General Terms and Conditions

1. Scope of application
2. Conclusion of contract between the customer and agyleOS, trial period
3. Services, change of versions
4. Availability and reaction time in case of malfunctions
5.  Cooperation of the customer
6. Granting of rights
7. Prices, payment methods and terms of payment
8. Start of contract, minimum term and termination
9. Limitation of liability
10. Data protection and confidentiality
11. Reservations of change
12. Final provisions

1. Scope of application

1. agyleOS GmbH (hereinafter: agyleOS) offers a web-based personnel and organization management software (hereinafter: platform) on the website "agyleOS" (hereinafter: agyleOS).
2. The following General Terms and Conditions (hereinafter: GTC) shall apply to all user agreements (hereinafter: "Agreements") concluded between agyleOS and customers who are not consumers within the meaning of Section 13 of the German Civil Code (BGB) or other corresponding relevant statutory provisions via the "agyleOS" platform.
3. Deviating GTC of the customer shall not apply to contracts unless agyleOS expressly agrees to their application in writing.

2. Conclusion of contract between the customer and agyleOS, test period

1. The offer provided on agyleOS to use the web-based software designated and described therein does not constitute a binding offer by agyleOS.
2. The use of the agyleOS software requires the creation of a customer account (hereinafter: Account). For the creation of the Account, the required data must be entered and a password must be set. By confirming the creation of the Account, the customer initially submits a binding offer to conclude a contract for the free use of the software for testing purposes. agyleOS may accept this offer by setting up and granting access to the account or by sending a message to the specified e-mail address with the access data for the account set up.
3. By entering into a contract for free use pursuant to Section 2.2, agyleOS grants the customer the right to use the software exclusively for test purposes for a period of 14 days from the date agyleOS grants access to the software or notifies the customer of the access data (test period). Each customer is entitled to only one trial period. However, the trial period may be extended upon request to agyleOS. Whether the trial period is extended is solely at the discretion of agyleOS. At the end of the trial period, the customer's account will be locked. There will be no automatic conversion to a contract for the paid use of the software.
4. After expiration of the trial period according to section 2.3, the customer has the option to enter into a paid contract with agyleOS for the use of the software. In doing so, the customer may choose between the offered software versions with different scope of additional functionalities and/or add-ons for a fixed, maximum number of employees.
5. A contract shall then be concluded upon written acceptance of agyleOS' offer by the customer. A modified written acceptance of an offer by agyleOS by the customer shall be deemed a new offer, which shall only lead to a contract if agyleOS confirms it in writing.
6. If the customer submits a written offer, the contract shall be concluded by written acceptance by agyleOS. If the acceptance by agyleOS modifies the customer's offer, the contract shall be deemed concluded with this content if the customer does not object in writing within one week of receipt of the modified acceptance. Silence on the part of the customer shall be deemed acceptance upon expiration of this period. agyleOS undertakes to specifically inform the customer of this legal consequence upon commencement of this period.
7. agyleOS shall only accept orders from agencies if the agency's customer is named and only if the order is obviously placed by the agency in the name of the customer so named. agyleOS shall be entitled to demand proof of order from the agency and written authorization of the agency from the customer. Invoicing shall be made to the agency. In the case of agency bookings, agyleOS may demand that the customer place a corresponding order with the agency itself instead of the agency.If agyleOS exceptionally accepts an order from an agency in its own name, but on behalf of a precisely designated customer of the agency, the agency shall assign its claims for payment against the customer arising from the agency contract on which the claim is based to the customer by way of security upon conclusion of a contract between the agency and agyleOS. agyleOS hereby accepts this assignment. agyleOS shall be entitled to collect the assigned claim if the Agency has not settled the secured claim within 30 days of the due date at agyleOS. In any case, the agency is not permitted to transfer services booked for a specific customer to another customer or to third parties without the express written consent of agyleOS.

3. Services, change of versions

1. agyleOS shall provide the Customer with access to the version of the Software offered on agyleOS and selected by the Customer as Software-as-a-Service (hereinafter: SaaS) via the Internet for the term of a contract. The functional scope of the booked software version including any additional functionalities results from the description in the appendix of the contract. Further services are not subject of this contract for the (chargeable) use of the software. Such additional services may be provided by agyleOS on the basis of a separate offer.
2. Additional functionalities whose scope of use is not limited may only be used to a reasonable extent ("Fair Use"), in particular to ensure the functionality and economic efficiency of the provision for all customers. In case of doubt, unreasonable use shall be deemed to exist if - per maximum number of employees that can be managed by a version - this exceeds the monthly use of the additional functionality by double. Inappropriate usage is also usage that is unrelated to the essence of the software, i.e. if the additional functionality is not used in relation to the functionality of the software. agyleOS reserves the right to restrict the use of the additional functionality by the customer in case of violation of the fair use principle after agyleOS has pointed this out to the customer. If quotas are provided for additional functionality, they shall remain in effect even if the software version is changed; unused quotas cannot be carried over to the next billing period.
3. The Software enables the exchange of data with third party systems ("Third Party System") via interfaces ("Integrations"). agyleOS reserves the right to change the offer of Integrations, especially if the Third Party Provider adjusts or discontinues the Integration. Where integrations are not identified as being provided by agyleOS ("agyleOS Integration"), they are integrations provided by third party vendors and for which they alone are responsible ("Partner Integration"). The scope of services and the steps required to set them up can be found in the documentation and, for partner integrations, primarily in the description on the third-party provider's website. Integrations may only be used for the intended data exchange with the explicitly intended third-party system.
4. Partner integrations are not services provided by agyleOS. Functionality, pricing, duration and other terms of use for the provision of partner integrations, including support, are governed by the contractual terms between the customer and the third party provider (e.g. availability, pricing, duration). agyleOS does not assume any liability or warranty for the partner integrations. In order to use an integration, the customer must be authorized to use the third party system to be connected. In the relationship between the customer and agyleOS, the customer is responsible for the operation of the third-party system, including its availability.
5. The customer may, in principle, switch between the offered versions of the software as well as the maximum number of employees that can be managed by one version at any time with effect from the time agyleOS switches the customer's access. The resulting remuneration shall be governed by Sections 7.7 and 7.8 of these General Terms and Conditions.
6. Customers with a contract for paid use of the software with monthly billing must contact agyleOS customer support (support@agyleos.com) for a change of version. If the Customer changes to a version with a larger set of features or a version with a larger number of employees to manage during a current billing period, the Customer will be able to use the additional features of the Software or manage a larger number of employees from the time agyleOS converts the account. If the customer switches to a version with a lower scope of features or with a lower number of employees to manage, the customer can only use the reduced features of the software or a lower number of employees from the time agyleOS switches the customer's account.

4. Availability and response time in case of malfunctions

1. agyleOS guarantees a 99.6% availability of the software provided as SaaS on an annual average. This does not include times when the server cannot be reached due to other technical problems that are beyond the control of agyleOS (in particular force majeure, fault of third parties). Also excluded are planned maintenance works (e.g. updates of the software), which are either outside the usual business hours from Monday to Friday (taking into account public holidays at the Berlin location) between 9:00 a.m. and 6:00 p.m., or which have been announced in advance in accordance with section 4.2.
2. agyleOS is entitled to interrupt the availability of the Software for maintenance purposes and as a result of other technical requirements. As far as possible, maintenance work shall be carried out outside normal business hours from Monday to Friday (taking into account public holidays at the Berlin location) between 9:00 am and 6:00 pm. If a maintenance task will lead to an interruption of the use of the software of more than 30 minutes within the usual business hours from Monday to Friday (taking into account holidays at the Berlin location) between 9:00 am and 6:00 pm, agyleOS will announce this maintenance work by e-mail. The announcement will be made at least 24 hours in advance. At the customer's request, the announced maintenance work can be postponed, provided that this is justifiable from agyleOS' point of view due to technical and economic reasons.
3. Disturbances of the system availability must be reported by the customer immediately after they become known. agyleOS shall endeavor to ensure a response time for the start of the fault clearance of four hours for reports of disturbances of the system availability that lead to a total failure of the software and that are received within the support hours (Monday through Thursday between 9:00 a.m. and 6:00 p.m. and Friday between 9:00 a.m. and 5:00 p.m., taking into account public holidays at the Berlin location). In the case of minor faults that do not lead to a total failure of the software and occur during ongoing operation, agyleOS will endeavor to respond no later than one working day after receipt of the fault report.
4. For fault reports received outside of support hours, fault clearance shall commence on the following business day. Delays in fault clearance for which the Customer is responsible (e.g. due to the unavailability of a contact person on the Customer's side or late reporting of the fault) shall not be counted towards the fault clearance time.

5. Cooperation services of the customer

1. The following cooperation obligations are primary obligations of the customer and are not to be classified solely as secondary obligations or duties.
2. The Customer is obligated to check the functionality and general condition of the Software during the test period according to clauses 2.2 and 2.3 and to notify agyleOS of any defects or other deviations from the condition requirements before entering into a contract for the use of the Software for a fee. The Customer shall not be entitled to invoke defects or other deviations from the quality requirements that were already known or present during the test period, but were not reported to agyleOS prior to the conclusion of a contract for the paid use of the Software.
3. The customer is obligated to provide a qualified contact person along with a deputy who is authorized to make or immediately bring about all necessary decisions required to provide the contractually agreed service. The customer shall be obliged to notify any changes in the contact person (including deputy) without delay.
4. The Customer shall be exclusively responsible for the contents and data processed with the Software. The customer hereby agrees to use the agyleOS software only in accordance with the contract and within the scope of the applicable legal provisions and not to infringe any third-party rights in the course of such use. The customer will notify agyleOS immediately, preferably in writing, of: (i) misuse or suspected misuse of the contracted service; (ii) a risk or suspected risk to compliance with data protection or data security that occurs in the course of providing the contracted service; (iii) a risk or suspected risk to the service provided by agyleOS, e.g. due to loss of access data or hacker attack.
5. The Customer is obliged to ensure the technical requirements himself.
   
   
   1. The connection to the internet with sufficient bandwidth and latency is the responsibility of the customer.
   2. For an optimal use of the offers and functions of agyleOS, the Customer shall use the browser types Google Chrome or Mozilla Firefox in their respective current version. In addition, the use of cookies must be permitted in the settings of the browser used. If these technical requirements are not met by the customer, there may be restrictions on the usability of the services of agyleOS. agyleOS is not responsible for these restrictions.
   3. The Customer shall be responsible for taking state-of-the-art IT security measures within its own organization and for its employees. These include, but are not limited to, installing and regularly updating current anti-virus software on the laptops, computers or other mobile devices of the Customer's employees, ensuring that secure passwords are assigned and regularly updated in accordance with BSI IT Grundschutz or other equivalent recognized security standards for the agyleOS account as well as for the laptops, computers or other mobile devices of the employees, or using appropriate mechanisms such as 2-factor authentication, automatic inactivity blocking, firewall, etc.
   4. The Customer shall further be obligated to ensure the confidentiality of the identification and authentication data assigned to its users as well as of access data for interfaces, i.e. also, for example, the organizational and, if applicable, technical prohibition of the disclosure of passwords as well as the prohibition of the use of so-called "shared accounts". The prohibition of the use of shared accounts refers to the agyleOS account.
   5. 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.
      
      
6. The customer is responsible for the technical setup and administration of the account. This applies regardless of whether agyleOS supports the Customer in setting up the Account in any way whatsoever. This includes in particular: (i) the functional setup of the account, in particular migration of data, configuration of processes and products; (ii) the functional setup of integrations in the agyleOS account and in the third party system, e.g. determining whether certain data fields should be transferred and how customer-specific values from multiple selection fields are to be assigned; (iii) checking the correctness of the function of the integration using test cases (e.g. regarding the text length of free text fields); (iv) checking the correctness of the function of the integration using test cases (e.g. regarding the text length of free text fields). (iv) the technical connection of interfaces on Customer's side in accordance with the specification for incoming and outgoing data, including the entry of API keys and the activation of interfaces in the third-party system; (v) the administration of the Account, in particular the creation of users and roles and the assignment of accesses to the Account.
7. The customer is obligated to inform agyleOS immediately in text form of any service disruptions that occur (defects in the services, lack of availability) and to provide comprehensible information on any service disruptions that occur. The customer shall provide agyleOS with reasonable support in identifying and correcting errors. agyleOS shall be entitled to show the customer temporary workarounds and to eliminate the actual cause later by modifying the agyleOS software, provided that this is reasonable for the customer.

6. Granting of rights

1. agyleOS grants the customer a non-exclusive, simple, non-transferable right to use the booked software, limited in time to the term of the contract. The terms and conditions of the respective provider shall apply to the rights of use for third-party systems and partner integrations.
2. The customer undertakes to use the software exclusively in accordance with the contract and not to make it available for use by third parties.

7. Prices, payment methods and terms of payment

1. The prices stated at the time of the order, as presented in the agyleOS offer, shall apply. The prices stated therein are monthly 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 fee for the use of the Software may depend on the following factors ("Order Parameters") and will be indicated accordingly during the order process:
   
   1. the selected package size, i.e. the maximum number of Customer's employees to be managed,
   2. any add-ons ordered,
   3. any additional paid functionalities ordered (if not already included),
   4. if applicable, ordered chargeable agyleOS integrations.
      
      
2. Billing shall be monthly, quarterly or annually. All payments are due in advance upon invoicing.
3. In the case of monthly billing, the billing period shall commence on the date of conclusion of a contract for the fee-based use of the software and shall end after the expiration of one month.
   The customer will receive an invoice from agyleOS in electronic form via e-mail.
4. In addition, the customer may choose to pay by direct debit. If payment by direct debit is chosen, we will apply the SEPA Direct Debit Scheme. agyleOS will inform the customer with reasonable advance notice before executing a direct debit using the SEPA Direct Debit Scheme, usually two days in advance. However, the parties agree that the period for advance notification of the SEPA Direct Debit shall be reduced to one day.
5. In case of a returned direct debit (in particular due to lack of required coverage of the account, due to expiration of the account, unauthorized objection of the account holder or incorrect entry of the account data), the customer authorizes agyleOS to submit the direct debit for the respective due payment obligation one more time. In such a case, the customer is obliged to pay the costs incurred by the return debit note. Further claims are reserved.
6. Should the price increase during the billing interval due to a change in the order parameters (clause 7.1), agyleOS shall invoice the difference between the advance payment already made and the changed price until the end of the billing interval either immediately or with the following invoice for the next billing interval. Should the price decrease during the billing interval due to a change in the order parameters (clause 7.1), the Customer shall not be entitled to a (pro rata) refund of the prepayment already made.
7. In the event of default on the part of the customer, provided that no payment has been made even after the expiry of a deadline set to the customer of one calendar week after the due date, agyleOS shall be entitled to immediately block the customer's access to the software. agyleOS will inform the customer of this blocking in advance, setting a further deadline of one calendar week. In this case, the customer shall remain obligated to continue paying the agreed remuneration plus any interest on arrears. Any damages caused to the customer by the blocking for this reason cannot be claimed against agyleOS. Furthermore, agyleOS has no right to block access to the software. Furthermore, in case of default, the statutory provisions of §§ 286, 288 BGB (German Civil Code) or other relevant statutory provisions shall apply.

8. Start of contract, minimum term and termination

1. As soon as the customer has received his access data, a free 14-day test phase begins (see sections 2.2 and 2.3). After expiration of this 14-day test phase, the term shall not be automatically extended. After the end of the test phase, the customer can decide whether he wishes to conclude a contract for the paid use of the software.
2. In the case of contracts for the paid use of the software, a minimum term of one year shall apply. After expiration of the minimum term, the contract shall be extended by extension periods of one year each, unless the Customer terminates the contract with three months' notice prior to the start of an extension period.
3. agyleOS shall have the right to terminate contracts for the paid use of the Software with three months' notice to the end of the respective billing period.
4. The right of both contracting parties to terminate for cause shall remain unaffected.
5. Notice of termination shall be given in text form. The customer's account will be blocked when the termination takes effect.

9. Limitation of liability

1. Legal liability in case of paid service provision. In the case of paid service provision, agyleOS shall be liable in accordance with the statutory provisions for damages resulting from injury to life, limb or health, as well as for other damages resulting from an intentional or grossly negligent breach of duty and fraudulent intent. In addition, agyleOS is liable for contracts for the use of the software for a fee in accordance with the statutory provisions for damages covered by liability under mandatory statutory provisions, such as in the case of the assumption of guarantees, fraudulent concealment of a defect or under the Product Liability Act. Guarantees by agyleOS shall only be made in writing and shall, in case of doubt, only be construed as such if they are designated as "guarantee".
2. Limitation of liability in case of provision of services against payment. In the event of slight negligence, agyleOS shall only be liable for damages caused by agyleOS in the case of the provision of services against payment, if such damages are due to such material breaches of duty that jeopardize the achievement of the purpose of this contract, or to the breach of duties, the fulfillment of which is a prerequisite for the proper performance of the contract and on the observance of which the customer may rely (so-called cardinal breaches of duty). In these cases the liability of agyleOS is limited to the contract-typical foreseeable damage. Liability for the slightly negligent breach of obligations that are not cardinal obligations (see clause 9.2 sentence 1) shall be excluded, unless agyleOS is compulsorily liable by law (see clause 9.1 sentence 2).
3. Liability in case of gratuitous provision of services. In case of free service provision (e.g. within the test period) agyleOS shall only be liable for damages caused by intent, gross negligence or fraudulent intent. This limitation of liability shall not apply to damages resulting from injury to life, body or health, for which agyleOS shall be liable without limitation.
4. Claims against third parties. The limitations of liability in clauses 9.1 to 9.3 shall also apply to claims against officers, employees, other vicarious agents or subcontractors of agyleOS.

10. Data protection and confidentiality

1. agyleOS shall collect and use the Customer's personal data only within the scope of the respective applicable legal provisions. The contracting parties shall conclude an agreement to this effect to the extent required by the respective applicable provisions.
2. Neither of the contracting parties shall be entitled to disclose confidential information of the other contracting party to third parties without express consent (at least in text form). This shall apply both to customers with contracts for free use and to customers with contracts for paid use. All information, whether fixed in writing or transmitted orally, which (i) by its nature is considered confidential or in need of secrecy or (ii) which the contractual partner to whom the information is transmitted must already recognize as confidential or in need of secrecy due to the external circumstances of the transmission. Confidential information includes in particular product descriptions and specifications as well as prices. Both contracting parties undertake to use confidential information only for contractually agreed purposes. Both contracting parties shall take at least those precautionary measures which they also take with regard to their own confidential information. Such precautions shall at least be adequate to prevent disclosure to unauthorized third parties. Both contractual partners shall furthermore be obliged to prevent the unauthorized 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. Excluded from the above obligation is such information that (i) was already known to the other contracting party prior to transmission and without an existing confidentiality agreement, (ii) is transmitted by a third party not subject to a comparable confidentiality agreement, (iii) is otherwise publicly known, (iv) were developed independently and without use of the confidential information, (v) have been released for publication in writing, or (vi) must be transmitted due to a court or official order, provided that the contractual partner affected by the transmission is informed in good time in order to still be able to initiate legal protection measures. The obligation to maintain confidentiality shall also apply beyond the term of the Agreement until twelve months after the effective termination date of the Agreement.

11. Reservations of right to change

1. agyleOS shall have the right to amend these General Terms and Conditions at any time or to supplement them with provisions for the use of any newly introduced additional services or functions of the Software. Amendments and supplements to the General Terms and Conditions shall be announced to the Customer by e-mail to the e-mail address provided by the Customer no later than four weeks prior to the planned effective date. The customer's consent to the amendment of the General Terms and Conditions shall be deemed granted 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 with the day following the notice of amendment. agyleOS undertakes to separately point out in the notice of amendment the possibility of objection, the deadline for objection, the text form requirement, as well as the significance or consequences of failure to object.
2. agyleOS reserves the right to change the Software or to provide deviating functionalities, unless changes and deviations are unreasonable for the Customer. If the provision of a modified version of the Software or a modification of functionalities of the Software entails a significant change in the Customer's workflows supported by the Software and/or restrictions in the usability of previously generated data, agyleOS shall notify the Customer thereof in text form no later than four weeks prior to the effective date of such modification. If the customer does not object to the change in text form within a period of two weeks from receipt of the change notification, the change shall become part of the contract. agyleOS shall draw the customer's attention to the aforementioned period and the legal consequences of its expiry in the event of failure to exercise the option to object whenever changes are announced.
3. agyleOS further reserves the right to change the Software or to offer different functionalities (i) to the extent necessary to bring the services offered by agyleOS into compliance with the law applicable to such services, in particular if the legal situation changes; (ii) to the extent necessary to comply with a court or administrative decision addressed to agyleOS; (iii) to the extent necessary to eliminate security vulnerabilities in the Software; (iv) because of changes in the services or contractual conditions of third parties (e.g. in the case of integrations or post-integrations). (e.g. for integrations) or subcontractors (e.g. for additional functionalities) change significantly; or (v) as far as this is predominantly advantageous for the Customer.
   In particular, agyleOS reserves the right to limit or terminate the provision of additional functionalities or integrations if the technical partners of the additional functionalities or the providers of the third-party systems substantially limit or change their services or terms of service and agyleOS can therefore no longer be reasonably expected to continue providing them, e.g. because the additional effort by agyleOS is disproportionately high. In the case of annual billing, the customer shall in this case receive an appropriate pro-rata refund of fees paid in advance, provided that the additional functionality or integration was billed separately.
4. agyleOS shall be entitled to adjust the prices for the chargeable contractual services annually by a reasonable amount to compensate for increases in personnel and other costs. agyleOS shall notify the customer in text form of such price adjustments and the effective date of the price adjustment. The price adjustments shall not apply to 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 within a period of two weeks from notification. A change in the price resulting from a change in the scope of features or number of employees to be managed shall not be deemed a price adjustment within the meaning of this Section 11.4.
5. If the customer objects to a change in the sense of this clause 11 in due form and time, the contractual relationship shall be continued under the previous conditions. agyleOS reserves the right in this case to terminate the contractual relationship extraordinarily with a notice period of one month.
6. Amendments to these General Terms and Conditions must be made in text form. This also applies to the waiver of the text form itself.

12. Final provisions

1. 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. Insofar as the provisions have not become part of the contract or are invalid, the content of the contract shall be governed by the statutory provisions.
2. The contractual relationship existing between the contracting parties shall be governed exclusively by the laws of the Federal Republic of Germany to the express exclusion of the UN Convention on Contracts for the International Sale of Goods. The exclusive place of jurisdiction for all disputes arising from and/or in connection with this contractual relationship between agyleOS and the customer shall be, to the extent legally permissible, the registered office of agyleOS.
3. For the conclusion of the contract, the customer is provided with a version of the General Terms and Conditions in German and English, which are available on the agyleOS website. The German version valid at the time of conclusion of the contract shall be decisive for the conclusion of the contract for customers from the DACH region - Germany, Austria, Switzerland.

Status: 05-2021