Terms and Conditions for Sponsoring of droidcon Events
1.1 Droidcon events ("droidcon" or "Event") are either organized by Mobile Seasons GmbH, Messedamm 22, 14055 Berlin, Germany (“Mobile Seasons”) or by an official licensee of Mobile Seasons (“Host”).
1.2 The following Terms and Conditions for the Sponsoring of droidcon Events (“Terms and Conditions”) apply for all contracts and agreements ("Sponsorship Agreement") entered into and by Mobile Seasons and the entity / person that is named “Partner” or “Sponsor” in the proposal (together as “Sponsor”) with regard to the sponsoring of one or more droidcons (“Sponsoring”) and / or to participate at droidcon (“Participation”).
1.3 Deviating, conflicting, or supplementary business, purchasing, or order conditions of the Sponsor shall become an integral part of the Sponsorship Agreement only if and insofar as Mobile Seasons has explicitly agreed to their validity in writing. They shall not apply even if Mobile Seasons does not expressly object to them and/or provides its services without objection. This shall also apply in the event that the Sponsor has prescribed a special form for the objection.
1.4 In order to comply with the written form required for legal declarations in the following clauses of these Terms and Conditions, an email will be sufficient, unless explicitly stated otherwise. This also applies to this written form requirement.
1.5 Mobile Seasons and Sponsor, depending on the context, are also referred to individually as “Party” and jointly as “Parties”.
2. Conclusion of Agreement
2.1. The Sponsorship Agreement will be concluded when Mobile Seasons receives the completed and counter-signed proposal or any other written confirmation from the Sponsor setting out the primary particulars of the arrangements agreed between the Parties in respect of this Sponsorship Agreement. With the signing of the proposal or any other written confirmation setting out the primary particulars agreed between the Parties in respect of this Sponsorship Agreement, Sponsor accepts and confirms these Terms and Conditions as binding.
2.2. Sponsor has no legal claim to receive a proposal. The proposal only relates to the Sponsorship Package and the services listed in the proposal. Any amendments or changes made to the proposal shall only be effective if expressly accepted by Mobile Seasons. The offer can be revoked by Mobile Seasons at any time if it was created on basis of incorrect or incomplete information provided by the Sponsor.
2.3. Changes or additions to the proposal and/or the agreed Sponsorship Package require the written consent of the Mobile Seasons.
3. Services / Sponsoring Packages
3.1 The reciprocal contractual obligations to be rendered by the Parties are based on the Sponsorship Agreement and defined by the proposal or by any separately made arrangement between the Parties in writing.
3.2 Mobile Seasons provides the services as described within the selected Sponsoring Package. The Sponsor pays the agreed remuneration (“Sponsorship Fee”) for the services provided by Mobile Seasons or any third party commissioned by Mobile Seasons.
3.3 The Sponsor’s involvement with droidcon is limited to the activities specified in the proposal. The Sponsor shall become neither organizer nor co-organizer of the droidcon through this Sponsorship Agreement or the services to be rendered as a result thereof.
4. Sponsor Content
4.1 The Sponsor is obliged to provide the contributions and cooperation required for the Sponsoring (e.g. provision of the logo, claim, URL for a website, the functionality of links, etc.) in good time and at its own expense. If the Sponsor's contributions or obligations to cooperate are not made in time, Mobile Seasons shall not be bound by its obligations to provide the Sponsoring. In this case, however, the agreed contractual obligation of the Sponsor (e.g. payment of Sponsorship Fee) shall remain in force. This also applies if the Sponsor does not provide any content for the purpose of Sponsoring.
4.2 The Sponsor affirms and warrants that all necessary contributions and obligations to cooperate are in compliance with all applicable statutory and legal regulations and that the specifications and conditions communicated by Mobile Seasons are met by the Sponsor. In particular, the Sponsor assures that the data and content made available by the Sponsor, such as but not limited to logos, claims, images, commercials, advertisements (together as "Sponsor Content"), do not violate any competition, trademark, labeling, and name rights as well as other industrial property rights or copyrights of third parties.
4.3 Mobile Seasons expressly reserves the right, without having the corresponding obligation to check, to verify or to audit the Sponsor Content, to refuse to publish the Sponsor Content provided by the Sponsor for Sponsoring or to subsequently remove or edit the Sponsor Content if
• its content violates laws, regulations, or official orders; or
• its content infringes the presumed rights of third parties; or
• its content is objected by the German Advertising Council in a complaint procedure; or
• publication or presentation is unreasonable for the Mobile Seasons due to the content, origin, and/or technical form. “Unreasonable” within the meaning of this subsection shall, in particular, include content and/or representation that violates the principles of the protection of minors, that is in any form discriminatory and/or offensive and/or refers to such content and representations, or which do not meet the quality standards usually expected for such content and/or representation in technical and/or qualitative terms, and for which it is, therefore, to be feared that Mobile Seasons and/or droidcon will suffer not inconsiderable damage to its image, reputation or goodwill. The same applies also to content and representations that are likely to disparage other sponsors and/or event participants and/or their public perception.
4.4 In the cases of Clause 4.3 of these Terms and Conditions, Mobile Seasons shall inform the Sponsor of the measures taken. Mobile Seasons shall not be responsible for the resulting delays in the provision of the Sponsoring or the resulting loss thereof. In such cases, the Sponsor shall not be entitled to claim any losses or damages.
5. (Digital) Sponsoring
5.1. In accordance with the following Clauses 5.1 to 5.6 of these Terms and Conditions, Mobile Seasons is obligated to provide the Sponsoring within the scope and time as well as in the medium agreed upon for this purpose. The Sponsoring by Mobile Seasons, in particular the reproduction of Sponsor Content through digital media, shall be provided in accordance with the technical standards normally expected for this type of agreed service provision and with the care expected for this purpose. However, the Sponsor is aware that it is not possible to offer completely error-free services in the field of digital media in accordance with the latest technological innovations. In particular, an error in the presentation of the Sponsor Content does not exist if it is caused by the use of unsuitable presentation software and/or hardware (e.g. browser).
5.2. Mobile Seasons does not guarantee the permanent and uninterrupted availability of the digital platform (e.g. event website, event platform) in which context the Sponsoring is provided, and therefore Mobile Seasons does not guarantee for the permanent and uninterrupted performance of the Sponsoring. Mobile Seasons aims to achieve an average availability of the Sponsoring of 95% in relation to the agreed sponsoring period. Subject to the provisions of Clause 5.3 of these Terms and Conditions, the availability within the meaning of this Clause 5.2 of these Terms and Conditions is calculated as follows:
Availability = actual time/desired time * 100%
Actual time = total time – total downtime
Desired time = total time
5.3. When calculating the total downtime according to the above Clause 5.2 of these Terms and Conditions, the following times shall not be taken into account:
5.3.1 Periods of unavailability due to internet disruptions beyond the control of the Mobile Seasons or other circumstances beyond the control of the Mobile Seasons, in particular, circumstances as a result of an epidemic or pandemic (such as Covid-19) or Force Majeure or another Comparable Event (see definition in Clause 11.1 of these Terms and Conditions);
5.3.2 Periods of unavailability due to planned maintenance work on the database system, the event website, the digital event platform, or any other medium as well as event premises and location where the Sponsoring is provided;
5.3.3 Times due to mandatory unscheduled maintenance work required eliminating malfunctions and errors; if possible, the Sponsor shall be informed by Mobile Seasons.
5.3.4 Times of non-availability due to the fact that the technical requirements to be provided by the Sponsor are temporarily not met, for example, any malfunctions caused by Sponsor.
5.4. If the Sponsoring, in particular the digital reproduction of Sponsor Content, is temporarily not possible due to a disruption in the communication networks of other operators or due to a computer failure at third parties (e.g. other providers) or due to incomplete and/or non-updated offers on so-called proxies (intermediate storage) or due to any other disruption outside the control of Mobile Seasons, Mobile Seasons´ right to claim to the fulfillment of Sponsor´s contractual obligations shall remain valid without any restriction. In addition, the limitations of liability for the Mobile Seasons in accordance with Clause 12 of these Terms and Conditions apply.
5.5. In the event of insufficient reproduction quality of the Sponsor Content, for which Mobile Seasons is responsible, the Sponsor shall be entitled to claim error-free replacement of the Sponsoring, but only insofar as and only to the extent that the purpose of the image and text material has been impaired. If this form of replacement of the Sponsoring fails or is inappropriate, the Sponsor shall be entitled to a corresponding reduction in its payment obligation. In this a case, however, the Sponsor may not be entitled to withdraw from this Sponsorship Agreement and/or to assert any further claims (e.g. losses or damages).
5.6. Notification of defects by the Sponsor for identifiable defects or non-performance must be submitted to Mobile Seasons in writing within seven (7) business days of the provision of the Sponsoring. If the notification is not made within the aforementioned period, the warranty rights shall lapse. This shall not be applicable if Mobile Seasons has fraudulently concealed the defect or has assumed a guarantee for the quality of the item or the success of the service.
6. Sponsor´s Participation
6.1 Sponsor who participates at the droidcon (“Exhibiting Sponsor”) must comply with technical guidelines of the event location (“Venue”) including operation, fire safety, construction, security regulations, and the house rules. Exhibiting Sponsor must also comply with rules and regulations as specified by work health & safety laws. House rules will be provided in the Sponsor logistics document.
6.2 The exhibition area of the Sponsor at the Venue will be allocated by the Mobile Seasons or the Host. The date of receipt of applications is not decisive in this matter. The size of the total exhibition area is restricted. There is no right to a certain exhibition stand placement; however, placement wishes will be taken into consideration as far as possible but are not binding. Mobile Seasons or Host may rearrange exhibition areas and/or exhibition stands for organizational reasons or to maintain the overall effect or adapt the exhibition areas and division of exhibitors. Mobile Seasons or Host has a subsequent unilateral relocation right if Mobile Seasons or Host has a valid reason for the changes and these alterations are reasonable for the Exhibition Sponsor. There is a valid reason including, but not limited to the following:
6.2.1 if safety reasons require relocation in the area / hall,
6.2.2 if there has been an unforeseen amount of applicants and further exhibitors/sponsors are to be accepted, or
6.2.3 if there have been a lower number of applications than expected and there is a danger of significant gaps between exhibition area and/ exhibition stands, or if Mobile Seasons or Host would like to close a whole hall or part of a hall due to lack of space required.
6.3 In any of the cases according to Clause 6.2 of these Terms and Conditions, the Sponsor is not entitled to any claims for damages or losses.
6.4 The Sponsor is not entitled to transfer their designated stand to third parties, to exchange it, to sublet it, or to accept it for another company, in whole or in part without the prior written approval of the Mobile Seasons or Host. Co-exhibitors have to be notified of the Mobile Seasons or Host a minimum of three (3) weeks before the droidcon. “Co-exhibitors” will only be permitted to participate with the permission of the Mobile Seasons or Host. The Sponsor may not however transfer or sublet their entire stand to a third party. Co-exhibitor is someone who displays their own products/offer at a designated stand of a Sponsor or have their own staff there (this also applies to companies economically affiliated with the exhibitor)
6.5 The Sponsoring Package only covers the provision of an exhibition stand and does not include any additional stand material and / or equipment. Additional services booked are chargeable and are to be settled directly with the service provider (e.g. Venue operator). The contract will therefore be concluded between the Sponsor and the service provider without any direct or indirect contractual involvement of Mobile Seasons or Host and therefore without establishing any responsibility or duty of Mobile Seasons or Host. The exhibition stand remains the property of Mobile Seasons, Host or the third party that has been commissioned by Mobile Seasons or Host for the provision of the exhibition stand.
6.6 Mobile Seasons does not provide any security for the exhibition stand material and other belongings brought in by the Sponsor. The Sponsor is solely responsible for the supervision and security of its exhibition stand.
6.7 In all those cases it is the sole responsibility of the Sponsor to obtain official approval with regard to its participation at the droidcon. The sponsor is responsible for ensuring compliance with performing rights regulations, as well as with regulations pertaining to trading and industrial law, police regulations, health regulations, and other legal requirements.
7. Non Exclusivity
Mobile Seasons and Host shall be entitled to conclude contracts and make arrangements with other exhibitors/sponsors that might be competitors of the Sponsor. In this regard, Mobile Seasons and Host will take the interests of the Sponsor into consideration as far as possible.
8.1 Unless not otherwise agreed, the payment of the Sponsorship Fee is due in full (without deduction) within thirty (30) business days from the day of the receipt of the invoice into one of the bank accounts that are mentioned at the invoice.
8.2 In the event of late payment, default interest of nine percentage (9 %) points above the respective base rate of the European Central Bank is due. Mobile Seasons reserves the right to prove higher damages caused by delay.
8.3 Objections to the invoice should be made in writing to Mobile Seasons within fourteen (14) business days.
8.4 Mobile Seasons reserves the right to charge an additional processing fee of up to 50.00 EUR per invoice copy for any changes to invoices for which Mobile Seasons is not responsible.
8.5 If the Parties assume when concluding this Sponsorship Agreement that the Sponsor renders a performance which is free from value-added tax and it transpires following the conclusion of this Sponsorship Agreement that the agreed performance is nevertheless subject to value-added tax, an invoice for the same will subsequently be issued to the Sponsor without charging a processing fee.
9. Term, Termination
9.1 The Sponsorship Agreement shall become effective upon the date of conclusion of the Sponsorship Agreement and terminates automatically with the end of the last day of the droidcon to which the Sponsoring Package refers. The sponsoring period stated in the proposal is decisive unless the Parties have concluded a deviating agreement in writing.
9.2 Any ordinary termination of the Sponsorship Agreement is ruled out, with the exception of the cancelation policy of Clauses 10 and 11 of these Terms and Conditions.
9.3 This does not affect each Party´s right to terminate the Sponsorship Agreement by extraordinary termination (i.e. without notice and effective immediately) for good cause. Good cause for each Party shall be deemed to exist in particular, if the other Party culpably fails to comply with one or more obligations under the Sponsorship Agreement - even after a written request to comply with the obligations, setting a reasonable deadline for the other Party to comply.
9.4 In addition, Mobile Seasons shall be deemed to have a good cause if circumstances arise on the part of the Sponsor which, in the event of the continuation of the Sponsorship Agreement, would raise concerns that the reputation and/or image of Mobile Seasons and/or droidcon and/or Host of the droidcon could be damaged.
9.5 Any declaration of termination must be made in writing to be effective.
10. Cancellation by Sponsor
10.1 Unless otherwise agreed in writing between the Parties, once you have entered into this Sposorship Agreement, if you subsequently decide for any reason to withdraw from the Event or reduce your original commitment as set out in the Sponsorship Agreement, you will be liable to pay the following cancellation charges based on the date of the original, not rescheduled, Event:
Cancellations received 100 days or greater prior to the Event will pay 50% of your total fees for the Event as set out in the Order;
Cancellations received 45 days to 100 days prior to the Event will pay 75% of your total fees for the Event as set out in the Order; and
Cancellations received less than 45 days prior to the Event must pay 100% of your total fees for the Event as set out in the Order.
11. Force Majeure / Cancelation by Mobile Seasons
11.1 If the Event cannot take place or is canceled due to an event of “Force Majeure” (especially natural disasters and their consequences, war, terrorist attacks, pandemics, endemics, the interruption or massive impairment of transport, supply, or telecommunications connections) or another “Comparable Event” (unforeseeable lawful strikes and lawful lockouts as well as other interruptions or disruptions of operations for which the Contractual Parties are not responsible), Mobile Seasons shall be obliged to inform the Sponsor immediately regarding the cancellation of the Event. In this case, the Parties shall be released from their obligation to provide services from the time of the occurrence of the Force Majeure or Comparable Event. Any (partially or completely) rendered Sponsoring services by Mobile Seasons up to this point of time and/or the benefits accruing to the Sponsor up to this point of time shall be settled by the Sponsor in accordance with a financial evaluation of the provided services. Any payments made in excess thereof will be refunded to the Sponsor by Mobile Seasons. Mobile Seasons shall return any contributions in kind made by the Sponsor, provided that these have not already been used.
11.2 In addition, the Sponsor is aware that the Event may be canceled or cannot be carried out as agreed if the implementation of the Event requires Mobile Seasons or Host to make an effort which, taking into account the content of the contractual obligation and the principles of good faith, is grossly disproportionate to the interests of the Sponsor. This should be the case, in particular, if the number of visitors and/or exhibitors is foreseeably low, or if, due to public law requirements and restrictions, the costs of staging the Event are grossly disproportionate to the Sponsor’s interest in staging the Event. In such a case, Mobile Seasons shall immediately inform the Sponsor about the cancellation of or any changes in the Event.
11.2.1 In the event of a cancelation, Mobile Seasons is entitled to invoice the Sponsor an amount of up to 50 % (fifty percent) of the costs for the Sponsoring services rendered by Mobile Seasons up to this time of cancelation. Any further payment obligations of the Sponsor, including those for partial services not yet provided, shall not apply.
11.2.2 In the event of any changes (e.g. limitation of stand size or switch to pure digital event), Mobile Seasons is entitled to invoice the proportional part of the services that Mobile Seasons is able to provide under amended circumstances and which are still considered to remain in the interest of the Sponsor. Sponsor shall be bound to the partial or amended performance of the services, unless the changes are unreasonable for the Sponsor, taking into account the interests of Mobile Seasons and Host in fulfilling this Sponsorship Agreement.
11.3 In the cases of Clauses 11.2 of these Terms and Conditions, the Mobile Seasons shall reimburse any advance payments made by the Sponsor after the deduction of the aforementioned remuneration for services. Any further claims by the Sponsor, in particular for losses or damages, are excluded, unless Mobile Seasons or Host has caused the reason for the cancellation or changes due to gross negligence. In addition, the limitations of liability for Mobile Seasons in accordance with Clause12 of these Terms and Conditions apply.
11.4 If the Event is rescheduled and/or relocated, and/or its duration is changed and/or partially or completely restricted, the Sponsor shall be bound by this, unless any of the deviations is unreasonable for the Sponsor, taking into account the interests of the Mobile Seasons and Host in fulfilling this Sponsorship Agreement.
12. Limitation of Liability
12.1 Mobile Seasons does not guarantee that the agreed sponsoring will achieve the effect intended by the Sponsor unless Mobile Seasons has made its execution more difficult or thwarted by a culpable breach of essential contractual obligations or by grossly negligent behavior. The Sponsor acknowledges that the Sponsoring agreed under this Sponsorship Agreement may be restricted by public law regulations. Mobile Seasons shall not be liable for damages in the event of restrictions arising from such regulations.
12.2 Mobile Seasons shall be liable for damages caused intentionally or through gross negligence by Mobile Seasons, its legal representatives, executive staff, or vicarious agents, irrespective of the legal grounds.
12.3 Mobile Seasons shall be liable for damages in the case of simple negligence, subject to statutory limitations of liability (e.g. care in own affairs), only
12.1.1 for damages resulting from injury to life, body, or health;
12.1.2 for damages resulting from the violation of an essential contractual obligation. “Essential contractual obligations” are those obligations whose fulfillment makes the proper execution of the contract possible in the first place and on whose observance the respective other Party may regularly rely. In the event of a breach of essential contractual obligations, the Mobile Seasons’ liability for damages in cases of simple negligence shall be limited to the number of damages typically occurring and foreseeable at the time the Sponsorship Agreement was concluded.
12.4 Insofar as the liability of the Mobile Seasons is excluded or limited, this shall also apply to the employees, executives, vicarious agents, and legal representatives of the Mobile Seasons.
12.5 The aforementioned exclusions and limitations of liability shall not apply in the event of injury to life, body, or health of persons caused due to negligence, the explicit assurance of characteristics, and in the event of liability under the German Product Liability Act (ProdHaftG).
13. Usage Rights
13.1 For the purpose of implementing this Sponsorship Agreement, Sponsor hereby grants to Mobile Seasons a limited, non-exclusive, non-transferable worldwide royalty-free usage right (“Usage Rights”) for Sponsor Content which has been provided by the Sponsor to Mobile Seasons in connection with the agreed Sponsoring. The Usage Rights entitles Mobile Seasons for the purpose of this Sponsoring Agreement and limited to the sponsoring period to edit, copy, publish, display, and disseminate the Sponsor Content as well as to integrate and make them publicly accessible on the event website, digital event platform, event premises and in any other event-related medium or location. The aforementioned granting of Usage Rights shall also apply in particular to existing and future copyrights and ancillary copyrights to the Sponsor Content, the right to one’s own image, as well as rights to names, titles, trademarks, and other signs.
13.2 The Sponsor guarantees that the Sponsor is the respective owner of the Sponsor Content and/or that the Sponsor holds all necessary right to dispose of the Sponsor Content and that Sponsor, therefore, can effectively grant the Usage Rights specified in Clause 13.1 of these Terms and Conditions to Mobile Seasons.
13.3 The Sponsor also guarantees that the Sponsor Content made available is free of any third-party rights which could conflict with the granting of the Usage Rights under this Sponsorship Agreement. The Sponsor guarantees in particular that no personal rights of third parties will be infringed by the use of the Sponsor Content within the framework of this Sponsorship Agreement, in particular, that the persons depicted agree to the use of the Sponsor Content as specified in this Sponsorship Agreement.
13.4 If third parties assert an infringement of their rights through the use of the Sponsor Content, the Sponsor shall indemnify and hold harmless Mobile Seasons upon the first request from all claims of third parties, in particular from claims for copyright and personal rights violations, infringement of patent, trademark, design, and utility model rights, in the event of culpable action. This includes any costs incurred by the Mobile Seasons for legal defense. The Sponsor shall immediately notify Mobile Seasons of any impairment of the rights covered by this Sponsorship Agreement. Any measures taken by the Sponsor must be agreed upon in advance with Mobile Seasons. The Sponsor is also obliged to support Mobile Seasons fully and unreservedly in the defense of their rights.
13.5 The granting of the Usage Rights in accordance with the Clauses 13.1 to 13.4 of these Terms and Conditions shall be compensated by the advertising effect generated by the publication of the Sponsor Content.
Mobile Seasons and Host will record and photograph the droidcon for their own marketing and business purposes. The sponsor authorizes Mobile Seasons and Host to use any footage taken from Sponsor’s participation in the droidcon to the extent legally permitted and in accordance with the applicable data protection law. The Sponsor may, without additional cost, record, broadcast, stream, or otherwise distribute the presentation in the space, provided it complies with applicable data protection laws.
15. Privacy and Data Protection
15.1 Each Party is a so-called controller within the meaning of the GDPR [General Data Protection Regulation] and as such responsible for the lawfulness of the processing of any personal data of any data subjects, in particular participants, exhibitors or speakers of the droidcon, that each Party receives from the other Party or processes otherwise in connection with the performance of the Sponsorship Agreement or the preparation or holding of the droidcon. The sponsor hereby confirms to comply with the data protection and privacy laws (in particular the BDSG [German Federal Data Protection Act], the GDPR, and the CCPA), as applicable to them). Sponsor, acting as the data importer, agrees to the Standard Contractual Clauses for the transfer of personal data from the Community to third countries (controller to controller transfers) if applicable, which are attached as Annex 1 to these Terms and Conditions, in which case they become an integral part of the Sponsorship Agreement. Also, Sponsor will only process all personal data - that Sponsor, its employees, subcontractors (processors) and its vicarious agents become aware of in connection with the preparation or performance of the Sponsorship Agreement - within the scope of the subject of the Sponsorship Agreement and in particular not sell the personal data to any third party. For the purposes of this clause the terms “personal data”, “process/processing”, “processor”, “controller”, “data subject” shall have the same meaning as in the GDPR.
15.2 At some droidcon, Exhibiting Sponsor is offered a so-called Lead tracking Service. This Service enables Exhibiting Sponsors to scan the ticket badge of visitors and, as a result, to obtain their contact information (name, company name, role, postal and e-mail address, telephone number, and other information supplied by the visitors or concerning their company). The data collection only takes place if the visitor voluntarily provides his/her badge for scanning purposes. Exhibiting Sponsor agrees and confirms that Exhibiting Sponsor will only process this data for its own purposes to contact the visitor for its own business purposes (sale and marketing of its own goods or services or for recruiting purposes) and in particular not use this data for any third-party purposes. Exhibiting Sponsor will inform its employees, subcontractors, and its vicarious agents of the data protection and privacy-related obligations pursuant to the Sponsorship Agreement, to keep the personal data confidential and secure and to oblige them to comply with those obligations as well as the provisions of the data protection and privacy laws applicable to the Exhibiting Sponsor, including any transparency and security obligations.
15.3 In the event of a breach of any applicable data protection regulations, the Sponsor will indemnify and hold harmless the Mobile Seasons and Host from and against any claims by a third party, insofar as this is legally permissible.
16. Offsetting, Assignment
16.1 Offsetting against claims of the Mobile Seasons, the exercise of a right to refuse performance or right of retention is excluded, unless the Sponsor's claim has been legally established, is undisputed, or has been recognized by the Mobile Seasons. The Sponsor is only authorized to exercise the right of retention insofar as his counterclaim is based on the same contractual relationship.
16.2 This Agreement may not be assigned, transferred, sub-licensed, or charged by Sponsor without the prior written consent of Mobile Seasons.
The Parties are obliged to treat the mutual obligations under this Sponsorship Agreement as well as the entire content of the proposal confidentially towards third parties. Disclosure of any kind of contractual agreement to third parties is permitted only on the basis of mandatory statutory provisions, to safeguard the interests of one or both Parties worthy of protection, or with the prior explicit written consent of the other Party. This obligation shall continue to apply after the term of this Sponsorship Agreement.
18. Governing Law
The relationship between the Sponsor and Mobile Seasons is governed exclusively by German substantive law, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
19. Place of jurisdiction
If the Sponsor is a merchant, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all legal disputes arising from or in connection with the Sponsorship Agreement shall be exclusively Berlin.
20. Severability Clause
If individual clauses of these Terms and Conditions are or become invalid, this shall not affect the validity of the remaining provisions of these Terms and Conditions or the existing Sponsorship Agreement with Mobile Seasons. The Parties undertake to agree on other effective provisions in place of the invalid provisions which come closest to the economic purpose of the invalid provisions.
Version: March 2021
ANNEX 1 to the Terms and Conditions for Sponsoring of droidcon Events –
This ANNEX 1 shall only apply if the Sponsor is located outside the EU or European Economic Area (EEA) in a third country in the absence of a so-called adequacy decision within the meaning of Art. 45 of the GDPR
Standard contractual clauses for the transfer of personal data from the Community to third countries (controller to controller transfers)
Data transfer agreement
Mobile Seasons GmbH
Messedamm 22, 14055 Berlin, Germany
(hereinafter “data exporter”)
Sponsor (as mentioned in the proposal)
with its business address (as mentioned in the proposal)
(hereinafter “data importer”)
each a “party”; together “the parties”.
For the purposes of the clauses:
(a) “personal data”, “special categories of data/sensitive data”, “process/processing”, “controller”, “processor”, “data subject” and “supervisory authority/authority” shall have the same meaning as in Directive 95/46/EC of 24 October 1995 (whereby “the authority” shall mean the competent data protection authority in the territory in which the data exporter is established);
(b) “the data exporter” shall mean the controller who transfers the personal data;
(c) “the data importer” shall mean the controller who agrees to receive from the data exporter personal data for further processing in accordance with the terms of these clauses and who is not subject to a third country’s system ensuring adequate protection;
(d) “clauses” shall mean these contractual clauses, which are a free-standing document that does not incorporate commercial business terms established by the parties under separate commercial arrangements.
The details of the transfer (as well as the personal data covered) are specified in Annex B, which forms an integral part of the clauses.
I. Obligations of the data exporter
The data exporter warrants and undertakes that:
(a) The personal data have been collected, processed, and transferred in accordance with the laws applicable to the data exporter.
(b) It has used reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses.
(c) It will provide the data importer, when so requested, with copies of relevant data protection laws or references to them (where relevant, and not including legal advice) of the country in which the data exporter is established.
(d) It will respond to inquiries from data subjects and the authority concerning the processing of the personal data by the data importer unless the parties have agreed that the data importer will so respond, in which case the data exporter will still respond to the extent reasonably possible and with the information reasonably available to it if the data importer is unwilling or unable to respond. Responses will be made within a reasonable time.
(e) It will make available, upon request, a copy of the clauses to data subjects who are third-party beneficiaries under clause III, unless the clauses contain confidential information, in which case it may remove such information. Where information is removed, the data exporter shall inform data subjects in writing of the reason for removal and of their right to draw the removal to the attention of the authority. However, the data exporter shall abide by a decision of the authority regarding access to the full text of the clauses by data subjects, as long as data subjects have agreed to respect the confidentiality of the confidential information removed. The data exporter shall also provide a copy of the clauses to the authority where required.
II. Obligations of the data importer
The data importer warrants and undertakes that:
(a) It will have in place appropriate technical and organizational measures to protect the personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, and which provide a level of security appropriate to the risk represented by the processing and the nature of the data to be protected.
(b) It will have in place procedures so that any third party it authorizes to have access to the personal data, including processors, will respect and maintain the confidentiality and security of the personal data. Any person acting under the authority of the data importer, including a data processor, shall be obligated to process the personal data only on instructions from the data importer. This provision does not apply to persons authorized or required by law or regulation to have access to personal data.
(c) It has no reason to believe, at the time of entering into these clauses, in the existence of any local laws that would have a substantial adverse effect on the guarantees provided for under these clauses, and it will inform the data exporter (which will pass such notification on to the authority where required) if it becomes aware of any such laws.
(d) It will process the personal data for purposes described in Annex B, and has the legal authority to give the warranties and fulfill the undertakings set out in these clauses.
(e) It will identify to the data exporter a contact point within its organization authorized to respond to inquiries concerning the processing of the personal data, and will cooperate in good faith with the data exporter, the data subject, and the authority concerning all such inquiries within a reasonable time. In case of legal dissolution of the data exporter, or if the parties have so agreed, the data importer will assume responsibility for compliance with the provisions of clause I(e).
(f) At the request of the data exporter, it will provide the data exporter with evidence of financial resources sufficient to fulfill its responsibilities under clause III (which may include insurance coverage).
(g) Upon reasonable request of the data exporter, it will submit its data processing facilities, data files, and documentation needed for processing to reviewing, auditing, and/or certifying by the data exporter (or any independent or impartial inspection agents or auditors, selected by the data exporter and not reasonably objected to by the data importer) to ascertain compliance with the warranties and undertakings in these clauses, with reasonable notice and during regular business hours. The request will be subject to any necessary consent or approval from a regulatory or supervisory authority within the country of the data importer, which consent or approval the data importer will attempt to obtain in a timely fashion.
(h) It will process the personal data, at its option, in accordance with:
(i) the data protection laws of the country in which the data exporter is established, or
(ii) the relevant provisions (1) of any Commission decision pursuant to Article 25(6) of Directive 95/46/EC, where the data importer complies with the relevant provisions of such an authorization or decision and is based in a country to which such an authorization or decision pertains, but is not covered by such authorization or decision for the purposes of the transfer(s) of the personal data (2), or
(iii) the data processing principles set forth in Annex A.
Data importer to indicate which option it selects: Option (iii)
Initials of data importer: Sponsor (as mentioned in the proposal) ;
(i) It will not disclose or transfer the personal data to a third party data controller located outside the European Economic Area (EEA) unless it notifies the data exporter about the transfer and
(i) the third party data controller processes the personal data in accordance with a Commission decision finding that a third country provides adequate protection, or
(ii) the third party data controller becomes a signatory to these clauses or another data transfer agreement approved by a competent authority in the EU, or
(iii) data subjects have been given the opportunity to object, after having been informed of the purposes of the transfer, the categories of recipients, and the fact that the countries to which data is exported may have different data protection standards, or
(iv) with regard to onward transfers of sensitive data, data subjects have given their unambiguous consent to the onward transfer
III. Liability and third party rights
(a) Each party shall be liable to the other parties for damages it causes by any breach of these clauses. Liability between the parties is limited to actual damage suffered. Punitive damages (i.e. damages intended to punish a party for its outrageous conduct) are specifically excluded. Each party shall be liable to data subjects for damages it causes by any breach of third-party rights under these clauses. This does not affect the liability of the data exporter under its data protection law.
(b) The parties agree that a data subject shall have the right to enforce as a third party beneficiary this clause and clauses I(b), I(d), I(e), II(a), II(c), II(d), II(e), II(h), II(i), III(a), V, VI(d) and VII against the data importer or the data exporter, for the respective breach of their contractual obligations, with regard to his personal data, and accept jurisdiction for this purpose in the data exporter’s country of establishment. In cases involving allegations of breach by the data importer, the data subject must first request the data exporter to take appropriate action to enforce his rights against the data importer; if the data exporter does not take such action within a reasonable period (which under normal circumstances would be one month), the data subject may then enforce his rights against the data importer directly. A data subject is entitled to proceed directly against a data exporter that has failed to use reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses (the data exporter shall have the burden to prove that it took reasonable efforts).
IV. Law applicable to the clauses
These clauses shall be governed by the law of the country in which the data exporter is established, with the exception of the laws and regulations relating to the processing of the personal data by the data importer under clause II(h), which shall apply only if so selected by the data importer under that clause.
V. Resolution of disputes with data subjects or the authority
(a) In the event of a dispute or claim brought by a data subject or the authority concerning the processing of the personal data against either or both of the parties, the parties will inform each other about any such disputes or claims, and will cooperate with a view to settling them amicably in a timely fashion.
(b) The parties agree to respond to any generally available non-binding mediation procedure initiated by a data subject or by the authority. If they do participate in the proceedings, the parties may elect to do so remotely (such as by telephone or other electronic means). The parties also agree to consider participating in any other arbitration, mediation, or other dispute resolution proceedings developed for data protection disputes.
(c) Each party shall abide by a decision of a competent court of the data exporter’s country of establishment or of the authority which is final and against which no further appeal is possible.
(a) In the event that the data importer is in breach of its obligations under these clauses, then the data exporter may temporarily suspend the transfer of personal data to the data importer until the breach is repaired or the contract is terminated.
(b) In the event that:
(i) the transfer of personal data to the data importer has been temporarily suspended by the data exporter for longer than one month pursuant to paragraph (a);
(ii) compliance by the data importer with these clauses would put it in breach of its legal or regulatory obligations in the country of import;
(iii) the data importer is in substantial or persistent breach of any warranties or undertakings given by it under these clauses;
(iv) a final decision against which no further appeal is possible of a competent court of the data exporter’s country of establishment or of the authority rules that there has been a breach of the clauses by the data importer or the data exporter; or
(v) a petition is presented for the administration or winding up of the data importer, whether in its personal or business capacity, which petition is not dismissed within the applicable period for such dismissal under applicable law; a winding-up order is made; a receiver is appointed over any of its assets; a trustee in bankruptcy is appointed, if the data importer is an individual; a company voluntary arrangement is commenced by it; or any equivalent event in any jurisdiction occurs
then the data exporter, without prejudice to any other rights which it may have against the data importer, shall be entitled to terminate these clauses, in which case the authority shall be informed where required. In cases covered by (i), (ii), or (iv) above the data importer may also terminate these clauses.
(c) Either party may terminate these clauses if (i) any Commission positive adequacy decision under Article 25(6) of Directive 95/46/EC (or any superseding text) is issued in relation to the country (or a sector thereof) to which the data is transferred and processed by the data importer, or (ii) Directive 95/46/EC (or any superseding text) becomes directly applicable in such country.
(d) The parties agree that the termination of these clauses at any time, in any circumstances and for whatever reason (except for termination under clause VI(c)) does not exempt them from the obligations and/or conditions under the clauses as regards the processing of the personal data transferred.
VII. Variation of these clauses
The parties may not modify these clauses except to update any information in Annex B, in which case they will inform the authority where required. This does not preclude the parties from adding additional commercial clauses where required.
VIII. Description of the Transfer
The details of the transfer and of the personal data are specified in Annex B. The parties agree that Annex B may contain confidential business information which they will not disclose to third parties, except as required by law or in response to a competent regulatory or government agency, or as required under clause I(e). The parties may execute additional annexes to cover additional transfers, which will be submitted to the authority where required. Annex B may, in the alternative, be drafted to cover multiple transfers.
The parties will indemnify each other and hold each other harmless from any cost, charge, damages, expense, or loss which they cause each other as a result of their breach of any of the provisions of these clauses. Indemnification hereunder is contingent upon (a) the party(ies) to be indemnified (the “indemnified party(ies)”) promptly notifying the other party(ies) (the “indemnifying party(ies)”) of a claim, (b) the indemnifying party(ies) having sole control of the defense and settlement of any such claim, and (c) the indemnified party(ies) providing reasonable cooperation and assistance to the indemnifying party(ies) in defense of such claim.
X. Conclusion of Agreement
This Data Transfer Agreement will be concluded when the data exporter receives the completed and from data, importer counter-signed proposal, or any other written confirmation setting out the primary particulars of the arrangements agreed between the Parties in respect of the Sponsorship Agreement. With the signing of the proposal or any other written confirmation setting out the primary particulars agreed between the Parties in respect of this Sponsorship Agreement, the data importer also accepts the terms and conditions of this Data Transfer Agreement as binding.
Dated: Same date as Sponsorship Agreement and Terms and Conditions
FOR DATA IMPORTER FOR DATA EXPORTER
Sponsor as in the Sponsorship Agreement Mobile Seasons
ANNEX A to Exhibit 1 of the Terms and Conditions for Sponsoring of droidcon Events
DATA PROCESSING PRINCIPLES
1. Purpose limitation: Personal data may be processed and subsequently used or further communicated only for purposes described in Annex B or subsequently authorized by the data subject.
2. Data quality and proportionality: Personal data must be accurate and, where necessary, kept up to date. The personal data must be adequate, relevant, and not excessive in relation to the purposes for which they are transferred and further processed.
3. Transparency: Data subjects must be provided with the information necessary to ensure fair processing (such as information about the purposes of processing and about the transfer) unless such information has already been given by the data exporter.
4. Security and confidentiality: Technical and organizational security measures must be taken by the data controller that is appropriate to the risks, such as against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, presented by the processing. Any person acting under the authority of the data controller, including a processor, must not process the data except on instructions from the data controller.
5. Rights of access, rectification, deletion, and objection: As provided in Article 12 of Directive 95/46/EC, data subjects must, whether directly or via a third party, be provided with the personal information about them that an organization holds, except for requests which are manifestly abusive, based on unreasonable intervals or their number or repetitive or systematic nature, or for which access need not be granted under the law of the country of the data exporter. Provided that the authority has given its prior approval, access need also not be granted when doing so would be likely to seriously harm the interests of the data importer or other organizations dealing with the data importer and such interests are not overridden by the interests for fundamental rights and freedoms of the data subject. The sources of the personal data need not be identified when this is not possible by reasonable efforts, or where the rights of persons other than the individual would be violated. Data subjects must be able to have the personal information about them rectified, amended, or deleted where it is inaccurate or processed against these principles. If there are compelling grounds to doubt the legitimacy of the request, the organization may require further justifications before proceeding to rectification, amendment, or deletion. Notification of any rectification, amendment, or deletion to third parties to whom the data have been disclosed need not be made when this involves a disproportionate effort. A data subject must also be able to object to the processing of the personal data relating to him if there are compelling legitimate grounds relating to his particular situation. The burden of proof for any refusal rests on the data importer, and the data subject may always challenge a refusal before the authority.
6. Sensitive data: The data importer shall take such additional measures (e.g. relating to security) as are necessary to protect such sensitive data in accordance with its obligations under clause II.
7. Data used for marketing purposes: Where data are processed for the purposes of direct marketing, effective procedures should exist allowing the data subject at any time to “opt-out” from having his data used for such purposes.
8. Automated decisions: For purposes hereof “automated decision” shall mean a decision by the data exporter or the data importer which produces legal effects concerning a data subject or significantly affects a data subject and which is based solely on automated processing of personal data intended to evaluate certain personal aspects relating to him, such as his performance at work, creditworthiness, reliability, conduct, etc. The data importer shall not make any automated decisions concerning data subjects, except when:
(a) (i) such decisions are made by the data importer in entering into or performing a contract with the data subject, and
(ii) (the data subject is given an opportunity to discuss the results of a relevant automated decision with a representative of the parties making such decision or otherwise to make representations to that parties.
(b) where otherwise provided by the law of the data exporter.
ANNEX B to Exhibit 1 of the Terms and Conditions for Sponsoring of droidcon Events
DESCRIPTION OF THE TRANSFER
The personal data transferred concern the following categories of data subjects:
Employees, managers, and contact persons of Mobile Seasons
Visitors, exhibitors, and speakers at the droidcon
Purposes of the transfer(s)
The transfer is made for the following purposes:
Performance of the Sponsorship Agreement according to the signed proposal or any other written confirmation.
Lead tracking information is transferred for Sponsor’s own business purposes, namely sale and marketing of Sponsor’s own goods and services and recruiting
Categories of data
The personal data transferred concern the following categories of data:
Contact information of visitors of the droidcon on the visitors’ ticket badge (name, company name, role, postal and e-mail adress, telepphone number and other information supplied by the visitors or concerning their company). ___________________________________________________________________
The personal data transferred may be disclosed only to the following recipients or categories of recipients:
Employees, subcontractors (which will be deemed processors), and vicarious agents (which will be deemed third party data controllers) of the data importer, subject to compliance with the relevant provisions on processors and third-party data controllers respectively in Exhibit 1 and the Sponsorship Agreement.
Sensitive data (if appropriate)
The personal data transferred concern the following categories of sensitive data:
Data protection registration of the data exporter (where applicable)
Additional useful information (storage limits and other relevant information)
The additional obligations under the Sponsorship Agreement according to the signed proposal or any other written confirmation will apply.
Contact points for data protection inquiries
Data importer Data exporter
Contact details of data importer and data exporter according to the proposal signed by the Parties