§ 1 General Clauses and Scope of Validity
1.1 12grapes GmbH, Badstr. 20, 13557 Berlin, (“12grapes”) renders its services in the area of software provision via the Internet (“Software-as-a-Service” or “SaaS”) under the brand ‘Bunch’ exclusively on the basis of these General Terms and Conditions. These General Terms and Conditions apply for the use of SaaS services in accordance with the respective contract concluded between 12grapes and the customer (“Customer”). In the event of any conflict between these General Terms and Conditions and the contract in question, the provisions of the contract shall take precedence (12grapes and the Customer together as the “Parties”).
1.2 Deviating, conflicting or supplementary General Terms and Conditions of the Customer shall not form part of the contract – even if they are known to 12grapes – unless their applicability has been expressly agreed.
1.3 Without exception, verbal and ancillary agreements require the written confirmation of 12grapes.
§ 2 Offer and Conclusion of Contract, Offer Documentation
2.1 The SaaS services presented on the website do not constitute binding offers.
2.2 Rather, by registering on the website and pressing the “buy now” button, the customer makes a binding declaration that they wish to use a particular SaaS service at cost (“Offer”). The legal effectiveness of contracts is subject to the acceptance of the Offer by 12grapes. Acceptance by 12grapes occurs by means of confirmation in text form or the actual provision of the software by 12grapes.
§ 3 Scope of Service
3.1 The purpose of the software provided by 12grapes to the Customer is to perform the human resources diagnostic services agreed in detail in the respective contract between the Parties.
3.2 12grapes shall provide the Customer with the software product named and described in the respective contract. This software is designed for use via the internet and for the purpose of performing human resources diagnostic services. The software is run on the servers of a computer centre used by 12grapes. The Customer has the right to access the software, using a browser and an Internet connection, for the duration of the contract. The Customer is responsible for the Internet connection between the Customer and the computer centre and for the required hardware and software.
3.3 There is no entitlement to the development of special programs or the modification of standard software for the purpose of adapting it to the special requirements of the Customer.
3.4 12grapes is entitled to perform software updates and upgrades. The right of use granted with the originally purchased software remains valid. Costs for any necessary hardware adjustments made by the Customer in connection with new software upgrades or updates are to be borne by the Customer themselves. If the Customer does not wish to make a necessary adjustment at cost, both Parties shall have the right to terminate the SaaS contract with immediate effect with a pro rata refund of the contractual fee covering the remaining term of the contract. The statutory right of termination shall hereby remain unaffected.
3.5 Generally, 12grapes does not charge any fees for customer support (telephone, email) outside the statutory warranty. Any fees charged within the framework of a “premium package” can be viewed on the website.
3.6 Consultations on legal, insurance or tax issues and/or the commercial analysis of the parent company (business analyses, financial analyses, due diligence audits etc.) do not constitute the subject of the human resources diagnostic analyses.
§ 4 Customer’s Duty to Cooperate
4.1 12grapes renders its human resources diagnostic services on the basis of the data and information provided to it by the Customer, the Customer’s legal representatives and vicarious agents or the companies to be assessed. The Customer acknowledges that the data and information provided by them are of central importance for the quality and informative value of the human resources diagnostic services provided by 12grapes. Liability for their factual correctness and completeness lies solely with the Customer.
§ 5 Availability and Disruptions
5.1 12grapes will ensure the availability of the servers for an average 97% of the time during a given year. Exceptions to this are times during which the server cannot be reached due to technical problems lying outside of 12grapes’ sphere of influence (force majeure, fault of third parties, etc.).
5.2 Aside from this, availability of the servers is not guaranteed by 12grapes.
5.3 12grapes is entitled to interrupt the availability of the software for maintenance purposes or as a result of other technical requirements.
5.4 In the case of total failures of the software, 12grapes undertakes to respond within 4 hours during normal business hours on working days (Monday to Friday between 8.00 am and 12.00 pm and 1.00 pm – 4.00 pm). However, a remedy within this time is not guaranteed. In the case of minor faults which do not lead to a total failure of the software and occur during routine operation, 12grapes will respond within a short time and at latest within 2 working days of the fault message being received. If a fault message is received outside of business hours, the response time is measured from the start of business hours on the next working day. If it is received within business hours, the remaining time in the response window will continue to elapse from the start of the business hours on the next working day.
§ 6 Payment Terms
6.1 The prices agreed in the contract are binding. All prices are subject to statutory value-added tax.
6.2 12grapes shall invoice the Customer for the agreed remuneration at the beginning of the Contract and, where applicable, at the beginning of each renewal period. The remuneration is to be paid in advance, unless otherwise agreed. The Customer shall only be entitled to rights of set-off if their counterclaims have been legally upheld, are undisputed or are recognised by 12grapes. If the Customer is a business owner, any right of retention is excluded, unless the Customer’s counterclaim arises from the same contractual relationship and is undisputed or has been legally upheld.
§ 7 Right of Use, Intellectual Property
7.1 Unless otherwise agreed in writing, the Customer shall be granted a simple, non-transferable right of use to the software provided by 12grapes. This right of use is unlimited in space and time.
7.2 Rights to the software may not be rented, loaned, sold, sublicensed, assigned or transferred by the Customer. Copying of the software to another user’s computer, either in whole or in part, is not authorised. Exceptions to this are transfers that are explicitly permitted by the contract or to which 12grapes has declared its written consent.
7.3 It is not permitted to change, adapt, translate or create derivative works based on the software. The software may not be reverse engineered, decompiled or disassembled, nor may attempts of any other nature be made to determine the source code of the software.
7.4 The software and all authorised copies of this software made by the Customer are the intellectual property of 12grapes. The structure, organisation and code of the software constitute the valuable business secrets and confidential information of 12grapes. Unless expressly set out in this Contract or these Terms, the Customer shall not be granted any intellectual property rights to the software, and all rights not expressly granted by this Contract are reserved by 12grapes.
§ 8 Guarantee
8.1 The software has the agreed features, is suitable for the contractually stipulated or otherwise for standard use and exhibits the usual quality of software of this nature; however, it is not fault-free. A functional impairment of the software resulting from hardware malfunctions, environmental conditions, incorrect operation or similar is not a defect. Negligible reductions in quality will not be taken into account.
8.2 Liability without fault for initial defects pursuant to § 536a para. 1, option 1 of the German Civil Code is excluded.
§ 9 Liability
9.1 For damages resulting from injury to life, body or health arising from a negligent breach of duty by 12grapes or an intentional or negligent breach of duty by a legal representative or vicarious agent of 12grapes, 12grapes is liable without limitation.
9.2 In the case of other liability claims, 12grapes is liable without limitation only in the event of the absence of a guaranteed feature of the product or for wilful intent and gross negligence, including that of its legal representatives and senior executives. For the negligence of other vicarious agents, the supplier is liable only to the extent of the liability for slight negligence laid out in 8.3.
9.3 In the case of simple negligence, 12grapes is liable only if an obligation is violated whose compliance is of particular importance for the achievement of the purpose of the contract (cardinal obligation). In the case of violation of a cardinal obligation, the liability is limited to damages that are typically to be expected in connection with a contract to provide software.
9.4 Liability for loss of data is limited to the typical costs and efforts of recovery arising from restoration of backups that are made at regular intervals and in accordance with the dangers involved.
9.5 The above provisions apply also in favour of the employees of 12grapes.
9.6 Liability pursuant to the Product Liability Act remains unaffected (§ 14 ProdHG).
§ 10 Customer Data and Data Privacy
10.1 For all information relating to the handling of customer data, please refer to 12grapes’ separate data privacy declaration.
§ 11 Miscellaneous and Severability Clause
11.1 Amendments to, additions to or cancellation of this Contract or these Terms require the written form in order to be effective, unless more stringent requirements have been laid down by law. This also applies to the amendment or abolition of this written form clause.
11.2 Should individual provisions of this Contract or these Terms be or become invalid or unenforceable in whole or in part, or should this Contract or these Terms be found not to contain a necessary regulation, the remaining provisions of this Contract and these Terms shall remain unaffected. In lieu of the invalid or unenforceable provision, or to close the loophole, the Parties will agree, with retroactive effect, upon the legally permissible provision that corresponds to as great an extent as possible to what the Parties intended or would have agreed according to the spirit and purpose of this Contract or these Terms if the invalidity/unenforceability of the affected provision or the loophole had been considered initially. This also applies if the invalidity or enforceability of a provision arises from a measure of performance or time stipulated in this Contract or these Terms. In this case, the legally permissible measure of performance or time that comes as close as possible to replicating the intended purpose of the original shall replace the one stipulated in this Contract or these Terms.
11.3 This Contract and these Terms shall be governed by the law of the Federal Republic of Germany to the exclusion of the German conflict of laws and the UN Convention on CISG.
11.4 Insofar as legally permissible, the Landgericht (Regional Court) Berlin is solely responsible for all disputes arising from or in connection with this Contract or these Terms, including the validity of this Contract or these Terms. Also insofar as legally permissible, the place of fulfilment is Berlin.