General terms of service

This General Terms and Conditions ("GTC"), together with the Order Form signed by both parties, constitute the entire agreement ("Agreement") between Berylls by AlixPartners (Maximilianstrasse 34, 80539 Munich, Germany Commercial Register Number: HRB Munich 230836 ("BERYLLS") and the customer set forth in the Order Form ("Customer") for the use of elyvate.ai and associated other services.

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1. Definitions

1. "Authorized Users" means (i) employees, contractors, or agents of the Customer, (ii) employees of BERYLLS working on Customer projects, and (iii) third-party consultants, contractors, or other personnel authorized by Customer to use elyvate.ai in connection with Customer's business, to whom BERYLLS has assigned unique login credentials, provided such third parties are subject to confidentiality and use restrictions at least as protective as those contained herein.

2. "Confidential Information" means any non-public information disclosed by one Party to the other Party, including but not limited to source code, financial information, business plans, customer lists, and technical data.

3. "Customer" means the entity that has entered into an Agreement with the Provider to use elyvate.ai and related services.

4. “Customer Data" means any data, information, or materials entered or uploaded by the Customer or Authorized Users into elyvate.ai during the use of the service.

5. "Documentation" means user manuals, functionality descriptions, technical specifications, and other materials relating to elyvate.ai, updated periodically by BERYLLS and made available to the Customer.

6. “Effective Date" means the date on which the Order Form is signed by both parties, unless a different effective date is specified in the Order Form.

7. “elyvate.ai" means the cloud-based software platform provided by BERYLLS as a "software as a service" via the internet under this Agreement.

8. "Order Form" means the document specifying the details of the subscription, including the number of users, fees, level of technical support, and other specific terms agreed between the Parties.

9. "Personal Data" means, as applicable, "personal data" as defined under GDPR, or any other personal data or personal information protected by laws and processed by a Party as set forth under this Agreement.

10. "Subscription Period" means the period for which the Customer is entitled to use elyvate.ai, as specified in the Order Form, including any renewals or extensions.

11. "Text Form" means a form of communication that allows for permanent recording of the content of the declaration in written characters or enables its reproduction in an unchanged form, in accordance with § 126b of the German Civil Code (BGB).

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2. Conclusion of Agreement

1. The Agreement is concluded upon the signing of the Order Form by both Parties.  

2. The scope of services arises solely from the signed Order Form. Any changes or extensions to the scope of services require the written consent of both Parties.

3. In the event of any discrepancy between the provisions of this Agreement and the Order Form, the provisions of the Order Form shall take precedence to the extent of such discrepancy.

4. Provision of Services

5. Upon payment, elyvate.ai will be made available to the Customer at the Effective Date and for the duration of Subscription Term for the agreed number of Authorized Users or Projects.  

6. BERYLLS shall provide elyvate.ai along with maintenance services subject to the service levels described in the Service Level Agreement (“SLA”) attached as Appendix 1 to this Agreement. The SLA specifies the availability commitments, maintenance windows, support response times, and other key performance indicators for elyvate.ai.

7. Subcontractors may be engaged to assist in the provision of services, and BERYLLS shall be responsible for their actions in the same way as for its own. If such subcontractors have access to personal data, appropriate data protection agreements shall be concluded in accordance with the provisions of Section 8 (Data Protection and Security) of GTC.

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3. Customer's Rights and Obligations

1. The Customer shall ensure that the systems used to access and operate elyvate.ai meet the system requirements specified by BERYLLS in [elyvate.ai Help Center] BERYLLS shall be entitled to modify these system requirements during development of elyvate.ai. BERYLLS will make commercially reasonable efforts to notify the Customer  of any material modifications to the system requirements six (6) weeks before the changes take effect.

2. The login details provided to the Customer must not be disclosed to unauthorized third parties and must be protected from access by third parties to prevent misuse of the login details by third parties. If the Customer becomes aware that login details may have been unlawfully obtained or could be misused by a third party, the Customer must inform BERYLLS immediately.

3. The Customer shall be required to fulfill other obligations, if any, set out in the accepted Order Form to cooperate in relation to the services offered  The proper performance of services by BERYLLS requires the Customer to meet its specified obligations to cooperate in a timely and professional manner.

4. Customer is solely responsible for authorizing and managing domains from which Authorized Users may be invited to access elyvate.ai. Customer warrants that it has obtained all necessary permissions and authorizations to designate such domains for platform access.

5. Customer represents and warrants that appropriate confidentiality agreements, non-disclosure agreements, or other legally binding confidentiality arrangements are in place between Customer and all Authorized Users, including those from third-party organizations.

6. BERYLLS assumes no responsibility for verifying the existence or adequacy of confidentiality arrangements between Customer and Authorized Users. Customer agrees to indemnify and hold BERYLLS harmless from any claims arising from inadequate or missing confidentiality protections with respect to Authorized Users.

7. When BERYLLS personnel accept domain authorizations from Customer for invitation purposes, such acceptance does not constitute any warranty or representation by BERYLLS regarding the appropriateness of such domains or the confidentiality arrangements with potential users from those domains.

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4. Fees and Payment

1. The Customer shall pay BERYLLS the fees set out in the accepted Order Form for elyvate.ai and related services.

2. The fee agreed for the provision of elyvate.ai shall be invoiced to the Customer in accordance with the provisions set out in the Order Form. Unless otherwise stated in the Order Form, BERYLLS will invoice the Customer annuallyin advance. All invoices are due and payable within 30 days of the invoice date.

3. If any invoiced amount is not received by BERYLLS by the due date, then without limiting BERYLLS's rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) BERYLLS may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 5.2.

4. If any amount owing by Customer under this or any other agreement for BERYLLS's services is 30 or more days overdue, BERYLLS may, without limiting its other rights and remedies, accelerate Customer's unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend services until such amounts are paid in full. BERYLLS will give Customer at least 10 days' prior notice that its account is overdue before suspending services.

5. BERYLLS will not exercise its rights under Section 5.3 or 5.4 above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

6. BERYLLS's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with its purchases hereunder. If BERYLLS has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 5.6, BERYLLS will invoice Customer and Customer will pay that amount unless Customer provides BERYLLS with a valid tax exemption certificate authorized by the appropriate taxing authority.

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5. Intellectual Property Rights

1. BERYLLS retains all intellectual property rights to elyvate.ai, including copyrights and trademark rights. To the extent Customer provides any suggestions or comments related to elyvate.ai, BERYLLS shall have the right to retain and use any such suggestions or comments in current or future products or subscriptions, without Customer’s approval or compensation to Customer.

2. Customer does not acquire any intellectual property rights to elyvate.ai, but only a limited, non-exclusive, non-sublicensable, non-transferable right to use elyvate.ai as specified in this Agreement.

3. elyvate.ai may include components from third parties. If Customer selects or activates any third-party components as part of using elyvate.ai, the terms and conditions for such third-party components may be specified in the relevant Order Form or provided separately by BERYLLS. Such third-party terms and conditions shall apply in addition to, and not in substitution of, this Agreement. In case of conflict between third-party terms and this Agreement, the third-party terms shall prevail solely with respect to the use of the specific third-party component. Customer agrees to comply with these third-party terms and conditions when using such components within elyvate.ai.

4. BERYLLS grants Customer a license to use elyvate.ai via the internet as a cloud solution, with the agreed number of users and within the specified scope of services, for the duration of the Agreement. BERYLLS will extend this license to cover any new versions of elyvate.ai released during the contract period.

5. The license BERYLLS grants to Customer allows Customer and its Authorized Users to use elyvate.ai solely for Customer's business purposes. This right extends only for the duration of the effective contract between Customer and its employees or contractors to the extent this license remains active between BERYLLS and Customer. For clarity, Customer is responsible for any breach of this Agreement by its Authorized Users, and Customer acknowledges and agrees that BERYLLS only duty of care with respect to elyvate.ai is to Customer. Customer may not grant separate licenses to its employees or service providers for their independent use of elyvate.ai.

6. If Customer has purchased a company license for affiliated enterprises as defined in Section 16 et seq. of the German Stock Corporation Act, Customer may extend the rights granted under this license to its affiliated enterprises. This extension applies only if Customer owns more than 50% of the affiliated enterprise and the affiliated enterprise accepts these terms of use.

6. Confidentiality

1. The Parties undertake to keep confidential all trade secrets and other Confidential Information of the other Party obtained as a result of mutual cooperation. The Parties' responsibility for maintaining confidentiality also includes their employees and subcontractors.

2. The obligation of confidentiality shall remain in effect for the duration of this Agreement and for a period of 3 years after its termination

3. The obligation of confidentiality does not apply to information that: (i) is or becomes publicly available without breach of this Agreement;(ii)  was known to the receiving Party prior to its disclosure by the disclosing Party; (iii) was independently developed by the receiving Party without use of or reference to the Confidential Information of the disclosing Party; (iv) is received from a third party who was not bound by a confidentiality obligation to the disclosing Party.

4. Each Party may disclose Confidential Information if required by law, provided that the disclosing Party is notified of such requirement (to the extent legally permitted) and takes reasonable steps to limit such disclosure.

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7. Data Protection and Security

1. BERYLLS shall comply with all applicable data protection regulations, including the General Data Protection Regulation (GDPR) and the German Federal Data Protection Act.

2. BERYLLS will implement and maintain appropriate technical and organizational security measures to protect Customer Data from unauthorized access, accidental or unlawful loss, destruction, or alteration. Detailed provisions regarding data processing and the rights of data subjects can be found in the Data Processing Agreement can be found here.

3. BERYLLS shall ensure that the Customer Data stored on the user account is adequately protected from loss or damage, through regular backups, virus scanning, and the installation of firewalls.

4. Upon written request from the Customer, BERYLLS shall provide sufficient evidence of its compliance with technical and security measures by providing documentation on Technical and Organizational Measures (TOM).

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8. Data Protection and Data Security

To the extent applicable, Customer and BERYLLS shall comply with the AlixPartners Data Protection Addendum which can be found here, and which forms a part of this Agreement. Any data uploaded or otherwise provided by Customer to the elyvate.ai platform will be processed in accordance with the Data Protection Addendum.

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9. Restrictions

The Customer represents and warrants to AlixPartners that it shall not, and it shall procure that each Authorized User shall not:  

1. in its or their use of the elyvate.ai introduce, access, store or transmit any virus or malicious code of any nature;

2. attempt to bypass or circumvent any data security measures or restrictions of use included in the functionality of the elyvate.ai;  

3. in its or their use the elyvate.ai introduce, access, store or transmit any material or data that is unlawful, or not compliant with local laws and regulations;

4. upload any data or material that is harmful, threatening, defamatory, obscene, or which violates any third-party privacy or intellectual property rights;

5. except to the extent permitted by applicable laws which is incapable of exclusion by agreement of the Parties and except to the extent expressly permitted under this Agreement attempt to:

6. copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit or distribute all or any portion of the elyvate.ai in any form or media or any means;

7. decompile, reverse-compile, disassemble, reverse-engineer or otherwise reduce to human readable form all or any part of the elyvate.ai;  

8. access all or any part of the elyvate.ai in order to build a product or service which competes with, or provides comparable or similar functionality to, the elyvate.ai;

9. use the elyvate.ai to provide services, of any nature, to any third parties;

10. license, sell, rent, lease, transfer, assign, distribute, display or disclose or otherwise commercially exploit the elyvate.ai;

11. remove, modify, or conceal any product identification, copyright, proprietary or intellectual property notices or other such marks on or within the elyvate.ai;

12. interfere with, disrupt the integrity or performance of, or attempt to gain unauthorized access to the elyvate.ai, the related systems or networks, or any third-party data contained therein; or

13. provide access to or otherwise make the elyvate.ai or the functionality of the elyvate.ai available to any third party through any means, including without limitation, by uploading the operating system to a network or file-sharing service or through any hosting, managed services provider, service bureau or other type of service unless specifically permitted by the Specifications or agreed otherwise in an addendum to this Agreement.

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10. Term and Termination

1. The Agreement commences on the Effective Date and continues until all Order Forms subject to this Agreement have expired or been terminated, unless this Agreement is earlier terminated in accordance with this section.  

2. Unless otherwise provided in the Order Form, subscriptions shall automatically renew for additional periods of one year on the same legal terms unless either party gives the other notice of non-renewal at least 30 days prior to the end of the relevant Subscription Period.

3. A party may immediately terminate this Agreement for cause: (i) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors that is not dismissed within 60 days of its commencement.

4. Upon any termination for cause by Customer, BERYLLS shall refund Customer any prepaid fees covering the remainder of the Subscription Period after the effective date of termination. Upon any termination for cause by BERYLLS, Customer shall pay any unpaid fees covering the remainder of the Subscription Period. In no event shall termination relieve Customer of the obligation to pay any fees payable to BERYLLS for the period prior to the effective date of termination.

5. Customer will have a period of 30 days after the effective date of termination of this Agreement to download Customer Data. Upon request by Customer made within such 30-day period, BERYLLS will make available to Customer for download a file of Customer Data in a standard format at no additional cost. After such 30-day period, BERYLLS shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.

6. Sections related to Confidentiality, Intellectual Property Rights, Limitation of Liability, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration.

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11. Warranty

1. BERYLLS's warranty commitments regarding elyvate.ai performance, availability, and defect remedies are specified in the Service Level Agreement (Appendix 1).  

2. Customer shall report any defects in elyvate.ai promptly in Text Form.  

3. BERYLLS shall remedy legitimate defects in accordance with the response times and procedures specified in the SLA. 9A.3. Service credits provided under the SLA do not limit Customer's other statutory rights under German law, including rights to subsequent performance, withdrawal, or damages as provided in Section 11.

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12. Limitation of Liability

BERYLLS SHALL NOT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, LOST PROFITS, LOST DATA, REPUTATIONAL DAMAGES, PUNITIVE DAMAGES OR ANY OTHER SIMILAR DAMAGES UNDER ANY CIRCUMSTANCES, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BERYLLS’ AGGREGATE LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, IS LIMITED TO THE AMOUNT OF FEES PAID TO BERYLLS FOR SERVICES UNDER THIS AGREEMENT.

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13. Compliance with Regulations

1. Each Party agrees to comply with all applicable laws and regulations in connection with its performance under the Agreement.

2. The Customer is solely responsible for determining whether its use of elyvate.ai complies with any regulations applicable to its business.

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14. Force Majeure

1. Neither Party shall be liable for any failure or delay in the performance of its obligations under this Agreement to the extent such failure or delay is caused by events beyond that Party's reasonable control, including but not limited to acts of God, natural disasters, war, civil unrest, labor disputes, or government actions.

2. The affected Party shall promptly notify the other Party of the force majeure event and its expected duration.

3. If a force majeure event continues for more than 30 consecutive days, either Party may terminate the Agreement upon written notice to the other Party.

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15. Dispute Resolution

Any controversy or claim arising out of or relating to the Agreement, or the breach thereof, shall be settled by arbitration. Each party shall appoint one non-neutral arbitrator. The two-party arbitrators shall select a third arbitrator. If within 30 days after their appointment the two-party arbitrators do not select a third arbitrator, the third arbitrator shall be selected by the American Arbitration Association (AAA). The arbitration shall be conducted in New York, New York under the AAA’s Commercial Arbitration Rules, and the arbitrators shall issue a reasoned award. The arbitrators may award costs and attorneys’ fees to the prevailing party. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.

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16. Governing Law and Jurisdiction

The Agreement is governed by and shall be construed in accordance with the laws of the State of New York, United States of America, with respect to contracts made and to be performed entirely therein and without regard to choice of law or principles thereof.

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17. Amendments

1. All amendments or additions to these GTCs and to the contracts or agreements concluded between BERYLLS and the Customer must be in at least Text Form. This requirement also applies to any modification of this Text Form clause itself. The Parties agree that the use of the DocuSign process shall satisfy the Text Form requirement. Any amendments not made in Text Form shall be considered invalid.

2. The validity of separate agreements, regardless of form, shall remain unaffected by the Text Form requirement in clause 16.1.

3. Notwithstanding clause 16.1, BERYLLS shall be entitled to amend the provisions of these GTCs by adhering to the following process: a) BERYLLS shall notify the Customer of the proposed amendment in Text Form at least six weeks before the amendment is set to come into effect; b) The Customer shall have the right to object to the amendment within four weeks of receiving the notification. Any such objection must be made in Text Form; c) If the Customer does not object within the four-week period, the amendment shall be deemed approved; d) BERYLLS shall explicitly inform the Customer of the consequences of not objecting in its notification of the proposed amendment; e) In the event of a timely objection by the Customer, BERYLLS shall have the right, within two weeks of receiving the objection, to terminate the contract with the Customer for cause.

4. Adjustments to the GTCs which consist of linguistic corrections, clarifications, or rewording that do not change the substance or legal significance of the text do not constitute amendments within the meaning of clause 16.3. BERYLLS shall inform the Customer in Text Form about such non-material changes.

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18. Final Provisions

1. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.

2. This Agreement constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior oral or written agreements, representations, or understandings between the Parties.

3. Neither Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld.

4. Failure to enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision.

5. The Parties are independent contractors, and this Agreement does not create any partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.

6. Section headings in this Agreement are for convenience only and shall not affect the interpretation of any provision.

7. The following appendix form an integral part of the Agreement Appendix 1: Service Level Agreement (SLA).