Terms & Conditions

15th May 2020

Overview

These Freelancer Terms and Conditions are issued by CodeControl GmbH and apply to all freelance applicants & members of the codecontrol community. Your access to and use of our Freelancer Community Service is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all users who access or use the CodeControl Community. One way of using our service is by applying to our community at http://community.codecontrol.io/, by being a member for the CodeControl Community Slack or by entering an individual project agreement with CodeControl. By accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of the terms then you may not access the Service. This document governs the terms and conditions between the Freelancer (hereafter referred to as “The Freelancer”) and CodeControl GmbH, Schönhauser Allee 8, ℅ AchtBerlin, 10119, Berlin, Germany (hereafter referred to as “CodeControl”). This document includes (a) these conditions - also called “Terms and Conditions” (b) an example of an Individual Project Agreement for working on a specific project. CodeControl and the Freelancer being referred to hereinbelow jointly as: “Parties”.

1. Objectives of Terms and Conditions

1.1. CodeControl Community - How we work. The CodeControl “community” is an exclusive pool of carefully selected, particularly qualified and experienced freelancers active in the field of information technology. By virtue of concluding the present Agreement, the Freelancer shall accede to this Community. Using the community as a selling proposition, CodeControl regularly approaches the potential clients of project-related contracts with the objective of inducing them to enter into a contractual relationship with CodeControl as third-party clients (referred to hereinbelow as the “Project Clients”). The projects commissioned in this context regularly encompass a multitude of disciplines, whereby CodeControl aims to organize the substantive requirements of these project assignments such that they can be fulfilled by deploying specialized freelancers drawn from the CodeControl Community on the basis of subcontractor agreements. In this context, CodeControl serves as the respective Project Client’s exclusive contractual partner for each multi-disciplinary project. By applying to or joining the CodeControl Community as a member or by participating in an individual project initiated on the basis of these Terms and Conditions, the Freelancer enters into a contractual relationship with CodeControl, but not with the Project Clients themselves.

1.2. CodeControl Community - How Freelancers are presented to clients. Along with other freelancers, the Freelancer is represented in the Community with a profile that can be reviewed by the Project Clients. This allows the respective Project Client to evaluate the various freelancers, respectively Talents, especially in terms of the professional qualifications and references that the Client deems relevant.

1.3. CodeControl Community - 2 possibilities of collaborations. The Parties intend to embark on a future collaboration on the basis of individual projects whereby the Freelancer is to help the respective Project Client realize its project, either by working alone or in a team with other specialized Talents. The Parties agree to the present Terms and Conditions as a legal basis for these individual projects; it shall govern the Parties’ fundamental rights and obligations in this context unless deviating terms are agreed for a given individual project.

1.4. CodeControl Community - How the client chooses a Freelancer. CodeControl intends to proceed as follows: When a Project Client contacts CodeControl with an enquiry, CodeControl will assess the qualification required for certain sub-tasks of a project assignment and will subsequently ask the Freelancer to offer their services in carrying out the relevant sub-tasks of the project. Assuming the Freelancer confirms their interest, CodeControl will recommend the Freelancer to the Project Client, who will decide whether or not to select the Freelancer for the corresponding project team. Assuming the Freelancer is approved by the Project Client, they shall receive a work offer for the individual project from CodeControl; if the Freelancer accepts the offer, they will then be deployed to work on the project once the project commences.

2. Object of the Agreement

2.1. The provisions of the present Terms and Conditions shall provide the legal framework for any and all individual project agreements that the Parties may conclude going forward. The rights and obligations of the Parties are set out in the provisions of the present document and shall be supplemented – insofar as an individual project is commissioned pursuant to Clause 3 – by the provisions agreed for that individual project. Any General Terms & Conditions of the Freelancer him/herself shall not be included in the scope of the Agreement, even if CodeControl has not expressly refused to acknowledge them. In the event of collision between the provisions of the present Terms and Conditions and those of an individual project agreement, the provisions of the individual project agreement shall take precedence.

2.2. The present Terms and Conditions shall neither entitle nor obligate the Parties to conclude any given individual project agreement.

2.3. During the period agreed for the respective individual project, the Freelancer shall perform the tasks assigned to them in the capacity of a service provider/subcontractor working on behalf of CodeControl. They shall perform the work in accordance with the substantive requirements and scheduling requirements of the individual project as well as in keeping with any follow-up addenda made in this connection. If milestones for the completion of certain project workflows have been agreed for a given project, then the Freelancer is to comply with said milestones and must alert CodeControl without delay if it becomes foreseeable that timely performance will not be possible. The Freelancer shall be subject to the instructional authority of CodeControl with respect to their work results, but not with respect to the time, place, manner or form of their performance. The Freelancer shall not accept any instructions from the Project Client, particularly with respect to the place, manner or form of the performance.

2.4. The Freelancer shall be free to work for other clients as well.

2.5. The Freelancer shall not involve any co-worker or subcontractor on a project prior consent of CodeControl. Given that CodeControl is specialized in helping freelancers to market themselves and to implement projects, and given that CodeControl is committed to having the corresponding services delivered exclusively by recognized freelancers and with a consistent, verified level of quality, it follows that the Freelancer is prohibited, as a matter of principle, from involving co-workers or subcontractors of their own a project without the prior consent of CodeControl. Besides the prior consent from CodeControl, a further precondition for any such involvement of own personnel shall be that such persons must first contractually pledge to CodeControl that they will comply with the obligations arising under Clauses 6 to 9 (inclusive) hereof. CodeControl may demand written documentation of the pledge. Another precondition is that the person(s) specifically designated in this context must be approved by the Project Client. To this end, the Freelancer must notify CodeControl in advance about the intended involvement, must specifically designate the person(s) involved, and must state their qualifications so as to prove that they are suited for the work in question. CodeControl will then take charge of the process of obtaining the Client’s approval for the persons to be involved. The Freelancers may not make any direct enquiries with the Project Client in this context unless CodeControl has given its prior consent.

3. Enquiries, agreement on, and implementation of an individual project

3.1 In the run-up to concluding an individual project agreement, CodeControl shall first send the Freelancer an enquiry (e.g. via CodeControl’s website or slack) asking them to submit an offer for their services on the project. Upon receiving the enquiry, the Freelancer shall declare whether they are interested and, if so, shall state the terms of their offer to enter into the specific individual project in question. The individual project agreement shall be deemed concluded once CodeControl accepts the offer. If CodeControl proposes terms that deviate from the offer, then this shall constitute a counteroffer that serves to reject the Freelancer’s original offer. The individual project agreement is concluded once the Parties have reached consensus on the offer.

3.2. To the extent possible, the Parties shall record their mutual arrangements in writing or in text form (whereby email shall suffice as text form for purposes of the present Agreement), and shall do so in an individual project agreement to be attached as an annex to the present document. A template form for such an individual project agreement is attached to the present document as Annex 1. The individual project agreement shall provide for key terms such as the scope of the assignment (possibly as a maximum limit) and the time frame within which the Freelancer is to make himself/herself available to work on the project.

3.3. Settlement of accounts. Unless otherwise agreed in the order for an individual project, accounts shall be settled monthly with a payment term of seven (7) days.

4. Legal status of the collaboration

4.1. The Parties intend to collaborate on a freelance employment basis within the framework of a subcontracting assignment. 4.2. The Freelancer shall perform their work within the framework of the present Terms and Conditions independently and on their own responsibility, so as to produce clearly defined, high-quality services while applying their outstanding expertise and specialized professional skills. As a rule, they shall perform the assignments taken on under the present Terms and Conditions in a professionally and organizationally independent manner.

4.3. The Freelancer is independent in their work. The Parties furthermore proceed on the premise that the collaboration will not give rise to a dependent employment relationship (abhängige Beschäftigung) within the meaning of German labor law. The Freelancer shall perform their work independently and shall be subject to the instructions of CodeControl only with respect to the quality and results of their work, but not with respect to the place, manner or form of their performance. In performing the work, the Freelancer also shall not be subject to any instructions from the Project Client, nor shall they accept such instructions in connection with the execution of individual projects. When the Freelancer is deployed together with other freelancers as part of an agile working approach, it may become necessary to organize a scrum team, respectively to coordinate with/within the scrum team. In these cases as well, the Freelancer shall be precluded, as a matter of principle, from working on the premises of the Project Client. Any instructions that the Project Client may issue shall not – and must not – be accepted by the Freelancer.

5. Remuneration

5.1. In return for the work which they owe under an individual project agreement and which they perform in a contractually compliant manner, the Freelancer shall receive the fee specified in the individual project agreement, plus any legally mandated turnover tax. Payment of the fee shall constitute satisfaction in full of any and all claims of the Freelancer vis-à-vis CodeControl in connection with the corresponding individual project. It shall be the responsibility of the Freelancer to properly declare the remuneration for tax purposes and to fulfill any other statutory obligations in connection with the contractual relationship.

5.2. As a rule, any ancillary costs associated with the performance of work on an individual project along with any incidental expenses shall be borne by the Freelancer himself/herself. The only exception thereto shall be if CodeControl has agreed to assume these costs or has assumed organizational responsibility in this context.

5.3. CodeControl grants Project Clients a so-called “Satisfaction Guarantee,” which entitles them to have CodeControl terminate a Freelancer’s deployment at any time within the first fourteen days of their activity should their performance have proven to be unsatisfactory, whereby the Project Client shall not owe any payment for the cancelled project (individual assignment). In order to allow this “Satisfaction Guarantee” to be granted, a risk-sharing arrangement is hereby also agreed with the Freelancer for those cases in which their deployment is found to be unsatisfactory. In such a case, the Freelancer’s claim to receive remuneration from CodeControl for their deployment on the “cancelled” individual assignment shall be reduced by 50%. This shall apply only for the first individual projects agreements concluded with the respective Project Client, however.

5.4. As a rule, the Freelancer shall settle accounts with CodeControl for their work at the end of each month, and shall do so by continually recording their work in the management system made available by CodeControl. CodeControl shall settle the resulting claims to remuneration at month’s end by issuing the Freelancer corresponding settlement credits, which it shall proceed to pay within seven days of month’s end (payment target of seven days).

6. Contractual term; termination

6.1. The membership in the CodeControl Community and these Terms and Condition are concluded for an indefinite contractual term.

6.2. It may be terminated by either Party observing a notice period of two (2) weeks; however, the earliest effective date shall be the ending date of the last individual project agreement concluded by the Parties. If the present Agreement is terminated with immediate effect for cause, then this shall serve to terminate all ongoing individual project agreements, unless the Parties declare their mutual intention to keep one or more individual projects in existence. Insofar as an individual project outlasts the life of the present Terms and Conditions, the provisions of it shall survive in force mutatis mutandis for that project.

6.3. Any individual project agreement concluded by the Parties may be terminated by either Party observing a notice period of two (2) weeks.

6.4. All declarations of termination must be made in writing or in text form (whereby email shall suffice) in order to be valid.

7. Copyright usage rights

7.1. The Freelancer must provide CodeControl with access to any and all work results from an individual project, particularly inventions, engineering designs, improvement suggestions, copyrights, any source-object codes, open-source software (OSS), etc., whether protectable or non-protectable within the meaning of the Urheberrechtsgesetz (UrhG, German Copyright Act), and shall do so without undue delay. Any existing usage and exploitation rights to the work results, including any related rights within the meaning of the German Copyright Act (UrhG), shall redound fully and exclusively to CodeControl. The remuneration specified in the individual project agreement shall constitute satisfaction in full for this granting of rights to work results to the benefit of CodeControl.

7.2. The Freelancer agrees to grant CodeControl an exclusive, perpetual and geographically, temporally, and substantively unlimited usage and exploitation right to the work results. This granting of rights shall encompass all known forms of usage. It shall particularly include the right to modify or adapt the work results or to otherwise reconfigure them, and to use them in their original form or in a modified, adapted or reconfigured form, particularly to reproduce, publish, distribute, present, and transfer them and to use them by running them in, respectively with, data-processing systems and data-processing devices. In particular, the Freelancer shall also grant CodeControl the exclusive right to distribute and market the work results. This marketing & distribution right of CodeControl shall apply in all forms and shall also entitle CodeControl to allow third parties to use the work results on the basis of licensing agreements, i.e. to transfer the usage and exploitation rights individually or collectively to third parties or to grant third parties corresponding usage and exploitation rights, whereby it shall be permissible to grant contractual partners rights of usage and exploitation in specified forms as well as an unlimited right of reproduction and distribution to end users. CodeControl shall not require any further consent from the Freelancer in order to exercise these rights of usage and exploitation. The Freelancer, for their part, shall not be entitled to use or exploit the work results in any form whatsoever.

7.3. Insofar as the work results, particularly the software created as part of the work performed on an individual project, form the subject matter or element of an invention, the Freelancer hereby grants to CodeControl, as early as at the present time, any and all rights to the invention or the invention’s element or arising from the invention or the invention’s element. This shall apply, for example, in cases in which the software created enjoys protection under patent law as a computer-implemented invention. The powers granted under the statutes governing moral rights shall remain unaffected.

7.4. There shall be no obligation to name the Freelancer by name when exercising the usage rights or to name them as the creator. The Freelancer shall have no right to access the work results or portions thereof, or to publish an author’s copy. Both Parties are in agreement that, apart from what is mandated by law, no rights of withdrawal shall apply.

7.5. The granting of rights under the present Terms and Conditions and the resulting rights of CodeControl shall not be prejudiced by a termination of the present Agreement.

8. Open-source software; third-party software

8.1. Insofar as the work results contain open-source software/components (referred to hereinbelow as the “OSS”), the respectively valid open-source licensing agreement shall apply. Before deploying any OSS, the Freelancer shall be under obligation to verify the inter-compatibility of the licenses amongst each other and to ensure that there are no incompatibilities within the OSS or with the usage rights to work results granted under Clause 7.

8.2. The Freelancer shall have the following additional obligations: (i) To send a written or emailed notification whenever OSS is used while also providing the relevant terms of the license; (ii) to observe the terms of the license for the OSS; and (iii) to obtain the prior written consent of CodeControl for the use of the OSS, insofar as the OSS’ licensing terms could affect CodeControl’s usage rights to the work results (so-called “Copy-Left Effect”).

8.3. Insofar as the work results contain any other type of third-party software, the above provisions shall apply mutatis mutandis.

9. Ancillary obligations of the Freelancer

9.1. Informational obligations The Freelancer must provide CodeControl, upon the latter’s request and without undue delay, with any information relating to an individual project, insofar as it is known to them, in an accurate and comprehensive manner:

• The hours worked and the nature of the work performed (time sheets, among other records);

• The current status of the tasks associated with the individual project;

• Any problems encountered in executing the assignment, respectively in working with the other project participants;

• The current status of the project as a whole;

• Any downtimes for the Freelancer (e.g. periods in which they is not available);

• All information available about the project‘s planability, e.g. the allocation of tasks among the project participants as well as the periods during which the Freelancer reserves the right not to be reachable.

  9.2. Confidentiality

  9.2.1. The Freelancer is under obligation to keep confidential any and all business secrets that become known to them and/or that are entrusted to them during, or due to, their work for CodeControl. The following information shall qualify as a business secret:

• Information that is not generally known or easily accessible, either in its entirety or in terms of its specific configuration and component elements, to those categories of persons who normally handle this type of information, and which is therefore of commercial value; and

• Information that has been safeguarded by confidentiality measures appropriate to the circumstances by the information’s legitimate proprietor;

• Information the confidentiality of which constitutes a legitimate interest.

  9.2.2. The disclosure of business secrets shall be permitted only with the consent of CodeControl or in those cases in which such disclosure is mandated by law. The Freelancer is prohibited from exploiting a business secret for their own purposes or for the purposes of a third party. Business secrets shall also specifically include (without limitation) the factual information that certain work is being performed, respectively has been performed, for the Project Client. This circumstance must not be disclosed to third parties by the Freelancer without the consent of CodeControl, also not for the Freelancer’s own advertising purposes. This restriction shall not apply, however, insofar as a disclosure obligation exists by law (e.g. vis-à-vis the tax authorities).

  9.2.3. Even in cases where they are entitled to disclose business secrets, the Freelancer shall make these accessible only to persons who are under obligation to maintain confidentiality by virtue of their profession, or who have first been contractually pledged to observe the same confidentiality obligations as those imposed under the present Agreement. Notwithstanding the foregoing, any disclosure of confidential information to such persons must be limited in scope to what they need to know in order to perform their work.

  9.2.4. The Freelancer shall adopt technical and organizational measures that ensure a level of protection for confidential information which is appropriate to the respective prevailing circumstances. If CodeControl so requests, the Freelancer shall provide information on the technical and organizational measures so adopted. During the life of the present Agreement, these technical and organizational measures are to be updated to reflect ongoing technical progress and further technological developments, provided this does not reduce the level of protection that prevailed upon conclusion of the present Agreement.

  9.3. Storage and surrender of data and documentation

  9.3.1. The Freelancer shall be under obligation to properly store any and all data or documentation which are provided to them by CodeControl and/or by the Project Clients and to ensure that third parties cannot access these or otherwise gain cognizance of their contents.

  9.3.2. The Freelancer must return all the data or documentation provided to them without undue delay to CodeControl (or to the Project Client, subject to prior coordination with CodeControl) once an individual project comes to an end – or even while the individual project is still running, if they are requested to do so. The Freelancer shall have no right to retain such data or documentation or any copies thereof.

  9.3.3. CodeControl shall be entitled to demand that the Freelancer provide confirmation that all the data or documentation pursuant to the foregoing clauses have been duly surrendered, and that no copies thereof have been retained.

  9.4. No poaching away of personnel or customers

  9.4.1. No direct work with CodeControl’s client is allowed before six months after the end of a project. Effective during the life of an individual project plus six months after it has come to an end, the Freelancer enters into obligation to not accept any assignments from the individual project’s Project Client in the context of a direct or indirect contractual relationship, and not to perform any work for said Project Client insofar as the services involved are, or were, a constituent element of the individual project.

  9.4.2. Effective during the life of an individual project plus six months after it has come to an end, the Freelancer enters into obligation to not induce any of the project participants to terminate their contractual relationship with CodeControl. This prohibition against poaching shall apply to all the freelancers employed by CodeControl, insofar as their services were already solicited by CodeControl in connection with the individual project.

  9.5. Contract penalty For each breach of the obligations set forth in Clauses 9.1 to 9.4, the Freelancer shall owe liquidated damages, the amount of which shall be set by CodeControl at its equitably exercised discretion and which may be reviewed by a competent court in case of a dispute. The Parties concur that liquidated damages in the amount of € 10,000.00 fundamentally are not unreasonable. This shall not prejudice any further-reaching damage claims or any other liquidated damages agreed between the Parties.

  9.6. Warranty; liability The Freelancer’s liability for the quality of their performance shall be in keeping with the applicable statutory regulations.

• Data protection The Parties enter into obligation to observe the respectively applicable statutory provisions that govern the handling of personal data, particularly those of the General Data Protection Regulation (GDPR) and of the Bundesdatenschutzgesetz (BDSG, Federal Data Protection Act).

• Assignment; offset; rights of retention

11.1. The Freelancer shall not be entitled to assign their claims against CodeControl to third parties unless they have received corresponding written consent from CodeControl. This shall not prejudice the stipulation made in Section 354a of the Handelsgesetzbuch (HGB, German Commercial Code).

11.2. The Freelancer may offset claims of their own only if they are undisputed or if they have been finally and conclusively determined by a court of law. The same shall apply mutatis mutandis to the exercise of rights of retention.

12. Applicable law; place of jurisdiction

12.1. The conclusion, implementation, and interpretation of the present Terms and Conditions / Agreement shall be governed by German law, with the exception of the provisions of the Convention on Contracts for the International Sale of Goods (CISG).

12.2. The exclusive place of jurisdiction for any disputes arising from, or in connection with, the present or any referring Agreements shall be the registered seat of CodeControl in Berlin.

13. Amendments, requirement as to the written form; severability clause

13.1. CodeControl expressly reserves the right to make reasonable amendments to the General Terms and Conditions. Any amendments shall be announced to the Freelancer in written (e.g. email). Changes shall be deemed approved if the Freelancer does not object to them in text form (e.g. email) within two weeks of the announcement of the respective change. CodeControl shall specifically point this consequence out when announcing the amendment. For the objection to be deemed made in time, the dispatch date shall be decisive.

13.2. Any amendments of or addenda to this or any related Agreement must be made in writing or in text form. The same shall apply to any amendment or waiver of the present clause. This shall not prejudice the legal precedence of any individually agreed arrangements.

13.3. If any provisions of the present Terms and Conditions should be ineffective, then this shall not prejudice the validity of the remaining provisions. The Parties shall strive to find an effective provision that serves to replace the ineffective one and that comes as close as possible to the original economic intent and purpose of the invalid provision. The same shall apply mutatis mutandis in the event the Terms & Conditions have remained silent on any given matter.

Individual Project Agreement Example

Project Agreement: {Project Agreement ID}

Hi {Freelancer First Name}! We are really excited to work with you, and are hereby sending you the Project Agreement for the {Client Legal Name – Project Name} project, that you accepted on {dd.mm.yyyy} in the CodeControl Community Slack team using your member id: {Freelancer Community Slack ID}. Below you can find the Project Agreement details:

1. Specifications: The freelancer supports {Client Name} as a {Position / Role}.

2. Project Client: {Client Legal Name}

3. Project Contacts: {Full Name} – CodeControl GmbH {Full Name} – {Client Legal Name}

4. Remuneration: The Freelancer’s hourly fee for this project is {hourly rate in EUR} plus turnover tax (VAT) at the legally mandated rate. The Freelancer shall be responsible for any tax obligations.

5. Project Duration: The individual project is to be realised during the following period: {dd.mm.yyyy} – {dd.mm.yyyy} (or Open Date) During this period, the Freelancer shall remain available – subject to the scheduled downtimes individually designated herein below – to work on the individual project within the scope of the maximum budget.

6. Utilisation / Budget: The Freelancer supports according to the needs of CodeControl GmbH and {Client Legal Name}, approximately {Expected utilisation} per week and up to {Maximum budget} in total.

7. Milestones: Optional field in case there are known project milestones.

8. Schedule downtimes: Optional field if there are any known times the Freelancer is unavailable. The Freelancer shall notify CodeControl GmbH and Acme Inc. Legal Name about any time frames where the Freelancer is not available in a timely manner (e.g. 5 - 10 working days beforehand).

9. Settlement period: The settlement of accounts for work performed by the Freelancer shall be performed on a monthly basis with {Payment Terms} payable from the date of issue.

10. Termination: In accordance with the Terms and Conditions, both Parties shall be entitled to terminate the individual Project Agreement observing a notice period of {Cancellation Terms} .

11. Place of Performance: Work performed by the Freelancer can be conducted {remotely, onsite, both).

12. Miscellaneous: Optional field for additional specifications.

This Project Agreement is bound by the Talent Terms and Conditions of CodeControl GmbH.

For any further questions please contact your main contact: {Main Contact Full Name}. Thanks a lot and happy to have you on board! Your CodeControl Team.