1. PREAMBLE
PLEASE NOTE: This is a non-binding translation of the legally binding German version of these General Terms and Conditions.
The following General Terms and Conditions ("Terms and Conditions" / ”GTC”) apply to all services and products of Kenjo GmbH, including all subsidiaries ("Kenjo" / "We" / "Provider").
These General Terms and Conditions shall apply together with and supplement the individual contracts concluded in each case. In case of contradiction between individual contractual agreements and the provisions of these GTC, the respective individual contract shall take precedence.
Kenjo provides its services exclusively to customers who are not consumers in the sense of § 13 BGB.
2. SUBJECT OF THE CONTRACT
(1) The Provider provides Software-as-a-Service services for the customer via the medium of the Internet in the area of "HR-Software" / "Personnel Administration Software".
Subject of the contract is the
(2) The Provider is permitted to involve subcontractors when granting storage space. The use of subcontractors does not release the Provider from its sole obligation to the Customer to completely fulfil the contract. The Customer shall be granted a right of veto insofar as the Provider employs subcontractors for the performance of the contract who carry out data processing outside the EU and EEA.
3. SOFTWARE TRANSFER
(1) For the duration of this contract, the Provider provides the customer with the SOFTWARE in the respective current version via the Internet against payment. For this purpose, the Provider sets up the SOFTWARE on a server that can be accessed by the customer via the Internet.
(2) The respective current scope of functions of the SOFTWARE results from its current service description on the website of the provider.
(3) The Provider shall eliminate software errors that occur in accordance with the technical possibilities. An error shall be deemed to exist if the SOFTWARE does not fulfil the functions specified in the service description, delivers faulty results or otherwise does not function properly so that the use of the SOFTWARE is impossible or restricted.
(4) If not separately marked, the information on the website of the provider is not a binding offer in the sense of § 145 BGB.
(5) The Provider continuously develops the SOFTWARE and will improve it through continuous updates and upgrades.
4. RIGHTS OF USE OF THE SOFTWARE
(1) The provider grants the client the non-exclusive and non-transferable right to use the SOFTWARE designated in this contract for the duration of the contract within the framework of the SaaS services as intended.
(2) The customer may only process the SOFTWARE to the extent that this is covered by the intended use of the SOFTWARE according to the respective current service description.
(3) The customer may only reproduce the SOFTWARE to the extent that this is covered by the intended use of the software according to the respective current performance specification. Necessary duplication includes loading the SOFTWARE into the main memory on the Provider's server, but not the even temporary installation or storage of the SOFTWARE on data carriers (such as hard disks or similar) of the hardware used by the Customer.
(4) The customer is entitled to make the SOFTWARE available to his employees in unlimited numbers. Otherwise, the customer is not entitled to make the SOFTWARE available to third parties for use against payment or free of charge. The customer is therefore expressly not permitted to sublet the SOFTWARE.
5. ALLOCATION OF STORAGE SPACE
(1) The provider leaves a defined storage space on a server to the customer for the storage of his data. The customer can store content up to 25 GB on this server. If the storage space for storing the data is no longer sufficient, the Provider will inform the customer of this. The customer can reorder corresponding contingents subject to availability from the Provider. The storage limitation to 25 GB serves to prevent the customer from using Kenjo as unlimited cloud storage. If the specified limit is exceeded, this will not lead to any technical limitation of the system's functionality.
(2) The Provider shall ensure that the stored data can be retrieved via the Internet.
(3) The customer shall not be entitled to transfer this storage space to a third party for use in part or in full, whether for payment or free of charge.
(4) The customer undertakes not to store any content on the storage space, the provision, publication or use of which violates applicable law or agreements with third parties.
(5) The Provider is obliged to take suitable precautions against data loss and to prevent unauthorised access to the Customer's data by third parties. For this purpose, the Provider will make regular backups.
(6) In any case, the customer remains the sole owner of the data and can therefore demand the release of individual or all data at any time.
(7) Upon termination of the contractual relationship, the Provider shall immediately hand over to the Customer on request all data stored in the storage space allocated to him/her.
(8) The release of the data takes place by transmission via a data network. The customer is not entitled to receive the software suitable for the use of the data.
(9) The Provider is neither entitled to a right of retention nor the statutory lessor's lien (§ 562 BGB) with regard to the Customer's data.
6. SUPPORT
(1) The Provider shall answer the Client's enquiries regarding the application of the contractual SOFTWARE and the other SaaS services during normal business hours, i.e. on workdays between 9:00 and 17:00 after receipt of the respective question by telephone or in text form.
(2) Further services are not subject matter of the contract for the SOFTWARE and may have to be arranged by separate order and remuneration.
7. INTERRUPTION / IMPAIRMENT OF ACCESSIBILITY
(1) Adjustments, changes and additions to the SaaS services covered by the contract as well as measures that serve to determine and eliminate malfunctions will only lead to a temporary interruption or impairment of accessibility if this is absolutely necessary for technical reasons.
(2) The basic functions of the SaaS services are monitored daily. Maintenance of the SaaS services is generally guaranteed during normal business hours. The provider shall notify the customer immediately of the maintenance work and carry it out in the shortest possible time in accordance with the technical conditions.
(3) The availability of the respective agreed services of this contract is 99% on an annual average, including maintenance work, but the availability may not be impaired or interrupted for more than two calendar days in succession. Should the availability fall below the specified availability, the customer shall receive a pro-rata refund of the remuneration paid for each month of the non-availability.
8. DUTIES OF THE CUSTOMER
(1) The customer undertakes not to place any illegal content that violates laws, official requirements or the rights of third parties on the storage space provided.
(2) The customer is obliged to prevent unauthorised access of third parties to the protected areas of the SOFTWARE by taking appropriate precautions. For this purpose, the customer shall, if necessary, inform his employees about the observance of the copyright.
(3) Irrespective of the provider's obligation to back up data, the client himself/herself is responsible for entering and maintaining the data and information required to use the SaaS services.
(4) The customer is obliged to check his data and information for viruses or other harmful components before entering them and to use state-of-the-art virus protection programs for this purpose.
(5) The Client shall generate a "User ID" and password for access to the use of the SaaS services itself, which are required for further use of the SaaS services. The client is obliged to keep the "User ID" and password secret and not to make them accessible to third parties.
(6) The contents stored by the customer on the storage space intended for him may be protected by copyright and data protection law. The customer hereby grants the Provider the right to make the contents stored on the server accessible to the customer when he queries them via the Internet and, in particular, to reproduce and transmit them for this purpose and to reproduce them for the purpose of data backup.
9. COMPENSATION
(1) Remuneration shall be paid in accordance with the attached and signed offer and the conditions contained therein. Payment is made after the Provider has issued the invoice.
(2) Objections to the billing of the services provided by the Provider must be raised by the customer in writing within a period of four weeks after receipt of the invoice at the office indicated on the invoice. After expiry of the aforementioned period, the invoice shall be deemed to have been approved by the customer. When sending the invoice, the Provider will specifically draw the customer's attention to the importance of his conduct.
10. LIABILITY FOR DEFECTS / LIABILITY
(1) The provider guarantees the functional and operational readiness of the SaaS services in accordance with the provisions of this contract.
(2) In the event that services of the Provider are used by unauthorised third parties using the Customer's access data, the Customer shall be liable for any resulting fees within the scope of civil law liability until receipt of the Customer's order to change the access data or the notification of loss or theft, provided that the Customer is at fault for the access of the unauthorised third party.
(3) The Provider is entitled to block the storage space immediately if there is a justified suspicion that the stored data is illegal and/or violates the rights of third parties and the Provider agrees to the blocking after notification by the Provider. Should the Provider not be able to block the storage space due to a refused consent of the customer although he is legally obliged to do so, the customer is liable for the resulting damage. A well-founded suspicion of illegality and/or a violation of rights exists in particular if courts, authorities and/or other third parties notify the Provider of this. The Provider must inform the customer of the blocking and the reason for it immediately. The block is to be lifted as soon as the suspicion is invalidated.
(4) Claims for damages against the Provider are excluded regardless of the legal grounds, unless the Provider, his legal representatives or vicarious agents have acted with intent or gross negligence. The Provider is only liable for slight negligence if one of the obligations essential to the contract was violated by the Provider, his legal representatives or executive employees or vicarious agents. The Provider is only liable for foreseeable damages, the occurrence of which must typically be expected. Essential contractual obligations are those obligations which form the basis of the contract, which were decisive for the conclusion of the contract and on whose fulfilment the customer may rely.
(5) The Provider is liable without limitation for damages caused intentionally or negligently by the Provider, his legal representatives or vicarious agents due to injury to life, body or health.
(6) The customer is obliged to report defects of the SOFTWARE to the Provider during the first month of the contract. As far as such defects were known at the time of the first month but were not reported, the customer can not appeal.
11. TERM AND TERMINATION / SPECIAL RIGHT OF TERMINATION
(1) The term of the contract and the rights of termination shall be governed by the conditions set out in the attached and signed offer.
(2) The right of each party to the contract to terminate the contract without notice for good cause remains unaffected. The provider is entitled to terminate the contract without notice in particular if the client fails to make due payments despite a reminder and setting of a grace period or if the client violates the contractual provisions regarding the use of the SaaS services. In any case, termination without notice requires that the other party receives a written warning and is requested to eliminate the alleged reason for termination without notice within a reasonable time.
12. DATA PROTECTION / CONFIDENTIALITY
(1) The customer himself is responsible for the declarations of consent required by his customers and his contractual partners in accordance with the provisions of the applicable data protection regulations.
(2) The Provider undertakes to maintain the strictest secrecy about all confidential processes, in particular business or company secrets of the customer, which have come to his knowledge in the course of the preparation, execution and fulfilment of this contract and not to pass them on or use them in any other way. This applies to any unauthorised third parties, i.e. also to unauthorised employees of both the Provider and the Customer, unless the disclosure of information is necessary for the proper performance of the Provider's contractual obligations. In cases of doubt, the Provider will obtain the Customer's consent before such disclosure.
(3) Any processing of the purposes provided by the customer shall only take place for the purposes of fulfilling this contract. Access to customer data is only granted to those employees whose access is absolutely necessary to provide the service offer.
(4) The customer is responsible for taking the necessary IT security measures within his company.
(5) Part of this contract is the contract for processing of orders between the parties, including the appendices, which is attached hereto.
13. APPLICABLE LAW, PLACE OF JURISDICTION
(1) This contract shall be governed by German law to the exclusion of the UN Sales Convention.
(2) For disputes arising from this contract, the exclusive place of jurisdiction is Berlin, unless mandatory statutory provisions provide otherwise.
14. MISCELLANEOUS
(1) Deviating terms and conditions of the contracting party shall not apply unless their application is expressly approved by Kenjo.
(2) Oral collateral agreements have not been made. Amendments, supplements and additions to this contract are only valid if they are agreed between the parties to the contract electronically in text form or in writing.
(3) Should any provision of this contract be or become invalid, this shall not affect the validity of the remaining provisions of the contract. The invalid provision shall be deemed replaced by a valid provision which comes closest to the economic purpose of the invalid provision. The same applies in the event of a contractual loophole.
Kenjo GmbH, April 2020