General terms and conditions - ZEP GmbH

scope, 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 the “Customers”) to record time spent on projects. In the following, “ZEP” means the specifically ordered module package. Insofar as the term “ZEP” is consistently referred to below, both “ZEP Compact”, “ZEP Clock” and “ZEP Professional” are meant. Only where necessary is a distinction made by name.
2. ZEP is an offer from ZEP GmbH, registered with the Stuttgart District Court, HRB 732230 (hereinafter “we”/“us”
3. Our terms and conditions apply exclusively. We do not recognize any deviating or conflicting conditions unless we have expressly agreed to them.
4. Individual agreements and information in our order confirmation take precedence over the terms and conditions.
5. Legally relevant declarations by the customer (such as setting a deadline, notification of defects or withdrawal) must be submitted in writing or text form (e.g. letter or e-mail), unless our terms and conditions provide for a different form. Statutory formal requirements and further evidence, in particular in the event of doubts as to the legitimacy of the declarant, remain unaffected.
6. Our range of products 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 act in the exercise of their commercial or independent professional activity when concluding the transaction) as well as public law special funds, but in any case only at end customers. The customer confirms this as part of the order.
7. References to the validity of legal regulations are only for clarification purposes. Even without such clarification, the statutory provisions therefore apply insofar as they are not directly amended or expressly excluded in these terms and conditions.
Conclusion of contract and contract amendment
1. Our offers are subject to change and non-binding, unless they are expressly described as binding or include a specific acceptance period. This also applies if we have provided the customer with documentation, product descriptions or other documents.
2. Within ZEP, the customer selects the right product for him. Before sending an order, the customer can view and change their details at any time. By pressing the “Apply for a fee” button, the customer submits a binding request to conclude the contract. The request can only be submitted if the customer has previously agreed to these terms and conditions and the conclusion of the order processing contract.
3. Following the order, we send the customer our declaration of acceptance by e-mail (“order confirmation”). With this order confirmation, the contract is concluded. In this email, we send the customer the “contract terms” (consisting of the terms and conditions, the order processing contract and the order confirmation). The contract terms can be accessed via the customer's user account in ZEP.
4. The contractual provisions alone are decisive for the legal relationship between us and the customer. These fully reflect all agreements between the contracting parties regarding the subject matter of the contract. Verbal promises made by us prior to the conclusion of the contract are not legally binding and oral agreements between the contracting parties are replaced by the terms of the contract, unless otherwise expressly agreed between the contracting parties.
5. With ZEP Compact and ZEP Professional, the customer can add or cancel modules in his online user account at the beginning of each calendar month in the “current license” overview and/or increase or decrease the number of agreed users. With ZEP Compact and ZEP Professional, customers can also order additional modules on the 15th of each calendar month and/or increase the number of agreed users. With ZEP Clock, customers can add or cancel modules in their online user account at the beginning of each calendar month. Sections 2.2 to 2.4 apply mutatis mutandis to the conclusion of the amended contract. Reference is made to the provision on remuneration in Section 9.1 and on termination of the contract in Section 12.1.
Transfer to ZEP
1. For the agreed term, we provide the customer with the latest version of ZEP (see section 3.5) for the agreed number of authorized users for retrieval via the Internet at the transfer point via a browser.
2. The range of functions of ZEP and its modules as well as the operating conditions can be found on the website at www.zep.de.
3. The transfer point is the router outlet at the data center we use. 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, these must be changed immediately by the customer to user names and passwords known only to him.
5. We can update, further develop and adapt ZEP at any time, in particular as a result of a change in legal situation, technical developments or to improve IT security. In doing so, we will take appropriate account of the customer's legitimate interests and inform the customer in good time about necessary updates. In the event of a significant impairment of the customer's legitimate interests, the customer has a special right of termination.
6. We do not owe any further services such as customizing or installation services, training or individual developments from ZEP; unless otherwise agreed.
Availability and response times
1. Unless otherwise agreed, we owe an availability (= technical usability at the handover point) of ZEP of 99.8% on an annual average. The measurement instruments used by the data center 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 an appropriate extent. Should we wish to carry out additional maintenance work in exceptional cases, we will announce this to the customer with appropriate advance notice.
3. Availability interruptions 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) are also excluded from the agreed availability, provided that we have taken appropriate security measures.
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 disruptions within a reasonable period of time. Example: We receive a report of a serious malfunction at 16:00 h. We will then get back to you by 12:00 the following day.
5. Serious faults (the use of ZEP as a whole or a main function (i.e. a function that is essential for a meaningful use of ZEP) is not possible) will be resolved 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 immediately inform the customer of this and will provide a work-around solution until it is resolved.
6. Other significant faults (main or ancillary functions of ZEP are disrupted but can be used; or other not only minor faults) will be resolved within 48 hours of our response (section 4.4).
7. The elimination of minor faults is at our discretion.
Rights of use
1. We grant the customer a simple (= non-exclusive), non-sublicensable and 3 non-transferable right to use ZEP for his own business purposes by our own personnel within the agreed scope of the license during the duration of the contract.
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 entitled to make ZEP available to third parties — including companies affiliated with the customer within the meaning of Sections 15 et seq. of the German Stock Corporation Act — for use against or free of charge.
Allocating storage space
1. Unless a different storage space agreement has been made, we also provide the customer with sufficient server space for the purpose of the contract to store their data.
2. The customer is not entitled to transfer this storage space to a third party in part or in full, for a fee or free of charge.
3. We will back up data on a daily basis. Reference is also made to point 8.8.
Haftung
1. During business hours (see section 4.4), we provide support to assist you with questions about the use of ZEP using the following contact details: E-Mail: support@zep.de/Tel.: +49 (0) 7156 43623-0.
Customer obligations
1. Unless otherwise agreed, the customer sets up ZEP himself (individual configuration, input/import of data, etc.) and is responsible for this.
2. The customer ensures 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 laws, official requirements or the rights of third parties on the storage space provided. We are entitled to immediately block storage space if and as long as there is reasonable suspicion that the stored data is illegal and/or infringes the rights of third parties. We will immediately inform the customer of the suspension and the reason for it.
4. When using ZEP, the customer is obliged to comply with the relevant legal provisions. The customer releases us from third-party claims based on unlawful use by him.
5. Before sending data and information to us, the customer checks them for viruses and will use state-of-the-art virus protection programs.
6. The customer is obliged to keep provided usage and access rights secret, to protect them from access by third parties and not to pass them on to unauthorized users. This data must be protected by appropriate and usual measures. The customer will immediately inform us if there is a suspicion that the access data and/or passwords may have become known to unauthorized persons and change the passwords immediately.
7. Insofar as the customer processes personal data when using ZEP and does not comply with any legal permission, he obtains the necessary consent from the person concerned.
8. Notwithstanding Section 6.3, the customer is obliged to back up the data transmitted to us with the help of ZEP regularly and in accordance with the meaning of the data and to make its own backup copies so that, in the event of loss of the data and information, the customer is required to regularly back up the data stored on our server by downloading it.
9. The customer immediately adjusts changes to his contract data (e.g. changed addresses, bank details, etc.) in his user account in ZEP.
Remuneration, terms of payment, delay
1. The customer owes us the agreed remuneration for the provision of ZEP and storage space as well as any further agreed services.
2. The agreed remuneration for ZEP Compact and ZEP Professional is due in advance 14 days after invoicing for the respective calendar quarter. Compensation for the first calendar quarter may have to be paid on a pro rata basis. 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 proportionally. Example: The customer has booked 50 users. At the beginning of the 2nd month of the relevant calendar quarter, the customer increased the number of users to 70. The additional remuneration for the 2nd and 3rd months of the relevant calendar quarter is then included 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 includes employees registered as employed in the billing month.
4. If the contract is terminated, we will refund any prepaid amount proportionally excessive in accordance with Section 9.2.
5. The customer can give us a SEPA direct debit mandate to process payments. In this case, we will collect the agreed remuneration from the bank details provided by the customer after its due date. If the bank details are updated, the customer will, if he has already given us a SEPA direct debit mandate, authorize us to debit the new bank account.
6. Invoicing is 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 the deadline, the invoice is considered approved by the customer. When sending the invoice, we will make the customer particularly aware of the importance of his conduct.
7. All prices are exclusive of the applicable statutory value added tax.
8. The customer's offsetting and retention rights are excluded, unless the underlying counterclaim has been acknowledged or has been legally established. In the event of defects, the customer's corresponding counterrights remain unaffected.
warrant
1. The statutory rules apply, unless otherwise stated below.
2. If the customer discovers any deficiencies on the part of ZEP, they must report them to us immediately.
3. The customer is not entitled to claim a reduction by independently deducting the reduction amount from the current remuneration. The customer's claim under enrichment law to reclaim the portion of the remuneration paid too much as a result of a justified reduction remains unaffected by this.
4. The customer's rights due to defects are excluded insofar as the customer makes or has changes made to ZEP without our consent, unless the customer proves that the changes have no effect on the analysis and elimination of the defects that are unacceptable to us.
liability
1. We are not liable for defects that already existed at the time of conclusion of the contract, unless Section 11.2 applies.
2. We are liable without limitation a) in the event of malice, intent or gross negligence; b) within the framework of a guarantee expressly assumed by us; c) for damage arising from injury to life, limb or health; d) for the breach of an essential contractual obligation, the performance of which enables the proper execution of the contract in the first place and on whose compliance the customer regularly trusts and may rely (cardinal obligation) — but limited to What is reasonably expected when the contract is concluded damage - and e) in accordance with the provisions of the Product Liability Act.
3. We are not liable for loss of data insofar as the damage is based on the customer's failure to carry out data backups (see Section 8.8) and thus ensure that lost data 5 can be restored with reasonable effort.
4. Otherwise, our liability is excluded.
5. The above liability rules apply mutatis mutandis to the conduct of and claims against our employees, legal representatives and vicarious agents.
Duration and termination
1. The contract begins with the conclusion of the contract and, unless otherwise agreed, runs for an indefinite period of time. Unless otherwise agreed, it can be terminated by the customer at any time at the end of the current calendar month, by us within the legal deadlines (Section 580a (3) No. 2 BGB).
2. The right to extraordinary termination remains unaffected.
Handling customer data upon termination of the contract
1. At the end of the contract period, the customer's right to access his data generated via ZEP and other data uploaded to the storage provided by us (together the “customer data”) also ends.
2. The customer himself is obliged to ensure that the customer data he still needs is available beyond the end of the contract. During the contract period, he must take appropriate measures, for example by regularly exporting via an export function provided by us and, if necessary, printing out customer data.
3. We are not obliged to disclose customer data beyond this.
Data protection
1. The parties comply with data protection requirements.
2. The parties conclude an order processing contract (Art. 28 GDPR).
Amendments to these terms and conditions
1. We can change these terms and conditions during the ongoing contractual relationship if and insofar as there is a valid reason. Such valid reason may lie, for example, in a relevant legislative amendment, a change in supreme court case law or a change in market conditions.
2. Amendments will be offered to the customer in text form no later than one month before the proposed effective date. The customer's consent is considered to have been given if he has not notified his refusal before the proposed date for the changes to take effect. We will draw particular attention to this approval effect in our offer. By contrast, far-reaching changes that affect the basis of the legal relationship between the parties and may amount to the conclusion of a new contract are only possible with the express consent of the customer.
subcontractors
1. Unless otherwise agreed, we are entitled 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 are exempted from our performance obligations. Force majeure is any event beyond our control that prevents us, in whole or in part, from meeting our obligations, such as fire damage, floods, epidemics, strikes and lawful lockouts, as well as operational disruptions or official orders through no fault of our own.
2. We will immediately notify the customer of the occurrence and cessation of the force majeure and will do our best to remedy the force majeure and 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 the information expressly designated as confidential by the information-providing party and information whose confidentiality is clearly apparent from the circumstances of the transfer 6 (“Confidential Information”). Such information is excluded from the confidentiality obligation
  1. which were demonstrably already known to the recipient when the contract was concluded or become known by third parties thereafter, without violating a confidentiality agreement, legal regulations or official orders;
  2. which are publicly known when the contract is concluded or are subsequently made public, unless this is based on a breach of this contract;
  3. which must be disclosed due to legal obligations or by order of a court or authority. To the extent permitted and possible, the recipient required to disclose will notify the other party in advance and give it the opportunity to object to the disclosure.
2. The parties will keep all confidential information confidential. Use of Confidential Information is limited to use in connection with the contract. The receiving party must refrain from commercially exploiting or imitating the confidential information outside of this purpose itself or through third parties (for example by “reverse engineering”), in particular to register industrial property rights on the disclosed confidential information.
3. The parties will only grant access to Confidential Information to consultants who are subject to professional secrecy or who have previously been subject to obligations in accordance with the confidentiality obligations of these Terms and Conditions. In addition, the parties will only disclose confidential information to those employees who they need to know in order to execute the contract and will oblige these employees to maintain secrecy even after their departure to the extent permitted by employment law.
4. Insofar as the customer's data is subject to the requirements of § 43e BRAO, the following regulations apply in addition (and in the event of contradictions to the other provisions of this Section 18, priority): We are aware that the customer is subject to special confidentiality obligations and that the violation of such obligations may have criminal consequences (imprisonment or fine). With reference to this, we are hereby bound to secrecy. We may only become aware of foreign secrets insofar as this is necessary to fulfill the contract. We are authorized to call on other persons to fulfill the contract; in this case, we are obliged to oblige these persons to maintain confidentiality in writing.
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 he is entitled under the contract, in whole or in part, to third parties without our prior written consent.
2. German law applies to these terms and conditions and the contractual relationship between us and the customer, to the exclusion of the UN sales law.
3. The place of fulfilment is our registered office.
4. If the customer is a merchant within the meaning of the Commercial Code, a legal entity under public law or a special fund under public law, the Stuttgart Regional Court is the exclusive — including international — place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same applies if the customer is an entrepreneur within the meaning of § 14 BGB. However, we are always also entitled to file an action at the place of fulfilment or a priority individual agreement or at the customer's general place of jurisdiction. Overriding statutory provisions, in particular on exclusive competencies, remain unaffected.

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Stand dieser AGB: Januar 2024