General Terms and Conditions - ZEP GmbH

Scope of application, form

1. These General Terms and Conditions ("GTC") apply to the sale of "ZEP" ("ZEP Compact", "ZEP Clock" and "ZEP Professional"), a modular SaaS solution that can be accessed via an Internet browser and enables users (hereinafter referred to as "Customers") to record time spent on projects. In the following, "ZEP" refers to the specific module package ordered. Insofar as the term "ZEP" is used consistently in the following, it refers to "ZEP Compact", "ZEP Clock" and "ZEP Professional". A distinction is only made by name where necessary.
2. ZEP is an offer of ZEP GmbH, registered at Stuttgart Local Court, HRB 732230 (hereinafter referred to as ZEP). "we"/"us").
3. 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.
4. Individual agreements and details in our order confirmation take precedence over the GTC.
5. Legally relevant declarations by the customer (e.g. setting a deadline, notification of defects or cancellation) must be made in writing or text form (e.g. letter or email), unless our GTCs provide for a different form. Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the person making the declaration, remain unaffected.
6. Our product range 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 customer confirms this when placing the order.
7. 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.

Conclusion and amendment of contract

1. Our offers are subject to change and non-binding unless they are expressly designated as binding or contain a specific acceptance period. This also applies if we have provided the customer with documentation, product descriptions or other documents.
2. The customer selects the product suitable for him within ZEP. Before submitting an order, the customer can view and change his details at any time. By clicking on the "Apply for a chargeable order" button, the customer submits a binding application to conclude the contract. The application can only be submitted if the customer has previously agreed to these GTC and the conclusion of the order processing contract.
3. Following the customer's order, we will send them our declaration of acceptance by e-mail ("order confirmation"). The contract is concluded with this order confirmation. In this e-mail, we send the customer the "contractual provisions" (consisting of the GTC, the order processing contract and the order confirmation). The contractual provisions can be accessed via the customer's user account in ZEP.
4. The legal relationship between us and the customer shall be governed solely by the contractual provisions. These fully reflect all agreements between the contracting parties on the subject matter of the contract. Verbal promises made by us prior to the conclusion of the contract are not legally binding and verbal agreements between the contracting parties are replaced by the contractual provisions, unless expressly agreed otherwise between the contracting parties.
5. For ZEP Compact and ZEP Professional, the customer can add or cancel modules and/or increase or decrease the number of agreed users in his online user account at the beginning of each calendar month in the "Current licence" overview. In the case of ZEP Compact and ZEP Professional, the customer can also order additional modules and/or increase the number of agreed users on the 15th of each calendar month. With ZEP Clock, the customer can add or cancel modules in his online user account at the beginning of each calendar month. Sections 2.2 to 2.4 apply accordingly to the conclusion of the amended contract. Reference is made to the provisions on remuneration in Section 9.1 and on termination of the contract in Section 12.1.

Transfer ZEP

1. We shall make ZEP available to the customer for the agreed term in the respective current version (cf. Section 3.5) for the agreed number of authorised users against payment for retrieval via the Internet at the transfer point by means of access via a browser.
2. The functional scope of ZEP and its modules as well as the conditions of use can be found on the website at www.zep.de.
3. The handover point is the router output at the data centre used by us. We are not responsible for the telecommunications connection between the customer and us up to the transfer point.
4. If we provide the customer with user names and user passwords, the customer must change these immediately to user names and passwords known only to him.
5. We may update ZEP at any time, develop it further and, in particular, adapt it due to a change in the legal situation, technical developments or to improve IT security. In doing so, we will take appropriate account of the legitimate interests of the Customer and inform the Customer in good time of any necessary updates. In the event of a significant impairment of the customer's legitimate interests, the customer has a special right of cancellation.
6. We do not owe any further services such as customising or installation services, training or individual further developments by ZEP, unless specifically agreed.

Availability and response times

1. Unless otherwise agreed, we owe an availability (= technical usability at the transfer point) of ZEP of 99.8 % on an annual average. The measuring instruments of the data centre operator are decisive for determining the availability rate.
2. The promised availability does not include maintenance times. We will carry out these outside normal business hours and to a reasonable extent. Should we wish to carry out maintenance work beyond this in exceptional cases, we will give the customer reasonable advance notice.
3. Also excluded from the agreed availability are interruptions in availability that we may deem necessary for security reasons (e.g. in the event of a denial-of-service attack or a serious security vulnerability in third-party software used without an available patch), provided that we have taken appropriate security precautions.
4. The customer must report faults immediately to the support contact details listed in Section 7. We will respond to serious fault reports (Section 4.5) within four hours during our business hours (Monday - Friday, 9:00 - 17:00 German time, excluding national and Baden-Württemberg public holidays; the "Business Hours") and to other faults within a reasonable period of time. Example: We receive notification of a serious fault at 16:00. We will then respond by 12:00 h on the following day.
5. We will rectify serious faults (the use of ZEP as a whole or a main function (i.e. a function that is indispensable for the meaningful use of ZEP) is not possible) within 24 hours of our response (Section 4.4). If and as soon as it is foreseeable that it will not be possible to rectify the fault within this period of time, we will inform the Customer of this without delay and notify him of the expected delay and provide a workaround solution until the fault has been rectified.
6. We will rectify other significant faults (main or secondary functions of ZEP are disrupted but can be used; or other not merely insignificant faults) within 48 hours of our response (Section 4.4).
7. The elimination of insignificant faults is at our discretion.

Rights of use

1. We grant the Customer a simple (= non-exclusive), non-sublicensable and non-transferable right to use ZEP for the duration of the contract for his own business purposes by his own personnel within the agreed licence scope.
2. The Customer is not entitled to any rights that are not expressly granted to the Customer above. Unless otherwise agreed, the Customer is in particular not authorised to make ZEP available to third parties - including companies affiliated with the Customer within the meaning of §§ 15 ff. AktG (German Stock Corporation Act) - against payment or free of charge.

Allocation of storage space

1. Unless a different storage space agreement has been made, we shall also provide the customer with sufficient server storage space for the storage of his data for the purposes of the contract.
2. The customer is not authorised to transfer this storage space to a third party for use in part or in full, for a fee or free of charge.
3. We will perform daily data backups. Reference is also made to section 8.8.

Support

1. During business hours (see section 4.4), we provide support for questions regarding the use of ZEP under the following contact details: E-mail: support@zep.de / Phone: +49 (0)7156 43623-0.

Obligations of the customer

1. Unless otherwise agreed, the customer shall set up ZEP (individual configuration, input/import of data, etc.) himself and shall be responsible for this.
2. The customer shall ensure that he observes all third-party rights (e.g. when transmitting third-party data to our server).
3. The customer is obliged not to store any illegal content that violates the law, official requirements or the rights of third parties on the storage space provided. We are authorised to block the storage space immediately if and for as long as there is reasonable suspicion that the stored data is illegal and/or infringes the rights of third parties. We shall immediately inform the customer of the block and the reason for it.
4. The customer is obliged to comply with the relevant statutory provisions when using ZEP. The customer shall indemnify us against third-party claims based on unlawful use by the customer.
5. The customer shall check data and information for viruses before sending it to us and shall use state-of-the-art virus protection programmes.
6. The customer is obliged to keep the usage and access authorisations provided secret, to protect them from access by third parties and not to pass them on to unauthorised users. This data must be protected by suitable and customary measures. The customer shall inform us immediately if there is any suspicion that the access data and/or passwords may have become known to unauthorised persons and shall change the passwords immediately.
7. Insofar as the customer processes personal data when using ZEP and no statutory authorisation applies, the customer shall obtain the necessary consent from the respective data subject.
8. The Customer is obliged - notwithstanding Clause 6.3 - to regularly back up the data transmitted to us with the aid of ZEP in accordance with the significance of the data and to create his own backup copies in order to enable reconstruction of the data and information in the event of loss, and, if and insofar as he has the technical possibility to do so, to regularly back up the data stored on our server by download.
9. The customer shall immediately adjust changes to his contract data (e.g. changed addresses, bank details, etc.) in his user account in ZEP.

Remuneration, terms of payment, default

1. The customer owes us the agreed remuneration for the provision of ZEP and the storage space as well as any other agreed services.
2. The agreed remuneration for ZEP Compact and ZEP Professional is due for payment in advance 14 days after invoicing for the respective calendar quarter. The remuneration for the first calendar quarter shall be paid pro rata, if applicable. If the customer makes use of his right of adjustment in section 2.5, any difference will be taken into account in the next billing period. If the customer adjusts the contract on the 15th of a calendar month, we will invoice the original and the new scope of the contract on a pro rata basis. Example: The customer has booked 50 users. At the beginning of the 2nd month of the relevant calendar quarter, the customer has increased the number of users to 70. The additional remuneration for the 2nd and 3rd month of the calendar quarter in question will then be invoiced in the following calendar quarter.
3. The agreed remuneration for ZEP Clock is due for payment 10 days after invoicing. Invoicing takes place at the end of each month and takes into account the employees who are registered as employed in the month to be invoiced.
4. If the contract is cancelled, we will refund any excess amount paid in advance in accordance with clause 9.2.
5. The customer can issue us with a SEPA direct debit mandate for payment processing. In this case, we will collect the agreed remuneration from the bank details provided by the customer after the due date. In the event of an update of the bank details, the customer shall authorise us to debit the new bank details if he has already issued us with a SEPA direct debit mandate.
6. Invoicing shall be carried out by sending an invoice. The customer must raise objections in writing or in text form within a period of eight weeks after receipt of the invoice. After expiry of this period, the invoice shall be deemed to have been approved by the customer. We shall draw the customer's attention to the significance of his behaviour when sending the invoice.
7. All prices are subject to the applicable statutory value added tax.
8. The customer's rights of set-off and retention are excluded unless the underlying counterclaim is recognised or has been legally established. In the event of defects, the customer's corresponding counterclaims shall remain unaffected.

Guarantee

1. The statutory provisions shall apply unless otherwise stipulated below.
2. The Customer must notify us immediately if he discovers defects in ZEP.
3. The customer is not entitled to claim a reduction by independently deducting the amount of the reduction from the current remuneration. This shall not affect the customer's right under the law of unjust enrichment to reclaim the part of the remuneration paid in excess due to a justified reduction.
4. The Customer's rights due to defects are excluded if the Customer makes changes to ZEP or has them made without our consent, unless the Customer proves that the changes have no unreasonable effects on the analysis and elimination of the defects.

Liability

1. We shall not be liable for defects already existing at the time of conclusion of the contract, unless a case of clause 11.2 exists.
2. 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 customer 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.
3. We shall not be 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 (cf. Section 8.8) and thereby ensure that lost data can be restored with reasonable effort.
4. Our liability is otherwise excluded.
5. The above liability rules apply accordingly to the behaviour of and claims against our employees, legal representatives and vicarious agents.

Term and cancellation

1. The contract begins with the conclusion of the contract and, unless otherwise agreed, runs for an indefinite period. Unless otherwise agreed, it may be terminated by the customer at any time to the end of the current calendar month by us within the statutory periods (Section 580a (3) No. 2 BGB).
2. The right to extraordinary cancellation remains unaffected.

Handling of customer data upon termination of the contract

1. At the end of the contract term, the customer's right to access his data generated via ZEP and other data uploaded to the memory provided by us (collectively the "customer data") also ends.
2. The customer is obliged to ensure the continued availability of the customer data required by him beyond the end of the contract. He must take suitable measures to this end during the term of the contract, for example by regularly exporting the customer data via an export function provided by us and, if necessary, printing out the customer data.
3. We are not obliged to disclose customer data beyond this.

Data protection

1. The parties shall comply with data protection regulations.
2. The parties conclude an order processing contract (Art. 28 GDPR).

Changes to these GTC

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.
2. Amendments shall be offered to the customer in text form no later than one month before the proposed date of entry into force. The customer shall be deemed to have given his consent if he has not indicated his refusal before the proposed date of entry into force of the changes. We will specifically draw the customer's attention to this authorisation effect in our offer. Far-reaching changes that affect the basis of the legal relationship between the parties and may be equivalent to the conclusion of a new contract are only possible with the express consent of the customer.

Subcontractor

1. Unless otherwise agreed, we are authorised to use third parties to provide our contractually owed services.

Force majeure

1. In the event of and for the duration of force majeure, we shall be released from our performance obligations. Force majeure is any event beyond our control which prevents us in whole or in part from fulfilling our obligations, such as fire damage, floods, epidemics, strikes and lawful lockouts as well as operational disruptions or official decrees for which we are not responsible.
2. We shall notify the customer immediately of the occurrence and cessation of force majeure and shall use our best endeavours to remedy the force majeure and to limit its effects as far as possible.
3. If the force majeure lasts longer than two weeks, the customer is entitled to cancel or withdraw from the contract.

Secrecy

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 in which it is provided ("Confidential Information"). Excluded from the confidentiality obligation is such information
   1. 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;
   2. 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;
   3. 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.
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.
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.
4. Insofar as the client's data is subject to the requirements of Section 43e BRAO, the following provisions shall apply in addition (and shall take precedence in the event of contradictions to the other provisions of this Section 18): We are aware that the client is subject to special confidentiality obligations and that the breach of such obligations may have criminal consequences (imprisonment or fine). With reference to this, we are hereby obliged to maintain confidentiality. We may only obtain knowledge of third party secrets to the extent that this is necessary for the fulfilment of the contract. We are authorised to involve other persons in the fulfilment of the contract; in this case we are obliged to impose a confidentiality obligation on these persons in text form.
5. The obligation to maintain confidentiality applies for the term of the contract and for a period of three years after its termination.

Final provisions

1. The customer may not assign the rights to which it is entitled under the contract to third parties, either in whole or in part, without our prior written consent.
2. These GTC and the contractual relationship between us and the customer shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
3. The place of fulfilment is our registered office.
4. If the customer 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 shall apply if the customer is an entrepreneur within the meaning of § 14 BGB. However, we are also always entitled to bring an action at the place of fulfilment or at the customer's general place of jurisdiction. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.