TERMS OF SERVICE

Last updated on 21.11.2023

Information about us

whalecard.co (“Site”) is a website operated by Whalecard (“Whalecard”, “we”, “our” or “us”), a deep tech startup headquartered in Germany.

These terms of service (“Terms of Service”), together with the documents referred to herein, set out the terms upon which you may use our Service (as defined below), and form a legally binding contract between you and Whalecard. If you have any questions relating to the Terms of Service please contact us at service@whalecard.co.

PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THE SERVICE. BY ACCESSING, BROWSING OR OTHERWISE USING THE SITE OR THE SERVICE:

1. A) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE WHETHER ON YOUR OWN BEHALF (WHERE YOU ARE ACTING AS AND INDIVIDUAL) OR ON BEHALF OF THE COMPANY, BUSINESS OR ORGANIZATION YOU REPRESENT;
2. B) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO FOLLOW AND BE BOUND BY THESE TERMS OF SERVICE, YOU MAY NOT ACCESS, BROWSE OR OTHERWISE USE THE SITE OR THE SERVICE.

Definitions

“Service” means any service we offer to Customers. For example, tech talent technical assessment, talent sourcing, custom challenge etc. You can see all services we offer on our Site.

“Account” means an account with us for use of our Service that is specific to you and is protected by a password.

“Customer” means the organization submitting the Request for Trial form on our Site.

 “Customer Manager” means an employee of the organization who represents Customer and registers the organization to get an Account for use of our Service.

 “Representative” means any employee of the Customer who has a dedicated individual Account on our Site along with the Customer Manager.

“Agreement” means the agreement between Whalecard and you comprised of these Terms of Service and the other documents referred to in these Terms of Service.

“Candidate” means an individual person who accesses the Service to apply for a job or is recommended by us for a vacant position at Customer’s organization or at the organization of our partner.

“Talent” means an individal person whose public profile has been discovered by us and available on our platform for our customers.

“Challenge” means a technical task which is required by a Representative to be solved by Candidates in order to apply for a job.

“Content” means all text, information, material, data, software, applications, database content, executable codes, images, audio or video material, including the metadata relating to any such content, in whatever medium or form provided by us or by you in relation to the Site and Service.

“Fees” means the amount payable by you to us in consideration for our Service, as stated on our Site during registration or filling out the Order Form or provided after trial period or after leveraging any special programs such as early adoption program.

“Initial Term” means the initial term of the Agreement set out on our Site during registration or submitting the Request for Trial form on our Site

“Trial Form” means a binding sales order form executed by you and Whalecard and incorporating this Agreement. In the event of any new or different terms in the Request for Trial form, such new or different terms shall supersede any inconsistent terms in this Agreement, but only to the extent of the inconsistency.

“Paid Plan” means the paid Service you subscribe for.

“Trial Plan” means the Service either limited by certain features, number of usage or time for usage. Trial Plan ends immediately after the first usage by Customer. Licence for Trial Plan is issued by Whalecard only once for each Customer. Further registrations with the same Customer identity are not eligible for Trial Plan.

“Trial” means a Trial Plan subject to these Terms of Service.

“Policies” means the following documents displayed on the Site: Privacy Policy, Terms of Service, Cookie Policy.

“Public Challenge” means a Challenge which is accessible to any Candidate registered on our platform.

“Private Challenge” means a Challenge which is only visible and accessible to registered Candidate on our platform with explicit invitation by Representative or Whalecard.

“Beta Service” means the Service in the testing phase by a group of Customers in order collect feedbacks for further improvements to make a commercial service further.

“Term” means the period of time made up of the Initial Term and any renewal period.

“Job Posting” also is referred as Job Ads – is the primary means through which Customer recruit new Candidate for available positions.

“Hackathon” is an event where one or more technical challenges are distributed among participants – Candidates to gamify hiring process in order to discover the most talented Candidate.

“You” means a Customer, their employees, agents or anyone authorized by us to use the Service.

Modifications; Other agreements; Grant of license

We may make modifications, deletions and/or additions to these Terms of Service (“Changes”) at any time. Changes will be effective: (i) thirty (30) days after we provide notice of the Changes, whether such notice is provided through the Service user interface, is sent to the e-mail address associated with your account or otherwise; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first.

Our Privacy Policy, found at https://whalecard.co/privacy-policy, is hereby incorporated into these Terms of Service. Please read this notice carefully for details relating to the collection, use, and disclosure of your personal information.

During the Term, subject to these Terms of Service and your payment of all applicable Fees, we grant: (i) Customer Manager and Representatives a personal, non-exclusive, limited, revocable license to use the Service and the features specified on our Site; and (ii) Candidates a personal, non-exclusive, limited, revocable license to access the Service to participate at Hackathons to solve Challenges for intended and supported purposes.

The service

The Customer Manager is responsible for making all arrangements necessary in order for it, its employees, agents or anyone else authorized by us, including its Candidates, to have access to the Service and for procuring and maintaining all necessary equipment and network connections in order to use the Service. Customer is responsible for ensuring that their Candidates have the details they need to use the Service. Customer shall ensure that their Candidates agree to the Policies before they take a Hackathon.

We represent and warrant that we shall use commercially reasonable efforts to provide the Service in accordance with its documentation and in accordance with industry standards.

We will make commercially reasonable efforts to notify you of any planned maintenance that might impact the availability of the Service and we will inform Customer of their Candidates’ Hackathon which have been affected by an unexpected system downtime.

If we discover a problem in one of our Challenges that may have affected the result of a Hackathon, as our sole obligation in relation thereto, we will inform Customer whose Candidates took the affected Hackathon(s) up to 1 month prior to the discovery of the problem.

We shall make available appropriate technical support (during our regular business hours) to all Customer and Candidates of the Service. For technicall support and assistance of the Service you could send us an e-mail to: support@whalecard.co.

Duration

If you subscribe for a Paid Plan, the Agreement lasts for the Initial Term unless it is otherwise terminated in accordance with these Terms of Service (including, without limitation, Section 7).

Price and payment

The Customer is responsible for paying all relevant Fees. Fees are due and payable as of the date you started to use Paid Plan (unless otherwise specified in the Order Form). All Fees are exclusive of applicable sales tax, VAT and any other applicable taxes, unless otherwise stated. You may be charged, and are solely responsible for, all applicable taxes.

Whalecard accepts online payment for any Paid Plan: If you chose to pay us online (via credit card or other payment accepted by Whalecard), payment processing for the Service is provided by such third party payment service provider as we may utilize from time to time (“Payment Service Provider”). Whalecard does not collect or store your credit card information. You can find out more about both our privacy practices in our Privacy Policy and the links therein. By providing a credit card or other payment method accepted by Whalecard, you represent and warrant that you are authorized to use the designated payment method and that you authorize our Payment Service Provider to charge your payment method for the total amount of your transaction and any applicable fees (including any applicable taxes and other charges). If the payment method you provide cannot be verified, is invalid or is otherwise not acceptable, your account may be suspended or cancelled. You must resolve any problem we or our Payment Service Provider encounters in order to proceed with your use of the Service. In addition, the Paid Plan processed via Order Form may be paid by the following payment methods:

Bank Transfer Termination

Termination of this Agreement (however caused) shall be without prejudice to any rights or liabilities accrued up through the date of termination and shall not affect the continuation after termination of any provision expressly stated or implicitly surviving termination. In our sole discretion, we may: terminate this Agreement temporarily or permanently withdraw any rights you have to use the Service issue a notice; and/or take legal action at our sole discretion, or if you: – fail to pay any amount owed to us within 10 days of the due date; – are in material or persistent breach of this Agreement and (if the breach is capable of remedy) fail to remedy such breach within 30 days of a notice requiring you to remedy that breach; – are insolvent, bankrupt, unable to pay your debts, enter into any agreement with your creditors, or enter into administration; or are in breach of any applicable law, rule or regulation.

On termination of this Agreement for any reason all licenses granted by us under these Terms of Service shall immediately terminate and your right to access and use the Service will end.

On termination of this Agreement for any reason Sections 1 (Definitions), 6 (Price and Payment), 9 (Restrictions), 10 (Your Responsibilities), 11 (Acceptable Use), 12 (Limitation of Liability), 13 (Indemnification), 14 (Intellectual Property Rights), 16 (Feedback and Publicity), 17 (Confidentiality) and 18 (Miscellaneous) of these Terms of Service, as well as the following subsections of Section 7 (Termination): 7.1, 7.3, 7.4, shall all continue in full force.

Account security

You are responsible for safeguarding any password given to you to access the Service and you must prevent any unauthorized use of these details. You agree not to disclose your password to any other person. If you believe an unauthorized person has access to the Service, you must notify us as soon as possible by e-mail to service@whalecard.co. You are responsible for all activities occurring under your Account. Please note that Whalecard never asks Customers for account password, access tokens or similar security tokens!

You must not sell, transfer or sub-license your access to the Service. You will not, and will not allow anyone else to: use the Service for any purpose that is unlawful or prohibited by these Terms of Service; attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit or distribute all or any portion of the Service, as applicable, in any form of media or by any means; use any robot, spider, site search or retrieval application, or any other device to copy, retrieve, archive or index any portion of the Site that requires authentication; attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Service; access all or any part of the Service in order to build a product or service which competes with our Service or use or attempt to use the Service to directly compete with us (including by reselling access to the Service);  use the Service in any manner that could interfere with any other party’s use of the Service;  intentionally interfere with or damage the operation of the Service or any other user’s enjoyment of the Service, by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code; remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Service, features that prevent or restrict the use or copying of any content accessible through the Service, or features that enforce limitations on the use of the Service; attempt to gain unauthorized access to the Service, or any part of the Service, other accounts, computer systems or networks connected to the Service, or any part thereof, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service;  obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service;  either modify the Service in any manner or form, or use modified versions of the Service, including (without limitation) for the purpose of obtaining unauthorized access to the Service; or deep-link to the Service, and: (a) you will promptly remove any links that we find objectionable in our sole discretion; and (b) you may not use any Whalecard logos, graphics, illustrations or trademarks as part of the link without our express written consent. share your user account(s) among multiple employees or agents. Should you need accommodation for more user accounts than the current limit per your Agreement, please contact service@whalecard.co.

Your responsibilities

At all times while using the Service, you:

must comply with all applicable laws, rules and regulations in connection with your use of the Service and this Agreement, including without limitation all employment laws; are responsible for any actions and omissions relating to the use of the Service by you and your Candidates;  must obtain and maintain all necessary licenses, consents and permissions necessary for us to perform our obligations under the Agreement (for example software licenses for integrated tools, data protection permissions); are responsible for procuring and maintaining your network connections in order to access the Service and ensuring that your network and systems comply with the relevant specifications provided by us from time to time.

Acceptable use

You must ensure that the Service is not used to distribute in any way (including by your use, creation, provision or posting such Content on the Site and/or the Service) Content that may:

contain any material which is false, unlawful, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, violate any law or is otherwise inappropriate; be subject to third-party intellectual property or proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant Whalecard all of the license rights granted herein; infringe any copyright, database right, trademark or other third party right of any kind, deceive or harass any person, or promote any illegal activity, or permit any third party to do so; be an advertisement or marketing content or solicitations of business, or any content of a commercial nature; orbe used to impersonate any person, misrepresent identity, or give the impression that they emanate from Whalecard, if this is not the case.

We shall have the right to immediately remove any content described in Section 11.1 through and including Section 11.3 from the Site without notice to you. We may investigate an allegation that any Content does not conform to these Terms of Service and may determine in good faith and in our sole discretion whether to remove such Content, which we reserve the right to do at any time.

Limitation of liability

1. EXCEPT AS OTHERWISE SPECIFIED HEREIN, THE SERVICE AND ANY THIRD-PARTY, MEDIA, SOFTWARE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. EXCEPT AS OTHERWISE SPECIFIED HEREIN, TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WHALECARD, AND ITS SUPPLIERS AND PARTNERS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WHALECARD, AND ITS SUPPLIERS AND PARTNERS, DO NOT WARRANT THAT THE FEATURES CONTAINED IN THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
2. WHALECARD, AND ITS SUPPLIERS AND PARTNERS, DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. EXCEPT AS OTHERWISE SPECIFIED HEREIN, YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD, OR OTHERWISE OBTAIN MEDIA, MATERIAL, OR OTHER DATA THROUGH THE USE OF THE SERVICE AT YOUR OWN DISCRETION AND RISK CERTAIN LAWS IN YOUR JURISDICTION MAY NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
3. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL WHALECARD OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS, BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES THAT RESULT FROM YOUR USE OR THE INABILITY TO USE THE CONTENT, VISUAL INTERFACES, INFORMATION, GRAPHICS, DESIGN, COMPILATION, COMPUTER CODE, PRODUCTS, SOFTWARE, SERVICES, AND ALL OTHER ELEMENTS OF THE SERVICE THAT ARE PROVIDED BY WHALECARD ON THE SERVICE, THE SERVICE ITSELF, OR ANY OTHER INTERACTIONS WITH WHALECARD, EVEN IF WHALECARD OR A WHALECARD AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, WHALECARD’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
4. IN NO EVENT SHALL WHALECARD’S OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SITE (WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE) EXCEED THE FEES ACTUALLY PAID BY YOU TO WHALECARD IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE APPLICABLE CLAIM.
5. THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED TO YOU BY THIRD PARTIES OTHER THAN WHALECARD AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE SERVICE OR RECEIVED BY YOU THROUGH ANY LINKS PROVIDED ON THE SERVICE.

Indemnification

The Customer shall indemnify, defend and hold Whalecard and its affiliated companies, suppliers, partners, agents and contractors harmless from and against any and all losses, damages, claims, liabilities or expenses (including reasonable lawyer’s fees and disbursements) arising out of a claim brought by a third party relating to: (i) Customer’s use of the Service or their Candidates’ use of the Service (except to the extent caused by our gross negligence or willful misconduct) including, without limitation, any employment decisions, financial business, and commercial judgements, and acts or omissions made based on use of the Service; (ii) any breach of these Terms of Service or any representations, warranties or covenants herein; or (iii) any violation of any applicable law, rule or regulation by Customer or its personnel in connection with the Service, including without limitation any violation of any employment laws.

Whalecard shall indemnify, defend (or settle), and hold harmless the Customer from and against all claims, suits, liabilities losses, costs, damages, and expenses, including without limitation reasonable attorneys’ fees or expenses (“Losses”), arising out of or related to any third party claim that alleges that the Services infringe any copyright, trade secret, patent or trademark, or any other intellectual property right (“Intellectual Property”) of any third party brought against the Customer. The Customer shall provide Whalecard with: (i) prompt written notice of such claim; (ii) control over the defense and settlement of such claim; and (iii) proper and full information and assistance to settle and/or defend any such claim. The foregoing provisions states the entire liability of Whalecard, and the sole remedy of the Customer, with respect to any actual or alleged claim of infringement or misappropriation of the Intellectual Property of any third-party.

Intellectual property rights

1. We are the owner or licensee of all intellectual property rights (“IP Rights”) in the Service and the Site and any material written or published on it, including but not limited to, as between you and us, all Challenge results. All such rights are reserved, and no rights are granted or transferred hereunder except to the extent expressly licensed under these Terms of Service. As between the parties, each Candidate remains the owner of all his/her Candidate data.
2. You hereby grant Whalecard a non-exclusive, perpetual, royalty-free, worldwide and irrevocable license to use any Content (including Job Posting) provided by you through the Site in connection with providing the functionality of the Service (including through third party providers and contractors who help us provide the Service) and as provided under Section 14.1. You are responsible for ensuring that you have the rights or permission needed to comply with these Terms of Service.
3. Without limiting the foregoing, any Content entered into the Service by you may be stored and used by us and our third party providers and contractors who help us provide the Service in any way for the purpose of assessment, anti-cheating measures, demonstrating to third parties, and analysis.

Data privacy

We will hold and process any data provided by you in accordance with our Privacy Policy. The Customer is responsible at all times for ensuring the accuracy and legality of any data or Content in the Service relating to it or its users. You hereby represent and warrant that you have all necessary rights in your Content to upload such Content to the Service and for it to be used in all manners contemplated under the functionality of the Service.

We will not be liable for the deletion, correction, alteration, destruction, damage, loss, disclosure or failure to store any of your Content or any other data using the Service. The Customer must ensure that all relevant parties (including Candidates) have been informed of, and have consented to, any personal information being held and processed by us in accordance with our Privacy Policy and Data Processing Agreement on behalf of the Customer. The Customer must notify us promptly if any information it has provided to us (including contact information) changes. We may process any personal information entered on the Service by you in accordance with our Privacy Policy.

We will forward any data subject access and other requests to you. You may not use the Service for any illegal or unauthorized purpose. You are solely responsible for your conduct and any data, including but not limited to any Content, that you or your Candidates deposit on the Site. In particular, if you choose to use the Service to store Candidates’ personal information and if you or your Candidates are located in a jurisdiction that requires Candidates’ consent to store their personal information or has any other legal requirements before doing so, you shall obtain the Candidates’ consent and comply with all other legal requirements before the Candidate is sent an invitation to take a Hackathon.

We may disclose any data provided by you to law enforcement authorities as we reasonably feel is necessary.

Feedback and publicity

We welcome comments, suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service (“Feedback”) from you. You agree to assign and hereby do assign to us all right, title and interest in and to such Feedback and agree that we may freely utilize such Feedback without compensation or attribution to you.

You grant us the right to use your company name and logo as a reference for marketing or promotional purposes on our Site and in other public or private communications with our existing or potential Customers, subject to your standard trademark usage guidelines as provided to us from time to time. We do not want to list Customers who do not want to be listed, so you may send us an email to service@whalecard.co stating that your company does not wish to be used as a reference.

Confidentiality

Each Party agrees that all information that is disclosed, whether disclosed verbally, in writing, in electronic form or by any other means, by one party (“Discloser”) to the other Party (the “Recipient”), shall be considered confidential information of the Discloser (the “Information”). Recipient hereby agrees not to use the Information except for the purpose of performing its obligations and exercising its rights under these Terms of Service. Recipient agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Information of the Discloser. Without limiting the foregoing, Recipient shall implement at least those protections for Information of the Discloser that Recipient takes to protect its own confidential information. Recipient agrees not to disclose any Information of Discloser to third parties or to employees of Recipient, except that Recipient may allow access to the Information of Discloser to those of its consultants, service providers, advisors, employees or other authorized representatives who are required to have the Information of Discloser to perform Recipient’s obligations under these Terms of Service, provided, however, that such consultants, service providers, advisors, employees or other authorized representatives have signed or are otherwise subject to an agreement imposing upon such person restrictions on use and disclosure of the Discloser’s Information that are at least as restrictive as those in these Terms of Service, prior to any disclosure of Discloser’s Information to such person. Recipient shall not reverse engineer, disassemble, decompile, or determine the composition of any prototypes, software or other tangible objects that embody any Information of Discloser and that are provided to Recipient hereunder. Recipient shall not make any copies of Information of Discloser unless the same are previously approved in writing by Discloser. The foregoing restrictions shall not apply to Information of Discloser that Recipient can establish: (i) was publicly known or made generally available in the public domain prior to the time of disclosure to Recipient by Discloser; (ii) becomes publicly known or made generally available after disclosure to Recipient by Discloser through no action or inaction of Recipient; (iii) is in the possession of Recipient, without confidentiality restrictions, at the time of disclosure by Discloser as shown by Recipient’s files and records immediately prior to the time of disclosure; or (iv) is obtained by the Recipient from a third party without a breach of any obligations of confidentiality and not under confidentiality obligations. Notwithstanding the foregoing, the Recipient may disclose the Information of the Discloser to the extent required by an applicable court order or by law; provided, however, that the Recipient that is so required to disclose the Information of the Discloser shall, when possible, give the Discloser reasonable advance notice of such disclosure and use reasonable efforts to secure confidential treatment of such Information (whether through protective order or otherwise).

Miscellaneous

You must give all notices under these Terms of Service to us at service@whalecard.co. We may give notice to you at an e-mail or postal address you provide to us, by posting a notice on the Site, or in any other way we deem appropriate. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. Notice will be deemed served and received immediately (i) when posted on the Service; (ii) 24 hours after an e-mail is sent; or (iii) three days after posting a letter.

Neither party may assign its rights or delegate its duties under this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of the other party, except that a party shall have the right to assign this Agreement in whole as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets on notice to the other party, provided that such assignee is not a competitor of the non-assigning party and has the ability to assume the rights and obligations of the assigning party hereunder. Any attempted assignment or delegation in violation of this Section 18.2 will be void. This Agreement shall be binding on, and shall indure to the benefit of, the parties and their respective successors and permitted assigns.

The failure of us to enforce any provision of these Terms of Service shall not be deemed a waiver of such provision nor the right to enforce such provision. Furthermore, any waiver of any provision of these Terms of Service by any party will be effective only if in writing and signed by a party.

These Terms of Service are governed by and construed in accordance with German law without giving effect to conflict of laws principles. Each party submits to the exclusive jurisdiction of the German Supreme Court.