AGB - Referral Partner

1.               Scope, parties and form

1.1            These General Terms and Conditions ("T&C") apply to the evidence of opportunities to conclude a contract for "ZEP" ("ZEP Compact", "ZEP Clock" and "ZEP Professional") with new customers through the Referral Partner via the PartnerStack platform ("Referral Partner Programme"). ZEP is a modular SaaS solution that can be accessed via an Internet browser and enables users to record time spent on projects.

1.2            ZEP is an offer of ZEP GmbH, registered at Stuttgart Local Court, HRB 732230 (hereinafter referred to as "we"/"us"; we and the referral partner also each have a "Party" and together the "Parties"). We are interested in acquiring new business customers through the referral partner programme.

1.3            The referral partner has business relationships with companies that we regard as "New customers" and is prepared to forward contacts of such potential new customers to us.

1.4            Both we and the referral partner are registered as customers or partners on the "PartnerStack" of the operator PartnerStack Inc. (based in Canada). The referral partner programme is handled exclusively by PartnerStack.

1.5            Our General Terms and Conditions apply exclusively. We do not recognise any deviating or conflicting terms and conditions unless we have expressly agreed to them.

1.6            Individual agreements and details in our order confirmation take precedence over the GTC.

1.7            Legally relevant declarations by the Referral Partner (such as reminders or cancellations) must be made in writing or text form (e.g. letter or email), unless our GTC provide for a different form. Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimisation of the declaring party, remain unaffected.

1.8            Our referral partner programme is aimed exclusively at entrepreneurs (within the meaning of Section 14 (1) BGB, i.e. natural or legal persons or partnerships with legal capacity who are acting in the exercise of their commercial or independent professional activity when concluding the transaction) as well as legal persons under public law and special funds under public law, but in any case only to end customers. The Referral Partner confirms this by agreeing to these GTC.

1.9            References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.

2.               Subject matter of the contract

The object of the contract is the Proof of opportunities to conclude a fee-based contract for ZEP with potential new customers ("Customer contract") by the referral partner in return for payment of a success fee in the event of the conclusion of a customer contract (brokerage agreement, following "Contract").

3.               Conclusion of contract

3.1            The referral partner selects the referral partner programme and submits their application, which we then check. If we are interested in working with the referral partner, we will activate the referral partner website ("Partner Website") on PartnerStack and thus offer to conclude the contract. In order to access this platform, the referral partner must agree to our GTC. By agreeing to the GTC, the Referral Partner accepts our binding offer to conclude the contract. Before accepting the contract, the Referral Partner can view and correct their details at any time.

3.2            The application process via PartnerStack is not mandatory for the conclusion of the contract. We can also make the referral partner an offer to participate in the referral partner programme without prior application.

3.3            Following the referral partner's acceptance, we will confirm the conclusion of the contract by e-mail ("Contract confirmation"). Referral partners can access the GTC via their user account on the partner website.

3.4            The legal relationship between us and the Referral Partner is governed solely by the GTC. These fully reflect all agreements between the contracting parties on the subject matter of the contract. Verbal commitments on our part prior to the conclusion of the contract are not legally binding and verbal agreements between the parties are replaced by the contractual provisions, unless expressly agreed otherwise between the contracting parties.

4.               Rights and obligations of the referral partner

4.1            In accordance with this contract, the Referral Partner has the option, but not the obligation, to provide us with companies that are potential new customers for us.

4.2            The Referral Partner operates on a non-exclusive basis, so we are free to conclude contracts with other companies for participation in the Referral Partner Programme.

4.3            As proof of a potential new customer, the Referral Partner shall complete the template provided by PartnerStack Inc. in full and correctly (the completed template: "Lead") and send it to us via PartnerStack. The Referral Partner shall correct any incorrectly registered leads immediately and inform us accordingly.

4.4            The Referral Partner will only send us a lead if (i) the potential new customer has expressed a specific interest in concluding a customer contract or (ii) to the best of the Referral Partner's knowledge it can be assumed that the potential new customer has such a specific interest.

4.5            The referral partner is authorised,

-        to approach potential new customers about our services;

-        provide potential new customers with the sales materials provided by us (see no. 5.2) and to explain them; and

-        To receive enquiries from potential new customers about our services and forward them to us.

4.6            The Referral Partner is not authorised to act as our representative and to make legally binding declarations on our behalf.

4.7            The referral partner undertakes to ensure that the consents required for the transmission of the lead to us and our contacting the potential new customer (by e-mail or telephone) have been granted (in particular in accordance with the applicable data protection law).

5.               Our rights and obligations

5.1            We decide at our own discretion whether and to what extent we contact the potential new customer on the basis of the lead provided and whether and with what content we conclude a contract with the potential new customer.

5.2            As soon as a lead no longer leads to the conclusion of a customer contract (e.g. because the potential new customer informs us that they do not wish to conclude a customer contract), we change the status of the lead in PartnerStack to "lost".

5.3            We may, at our discretion, provide the Referral Partner with sales material about us and ZEP.

6.               Performance bonus

6.1            The referral partner receives a success fee from us if

-        a customer contract is concluded between us and the potential new customer as a result of the transmission of the lead;

-        we were not yet aware of the specific possibility of concluding a customer contract with the potential new customer identified by the referral partner; and

-        we do not yet have a business relationship with the potential new customer identified in the lead (no success fee for upselling) or have not had a business relationship for one year prior to the lead.

It is made clear: The participation of the potential new customer in a free and non-binding trial version of ZEP does not yet trigger a success fee for the referral partner.

6.2            The bonus amounts to 35 % of the net sales actually achieved by the new customer within the first year after the conclusion of a chargeable customer contract with the new customer. Net sales are the gross sales invoiced to the new customer less VAT ("Net sales"). Net sales are calculated separately for each individual month of the contract term with the new customer.

It is clarified: If the new customer expands or reduces the scope of their customer contract within the first year (e.g. by booking additional modules or registering new employees), the net revenue as the basis for calculating the success fee increases or decreases accordingly.

It is also clarified that other remuneration components, such as remuneration to be paid by the new customer for implementation or support services, as well as remuneration for hardware, are not taken into account when calculating the success fee.

6.3            If, within three months after we have received a lead in accordance with no. 5.2 If the referral partner does not conclude a customer contract after being reported as "lost" on PartnerStack, we do not pay a success fee to the referral partner. Concluding a contract at a later date does not trigger a success fee.

6.4            We inform the referral partner of the actual success fee and transfer the respective amount to PartnerStack Inc. at the end of each month.

6.5            PartnerStack Inc. pays the success fee paid to the Referral Partner on the Referral Partner's instructions. The agreement between the Referral Partner and PartnerStack Inc. is decisive for the modalities of payment. We have no influence on the correct payment to the Referral Partner and - as long as we fulfil our contractual obligations towards PartnerStack Inc. and the Referral Partner - we are in particular not responsible for any delays or shortfalls. On no. 8.3 is pointed out.

6.6            Payment of the success fee shall settle all payment claims of the Referral Partner under this agreement. The Referral Partner shall have no further claims for remuneration or reimbursement of expenses.

7.               Liability

7.1            We shall be liable without limitation a) for fraudulent intent, intent or gross negligence; b) within the scope of a guarantee expressly assumed by us; c) for damages resulting from injury to life, body or health; d) for the breach of a material contractual obligation, the fulfilment of which is essential for the proper performance of the contract and on the observance of which the Referral Partner regularly relies and may rely (cardinal obligation) - in this case, however, limited to the damage reasonably to be expected at the time of conclusion of the contract - and e) in accordance with the provisions of the Product Liability Act.

7.2            We are not liable for the loss of data insofar as the damage is due to the fact that the Referral Partner has failed to carry out data backups and thereby ensure that lost data can be restored with reasonable effort.

7.3            Our liability is otherwise excluded.

7.4            The above liability rules apply accordingly to the behaviour of and claims against our employees, legal representatives and vicarious agents.

7.5            PartnerStack Inc. acts on its own responsibility and is in particular not a legal representative or vicarious agent of us. PartnerStack Inc. is solely responsible for the functionality of PartnerStack.

8.               Term and cancellation

8.1            The contract is concluded for an indefinite period and can be terminated by either party with a notice period of four weeks to the end of a calendar month.

It is clarified: The entitlement to the performance bonus pursuant to no. 6 of these GTC for customer contracts that have already been successfully brokered shall continue to apply. The referral partner shall not receive any remuneration for customer contracts concluded after the end of the contract.

8.2            The right to terminate the contract for good cause remains unaffected.

8.3            As soon as the contractual relationship between PartnerStack Inc. and the referral partner ends, the parties may terminate the contract without notice. The Referral Partner is obliged to inform us immediately of the termination of the contract between him and PartnerStack Inc. It is clarified: The Referral Partner retains its entitlement to the success fee in accordance with no. 6 of these GTC. The parties shall come to an agreement on the modalities of payment as soon as possible in good faith. If the parties fail to reach an agreement, we shall pay the success fee directly to the Referral Partner on a monthly basis, whereby we shall be entitled to deduct from the success fee any remaining remuneration claims of PartnerStack Inc. in connection with the leads processed by the Referral Partner.

9.               Data protection

9.1            The parties shall comply with data protection regulations.

9.2            The parties conclude an order processing contract (Art. 28 GDPR).

10.            Changes to these GTC

10.1         We may amend these GTC during the ongoing contractual relationship if and insofar as there is a valid reason. Such a valid reason may be, for example, a relevant change in the law, a change in supreme court judgement or a change in market conditions.

10.2         Amendments shall be offered to the Referral Partner in text form no later than one month before the proposed date of entry into force. The Referral Partner shall be deemed to have given its consent if it has not indicated its refusal before the proposed date of entry into force of the changes. We will specifically point out this authorisation effect in our offer. Far-reaching changes which affect the basis of the legal relationship between the parties and which may be equivalent to the conclusion of a new contract are only possible with the express consent of the Referral Partner.

11.            Secrecy

11.1         Confidential information is information expressly designated as confidential by the party providing the information and information whose confidentiality is clearly evident from the circumstances of its disclosure ("Confidential information"). The following information is exempt from the confidentiality obligation

-        which were demonstrably already known to the recipient when the contract was concluded or which subsequently become known to the recipient from a third party without violating a confidentiality agreement, statutory provisions or official orders;

-        which are publicly known at the time of conclusion of the contract or are made public thereafter, insofar as this is not based on a breach of this contract;

-        which must be disclosed due to legal obligations or by order of a court or authority. As far as permissible and possible, the recipient obliged to disclose will inform the other party in advance and give it the opportunity to take action against the disclosure.

11.2         The parties shall treat all Confidential Information as confidential. Use of the Confidential Information is limited to use in connection with the contract. The receiving party shall refrain from commercially utilising or imitating the Confidential Information outside of this purpose itself or through third parties (e.g. by means of "reverse engineering"), in particular from applying for industrial property rights to the disclosed Confidential Information.

11.3         The parties shall only grant access to Confidential Information to consultants who are subject to professional secrecy or who have previously been subject to obligations corresponding to the confidentiality obligations of these GTC. In addition, the parties shall only disclose the Confidential Information to those employees who need to know it for the performance of the contract and shall also oblige these employees to maintain confidentiality to the extent permitted by labour law for the period after their departure.

11.4         The obligation to maintain confidentiality applies for the term of the contract and for a period of three years after its termination.

12.            Final provisions

12.1         The law of the Federal Republic of Germany shall apply to this contract to the exclusion of international private law.

12.2         If the Referral Partner is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the District Court of Stuttgart shall be the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same applies if the Referral Partner is an entrepreneur within the meaning of § 14 BGB (German Civil Code). However, we are always also entitled to bring an action at the place of fulfilment or a prior individual agreement or at the general place of jurisdiction of the Referral Partner. Overriding statutory provisions, in particular regarding exclusive jurisdiction, remain unaffected.

12.3         Amendments and additions to the contract, including this written form clause, must be made in writing to be effective, unless a stricter form is required by law.

12.4         Should a provision of the contract be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. The parties are obliged to replace the invalid or unenforceable provision with a valid and enforceable provision that achieves as far as possible the economic purpose intended by the invalid or unenforceable provision. It is the express intention of the parties to maintain the effectiveness of the remaining provisions. The same applies in the event of a gap in the contract. 

 

Status of these GTC: January 2024