvency proceedings have been commenced or the commencement of insolvency proceedings is dismissed due to lack of assets.
- Copyright, Rights of Use, Prohibited Use 7.1 The User acknowledges that any and all rights existing in respect of the Platform (i.e., including the Components and all other services and products from Cello), including any and all intellectual property rights such as copyrights, trademark rights, patents and any and all other protective rights are exclusively and completely vested in Cello or, as applicable, third-party licensors of Cello, if not expressly otherwise stated. 7.2 The Platform (i.e., including the Components and the Cello Code and all other services and products from Cello) may only be used for purposes according to the Agreement and these Cello-ToS. In particular, the following is prohibited: (i) frame, mirror or otherwise incorporating the Platform or parts thereof on another website; (ii) access, monitor or copy the Platform or parts thereof using robots, spiders, scrapers or other automated means or any manual process; (iii) violate the restrictions in any robot exclusion headers on the Platform or bypass or circumvent other measures employed to prevent or limit access to the Platform; (iv) take any action that imposes, or may impose, an unreasonable or disproportionately large load on the Platform; (v) modify or attempt to modify the Platform, including any modification for the purpose of disguising or changing any indications of the ownership or source of the Platform; (vi) use the Platform as part of any service for sharing, lending or multi-person use; (vii) attempt to, assist, authorize or encourage others to circumvent, disable or defeat any of the security features or components, such as digital rights management software or encryption, that protect the Platform; (viii) copy, reproduce, modify, distribute, transfer, sell, publish, broadcast, perform, transmit, publish, license or circulate in any form any part of the Platform; (ix) create adaptations, translations, or derivative works based on the Platform, in whole or in part, or decompile, disassemble, reverse engineer or other exploit any part of the Platform; (x) use of access the Platform in a manner that violates the rights (including, but not limited to intellectual property rights) of any third party; or (xi) upload to or transmit through the Platform any information, data, images, text, media or other content that is offensive, hateful, obscene, defamatory or violates any laws. This foregoing shall apply only to the extent that such activity is not expressly permitted in accordance with mandatory law, such as §§ 69d and 69e German Copyright Law (Urheberrechtsgesetz).
- Cello’s Warranties 8.1 Cello warrants that the Platform is available to the User within the scope and the availability according to these Cello-ToS and the further description at the Platform. Beyond this, Cello does not grant any warranties and gives no independent guarantee. In the event of any defects Cello will undertake the necessary measures to remove the defect within the appropriate time period. Any statutory warranty rights of the Users shall remain unaffected. 8.2 Cello is exempted from the duty to perform in the event of force majeure. Force majeure are all unforeseeable incidents as well as such incidents where the impact on the performance of the contract is not within the control of either Party. These incidents include, in particular, legal industrial actions, also in respect of third-party operations, public measures, breakdown of communication networks and gateways of other operators, disruptions in the area of line providers, other technical disturbances, including if these circumstances occur in the sphere of subcontractors, sub-suppliers or their subcontractors. No claims for the User result from such breakdowns that Cello is not responsible for. 8.3 To the extent that Cello facilitates access to websites, APIs, databases or other infrastructures of third parties, Cello is not responsible for the availability or the content of the data obtained from there. A claim for liability for resulting damages incurred by the User against Cello therefore shall not be given.
- Limitation of Cello’s Liability 9.1 Cello shall only be liable for damages, with the exception of a violation of material contractual duties, where and to the extent that Cello, its legal representatives, executive employees or other vicarious agents have acted intentionally or with gross negligence. In the event of a violation of material contractual duties, Cello shall be liable for any culpable behavior by its legal representatives, executive employees or other vicarious agents, whereas the term “material contractual duties” refers to those duties whose fulfillment is a prerequisite for enabling the proper fulfillment of the Agreement in the first place, the fulfillment of which the User may normally rely on, and whose breach jeopardizes the achievement of the purpose of the contract. 9.2 If the User is an entrepreneur (in terms of § 14 German Civil Code (BGB), except for intentional or grossly negligent behavior by Cello, Cello legal representatives, executive employees or other vicarious agents, the liability of Cello is limited to the amount of the damage typically foreseeable at the point in time of the conclusion of the contract. 9.3 Any further liability of Cello shall be excluded. To the extent the liability of Cello is excluded or limited, the same shall apply for the personal liability of the legal representatives, executive employees or other vicarious agents of Cello. 9.4 The abovementioned limit of liabilities shall not apply in the event of the assumption of express guarantees by Cello and in respect of damages arising from injury to life, body or health as well as in the event of mandatory statutory provisions (e.g., German Product Liability Act (Produkthaftungsgesetz)).
- Indemnification The User shall release Cello from any claims asserted by third parties against Cello because their rights are being violated by the User’s use of the Platform. In doing so, the User shall also assume the necessary costs incurred by defending the rights of Cello, including any and all legal and court fees (maximum up to the statutory amount). This shall not apply if and to the extent the User is not responsible for the violation of rights.
- Confidentiality 11.1 This section 11 only applies to Users that are entrepreneurs (in terms of § 14 German Civil Code (BGB)). 11.2 The Parties undertake to keep all confidential information of the other Party, and of the entities that are affiliated with it in the sense of §§ 15 ff. German Stock Corporation Act (Aktiengesetz, AktG), confidential which the Parties become aware of in connection with or during the implementation of the Agreement, and to use them solely for the purposes set forth in the Agreement. Such information may still be disclosed to those employees and external advisors who are directly involved in the implementation of the Agreement (“need to know” principle) and who are bound by law or contract – to the extent legally permissible also for the period after they leave the company – to maintain confidentiality. Information may also be disclosed if the other Party has agreed to disclosure. Confidential information within the meaning of this section shall be trade secrets within the meaning of Sec. 2 No. 1 of German Law on the Protection of Trade Secrets (Geschäftsgeheimnisschutzgesetz) and all other confidential information of an economic, legal, financial, technical or fiscal nature which relates to the business activities, customers or employees of the Parties and which is indicated as such or is by its nature to be regarded as confidential, irrespective of whether and how it is documented or embodied (“Confidential Information“). 11.3 The term Confidential Information does not include such information which (i) is or becomes available in the public domain or generally (except by reason of any breach of this Agreement by informed Party or its Representatives); (ii) was already legitimately in the possession of the informed Party and not subject to a duty of confidentiality, before the informed Party received the information from the informing Party or (iii) was received from a third party who was entitled to disclose this information without restriction. The Party claiming one of the above exceptions must prove the applicability of such exception. 11.4 Each Party may disclose confidential information to a public authority if the Party is required to such disclosure according to applicable laws or an official order. The extent of disclosure shall be kept as small as possible; the other Party shall be informed without delay and – if possible – prior to the disclosure to the public authority. 11.5 Upon termination of the Agreement, the Party which has received Confidential Information of the other Party shall, upon written request of the other Party, either return or destroy, at the other Party’s option, all Confidential Information (including all embodiments, data carriers and copies) immediately and at its own expense, to the extent reasonably practicable, and confirm this to the other Party. This shall not apply if and insofar as the Party obliged to return or destroy is legally obliged to retain confidential information. 11.6 The Parties may make public statements and/or press releases regarding the existence of the cooperation of the Parties. But neither party may make further public statements or press releases regarding the terms of the Agreement or any further aspect thereof without the prior written consent of the other Party. 11.7 The rights and obligations in this Clause 11 shall be effective for five (5) years beyond the termination of the Agreement.
- Data Privacy 12.1 As far as Cello processes personal data, the personal data are processed according to the applicable data privacy laws, in particular the GDPR. 12.2 Cello is providing important information regarding personal data and the processing hereof, including the data subject’s rights, in the User Privacy Note on the Platform.
- Choice of Law, Place of Performance, Place of Jurisdiction, Offsetting 13.1 The Agreement including these Cello-ToS are, in respect of application and interpretation, exclusively subject to the laws of the Federal Republic of Germany, expressly excluding the rules of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and excluding the German principles of conflict of laws, provided that if the User is consumer within the meaning of § 13 of the German Civil Code (BGB) and is domiciled with the European Union, mandatory consumer protection laws of such EU member state, in which the User has its permanent residency, shall remain unaffected. 13.2 The place of fulfillment of all contractual obligations shall be Munich, Germany. In respect of all claims in the context of the Agreement or the use of the Platform, Munich shall be exclusive place of jurisdiction, if the User is a merchant, legal person or special asset (Sondervermögen) under public law. Irrespective of this, Cello may also sue the User at the User’s place of jurisdiction. 13.3 Users are only entitled to set off due and/or future claims against payment requests by Cello where these claims are legally established or undisputed.
- Miscellaneous 14.1 The Agreement, including these Cello-ToS represent the entire agreement and understanding in respect of the subject of the Agreement and replace any and all oral or written agreements and understandings in place between the Parties with respect to the subject of the Agreement, unless expressly agreed otherwise in the Agreement and/or these Cello-ToS. Any User’s terms and conditions deviating or supplementing these Cello-ToS shall not apply, unless the Parties have agreed explicitly otherwise in written form. 14.2 In the event of potential discrepancies or omission, the provisions of the Agreement shall supersede these the provisions of these Cello-ToS. 14.3 If any of the provisions contained in these Cello-ToS are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such determination will not affect the remaining provisions contained herein. 14.4 Amendments or supplements to the Agreement or these Cello-Tos – including this written form requirement – and any attachments must be made in written form in order to be effective. A simple electronic signature shall be sufficient for the compliance with the written form requirement. For Users that are consumers (§ 13 German Civil Code Law (BGB)) the text form shall be sufficient. For all other Users the transmittal of signed declarations per email shall be sufficient. All other notifications in the context of the Agreement may, unless expressly agreed otherwise, be transmitted to the email addresses specified by the Parties for this purpose. Oral communication or communication by telephone are not sufficient. 14.5 Cello is neither willing nor obliged to participate in dispute resolution proceedings with consumers before a consumer arbitration board. 14.6 Cello may propose changes to these Cello-ToS to the User. Any revised new Cello-ToS will be posted on the Platform (including the effective date). In addition, Cello will notify the User by email of the proposed changes at least thirty (30) days prior to the effective date of the new Cello-ToS. If the proposed changes to these Cello-ToS are material, Cello will require the User to expressly agree to the revised Cello-ToS. In the case of (i) immaterial changes to these Cello-ToS that do not affect material provisions, including, without limitation, provisions that define the nature and scope of the services provided by Cello, or (ii) changes required by law, a final court decision, or a binding order of a competent authority, the User’s continued use of the Platform after the effective date of the proposed changes will be deemed to be the User’s consent to the revised Cello-ToS. In that event, Cello will also inform the User in the notice email of the User’s right to reject the proposed changes, the timeframe in which the User may do so, and the User’s right to terminate the Agreement without charge at any time prior to the effective date of the proposed changes under these Cello-ToS.
Version: August 2, 2022