§ 1 General
1.1 The following terms of use govern the use of the “empplan” software (hereinafter the “Software”) between madpat GmbH, Zwerchstraße 1, 71227 Leonberg (hereinafter: “Licenser”) and the customer.
1.2 empplan is employee action planning software. As a web-based BusinessCloud solution, the Software supports customer marketing in action planning, control, and success verification and evaluation. The Software covers relevant agency- and industry-based lead generation and sales processes and is typically used in point-of-sale business models such as OTC (over the counter), promotions, and events. The information required by the Software is fed to it locally via a web browser-based App on customer employee mobile or desktop devices. The Licenser recommends the use of the current version of the Google’s Chrome web browser Google, which can be found at https://www.google.de/chrome/. The specific range of services offered by the Software can be found in § 2 of these terms and conditions.
1.3 The Licenser shall not recognize any general commercial terms and conditions of the customer that deviate in all or in part from these terms and conditions unless it has explicitly agreed to such in advance in writing.
§ 2 Services
2.1 A detailed functional description of the Software is available at https://www.empplan.com/product/functions/.
2.2 The Software can be used to capture employee times and locations, including associated documentation of work results, in particular contracts concluded and sales. Data input via the web client and the App are automatically stored on the Licenser’s servers and can be called up and edited on any compatible terminal devices.
2.3 The Licenser shall provide the customer with user accesses with the corresponding access data and storage space for data storage on servers. The overall scope of the services referred to in this paragraph depends on the package purchased.
2.4 The Licenser shall also provide the customer with support. The customer can make queries or report problems using a Live Chat feature. Support is available Monday through Friday between 9:00 AM and 4:00 PM. The Licenser shall initiate processing of queries no later than one business day after they are received.
2.5 The Licenser shall provide the customer with updates to the software at regular intervals. These updates are automatically integrated into the Software. In the event and to the extent the provision of an update changes or expands the functions of the software, the Licenser will notify the customer of this in text format (change log). The Licenser will announce significant changes or enhancements to functions an appropriate amount of time prior to implementation.
2.6 The scope of the services referred to in this § 2 depends on the respective package purchased. The full list of available packages can be viewed at https://www.empplan.com/terms-plans-prices/.
2.7 The Licenser further offers the customer for a fee, at customer’s request and after scheduling in advance, training in the use of the administrator functions of the Software, subject to a separate agreement.
2.8 Additional services, particularly the creation, conversion, or adaptation of Software specially tailored to the customer’s wishes, may be contracted for a fee as part of a separate agreement.
2.9 The Software has an average annual availability rate of 97.0%. Scheduled and announced maintenance work does not count as down time. The Licenser will make every effort to announce maintenance work at least 7 days before it begins. The handover point for the Software and data is the router output of the Licenser’s computing center.
The Licenser is entitled to temporarily restrict or briefly block the contractual services whenever this may be necessary to combat spam or computer viruses, computer worms, trojans, hacking or DoS attacks or the like, in order to protect the customer.
2.10 The Licensor provides the Customer with a free listing in the so-called Agency Finder in order to present itself as a company with its services. The Licensor may also reproduce the Customer’s name and logo(s) on its websites or in other media or advertising material without the Customer’s consent and name the Customer as a reference customer.
§ 3 Setup and Access
3.1 Upon signature of this agreement, the customer shall receive data from the Licenser used to access the administrator area of the Software that is accessible via the Software web client.
3.2 The customer can independently create accesses and privileges for other users in the administrator area of the web client and generate the corresponding access data. Additional administrator accesses can also be created which then also have all of the administrative privileges for the customer area.
3.3 Once they are created, employees can log in as Software end users via compatible terminal devices, thus adding them to the customer area.
3.4 The customer agrees to have all users registered using a name with an address where they can be reached so that they can be unambiguously identified via their access data. This applies in particular for users who are granted administrator access. The customer further agrees to enter any change due to organizational changes, changes in staff, or similarly occurring changes in user assignments in its administration area.
§ 4 Data Backup
4.1 The Licenser shall back up the customer data stored in the Software at least once daily. In the event of a loss of data caused by a technical error, the Licenser shall restore the customer’s data as of the time of the last backup. If the Licenser is responsible for the loss of data, the restoration shall be free of charge. In all other cases, a fee is charged for data restoration. When the customer is at fault, it shall have no claim to data restoration. The customer specifically has no right to claim issuance of backups at the time of contract termination.
4.2 The scope of services under this contract does not include compliance with archiving obligations, e.g., of a legal-commercial or taxation nature, that the customer itself is responsible for.
§ 5 Consideration
5.1 The monthly consideration to be paid is based on the packages specified under § 2.6. The customer can upgrade to more expensive packages at any time. The minimum contract term restarts as of the date of the change. The customer may downgrade to less expensive packages at the end of the respective minimum contract term.
5.2 All pricing information and agreements are in euros plus the applicable legal value-added tax at the time the service was provided.
5.3 All fees must be paid by SEPA transfer, credit card, or against invoice. The Licenser reserves the right to refuse certain types of payment on a case by case basis. When making payment against invoice, the payment shall be due on the first of each month in advance. Invoices are due and payable in full ten business days after receipt of invoice.
5.4 Fees will be invoiced on a monthly basis in advance.
§ 6 Usage Rights
6.1 The customer and users registered by it receive the non-exclusive right, limited to the duration of this contract, to access the Software with appropriate telecommunications terminal devices. This right includes the use of the services placed at its disposal by the Licenser under this contract with the aid of a suitable internet browser and the associated App.
The customer is not entitled to other rights, in particular to hardware and software, software applications, system components, or the Software operating software.
6.2 The customer is not entitled to use the Software or allow it to be used by third parties beyond the scope of these terms and conditions, nor to give third parties access to it without the explicit permission of the Licenser. In particular, the customer is prohibited from copying, selling, or temporarily transferring, in particular by lease or loan, the Software or any parts thereof. Sharing of user accesses by multiple users is prohibited. Only the respective registered user may use a given access.
6.3 The customer grants the Licenser the usage rights to the content it transfers into the Software that is needed to execute this contract.
§ 7 Privacy Protection
7.1 Both parties shall comply with the respective applicable privacy protection regulations, particularly those in effect in Germany, and shall bind their agents involved in connection with the contract to confidentiality in accordance with § 5 BDSG [German Federal Privacy Protection Act], insofar as they are not already generally so bound.
7.2 In cases where the customer collects, processes, or uses personal information, it shall be responsible for seeing that it is authorized to do so in accordance with the applicable regulations, in particular in accordance with the privacy protection provisions, and shall hold the Licenser harmless from third-party claims in the event of any violation.
7.3 The Software is hosted by the Licenser. It may also engage subcontractors for this purpose, but must also bind them in accordance with privacy protection regulations as subcontractors pursuant to § 11 BDSG in any case where personal information is collected, stored, or processed.
7.4 The Licenser uses SSL encryption for data transmission. The customer acknowledges that it is aware that data can be intercepted or eavesdropped despite such encryption. There is no completely secure data transmission path.
§ 8 Customer Obligations
The customer must comply with its duties as part of the use of the Software. In particular, the customer shall:
8.1 protect the usage and access authorizations and identification and authentication security measures from access by third parties and shall not disclose them to unauthorized users;
8.2 take care to ensure (e.g., when transferring third-party texts and data to the Software) observance of all commercial trademarks and copyrights;
8.3 obtain the required permission of the respective affected party in cases where the Software is used to collect, process, or use personal information, and shall not resort to any act of permission allowed by law;
8.4 not misuse the Software or allow it to be misused, and in particular shall not use any illicit or immoral contents.
8.5 prevent any attempt by itself or unauthorized third parties to retrieve information or data without authorization or to access programs or allow programs to be accessed that are operated by the Licenser, or to penetrate databases or data networks of the Licenser without authorization;
8.6 immediately block any user it has registered and revoke that user’s access to the Software as soon as it becomes aware of an illicit behavior by the user or a violation by the user of the terms of use.
8.7 release the Licenser from any third-party claims based on illegal use of the Software by it or that arise with its assent or that specifically result from privacy protection, copyright, or other legal disputes that are associated with the use of the Software. If the customer becomes or should have been aware of such a violation, it is obligated to immediately notify the Licenser;
8.8 not transfer viruses or any other harmful programs to the Software.
§9 Use of Software in Violation of the Contract
9.1 The Licenser is authorized, following prompt written notification, to block the customer’s access to the Software and to its data in the event of a substantial violation by the customer of one of the material obligations set forth in these terms and conditions. Blocking of access may also be done immediately in the case of an acute security risk for the Software or relevant criminal behavior by the customer. Access will be restored when the violation of the material obligation in question has been permanently remedied or the risk of repetition has been addressed by issue of an enforceable prohibition declaration to the Licenser. In the case of criminal acts, the Licenser reserves the right to permanently block access. Specifically, the Licenser shall block access if the customer is more than 6 weeks in arrears in payment.
9.2 In the event of a violation by an end user registered by the customer, the customer is obligated to report the clear data identifying the user (name, address) to the Licenser within an appropriate period of time. The Licenser can block this user’s access to the Software at any time.
§ 10 Warranty and Liability
10.1 The Licenser shall be liable without limitation for any damages caused by it or its legal representatives or agents through malice or gross negligence.
10.2 Otherwise, the Licenser is liable only to the extent it has violated a material obligation under the contract. In these cases, liability is limited to remediation of the damage typically foreseeable under the contract.
10.3 The aforementioned liability limitations shall not apply for injury to life, limb, or health. In these cases, the Licenser is subject to unlimited liability.
10.4 This shall not affect any liability under the provisions of the Product Liability Act.
10.5 Through the Software, the Licenser is providing options for location and time tracking, along with capture of results for employees. The Licenser is not responsible for and not obligated to verify that the concrete implementation of these functions is in compliance with German law and specifically German labor legislation. This is the responsibility of the customer as an employer or client of the employee or end user. The customer is solely responsible for concluding any necessary contractual arrangements, e.g., concerning the labor contract and/or for obtaining the necessary permits. Accordingly, the Licenser assumes no liability for the use of the Software in accordance with the law in this regard.
10.6 The Licenser is not liable for the content used by the customer in the Software. In the event a third party lodges a claim against the Licenser for violation of intellectual property rights, the customer shall indemnify the Licenser from any and all claims.
§ 11 Force Majeure
11.1 The Licenser shall be released from its obligation to perform under this contract if and to the extent the failure to perform is attributable to the occurrence of circumstances of Force majeure after the conclusion of the contract.
11.2 Circumstances of Force majeure include, for example, war, strikes, expropriation, major changes in legislation, storms, floods, and other natural catastrophes, and any other circumstances for which the customer is not responsible. In particular, inundation, power failure, and interruptions or destruction of data transmission lines or infrastructure, hacker attacks / DoS attacks.
11.3 Each party to the contract must notify the other party to the contract of the occurrence of Force majeure immediately and in writing.
§ 12 Contract Term and Cancellation
12.1 The contract shall take effect upon acceptance of the proposal and shall run for an indeterminate period. The cancellation periods and minimum contract terms can be found in the respective package.
12.2 The right of the Parties to extraordinary cancellation for just cause shall remain unaffected hereby. Just cause for extraordinary termination shall be deemed to exist in particular when
– a party repeatedly violates material obligations under this contract despite admonishment;
– a party commits an illicit act in connection with this contract;
– one of the parties entirely or partially ceases business operations and continued operation is not guaranteed by an immediate successor.
– the customer is more than 6 weeks in arrears in its payment obligations.
12.3 Cancellation must be made in writing. Cancellations by fax are deemed to have been made in writing.
12.4 Termination of the contract for whatever reason shall also end the authorization of the licensee to use the Software.
§ 13 Trial Period
13.1 The customer has the option of testing the Software with its full range of functions, creating data and users, etc., for a period of 30 days free of charge.
13.2 Since the trial use is provided free of charge, the customer shall have no right of claim vis-à-vis the Licenser in regard to compliance with the obligations under this contract during the trial period.
13.3 As an exception to § 12, the trial period shall end automatically after 30 days. The Licenser shall contact the customer prior to the expiration date and give the customer the option to continue the contract under normal conditions for a fee. Alternatively, the customer can sign up for continuation via the web client in its administrator area. If continuation is done within 30 days, all of the data that the customer has stored during the trial phase shall be completely transferred.
§ 14 Final Provisions
14.1 The Licenser has the right to amend these general terms and conditions at any time. The Licenser will notify the customer in writing of any planned amendments. If the customer raises no objections with 14 days, the changes shall be deemed accepted. The customer is again hereby specifically notified of the consequences of failure to object.
14.2 This contract is subject to the laws of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The legal venue shall be that of the business offices of the Licenser.
14.3 Neither party to the contract may transfer any rights under this contract to any third parties without the prior written permission of the other party. However, such permission may not be refused without justified cause.
14.4 No compensation shall be allowed except in the case of undisputed or legally established counterclaims.
14.5 In the event one or more provisions of this contract should prove to be ineffective or unenforceable in all or in part, such shall not affect the effectiveness or enforceability of the remaining provisions of this contract.
Stand: 23.10.2015