Conclusion of contract between the customer and wespond, test period
Availability and reaction time in case of malfunctions
Cooperation services of the customer
Granting of rights
Prices, payment methods and payment terms
Start of contract, minimum term and termination
Limitation of liability
Data protection and confidentiality
Subject to change
1. scope of application
wespond UG (haftungsbeschränkt) (hereinafter: wespond) offers on its website wespond" (hereinafter: wespond) a web-based employee software (hereinafter: software) for companies.
The following General Terms and Conditions of Business (hereinafter referred to as "GTC") apply to all contracts of use (hereinafter referred to as "Contracts") concluded between wespond and customers who are not consumers within the meaning of § 13 BGB (German Civil Code) or other relevant legal provisions via the "wespond" platform.
Deviating terms and conditions of the customer shall not apply to contracts unless wespond expressly agrees to their application in writing.
2. conclusion of the contract between the customer and wespond, test period
The offer provided on wespond to use the web-based software designated and described there does not constitute a binding offer by wespond.
The use of wespond's software requires the creation of a customer account (hereinafter referred to as an account). In order to create the account, the necessary data must be provided and a password must be set. By confirming the creation of the account and accepting the General Terms and Conditions, the contract is concluded. This offer can be accepted by wespond by setting up and granting access to the account or by sending a message to the e-mail address provided with the access data for the account set up.
For the preparation of an offer and conclusion of a contract with monthly or yearly billing, the contract is concluded in the account itself. For this purpose, the customer must select the appropriate version and confirm his selection. Afterwards, company name and billing address must be entered. By confirming and sending these details, the customer concludes a contract with wespond for the paid use of the software with monthly or yearly billing. The customer consents for wespond to disclose the collaboration between wespond and the customer for marketing purposes and in this connection also use the company logo of the customer. The customer may revoke this consent pursuant to this section at any time by declaration in text form (e.g. via e-mail t). The prices of wespond are stated on www.wespond.app/pricing
By concluding a contract for use according to section 2.2, wespond grants the customer the right to use the software for one month or one year after wespond grants access to the software or communicates the access data to the customer. Both parties have the possibility to terminate the contract free of charge before the end of the contract. The contract is terminated before the next billing date then. If this is not done, the contract shall be extended by another term (month or year). The customer's account will be blocked after the end of the contract period.
For the conclusion of a contract for the paid use of the software with yearly billing, wespond's sales team will prepare a corresponding offer in written or text form upon request. The customer will accept this offer in written or text form by confirming it in text form, in writing or orally, but at the latest by paying the invoice.
wespond provides the customer with access to the version of the software offered on wespond and selected by the customer as Software-as-a-Service (hereinafter: SaaS) via the Internet for the duration of a contract. The scope of functions of the booked software version can be found in the description on wespond's website under the heading "Prices" and "Product". Further services are not subject of a contract for the (chargeable) use of the software. Such additional services can be provided by wespond on the basis of a separate offer.
4. availability and reaction time in case of malfunctions
wespond guarantees a 99% availability of the software provided as SaaS on an annual average. This does not apply to times in which the server cannot be reached due to other technical problems which are beyond wespond's control (in particular force majeure, fault of third parties). Also excluded are planned maintenance work (e.g. updates of the software), which are either outside the usual business hours from Monday to Friday (taking into account the public holidays at the Cologne location) between 9:00 a.m. and 6:00 p.m., or which have been announced in advance according to clause 4.2.
wespond is entitled to interrupt the availability of the Software for maintenance purposes and as a result of other technical requirements. As far as possible, the maintenance work will be carried out outside the normal business hours from Monday to Friday (taking into account the public holidays at the Cologne location) between 9:00 a.m. and 6:00 p.m. If a maintenance measure will lead to an interruption of the use of the software of more than 30 minutes within the normal business hours from Monday to Friday (taking into account the public holidays at the Cologne location) between 9:00 a.m. and 6:00 p.m., wespond will announce this maintenance work by e-mail. The announcement shall be made at least 24 hours in advance. Upon customer request, the announced maintenance work can be postponed if wespond is responsible for this for technical and economic reasons.
Disruptions of the system availability must be reported by the customer immediately after they become known. wespond shall endeavour to ensure a response time of four hours for the beginning of the fault clearance in case of reports of disruptions of the system availability which lead to a total failure of the software and which are received within the support hours (Monday to Thursday between 9:00 and 18:00 and Friday between 9:00 and 17:00 taking into account the holidays at the Cologne location). In case of minor errors that do not lead to a total failure of the software and occur during operation, wespond will endeavour to react not later than one working day after receipt of the error message.
In the case of fault messages received outside support hours, fault clearance begins on the following working day. Delays in fault clearance for which the customer is responsible (e.g. due to the unavailability of a contact person on the customer side or delayed notification of the fault) will not be counted towards the fault clearance time.
5. cooperation services of the customer
The following cooperation services are main service obligations of the customer and are not to be classified solely as secondary obligations or duties.
The customer is obliged to check the functionality and general quality of the software during the test period according to section 2.2 and to notify wespond of any defects or other deviations from the quality requirements prior to the conclusion of a contract for the use of the software subject to charge. The customer may not invoke any defects or other deviations from the quality requirements that were already known or present during the test period but were not reported to wespond prior to the conclusion of an agreement for the use of the software subject to charge.
The customer is obliged to provide a qualified contact person and a deputy who is authorized to make or immediately bring about all necessary decisions which are necessary to provide the contractually agreed service. The customer is obligated to inform us immediately of any changes in the contact person (including deputy).
The customer is solely responsible for the contents and data processed with the software. The customer hereby undertakes to use wespond's software only in accordance with the contract and within the scope of the applicable legal provisions and not to infringe any rights of third parties when using it. The customer shall inform wespond immediately, if possible in writing, about (i) the misuse or suspected misuse of the contractually agreed service; (ii) a danger or suspicion of a danger to the observance of data protection or data security that occurs in the course of providing the contractually agreed service; (iii) a danger or suspicion of a danger to the service provided by wespond, e.g. through loss of access data or hacker attack.
The customer is obliged to ensure the technical requirements himself.
The connection to the Internet in sufficient bandwidth and latency is the responsibility of the customer.
The customer is responsible for implementing state-of-the-art IT security measures within their own organisation and for their employees. These measures include, but are not limited to, the installation and regular updating of common antivirus software on the laptops, computers or other mobile devices of the customer's employees, ensuring the allocation and regular updating of secure passwords in accordance with the BSI IT Basic Protection or other equivalent, recognized security standards for the wespond account as well as for the laptops, computers or other mobile devices of the employees or the use of corresponding mechanisms such as 2-factor authentication, automatic inactivity block, firewall, etc.
Furthermore, the customer is obliged to ensure the secrecy of the identification and authentication data assigned to his users, i.e. also, for example, the organisational and, if applicable, technical prohibition of passing on passwords and prohibition of the use of so-called "shared accounts". The ban on the use of shared accounts refers to the wespond account.
Furthermore, the customer shall ensure the security of the Internet connection used, i.e. in particular the use of company-owned instead of public Virtual Private Networks (VPN) as well as ensuring the use of VPN connections in public networks.
The customer is responsible for the professional setup and administration of the account. This applies regardless of whether wespond assists the customer with the setup of the account in any form whatsoever. This includes in particular: (i) the technical setup of the account, especially migration of data, configuration of processes and products; (ii) the technical connection of interfaces on the customer's side according to the specification for incoming and outgoing data; (iii) the administration of the account, especially the creation of users and roles and the assignment of accesses to the account.
The customer is obliged to inform wespond immediately in text form about occurring service disruptions (deficiencies in services, lack of availability) and to provide comprehensible information about occurring service disruptions. The customer shall provide wespond with reasonable support in identifying and eliminating errors. wespond shall be entitled to temporarily show the customer possibilities to circumvent errors and to eliminate the actual cause later by adapting the wespond software, provided that this is reasonable for the customer.
6. grant of rights
wespond grants the customer a non-exclusive, simple, non-transferable right to use the booked software which is limited to the term of the contract.
The customer agrees to use the software exclusively in accordance with the contract and not to make it available for use by third parties. When booking the functionalities of the Enterprise Version, the Customer's rights of use shall also extend to any contracts concluded with the Customer within the meaning of § 271 HGB, §§ 15 ff. AktG (German Stock Corporation Act) or the respectively applicable company law regulations of affiliated companies/ associated companies/ subsidiaries.
7. prices, payment methods and terms of payment
The prices stated at the time of the order are valid as they are displayed on the website of wespond. The prices there are monthly or yearly net prices in Euro and are exclusive of the statutory value-added tax at the applicable statutory rate, if applicable. The amount of the monthly or yearly fee for the use of the software depends on the price range for the selected version of the software.
The customer has to use monthly or yearly billing. All payments are due in advance upon invoicing.
Both parties have the possibility to terminate the contract free of charge before the end of the contract. The contract is terminated before the next billing date then.
If payment is made by credit card, wespond reserves the right to check the validity of the card, the limit of the credit limit for the debit as well as the address details. wespond is entitled to reject the entered credit card as a means of payment if there is an important reason.
In case of yearly billing, the customer will receive an invoice from wespond in electronic form via e-mail.
In the case of annual billing, the billing period begins on the day the account is activated and ends after one year.
The invoiced amount is calculated as 12 times the monthly fee for the ordered software (clause 7.1), less the discount for annual advance payment which is noted on wespond's website. wespond will activate the customer's account for one year according to the service period agreed upon with the customer and stated on the invoice.
Payments for contracts for the use of the software subject to charge with annual invoicing are usually made by bank transfer annually in advance.
In the case of annual invoicing, the customer will be sent an invoice for 12 months in electronic form by e-mail. The payment term of the bank transfer is two weeks from the date of invoice.
In the event of a return debit note (in particular due to lack of required funds on the account, due to account expiration, unjustified objection by the account holder or incorrect entry of account data), the customer authorizes wespond to issue the invoice for the respective due payment obligation a second time. In such a case, the customer is obliged to pay the costs incurred by the return debit note. Further claims are reserved.
In the event of default by the customer, if no payment has been made even after the expiry of a deadline set to the customer of one calendar week after the due date, wespond is entitled to immediately block the customer's access to the software. wespond shall notify the customer of this blocking in advance and set a further deadline of one calendar week. In this case, the customer shall remain obliged to continue to pay the agreed remuneration plus any interest on arrears. Any damages to the customer caused by the suspension for this reason cannot be claimed against wespond. Furthermore, wespond shall not have the right to block access to the software. Furthermore, in case of default, the legal provisions of §§ 286, 288 BGB or other relevant legal provisions shall apply.
8. beginning of the contract, minimum term and termination
As soon as the customer has received his access data, the use of the software begins (see clause 2.2). Both parties have the possibility to terminate the contract free of charge before the end of the contract. The contract is terminated before the next billing date then. If this does not happen, the contract will be extended by a further year. At the end of the contract period, the customer's account will be blocked.
In the case of contracts for the use of the software subject to charge with yearly invoicing, a minimum term of one year applies. After expiry of the minimum term, the contract is extended by extension periods of one year each, unless the customer terminates the contract before the start of an extension period.
In the case of contracts for the use of the Software with costs and monthly or yearly billing, a minimum term of one month or one year shall apply. After expiry of the minimum term, the Agreement shall be extended by renewal periods of one month/year each, unless the Customer terminates the Agreement with a notice period of two weeks prior to the beginning of a renewal period. For the extension of the contracts for the use of the Software with costs with yearly billing, wespond will provide the customer with a new annual invoice for transfer at least two weeks before the beginning of the new extension period.
wespond has the right to terminate contracts for the use of the software with costs with yearly billing with a notice period of one month.
The right of both parties to the contract to terminate for good cause remains unaffected.
Notice of termination must be given in text form. The customer's account will be blocked when the termination becomes effective.
9. limitation of liability
Legal liability in the case of services rendered against payment. In the case of services rendered against payment, wespond shall be liable in accordance with the statutory provisions for damages resulting from injury to life, body or health, as well as for other damages resulting from intentional or grossly negligent breach of duty or fraudulent intent. In addition, wespond shall be liable in accordance with the statutory provisions for damages covered by liability under mandatory legal provisions in the case of contracts for the use of the software for a fee, such as in the case of the assumption of guarantees, fraudulent concealment of a defect or under the Product Liability Act. Warranties by wespond are only given in writing and, in case of doubt, are only to be interpreted as such if they are referred to as "warranty".
Limitation of liability for services rendered against payment. In the case of slight negligence, wespond shall only be liable for damages caused by wespond in the case of paid services and which are attributable to such material breaches of duty that endanger the achievement of the purpose of this contract, or to the breach of duties whose fulfilment is essential for the proper execution of the contract and on whose compliance the customer may rely (so-called cardinal breaches of duty). In these cases wespond's liability is limited to the foreseeable damage typical for this type of contract. Liability for the slightly negligent breach of obligations that are not cardinal obligations (see clause 9.2. sentence 1) is excluded, unless wespond is liable by law (see clause 9.1. sentence 2).
Liability in the case of services provided free of charge. In the case of services provided free of charge (e.g. within the test period), wespond shall only be liable for damages caused by intent, gross negligence and fraudulent intent. This limitation of liability shall not apply to damages resulting from injury to life, body or health.
Claims against third parties. The limitations of liability in clauses 9.1. to 9.3. shall also apply to claims against executives, employees, other vicarious agents or subcontractors of wespond.
10. data protection and confidentiality
wespond collects and uses the customer's personal data only within the scope of the applicable legal provisions. For this purpose, the contracting parties shall conclude an agreement to the extent required by the respective applicable provisions.
None of the contracting parties shall be entitled to transfer confidential information of the other contracting party to third parties without the express consent (at least in text form). This applies to customers with contracts for both free and paid use. All information, whether fixed in writing or transmitted orally, which (i) by its nature is considered confidential or secret or (ii) which the contractual partner to whom the information is transmitted must already recognize as confidential or secret due to the external circumstances of the transmission. Confidential information includes in particular product descriptions and specifications as well as prices. Both contractual partners undertake to use confidential information only for contractually agreed purposes. Both contractual partners shall take at least the same precautionary measures as they take with regard to their own confidential information. Such precautionary measures must at least be appropriate to prevent disclosure to unauthorized third parties. In addition, both contractual partners are obliged to prevent the unauthorised disclosure or use of confidential information by their customers, employees, subcontractors or legal representatives. The contracting parties shall inform each other in writing in the event of misuse of confidential information. Excepted from the above obligation is such information which (i) was already known to the other contracting party before transmission and without an existing non-disclosure agreement, (ii) is transmitted by a third party not subject to a comparable non-disclosure agreement, (iii) is otherwise publicly known, (iv) was developed independently and without use of the Confidential Information, (v) is released for publication in writing or (vi) must be transmitted due to a court or governmental order, provided that the contracting party affected by the transmission is informed in time to be able to initiate legal protection measures. The obligation of confidentiality shall also apply beyond the duration of the contract until twelve months after the effective termination of the contract.
11. reservations of right of modification
wespond has the right to amend these General Terms and Conditions at any time or to add provisions for the use of any newly introduced additional services or functions of the Software. The customer will be notified of the changes and additions to the General Terms and Conditions by e-mail to the e-mail address provided by the customer at least four weeks before the planned effective date. The customer's consent to the amendment of the General Terms and Conditions of Business shall be deemed given if the customer does not object to the amendment in text form (e.g. letter, fax, e-mail) within a period of two weeks, beginning on the day following the announcement of the amendment. wespond undertakes to make separate reference in the announcement of the amendment to the possibility of objection, the period for objection, the text form requirement and the significance or consequences of not objecting.
wespond reserves the right to change the software or to offer deviating functionalities, unless changes and deviations are not reasonable for the customer. If the provision of a modified version of the software or a change of functionalities of the software is accompanied by a significant change in the work processes of the customer supported by the software and/or restrictions in the usability of previously generated data, wespond shall notify the customer in writing at least four weeks before such a change takes effect. If the customer does not object to the change in text form within a period of two weeks from receipt of the notification of change, the change shall become part of the contract. wespond shall inform the customer of the aforementioned period and the legal consequences of its expiration if the customer does not exercise the right to object.
wespond also reserves the right to modify the software or offer different functionalities (i) to the extent necessary to ensure that the services offered by wespond comply with the law applicable to these services, in particular if the legal situation changes; (ii) to the extent that wespond complies with a court or governmental decision addressed to wespond; (iii) to the extent necessary to eliminate security gaps in the software; or (iv) to the extent that this is predominantly advantageous for the customer.
wespond shall be entitled to adjust the prices for the contractual services subject to charges annually in an appropriate amount to compensate for personnel and other cost increases. wespond shall notify the customer in writing of these price adjustments and the date on which the price adjustment becomes effective. The price adjustments do not apply to the periods for which the customer has already made payments. If the price increase amounts to more than 5% of the previous price, the customer may object to this price increase with a period of two weeks from notification. A change in the price resulting from a change in the scope of features or the number of employees to be administered shall not be deemed a price adjustment within the meaning of this Section 11.4.
If the customer objects to a change within the meaning of this Section 11 in due form and time, the contractual relationship shall be continued under the previous conditions. wespond reserves the right to terminate the contractual relationship with a notice period of one month.
Changes to these General Terms and Conditions must be made in writing. This also applies to the cancellation of the text form itself.
12. final provisions
If individual provisions of the General Terms and Conditions of Business have not become part of the contract in whole or in part or are ineffective, the remainder of the contract shall remain effective. If the provisions have not become part of the contract or are ineffective, the content of the contract shall be governed by the statutory provisions.
The contractual relationship existing between the contracting parties shall be governed exclusively by the law of the Federal Republic of Germany, expressly excluding the UN Convention on Contracts for the International Sale of Goods. Exclusive place of jurisdiction for all disputes arising from and/or in connection with this contractual relationship between wespond and the customer is, as far as legally permissible, the place of business of wespond.
For the conclusion of the contract, the English version is authoritative for the conclusion of the contract for customers.