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Terms and Conditions for the use of YooniQ solutions GmbH’s software kiwiHR

March 2018

1. Scope, subject matter of the agreement and right to change

1.2. General

YooniQ solutions GmbH (“YooniQ”) offers its “CUSTOMERS” the use of the web-based software application kiwiHR (“SOFTWARE“) for digital employee management, which is made available to CUSTOMERS for use via the Internet.

1.2. Scope

Unless otherwise specifically agreed upon, these Terms and Conditions shall apply exclusively to contracts between YooniQ and the CUSTOMER concerning the use of the SOFTWARE and other services rendered by YooniQ. Other terms and conditions shall not become integral components of the contract, even if YooniQ does not expressly object to them. These Terms and Conditions shall be in effect only vis-à-vis entrepreneurs, legal entities of public law or public-law-based special entities as defined in § 310 Sect. 1 BGB.

1.3. Right to change these Terms and Conditions

YooniQ shall have the right to change or add to these Terms and Conditions if this is necessary for legal reasons or if the change or addition is reasonable for the CUSTOMER taking into account the interests of YooniQ. In such cases, YooniQ shall notify the CUSTOMER of the changed or added Terms and Conditions, emphasizing the change or addition, in writing or via e-mail at least four (4) weeks prior to their effective (“change notification”). The CUSTOMER may, in the event of such a change or addition, object to the former within four (4) weeks after receipt of the change notification in writing to YooniQ (address: Agnes-Pockels-Bogen 1, 80992 München, Germany) or via e-mail to hello@kiwihr.com. If an objection is not raised, the changes or additions shall become effective. The legal consequences of failing to object shall be specifically pointed out by YooniQ in the change notification. If the CUSTOMER objects in a timely manner the Terms and Conditions shall remain in effect for the CUSTOMER without the changes or additions.

2. Conclusion of the agreement, free test period

2.1. Execution of a licensing agreement/ no execution of contracts with consumers

In any event, the use of the SOFTWARE shall be contingent upon the execution of a licensing agreement between the CUSTOMER and YooniQ. YooniQ shall not render its services to consumers, but exclusively for the purpose of the CUSTOMER’S commercial or independent professional activities.

2.2. Licensing agreement for the free use of the software for a test period upon initial registration

Upon CUSTOMER’S initial registration, the use of the SOFTWARE shall be free of charge for the test period specified on the YooniQ website, if YooniQ offers such a test period at the time. Unless otherwise stated on the YooniQ website or during the registration process, the free test period is 30 days. The use of the test period is possible only once for each CUSTOMER, unless YooniQ explicitly grants the CUSTOMER an additional test period. A licensing agreement for the free use limited to 30 days for the SOFTWARE will be executed upon the successfully completed registration of the CUSTOMER on the YooniQ website - www.kiwihr.com. CUSTOMER’S registration shall be contingent upon the compilation of a user account. For the creation of the user account, the required data (first and last name, e-mail address, company name, number of employees) must be entered and password has to be created. By clicking the “Register” button, the CUSTOMER makes a binding offer to enter into a licensing agreement for the free use of the SOFTWARE for 30 days. YooniQ may accept this offer by setting up and granting access to the account or by sending a notice to the provided e-mail address containing the access information for the created account.

2.3. Termination of the free licensing agreement

If the CUSTOMER enters into a contract with YooniQ for the free use of the SOFTWARE, this free licensing agreement shall end automatically upon expiration of the agreed-upon test period, without CUSTOMER having to submit a termination notice. If the CUSTOMER should wish to terminate the free licensing agreement prior to the expiration of the agreed-upon test period, CUSTOMER may do so at any time by deleting the account. The CUSTOMER may terminate exclusively via his company account by activating the setting “delete account.” The data stored by YooniQ until the termination of the free licensing agreement in connection with the use of the YooniQ SOFTWARE and the URL assigned to CUSTOMER by YooniQ shall be deleted within thirty (30) days after the termination.

2.4. Activation of a paid licensing agreement after the previous free test period

If, upon termination of the free test period, CUSTOMER should desire to continue to use the SOFTWARE, CUSTOMER shall be required to enter into a paid licensing agreement with YooniQ. Such a paid licensing agreement shall be executed if the CUSTOMER enters valid credit card information into the user account under billing.

3. YooniQ’S services

3.1. Access to the SOFTWARE and the scope of SOFTWARE services

YooniQ shall provide CUSTOMER with access to the SOFTWARE via the Internet for the duration of the licensing agreement. The service scope of the SOFTWARE can be verified in the service description, which is available to the CUSTOMER via www.kiwihr.com.

3.2. Service transfer point

The transfer point for YooniQ’s services shall be the router output of the data processing center used by YooniQ to access the Internet. The CUSTOMER shall be responsible for the Internet connection, the provision or maintenance of a network connection to the data processing center and the procurement and provision of network access components for the Internet at the CUSTOMER’s end. This shall not be part of the services provided by YooniQ.

3.3. Granting of licensing rights for the SOFTWARE, licensing model

YooniQ shall grant the CUSTOMER a simple SOFTWARE licensing agreement, which is not subject to sub-licensing and non-transferable. This right shall be limited to the term of the licensing agreement and shall be provided in accordance with the following provisions. The SOFTWARE may be used only by the maximum of natural persons equivalent to the licenses acquired by the CUSTOMER. Unless otherwise specifically agreed upon, the CUSTOMER shall need a license for each SOFTWARE user (one license for each created user account).

3.4. Prohibited user activities

When using the SOFTWARE, CUSTOMER shall be prohibited from doing any of the following: (1) Copying, translating, disassembling, decompiling, re-developing or any other modification of any parts of the SOFTWARE, (2) the transfer of content, data or information that is illegal, damaging, threatening, hurtful, harassing, not permitted or insulting, that ignores the privacy or personality rights of third parties, spews hatred or discriminatory remarks vis-à-vis certain races or ethnic groups or that is unacceptable for any other reasons, (3) the infringement of the rights of a natural person or legal entity inherent in intellectual property, (4) the interference with or interruption of the SOFTWARE or systems through which the software services offered by YooniQ are being hosted or of other devices or networks that are linked to the offered software services or the non-compliance with requirements, processes, guidelines or policies for networks linked to the software services, (5) the bypassing of user authentications or security functions of the software services or of any linked host, network or account, (6) if not authorized by YooniQ, the use of any other application programming interfaces to gain access to the SOFTWARE or the software service other than the one provided, (7) the use of the SOFTWARE or of the software services that violates applicable laws or (8) the authorization of a third party, regardless of the rights of the defined user according to this agreement, for the use of the user identification, codes, passwords, procedures or user keys that have been issued to or selected by CUSTOMER for access to the SOFTWARE and the software service.

4. YooniQ’S services

4.1. Rights inherent in the SOFTWARE

YooniQ shall be entitled to all rights inherent in the software, in particular the copyright, the rights inherent in inventions and technical intellectual property rights. This shall also apply to rights inherent in provided documentation.

4.2. No transfer of intellectual property rights

CUSTOMER shall be granted exclusively the licensing rights listed in Section 3.2. Intellectual property rights in particular shall not be assigned to CUSTOMER.

5. Availability of the software, support and security

5.1. Availability

Based on the year, YooniQ guarantees a SOFTWARE availability of 99%. When computing the actually attained availability, maintenance windows, failures due to force majeure (e.g. strike, unrest, natural disasters, epidemics) shall not be taken into account. Moreover, blockages by YooniQ that YooniQ could deem necessary for security reasons, shall not be taken into account.

5.2. Support

YooniQ shall provide free support in the event of technical problems with the use of the SOFTWARE. Support services shall be rendered by YooniQ on work days, i.e. Monday through Friday between the hours of 9 am and 5 pm (CET). Nationwide German holidays as well as Dec 24 and 31 of each year shall be excluded. The time until a first response to e-mail inquiries is received may vary depending on how busy customer service is. YooniQ shall strive to always respond within a reasonable period of time. Inquiries received outside of the support hours shall be considered received on the next business day. Support shall not include: Training, form adjustments, installations, on location assignments, custom adaptations or expansions.

5.3. Security

Within a financially reasonable scope, the Parties shall use and observe the generally accepted state of the art of pertinent security technology (such as encryption, password protection) when providing the SOFTWARE and in connection with related services as well as the use of the SOFTWARE and the related services.

6. Service changes for important grounds

YooniQ shall have the right to change its services. YooniQ shall implement such changes only for important grounds, in particular because of new technical developments, changes in legislation or for other equivalent grounds. If the change should impair the contractual balance between the Parties significantly, the change shall not be made. Incidentally, changes shall be subject to CUSTOMER’s consent.

7. Participation of the customer, system requirements

7.1. Participation of the CUSTOMER

CUSTOMER shall undertake to provide truthful information and promptly make any changes to the user account under setting Company.

7.2. System requirements

Unless otherwise approved by YooniQ, CUSTOMER shall use an up-to-date desktop browser version of Apple Safari, Google Chrome or Firefox. Any other system requirements may be derived from the service description.

8. Contract term and termination

8.1. Contract term

Unless otherwise specifically agreed upon, the free licensing agreement for SOFTWARE test purposes shall begin upon set-up and granting of access to the account or once the notification has been sent to the provided e-mail address that contains the access data for the set-up user account pursuant to Section 2.1. As a rule, it shall remain in effect for 30 days. The paid licensing agreement shall begin as soon as a valid credit card has been registered under the company account under billing and shall remain in effect for an indefinite period of time.

8.2. Termination

Each party shall have the right to terminate the paid licensing agreement to the end of contractual period. The contractual period is one (1) month for monthly payment and one (1) year for yearly payment. The free licensing agreement may be terminated by either party at any time. This shall be without prejudice to either party’s right to terminate the agreement at any time with immediate effect for important grounds. Any termination notice by the CUSTOMER shall be made exclusively via CUSTOMER’s company account by confirming the setting “cancel subscription.” Termination notice by YooniQ shall be sent via e-mail.

8.3. Consequences of termination

The CUSTOMER shall no longer have the right to use the SOFTWARE. The data stored by YooniQ until the termination of the licensing agreement in connection with the use of the SOFTWARE and the URL assigned to the CUSTOMER shall be deleted within thirty (30) days after the termination.

9. Customer’s right to temporary deactivation of the user account

9.1. Deactivation of user accounts

Without having to cancel the licensing agreement, YooniQ shall grant the CUSTOMER the right to temporarily deactivate user accounts that are not needed. The user account of the “owner" cannot be deactivated. The CUSTOMER may deactivate user accounts exclusively through the user account to be deactivated by clicking on the command “deactivate.”

9.2. Consequences of deactivation

It is not possible to access and use the SOFTWARE through a deactivated user account. Moreover, it is not possible for other users to make changes to or take action in this account (e.g. processing of data, compilation of absence applications) (owner, administrator or team manager). For the period of deactivation of one or several user accounts, the CUSTOMER shall not be required to pay any fees.

9.3. Ending the deactivation period

The CUSTOMER shall have the option to reactivate a deactivated user account at any time by clicking the “activate” setting in the respective user account. This will also retrigger the fee mandate.

10. Fee, due date, payment terms, price increases and late payments

10.1. Fee

Unless otherwise agreed upon between the parties, the amount of fees due for the services rendered by YooniQ may be derived from YooniQ’s respective valid price list.

10.2. Fee due date

Unless otherwise agreed upon between the parties, invoices issued by YooniQ shall be due for payment within 14 days after the invoice date.

10.3. Payment terms

Payments of fees due to YooniQ shall be made by credit card. The CUSTOMER shall undertake to provide credit card information for the processing of payments. Payments shall be processed 14 days after the issuance date of the invoice. Credit card payments shall be processed by the independent and PC compliant service provider Stripe (www.stripe.com).

10.4. Late payment by the CUSTOMER

If the CUSTOMER should be in default of payment, YooniQ shall have the right to charge 8 percent interest above the respective effective statutory prime rate as of the date of default. This shall be without prejudice to the filing of any further damages. As long as the CUSTOMER is in default of payment, YooniQ shall have the right to block CUSTOMER’s user account. If the CUSTOMER should be in default of payment of the fee for two consecutive months or should be in default of an amount of fees due that is not insignificant or for a time period that stretches across more than two months so that the fee amount due reaches an amount equivalent to the fee for two months, YooniQ shall have the right to terminate the licensing agreement with immediate effect.

10.5. Price increase

YooniQ shall have the right to adjust its pertinent price list a maximum of once per year to accommodate changes in the market conditions, in the event of significant changes in the procurement costs, sales tax changes or changes of the purchase prices. In the event of price increases that are significantly higher than the regular increase of the cost of living, the CUSTOMER shall be entitled to the right to terminate. In any event, YooniQ shall communicate this fact in such cases in text form.

10.6 Discount promotions

Discount promotions cannot be redeemed in combination with other promotional vouchers or discounts. A cash reimbursement is not possible.

11. Non-disclosure and confidentiality

11.1. Confidentiality

Confidential information shall be used for the purpose of fulfilling the licensing agreement only. The contracting parties shall undertake to treat confidential information as strictly confidential and to take all precautions necessary to prevent access to confidential information by unauthorized third parties. The contracting parties shall undertake to make confidential information available only to such third parties that have to be aware of the information (assigned employees, sub-contractors, auditors and legal counsel, regulatory agencies). The respective contracting party shall ensure that the third parties who receive confidential information have committed to confidentiality prior to the sharing of the information.

11.2. Exceptions

The provisions of Section 11.1 shall not apply to information for which the respective other contracting party can prove that:

  • It was rightfully obtained prior to the time the information was received from the other party and already in this party’s possession at the time without any confidentiality restrictions.
  • The information was provided by a third party that had the right to make this information accessible to this party without any confidentiality restrictions.
  • At the time of receipt, this information was already in the public domain, i.e. published or generally accessible.
  • The information has to be disclosed because of a law or administrative act or ruling of a court or has to be disclosed within the provisions of this agreement.

12. Data protection

Both contracting parties shall undertake to comply with the statutory data protection provisions and shall commit their employees to comply with confidentiality.

13. YooniQ’s liability

13.1. No responsibility

YooniQ shall not assume any liability for damages or other problems that arise from the errors or incompatibility of software or hardware of the CUSTOMER, nor for any damages that arise from the lack of availability or perfect functioning of the Internet.

13.2. YooniQ’s liability for acts of intent and gross neglect in conjunction with free services

YooniQ shall not assume any liability for damages or other problems that arise from the errors or incompatibility of software or hardware of the CUSTOMER, nor for any damages that arise from the lack of availability or perfect functioning of the Internet.

13.3. YooniQ’s liability for paid services

YooniQ shall assume liability for damages for all legal grounds for an amount pursuant to the following provisions if the services are rendered for a fee:

13.3.1. Intent and gross neglect

The liability of YooniQ for damages caused by YooniQ or one of its agents or legal representatives intentionally or in a grossly negligent manner, shall be unlimited in terms of the amount.

13.3.2. Personal injury

In the event of damages resulting from the loss of life, personal injury or health damages, YooniQ’s liability shall be unlimited in terms of the amount, regardless of the degree of culpability.

13.3.3. Organizational culpability and guarantee

The liability for damages resulting from grave organizational culpability at YooniA’s end shall also be unlimited in terms of the amount. This shall also apply to damages caused by the lack of a guaranteed quality.

13.3.4. Breach of cardinal contractual obligations

If YooniQ should breach contractual duties that make the proper fulfillment of this agreement even possible, the violation of which places the attainment of the purpose of the agreement in jeopardy and in the fulfillment of which the CUSTOMER regularly trusts, YooniQ shall assume liability if none of the cases set forth in Sections 13.3.1. through 13.3.3 have materialized, in an amount limited to the typically foreseeable damages under the agreement.

13.3.5. Exclusion of liability

Any further assumption of liability by YooniQ shall be excluded. In particular, liability in the absence of culpability shall be excluded.

13.4. Product liability

This shall be without prejudice to the assumption of liability pursuant to the provisions of the Product Liability Act.

13.5. Shared culpability

If damages have to be attributed to shared culpability of YooniQ and the CUSTOMER, the CUSTOMER shall be required to accept deductions for CUSTOMER’s shared liability.

13.6. Loss of data

Within the scope of the aforementioned provisions, YooniQ shall assume liability for data losses only in the amount that would also have been incurred if the data had been properly and regularly backed up by CUSTOMER.

14. Final provisions

14.1. Place of fulfillment

The place of fulfillment shall be YooniQ’s domicile.

14.2. Governing law

This licensing agreement shall be governed by German law subject to the exclusion of the United Nations Convention on the International Sale of Goods (CISG) and the IPR provisions.

14.3. Place of jurisdiction

The place of jurisdiction shall be YooniQ’s domicile.

14.4. Severance clause

If one or multiple of these provisions should be partially or completely void or ineffective for any other reasons or should not be enforceable or become unenforceable, this shall not affect the effectiveness or enforceability of the remaining provisions. In this case, the parties herewith already undertake to agree upon a legally effective superseding clause that meets the initial business intentions as closely as possible.

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