1 Scope / Services
1.1 These General Terms and Conditions (hereinafter referred to as “Terms and Conditions (Software License)”) shall apply to the configuration and use of software by ZkSystems GmbH, Kutschstallhof am Neuen Markt 9e, 14467 Potsdam (hereinafter referred to as the “Provider”) and you as a Customer (hereinafter referred to as the “Customer”).
1.2 Additionally, conflicting or deviating terms and conditions of the Customer shall only become part of the contract if the Provider has expressly agreed to them in writing.
2 Services of the Parties
2.1 The content, scope and precise specification of the services and functionalities of the software to be provided by the Provider are set out in the offer or in the order form (hereinafter both the offer and the order form together referred to as the “offer”).
2.2 For the use of the software, the system requirements specified in the offer must be met by the Customer. For on-premise use, this may include installation of the software on a dedicated server.
2.3 The Provider is entitled, but not obliged, to expand and further develop the software. The Provider reserves the right to offer non-mandatory extensions and further developments only against payment of an additional fee. The provisions of this contract shall apply accordingly to such extensions or further developments.
2.4 The Provider may change the functional scope of the software to a reasonable extent, e.g. if there is an important reason – for example for security reasons – and the performance features defined in the offer are essentially retained.
2.5 The Customer grants to the Provider a non-exclusive license without limitation in time or place to all content which she/he transfers to Provider’s servers in the context of the use of the software, to use the content to the extent necessary to perform the agreement with the Customer, in particular to copy the content and make it accessible to third parties according to the Customer’s settings. The Provider is entitled to grant sub-licenses to its sub-contractors in performance to the extent necessary for the performance of the agreement. Furthermore, the license is not transferable. The Provider is entitled to retain Customer content beyond the duration of the Agreement insofar as this is technically or legally necessary. In particular Provider is authorized to keep backup copies of the contents provided by the Customer and to store temporarily or permanently such information which is required for accounting, documentation and billing purposes.
2.6 The Customer guarantees that she/he will take note of all applicable legal regulations, in particular copyright and data protection law, when using the software. The Customer indemnifies Provider from all claims of third parties which these asserts against Provider because of the use of the platform by the Customer. Provider will inform the Customer without undue delay of any claims asserted by third parties and provide the information and documents necessary for defense on request. In addition, Provider will either let the Customer defend her-/himself or will do so in consultation with the Customer. In particular Provider will neither acknowledge nor put claims asserted by third parties beyond dispute without consultation with the Customer. The provisions of this clause apply accordingly to contractual penalties as well as fines and administrative fines imposed by court or official authorities, insofar as the Customer is responsible for them.
2.7 The Customer should – within the limits of what is technically reasonable and possible – ensure that the normal business operations of the Customer continue to function properly, even if the software is not available, regardless of whether this is due to a fault of the Provider or the Customer.
3.1 If the Customer opted for a monthly option, the contract ends at the end of the following month. If the Customer opted for a yearly option, this contract is concluded for a period of 12 months. The contract shall commence on the date stated in the offer (hereinafter referred to as “start of contract”) – if not stated otherwise in the offer.
3.2 For yearly payment, the purchased licenses shall be automatically renewed each year for a further year after expiry of the term defined in § 3 para.1. For monthly or yearly payment, the purchased licenses shall be automatically renewed each month for a further month after expiry of the term defined in § 3 para.1. If no continuation is desired, the parties can unsubscribe on the website/application or notify the other party in writing that the contract will not be extended.
4.1 The remuneration results from the offer that can be seen on the website or that is provided in writing (for example, if Customer is an enterprise). The offer shall define whether billing is annual or monthly. The monthly license and maintenance fees shall be invoiced monthly or annually. The first monthly or annual payment (plus set-up costs according to §4.4, if any) shall be due at the beginning of the contract with a payment term of 14 days. Further invoices will be issued annually/monthly, starting with the date of the commencement of the contract plus the respective period of usage.
4.2 Licenses for users, robots, modules, workflows or interfaces beyond those specified in the offer can be purchased at any time. The price per license from the offer applies. If new licenses are purchased in the middle of a month or year, the costs for the first month or the first year will be charged prorated on a daily basis. From the following month or year, all licenses will be invoiced.
4.3 At the request of the Customer, the Provider shall carry out training/onboarding, insofar as capacities exist for this on the part of the Provider; any costs shall be communicated in advance.
4.4 The Provier may offer to provide development services against reasonable remuneration, including (a) the modification of existing software functions in accordance with the Customer’s specifications and (b) the creation of new software functions based on Customer specifications (jointly or individually hereinafter “Deliverables”), provided this is agreed with the Customer and subject to the terms of this Agreement. Upon completion of a new Deliverable as agreed with the Customer, the Provider shall (i) make it available to the Customer; and (ii) demonstrate its functionality in accordance with the relevant Order. Each Deliverable shall be deemed to be accepted if the Customer does not confirm acceptance or use the Deliverable within 2 weeks. The license granted by Provider under Clause 4.1 shall apply mutatis mutandis to all Deliverables supplied by Provider unless otherwise agreed in the relevant Order. All IP Rights in the Deliverables shall be owned by Provider and shall remain with Provider. Unless expressly agreed otherwise, the remuneration agreed with the Customer shall be exclusive of travel expenses and other third-party costs incurred.
5.1 No specific availability of the software is guaranteed, but the Provider shall ensure a predominantly uninterrupted availability of the software from the time of start of software use. Availability is deemed to be the Customer’s ability to use all main functions of the software. Excluded from this are necessary planned maintenance work, implementation of software updates – the Customer will be informed at least two weeks before the time of the update and the update of the software will only take place in the period between 22:00 and 5:00 (CET) and only if it is reasonable for the Customer – as well as disruptions that are not within the control of the Provider; in particular force majeure (see below). The Provider shall, as far as possible, inform the Customer in good time in text form about planned maintenance work. However, the Provider expressly reserves the right to carry out unannounced maintenance work if necessary, in particular if this is required for data and operational security.
5.2 Excluded from the aforementioned availability are availability losses caused by the failure of third-party software, failure of the on-premise servers provided, failure of the IT systems to be integrated, connection problems of the VPN connection or other Customer-side failures of the IT systems in the execution environment as well as due to operational disruptions, caused by an event of force majeure or other unavoidable events outside the Provider’s sphere of influence and which could not be averted with reasonable effort and could not have been foreseen even with due diligence, which make the Provider’s obligations under the offer considerably more difficult or impossible in whole or in part, e. g. e.g. strikes, lockouts, extraordinary weather conditions, power failures, operational or traffic disruptions and transport obstructions, and which release the Provider from its obligations for the duration of such event.
5.3 The Software is hosted and runs on the Cloud. If the execution of the Robot is on-premise or takes place locally, orchestration and monitoring will continue to take place partially on the Cloud. The specified minimum availability can change from the third-party cloud provider’s side and fall below the contractually agreed minimum availability without the Provider being able to influence this. The Provider is objectively and technically prevented from guaranteeing the Customer higher availability of the software than the cloud provider. The Customer acknowledges this circumstance and waives the right to assert claims and rights against the Provider as a result of insufficient minimum availability.
5.4 The Customer shall notify the Provider immediately of any impairment of the availability of the software. As long as no impairment of availability has been reported, it shall be assumed that the software was continuously available. If the agreed availability is not met, the Customer shall be compensated by extending the agreed term of the license free of charge. The license shall be extended by the cumulative time of the individual interruptions. Should the cumulative time of all interruptions be less than 24 hours, the license shall be extended by 1 day.
6 Technical support
6.1 For cost free services the Provider provides warranty according to the applicable statutory provisions. For the rest, the Provider shall provide warranty for defects in the provision of the software exclusively in accordance with the following provisions.
6.2 A support case exists if the software does not fulfil the contractual functions in an essential way (hereinafter “malfunction”). The Customer shall inform the Provider immediately of all malfunctions by email or telephone call.
6.3 If the Customer reports a support case, she/he shall provide as detailed a description as possible of the respective malfunction in order to enable the most efficient troubleshooting possible.
6.4 As soon as the Customer has provided the Provider with all the necessary information, the resolution process will begin. The Provider shall, at its discretion, rectify or re-perform the services. When using third-party software which the Provider has licensed for use by the Customer, the rectification of defects shall consist of the procurement and installation of generally available upgrades, updates or patches. The provision of instructions for use with which the Customer can reasonably circumvent defects that have occurred in order to use the software in accordance with the contract shall also be deemed to be rectification of defects. If the defect-free provision of the services fails for reasons for which the Provider is responsible, even within a reasonable period of time set by the Customer in writing (e-mail is sufficient), the Customer may reduce the agreed remuneration by a reasonable amount. The right to a reduction is limited to the amount of the annual fixed price relating to the defective part of the service.
6.5 If the reduction pursuant to clause 5.4 reaches the maximum amount specified in clause 5.4 in two consecutive months or in two months of a quarter, the Customer may terminate the contract without notice.
6.6 The Provider shall inform the Customer about the elimination of the malfunction.
6.7 If the customer’s IT systems are updated, it may be necessary to reconfigure the software. Under these circumstances, the Customer must reconfigure the workflows or robots used. In the event of such an update, the Provider can nevertheless not guarantee the contractual functionality of the software.
7 Intellectual property and license
7.1 The Provider reserves the unrestricted rights of use and modification of its software and all its components.
7.2 At the commencement of the contract, the Provider grants the Customer the non-exclusive, worldwide, non-transferable and non-sublicensable right, limited in time to the term of the contract, to use the software in accordance with the contract. Without prejudice to any actions covered by §§ 69 d or 69 e UrhG and thus permitted by law, the Customer shall not be entitled to any other or further rights of use to the software.
7.3 Components of the software which are recognizably subject to the rights of third parties and in particular open source licenses are excluded from the granting of rights. In particular, such components shall be deemed recognizable which are disclosed by the Provider within the software or in supplied text files as third-party content upon request. There is no access to the source code underlying the software provided.
7.4 The software is made available to the Customer solely for the purpose of optimizing internal processes (contractual use). Commercial use of the software and all its components is not permitted to the Customer, i.e. resale or any other form of making the software available to third parties is not permitted.
7.5 The Provider retains ownership and/or all copyright rights of use in all offers made as well as calculations, illustrations, mock-ups, catalogues and other documents and aids made available to the Customer. The Customer may not make these items accessible to third parties, use them, allow them to be used, publish them or reproduce them, either as such or in terms of content, without the express consent of the Provider.
8 Extraordinary termination
8.1 Ordinary termination is excluded during the term in accordance with clause 3.
8.2 The contract may be terminated extraordinarily with immediate effect because of an important reason. The termination must be in writing.
9.1 The Provider is liable for cost free services according to the applicable statutory provisions.
9.2 In all other respects the Provider is unrestrictedly liable for intent and gross negligence and for damages caused by injury to life, body or health.
9.3 In cases of simple negligence the Provider is liable for the breach of a primary contractual obligation (Kardinalpflichten according to German law). A primary contractual obligation in the sense of this clause is an obligation whose performance enables the performance of the Agreement and on whose performance the Customer may therefore regularly rely.
9.4 In the case of clause 9.3 the Provider is not liable for lack of economic success, lost profits and indirect damages. Liability pursuant to the above clause 9.3 is limited to the typical, foreseeable damage at the time of conclusion of the Agreement.
9.5 In the case of 9.3 liability for damages due to loss of data is limited to the amount of data recovery that would have been incurred even if the Customer had regularly backed up the data in accordance with the risk.
9.6 The limitations of liability apply accordingly in favor of employees, agents and assistants in performance of the Provider.
9.7 Any liability of the Provider for given guarantees (which must be explicitly designated as such) and for claims based on the German Product Liability Act remains unaffected.
9.8 Any further liability of the Provider is excluded.
10 Data security, data protection, data processing agreement
10.1 The Customer is aware that the Provider collects and uses various Customer-related, but not personal, data for the purpose of developing, optimizing, providing and continuously improving the functional software product. Acceptance of the offer constitutes consent to data processing.
10.2 The parties shall comply with the applicable data protection provisions, in particular those applicable in Germany. As the ordering party, the Customer shall be responsible for the compliance of her/his employees with data protection regulations.
10.3 The Customer shall issue the Provider with a separate written order for data processing, which can be found at https://zksystems.io/nutzungsbedingungen-und-AVV/ (see “Annex – Data Processing Agreement). In the event of contradictions between this contract and the data processing agreement, the latter shall take precedence.
11.1 The parties are obliged to keep permanently secret and not to disclose to third parties all information about the respective other party which has become known to them in connection with this Agreement or which becomes known to them in connection with this Agreement and which is marked as confidential or is recognisable as business and trade secrets on the basis of other circumstances (hereinafter: “Confidential Information”), unless the respective other party has expressly consented in writing to the disclosure or use or the information must be disclosed on the basis of a law, a court decision or an administrative decision.
11.2 The information is not Confidential Information if it was previously known to the other party without such information being subject to a confidentiality obligation, is generally known or becomes known without breach of the assumed confidentiality obligations, is disclosed to the other party by a third party without breach of a confidentiality obligation.
12 Severability Clause
Should individual provisions of this contract be invalid or unenforceable or become invalid or unenforceable after conclusion of the contract, this shall not affect the validity of the rest of the contract. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision the effects of which come as close as possible to the economic objective pursued by the contracting parties with the invalid or unenforceable provision. The above provisions shall apply mutatis mutandis in the event that the contract proves to be incomplete.
13 Final provisions
13.1 The Provider is entitled to use third parties (for example freelance software programmers) as subcontractors in the provision of the services.
13.2 The law of the Federal Republic of Germany shall apply. The place of jurisdiction is the registered office of the Provider.
13.3 The cancellation, amendment or supplementation of the contract must be in writing in order to be effective.