1. 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.sowww.cello.to and 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), by Referral Users that may be entrepreneurs or consumers, and only in accordance with these Cello-ToS. 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 Customer’s offer. The Customer sends its offer to Cello by filling out and submitting the corresponding form on the Platform and by accepting the Cello-ToS. The Agreement with Referral User shall be concluded when the Referral User accepts these Cello-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 Cello-ToS) and send it to the User in text form (e.g., email). In addition, these Cello-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.

2. Customers; Customer Page; Cello Code

2.1 Customers may create and manage on the Platform their referral program for their SaaS products (“SaaS Product(s)”). This requires the Customer to provide Cello with information about the Customer and the respective SaaS Product (including descriptions of the pricing, payment terms, other costs and other applicable terms and conditions, trademarks/logos) as well as links to the Customer’s website, where users can purchase / subscribe for the Customer’s SaaS Product (“Customer Information”). Cello may create a subpage on the Platform for the Customer with selected information of the SaaS Product and the possibilities for referrals (“Customer Page”).

2.2 The Customer grants Cello all rights of use regarding the Customer Information (including the rights of use to the brand name and any transmitted trademarks and/or logos), which are necessary to create the Customer Page and render the services. Unless otherwise agreed between the Parties, Cello shall be entitled to refer to the Customer and the collaboration with the Customer and the SaaS Products and to depict the Customer’s logo/trademark for self-promotional purposes. The rights of use shall be granted free of charge, non-exclusively, unlimited in territory and for the duration of the respective Agreement. The Customer guarantees, (i) that the Customer Information (including the provided links and the respective websites, where the links lead to) are correct, up to date, and do not infringe any statutory law or third-party rights and (ii) that the Customer is legally entitled to provide the Customer Information and grant the rights of use hereof to Cello as described. The Customer shall indemnify Cello and all companies affiliated with Cello upon first demand against all claims, which are raised against Cello due to a breach by the Customer of the obligations under this section 2.2 or any other claims in connection with the Customer Information, for which Cello is not legally responsible, according to section 10.

2.3 Cello may provide Customer with referral components, which the Customer may integrate into the Customer’s own SaaS Products by integrating the Cello Code provided by Cello (“Components”). The Components enable Referral Users to make referrals within the SaaS Product (see section 3 below). “Cello Code” means certain JavaScript code, software development kits (SDKs) or other code provided by Cello for deployment on Customer Properties. The Components and the Cello Code are standardized tools that are provided exclusively in its as-is conditions according to the technical descriptions. No customization or adaptation to the Customer’s SaaS product or systems is owed by Cello. Subject to these ToS and any other terms and conditions of the Agreement, Cello shall grant to Customer a limited, non-transferable, non-sublicensable, non-exclusive license, limited to the Term of the Agreement to copy the Cello Code solely in the form provided by Cello on Customer’s SaaS product solely for the purpose to use the Platform and the Cello services and solely in accordance with the further documentation provided by Cello and this Agreement. The Customer must implement the Cello Code on the Customer properties in order to enable features of the Platform and the Cello services. The Customer must implement the Cello Code in strict accordance with the documentation and other instructions provided by Cello. The Customer acknowledges that any changes made to the Customer properties after initial implementation of the Cello Code may cause the Components to cease working or function improperly and that Cello has no responsibility for the impact of any such impact. The customer is solely and exclusively responsible for the integration of the Cello Code and the Components into the Customer’s SaaS Product and for ensuring that the SaaS Product functions as desired with the integrated Components. Cello points out that especially in the case that the technical requirements are not fulfilled or the technical information is not observed, problems with the operation of the Customer’s SaaS Product may occur, which are the responsibility of the Customer. Cello recommends testing the Components first within a test environment and in case of doubt not to integrate the Components in the Customer’s SaaS Product. More detailed information on the Customer Page and the Components, in particular technical information and the requirements for integrating the Components into the Customer’s SaaS Product, may be provided by Cello upon request by Customer.

2.3 The exact scope of services and functions of the Platform and any other services to be provided by Cello under the Agreement (including the provision of the Components and the functions and services of the User Account) as well as the fee owed by the Customer in return shall be determined by the detailed service description and price list on the Platform.

2.4 Cello shall invoice the fees as agreed in the Agreement and any further fees for additional services in accordance with the respective applicable service description and price list. All amounts mentioned are net plus value added tax at the statutory rate. Unless expressly agreed otherwise in the Agreement: (i) Cello shall issue a digital invoice per email to the Customer regarding the incurred fees, using the Customer’s email address provided in the context of the User Account (see section 4 below); (ii) the final amount shown in the invoice shall be due for payment immediately; and (iii) all payments shall be made to the Cello account stated in the invoice. Cello may offer further payment methods as described on the Platform. Any complaints relating to an invoice must be submitted to Cello in writing or by email to [email protected] within four (4) weeks upon receipt of the respective invoice. In the event no such complaint has been made within the aforementioned time, the invoice is deemed to be accepted. Cello will inform the Customer in the invoice about the consequences of failing to submit a timely complaint.

2.5 Cello reserves the right to suspend the provision of the Platform and any other services, including the Customer’s access to his/her User Account, at the expense of the Customer until all due payments have been made. Cello has the right to terminate the Agreement with immediate effect, if the Customer is in arrears with more than two months’ fees or Cello has set the Customer a reasonable deadline for payment of outstanding fees and the Customer has not made payment within this deadline. In case of returned direct debits or unpaid checks, the Customer shall reimburse Cello for any costs incurred to the extent that the Customer was responsible for. Any further claims and rights to which Cello may be entitled in this respect shall remain unaffected.

3. Referral Users; Referral; Referral Link, Referral Reward

3.1 The Referral User may use the functions of a given Customer Page or 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). The same shall apply with regard to the Customer, unless the Customer and the Referral User have bilaterally agreed otherwise. 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 and the Customer 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 or the Customer for which Cello and the Customer are not responsible.

3.2 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.

3.3 The Referral User will receive a reward from Cello 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:

3.4 The identification and distribution of Referral Rewards functions through the use of certain tracking methods. Cello is only obliged to reward Referrers based on valid Referrals that are traceable by Cello. In order to be traceable, certain technical requirements must be met, including certain technical settings of the Referral User’s and Referee’s devices and software. It is the responsibility of the Referral User to maintain the technical requirements and settings of his/her and the specific Referee’s devices and/or software (in particular browser) in order to enable the Cello Code to function as designed and enable Cello to track the Referral. Any failure to do so may result in Referral Rewards not being traceable, which may lead to an exemption of claims for Referral Rewards. Inter alia, the following technical settings at the Referral User’s and/or Referee’s device/software may result in Referral Rewards not being traceable: (i) The use of ad-blockers; (ii) disabling cookies in the browser (iii); and/or the use of unsupported browser versions. Upon request, Cello will provide more detailed information regarding the specific technical requirements.