1. SCOPE OF APPLICATION
(1) These General Terms and Conditions (hereinafter referred to as GTC) shall apply to all performance contracts concluded between us, the
Kenjo GmbH, Urbanstraße 71, 10967 Berlin , Managing Director: Mr David Padilla, Amtsgericht Charlottenburg, HRB B 183681B, Internet: www.kenjo.io/de/start, E-Mail: info@kenjo.io, Phone: +49 30 5683 7072 (hereinafter: Kenjo),
and the Customer regarding the provision of software-as-a-service via the Internet, in particular in the area of "HR software“ / "personnel administration and procurement software". This does not include contracts for the provision of work services, in particular exclusive software development and onboarding.
(2) All agreements made between you and us in connection with the performance contracts result in particular from these terms and conditions, our offer by e-mail and your declaration of acceptance.
(3) The version of the GTC valid at the time of conclusion of the contract is decisive.
(4) We do not accept any deviating conditions of the Customer. This also applies if we do not expressly object to their inclusion.
2. TEST PHASE AND CONCLUSION OF CONTRACT
(1) The presentation of services on the website www.kenjo.io does not constitute a binding offer by Kenjo. Rather the Customer is given the opportunity to submit or request a binding offer.
(2) Before the beginning of performance contract against payment the Customer will be provided with ACCESS TO THE SERVICE free of charge within the framework of a performance contract against payment. The Customer may use the ACCESS TO THE SERVICE for test purposes free of charge for 14 days after acceptance ("test phase").
(3) The performance contract against payment will be concluded following the performance contract free of charge after acceptance of the offer prepared by Kenjo and sent to the Customer by e-mail. The acceptance shall be made in text form. The acceptance will be returned to Kenjo and will become effective upon receipt by Kenjo. In addition, these General Terms and Conditions shall apply.
3. SUBJECT MATTER OF THE CONTRACT
The subject matter of the contract is the provision of the configuration and modules selected by the Customer as Software-as-a-Service (hereinafter referred to as "ACCESS TO THE SERVICE") from Kenjo for use via the Internet as described in the offer.
4. SCOPE OF FUNCTIONS
(1) The current scope of functions of the ACCESS TO THE SERVICE results from the description on the Kenjo website at https://www.kenjo.io/pricing as well as the configuration and number of employees selected by the Customer.
(2) The parties may agree to change the configuration and scope at any time. Kenjo will provide ACCESS TO THE SERVICE from the time of the conversion in the configuration and scope of the number of employees agreed upon for this purpose. As a result of the conversion a remuneration according to § 10 paragraph 2 applies.
(3) The Customer is entitled to make the service available to his employees in the agreed upon configuration and scope.
5. ALLOCATION OF STORAGE SPACE
(1) Kenjo provides the Customer with storage space on a server for the storage of his data to the extent necessary for the provision of the data.
(2) The Customer is obliged to not store any content on the storage space whose provision, publication or use violates applicable law or agreements with third parties.
(3) A release of data - to be requested within 14 days from the end of the contract – takes place via transmission via a data network. The Customer is not entitled to receive the software suitable for the use of the data.
(4) Kenjo is neither entitled to a right of retention nor the legal lien (§ 562 BGB) with regard to the Customer's data.
6. BLOCKING
Kenjo shall be entitled to deny the Customer access to the ACCESS TO THE SERVICE if and to the extent that the Customer uses the ACCESS TO THE SERVICE contrary to the terms of this contract or if otherwise an infringement of Kenjo's intellectual property is to be expected. Kenjo is further entitled to block access if the security or integrity of the ACCESS TO SERVICE or the facilities used by Kenjo is directly or indirectly impaired by the Customer or such impairment is imminent.
7. INTERRUPTION / IMPAIRMENT OF ACCESSIBILITY
The basic functions of the ACCESS TO SERVICE are monitored daily. Maintenance of the ACCESS TO SERVICE is generally ensured on weekdays from Monday to Friday 09:00 - 18:00 CET. Excepted from this are days which are public holidays at the Berlin location. Kenjo will immediately notify the Customer of the maintenance work and carry it out in the shortest possible time according to the technical conditions.
8. PRIMARY OBLIGATIONS OF THE CUSTOMER
(1) During the test phase the Customer shall be obliged to check the general condition and the functionalities of the ACCESS TO SERVICE and to notify Kenjo in text form immediately, at any rate during the test phase and prior to conclusion of the performance contract against payment, of any defects that cancel or otherwise reduce the suitability for contractual use by the Customer. The Customer acknowledges the suitability of the ACCESS TO THE SERVICE as being in accordance with the contract upon conclusion of the performance contract against payment unless he reserves the right to do otherwise.
(2) The Customer has a stable internet connection and always uses current browser versions.
(3) The Customer shall immediately indicate any malfunctions in text form. In doing so, he shall specify the type, the scope, the duration, and any further relevant information. The Customer shall cooperate to an appropriate extent in identifying and remedying the fault. In the absence of notification, § 536c para. 2 sentence 2 BGB shall apply accordingly.
(4) The Customer is obliged to inform Kenjo in text form of an authorized contact person as well as his deputy, who is entitled to perform the necessary actions and make the necessary declarations required to render the required contractually agreed services. The Customer will provide Kenjo with the first and last name, e-mail, and a telephone number (contact details) of the contact person and his deputy. If the contact person and/or deputy changes, the Customer is obliged to inform Kenjo immediately and to transmit the new contact data in text form. If the contact person for invoices differs from the aforementioned person, the Customer must state this separately to the same extent and notify any changes accordingly.
9. SECONDARY OBLIGATIONS OF THE CUSTOMER
(1) The Customer is obliged not to store any illegal content that violates laws, official regulations, or the rights of third parties on the storage space provided and to use the ACCESS TO THE SERVICE only in accordance with the contract. The Customer shall notify Kenjo in text form as soon as he/she becomes aware of that.
(2) Notwithstanding Kenjo's obligation to secure data, the client himself is responsible for entering and maintaining the data, software, in particular browsers, and information necessary for the use of the ACCESS TO THE SERVICE.
(3) The client checks his data and information for viruses or other harmful components before entering them. The Client shall use state-of-the-art virus protection programs for this purpose.
(4) The client himself creates a "user ID" and password for access to the use of the ACCESS TO THE SERVICE services. The Client shall keep the "User ID" and password confidential. Access via User ID (e-mail address) and password and/or a so-called "single sign on" from third party providers such as Google and Outlook are only ever used by one of the Client's employees.
(5) 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 Kenjo the right to make the contents stored on the server accessible to the Customer for his queries via the internet and, in particular, to copy and transmit them for this purpose and to be able to reproduce them for the purpose of data backup.
10. REMUNERATION
(1) The Customer shall pay Kenjo the agreed monthly fee plus statutory VAT for the provision of ACCESS TO THE SERVICE and the granting of storage space. The fee is due at the beginning of the month, quarter, half-year, year or every two years (advance payment) according to the agreement between the parties. In case of doubt, the remuneration shall be based on Kenjo's price list valid at the time of conclusion or extension of the contract.
(2) In the event that the price class for the provision of ACCESS TO THE SERVICE is increased due to a change in functionality and scope, Kenjo will separately invoice the difference between the previous and the new price class on daily settlement, taking into account the advance payment. Should the parties agree on a reduction of the configuration and scope during the term of the contract, this will not result in a claim for a refund of the balance by the Customer. If the Customer is credited with a credit balance as a result of a contractual amendment, this credit balance will be offset against the subsequent invoice. There is no claim to payment of the credit balance.
(3) Objections to the invoicing of services rendered by Kenjo shall be raised by the Customer in writing to the place indicated on the invoice no later than eight weeks after receipt of the invoice, stating the invoice number and the invoice item. Otherwise, the invoice will be considered as approved by the Customer. By sending the invoice Kenjo will point out to the Customer the importance of his behavior.
11. LIABILITY FOR DEFECTS/LIABILITY
(1) Kenjo guarantees the functional and operational readiness of the ACCESS TO THE SERVICE according to the provisions of this performance contract. For optimum use, compatible browsers are to be used in accordance with the documentation in the help center.
(2) The strict liability for initial material defects (§ 536a paragraph 1, 1st alternative BGB) is excluded.
(3) Claims for damages against Kenjo are excluded regardless of the legal grounds, unless Kenjo, its legal representatives or vicarious agents have acted with intent or gross negligence. Kenjo shall only be liable for slight negligence if one of the essential contractual obligations has been violated by Kenjo, its legal representatives or executives or vicarious agents. Kenjo shall only be 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. Kenjo is not liable for the loss of data insofar as the damage is due to the fact that the Customer has failed to carry out data backups and thereby ensure that lost data can be restored with reasonable effort.
(4) Kenjo shall have unlimited liability for damages caused intentionally or negligently by Kenjo, its legal representatives or vicarious agents due to injury to life, body, or health.
12. TERM; TERMINATION
(1) The contractual relationship against payment begins with the acceptance of the offer by the Customer. The performance contract against payment shall be concluded for a contractual period of one year unless the parties agree otherwise. The performance contract shall be extended by a further year in each case unless one of the parties terminates the contract 8 weeks before the end of the contract period.
(2) The right of each party to the contract to terminate the contract without notice for good cause remains unaffected. Kenjo is particularly entitled to terminate the contract without notice if the Customer does not make due payments despite reminders and setting of a grace period or if he violates the contractual provisions regarding the use of the ACCESS TO THE SERVICE. A termination without notice in any case requires that the other party has been warned in writing and requested to eliminate the alleged reason for termination without notice within a reasonable period of time.
13. CONFIDENTIALITY
(1) The contracting parties agree that the contract for commissioned data processing attached as Annex 1 shall also become an integral part of the performance contract, in particular the object and duration of the processing, the type and purpose of the processing, the type of personal data, the categories of data subjects and the obligations and rights of the Customer existing within the scope of commissioned data processing shall be specified.
(2) The parties undertake to maintain secrecy about all information to be treated confidentially which they have come to know in connection with this contractual relationship and not to use this information either directly or indirectly for their own or third party purposes. The same applies to business or trade secrets of third parties which become known or have become known to Kenjo in connection with the contractual relationship with the Customer. Kenjo will also impose this obligation of secrecy on all persons who are employed as vicarious agents to this contract.
(3) The information to be treated confidentially includes in particular the information that has been expressly designated as confidential by the respective party providing the information, as well as all other information whose confidentiality results from the special circumstances of the transfer, including in particular business and company secrets as well as Customer and personnel data. Information which is not to be treated as confidential includes information which
(4) The obligations pursuant to § 13 (2) shall continue to exist indefinitely beyond the end of the contract. The obligation shall not apply if information is to be qualified as information that is no longer to be treated as confidential.
14. APPLICABLE LAW, PLACE OF JURISDICTION, LANGUAGE OF CONTRACT
(1) This contract shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods unless the parties individually agree otherwise.
(2) Berlin shall be the exclusive place of jurisdiction for disputes arising from this contract unless the parties individually agree otherwise.
(3) In the event of discrepancies between the German and English versions of GTC, the German version shall be authoritative and legally binding.
15. MISCELLANEOUS
(1) Kenjo is entitled to change these terms and conditions with a notice period of six weeks in advance. Kenjo will notify the Customer of the respective change by e-mail or in writing. At the same time, the Customer will be expressly informed that the respective change will become part of the contract existing between the contracting parties, if the Customer does not object to this change within a period of six weeks from notification of the change by e-mail or in writing.
(2) Should a provision of these GTCs be or become invalid, this shall not affect the validity of the remaining GTCs. The invalid provision shall be deemed replaced by a valid provision that comes closest to the economic purpose of the invalid provision. The same applies in the event of a contractual loophole.
(3) Annexes referred to in these GTCs shall become an integral part of the performance contract.
Kenjo GmbH, January 2021