General Terms and Conditions of Refive GmbH
These General Terms and Conditions (hereinafter referred to as “GTC”) govern the use of all services offered by refive GmbH (hereinafter referred to as “Refive”).
1 Scope
1.1
Refive provides an advanced digital platform tailored for retail businesses and other entities with physical locations. This platform offers capabilities for issuing digital receipts and establishing interactive touchpoints through QR codes and NFC technology within physical environments to enhance customer information accessibility and interactivity. It is designed to gather data on customer behaviour and collect contact details, which are then utilized for in-depth analysis and personalized marketing across multiple channels. Additionally, the platform incorporates features to support customer loyalty initiatives and enables the distribution of gift cards that are redeemable across various channels. This suite of services is hereafter referred to as the “Software”. Refive reserves the right to modify the features or functionalities of its services, provided such changes do not materially degrade the service.
1.2
The agreement is between Refive and the “Partner”, defined as any individual or entity utilizing the services provided by Refive who are not consumers within the meaning of § 13 BGB (German Civil Code) or other relevant legal provisions. The term “services” refers to all websites, software, products, and services offered by refive GmbH. These terms apply to all interactions and transactions between refive GmbH and its Partners.
1.3
Differing GTCs of the Partner are not applicable unless Refive explicitly agrees to them in writing.
2 Methods of Contractual Agreement
2.1
The establishment of a contractual relationship for the utilization of the Software can be effectuated through one of the following mechanisms:
- a) Standard Contractual Offer: An offer (subsequently referred to as the “Contract”) is formulated by the sales team of Refive, either in written or electronic text format. Acceptance of this offer by the Partner is confirmed through a corresponding acknowledgment in written or electronic text format, or alternatively, by the remittance of the due invoice.
- b) Self-Service Configuration: The Partner autonomously selects the required service scope via a self-service interface on Refive’s website. Upon confirmation of this selection, the Partner is automatically presented with an offer (likewise designated as the “Contract” as in clause a), in a written or electronic text format. This offer is deemed accepted upon the Partner’s confirmation in a similar format, or upon payment of the stipulated invoice.
- c) Separate IT Services Agreement: In lieu of the standard contractual arrangements, the parties may opt to enter into a distinct agreement specifically addressing IT services (likewise designated as the “Contract”). This bespoke contract shall delineate the precise services, terms, and conditions applicable to the IT services to be rendered by Refive.
2.2
Upon execution of a Contract for usage, as delineated in section 3.1, or through a Separate IT Services Agreement as stipulated in section 2.1(c), Refive shall confer upon the Partner the right to utilize the Software. This right of use shall be contingent upon the payment structure agreed upon and shall commence from the period specified in section 6, or as expressly articulated in the Separate IT Services Agreement, if applicable.
3 Subject Matter of the Contract
3.1
For the term of the contract, refive provides the Partner with access to the version and functionalities of the Software selected by the Partner and specified in the Contract on a Software-as-a-Service (hereinafter: SaaS) basis. Other services are not included in a contract for the use of the Software. Such additional services may be provided by refive under a separate contract.
3.2
Unless otherwise agreed, refive a) issues digital and legally compliant receipts via QR Code. Through these digital receipts, the Partner can also b) engage in customer loyalty and analytics. The possible services under b) include, but are not limited to, 1) contacting users in the store to continue the sales conversation digitally, 2) identifying users in the store and using offline data to better understand them and improve CRM processes, 3) linking online and offline user identities to offer a continuous personalized omnichannel experience, and 4) setting up new customer loyalty measures or making them visible through the refive receipt. This also includes the option to set up a complete loyalty program, rewarding users for their online and/or offline purchases with points and/or stamps via the receipt or their email address.
3.3
The Partner selects the scope of functionality on the refive website under the section a) “Pricing” or b) “Register”. Alternatively, the selection is made c) in the context of discussions with the refive sales team.
4 Rights and Obligations
4.1
Refive ensures the service commitments regarding functionality and availability as assured in Section 11, and the services agreed upon in the contract.
The Partner commits to the measures described in Section 5.
4.2
Refive assumes no responsibility for the contents and offers published or delivered to customers via the software, insofar as they are determined or authorized by the Partner.
4.3
Refive and the Partner are each responsible for ensuring that the content and materials provided by them do not infringe upon third-party rights or other legal regulations. In particular, no provisions of criminal law, competition law, youth protection law, mandatory labelling regulations, or third-party rights such as trademarks and copyrights shall be violated.
4.4
Refive shall implement and maintain reasonable security measures to protect data processed on behalf of the Partner.
5 Partner Rights and Obligations
5.1
The Partner commits to training all relevant employees on the use of the refive platform.
5.2
If a static QR code is utilized, the Partner is obligated to position it in the store according to the Best Practice instructions received from refive.
5.3
The Partner grants refive non-exclusive (simple), time-limited for the duration of this contract, geographically unrestricted, non-transferable rights to use the content and materials provided or approved by the Partner for the purpose of fulfilling the contract. This includes brand and copyright-protected content.
In the event of a breach of the above clause, the Partner shall indemnify and hold the other party harmless from all claims made by third parties due to the infringement of their rights through the use of the materials or content mentioned in this clause, or due to a violation of legal regulations or other third-party rights in the context of offering, selling, or purchasing. This indemnification also includes the costs of necessary legal defense.
5.4
The Partner may only disclose non-obvious, commercial, or other secret, protected, and personal data and information to third parties with written permission from refive. Such information particularly includes any information or data related to sales techniques, designs, business partners, business plans, finances, pricing, policies, processes, forms, and this order policy, along with associated documentation. The Partner is obliged to treat such information as trade and business secrets and not to exploit them for their own use. For the purposes of this clause, ‘third parties’ do not include affiliated companies as defined in § 15 of the German Stock Corporation Act (AktG) or agents of the contractual partner.
5.5
The Partner agrees to comply with all applicable laws and regulations in its use of the Software, including data protection laws.
6 Fees and Payment
6.1
Payment of fees is based on the invoices received from refive, including the available payment options and deadlines specified therein. If payment of fees is overdue, refive may offset the fees against any amounts to be paid out.
6.2
The amount of remuneration for the use of the Software is determined by the conditions agreed upon in the Contract.
6.3
All payments are due in advance upon invoice issuance. Contracts automatically renew for the previously defined contract duration unless terminated according to Section 7.
6.4
In the case of monthly billing, the billing period begins on the day of concluding a contract for the paid use of the Software and is automatically extended monthly unless terminated earlier according to Section 7. The invoice amount is determined by the contract provided to the Partner. For monthly billing, refive sends an electronic invoice to the Partner via email.
6.5
With annual billing, the billing period begins on the day the Merchant Admin Account is activated and is automatically extended annually unless terminated earlier according to Section 7. Refive initially activates access to the Merchant Admin Account for one year. The invoice amount is determined by the contract provided to the Partner. Payments for contracts on the paid use of the Software with annual billing are generally made via bank transfer, annually in advance. For annual billing, refive sends an invoice for 12 months in electronic form via email to the Partner.
6.6
In case of a price tier increase due to a change in the number of locations or cash register systems, or scope of features during the monthly billing period, refive will bill the difference between the prepaid amount and the adjusted price up to the end of the billing month, either immediately or with the next invoice for the following billing month. If the price tier decreases during the monthly billing period due to changes in locations, cash register systems, or scope of features, the Partner is not entitled to a (pro-rata) refund of the prepaid amount.
6.7
In case of a price tier increase during the annual billing period due to a change in the number of locations or cash register systems, or scope of features, refive will bill the additional amount for the difference between the prepaid amount and the adjusted price up to the end of the annual term (daily prorated billing). If the price tier decreases during the annual billing period due to changes in locations, cash register systems, or scope of features, the Partner is not entitled to a (pro-rata) refund of the prepaid amount.
6.8
In case of the Partner’s default, if no payment is made within a one-week deadline set after the due date, refive is entitled to immediately suspend the Partner’s access to the Software. Refive will notify the Partner of this suspension in advance, setting an additional one-week deadline. In this case, the Partner remains obligated to pay the agreed remuneration plus any default interest. Damages incurred by the Partner due to this suspension cannot be claimed against refive. Furthermore, refive has no right to suspend access to the Software, except in cases of default. Additionally, in case of default, the legal provisions of §§ 286, 288 BGB or other relevant legal regulations apply.
7 Contract Duration and Termination
7.1
Both the Partner and refive may terminate the contract as follows:
- a) For contracts with monthly billing, a minimum term of one month applies. After the expiration of the minimum term, the contract extends for renewal periods of one month each unless the Partner terminates before the start of a renewal period. The notice period for termination is one month prior to the start of a renewal period.
- b) For contracts with annual billing, a minimum term of one year applies. After the expiration of the minimum term, the contract extends for renewal periods of one year each unless the Partner terminates with a three-month notice period before the start of a renewal period. For the extension of contracts with annual billing, refive will provide the Partner with a new annual invoice for transfer at least two weeks before the start of the new renewal period.
Termination for cause remains unaffected by this.
7.2
Either party may terminate the contract for cause, with immediate effect, upon a material breach by the other party.
This is particularly applicable if:
- Repeated breaches of contractual obligations by the Partner occur and continue even after being requested to cease.
- False or incomplete information was provided by the Partner during registration.
- Users repeatedly report negative experiences with a Partner, and these are not obviously unfounded. Refive reserves the right to thoroughly review the evaluations beforehand.
7.2
Termination must be made in writing. Email terminations satisfy the written form requirement. Upon effective termination, the Partner’s offers and access to all services of refive will be deactivated.
8 Warranty and Liability
Refive is liable to the Partner for damages resulting from intentional or grossly negligent actions by refive or its agents, and for the loss of data if such loss could not have been avoided through appropriate data backup measures by the Partner. Liability for damages beyond this is excluded.
Limitations of liability do not apply in the case of guarantees made by refive, damages resulting from injury to life, body, or health, or in the case of mandatory statutory regulations.
The Partner shall indemnify refive from any claims by users that arise from breaches of duty by the Partner.
9 Copyright
The platform itself and the contents made available through it are protected by copyright or other protective laws. These rights must be respected, and especially the removal of company and product identifiers, as well as trademarks and copyright notices, is prohibited.
10 Data Protection
Refive acts as a data processor on behalf of the Partner, who is the data controller, under applicable data protection laws. The sensitive handling of all personal data is important. Refive commits to comply with all applicable provisions of German and European data protection laws. Refive will not make personal data accessible to unauthorized third parties or pass it on to third parties at any time. Details on the processing of user data are regulated in the data protection provisions of refive.
Additional or Partner-specific data processing conditions maybe defined in a separate Data Processing Agreement.
11 Functionality and Availability
Refive strives for high technical standards but acknowledges that errors leading to potential damages cannot be entirely ruled out in the utilized technology. We endeavor to ensure continuous availability of the platform; however, such continuous availability is neither owed nor guaranteed. Access to the service may be restricted, especially for maintenance, security, or capacity reasons, and any such restrictions will be communicated in advance wherever possible.
Refive commits to maintaining a minimum service availability level, subject to agreed upon exceptions.
Temporary operational interruptions due to routine maintenance, inherent system disruptions of the Internet with external providers or network operators, and in cases of force majeure are possible and are not within refive’s responsibility. Limited availability during system maintenance will take place within designated maintenance windows.
Refive will continuously update, expand, and/or modify the platform’s software to adapt to changing user interests, to address technical errors, and to introduce new features. There is no entitlement to maintain the software in the condition present at the time of contract conclusion or at any subsequent point.
Excluded from warranty are errors caused by user-operated mistakes. Refive does not offer guarantees in the legal sense. The use of the platform requires a computer or mobile device, an internet connection, and a functional standard browser.
Service Level Agreements (SLAs) defining specific performance and availability standards are established separately and are an integral part of the contract. These SLAs detail the expected levels of service and the remedies or penalties for failure to meet these levels.
12 General Information
refive GmbH
Angermünder Str. 12
10119 Berlin
E-Mail: info@refive.io
Managing Directors: Mitul Jain, Cristian Martín Peláez
Registration in the Commercial Register: District Court of Berlin-Charlottenburg, Commercial Register Number HRB 215390 B.
These Terms and Conditions are valid from 2nd June, 2023
The authoritative languages for communication between the Partner and Refive during the business relationship are English and German. The General Terms and Conditions are available in English and German.
13 Amendments to These Terms and Conditions
Any amendments to these Terms and Conditions will be communicated in text form at least three days before the proposed date of their effectiveness. If you consent to the amendments, they will become effective at the specified time. Otherwise, if you do not agree with the amendments, you may terminate the contractual relationship in writing within three days of receiving the notification, effective upon the implementation of the changes. If no termination is made, your consent to the amendments is considered granted. You will be specifically notified of this consequence at the time of announcing the contractual changes.
14 Law, Jurisdiction
14.1
Refive shall comply with all applicable international trade laws and regulations, including export control and sanctions laws.
14.2
Any disputes arising out of or in connection with this Agreement shall be exclusively resolved in the competent courts of Germany. The jurisdiction for all disputes arising from these participation conditions or in connection with Refive is Berlin.
In addition, a participant can also be legally pursued at their general place of jurisdiction or any other location where legal jurisdiction exists.
14.3
Refive is not obligated to participate in a mediation procedure.
15 Severability Clause
Should any clause of these Terms and Conditions be invalid, the remaining clauses shall remain unaffected. The invalid clause shall be deemed replaced by one that comes closest to the economic intent and purpose of the invalid clause in a legally effective manner. The same applies to any gaps in regulation.
These terms were last updated on the 1st of December, 2023.
