These terms of service (the “Terms”) shall apply to the provision of the Kwest software (the “Software”) by Anyskill Technologies GmbH, Weinbergsweg 24, 10119 Berlin (“Kwest”). The Software and Kwest’s offer to conclude a contract are addressed exclusively to companies that legally qualify as entrepreneurs (Unternehmer) pursuant to Section 14 German Civil Code (BGB) (the “Customer”; together with Kwest the “Parties”).
Deviations from these Terms shall only be considered agreed if they have expressly been confirmed in writing by Kwest. In particular, the mere omission of an objection by Kwest against any general terms and conditions of the Customer shall not cause such terms and conditions to be considered agreed. This shall also apply if Kwest performs services unconditionally upon knowledge of opposing terms and conditions of the Customer or terms and conditions diverging from these Terms.
Where German wording is used in addition to English terms, the German wording shall be decisive in case of any doubt of interpretation.
For important reasons, in particular in the event of changes to statutory provisions, judicial precedences, the Software or market conditions Kwest may notify the Customer of amendments to these Terms. The amended Terms shall be deemed to have been agreed if the Customer has not objected to the amendment within one month upon receipt of the notification and Kwest has explicitly notified the Customer of this consequence. Regardless of the foregoing, changes to the Purpose (see under Sec. 2.1) require the express consent of the Customer.
Provision of the Software; Set-Up and Support
The Software is a Software-as-a-Service (Saas) tool with functionality to standardize and automate business processes enabling collaboration across teams and systems and hand over work orders internally and to other parties (the “Purpose”).
The Software is designed to accommodate two categories of user accounts:
a) Admin accounts are user accounts with advanced authorization. They enable users to maintain configurations on workspace level across all regular accounts (“Admin Accounts”).
b) Member accounts are used by the Customer’s employees, freelancers or users whose outgoing requests are processed via the Software (“Regular Accounts”).
Conclusion of Contract
In the course of registering for the use of the Software during Kwest’s onboarding process, the Customer accepts these Terms by signing the Order Form. A subscription to the Software without signing the Order Form is not possible. By signing the Order Form, the Customer makes an offer to Kwest to conclude a contract on the basis of the Terms (the “Contract”). The Contract is concluded if and when Kwest sends to the Customer an email accepting the offer.
Compensation and Terms of Payment
The compensation owed for the subscription is detailed in the order form (the “Order Form”) provided by the Company. The Contract is governed by the version of the Order Form at the time of subscription subject to any permissible modifications made according to the provisions of the Terms.
All fees and prices indicated by Kwest in the Order Form are net prices without VAT.
Invoices are payable within 14 days of receipt of invoice by the Customer without deduction. Payment is possible via the payment methods offered by Kwest.
Term and Termination
The available subscription periods are detailed in the Order Form. The term depends on the subscription period chosen by the Customer while subscribing according to the following provisions.
If the Customer subscribes to on the basis of an unlimited term, the term is unlimited. In this case, each Party may terminate the Contract at any time with effect as of the end of the current month.
If the Customer subscribes on the basis of a fixed term subscription period (e.g. annual plan), the Contract is automatically renewed for a new term in the length of the initial subscription period unless the Customer notifies Kwest before renewal that it does not wish to renew the Contract. An ordinary termination with effect before expiry of a fixed term subscription period is not possible. The Parties’ statutory right to extraordinary termination remains unaffected.
A termination notice or notification according to this § 5 can be made by declaration in text form.
Sec. 9, 10, 13, 14, 15 and 16 shall survive termination of the Contract.
Use of the Software by the Customer
The Customer may set up not more than the number of accounts which it is entitled to according to its subscription. The Customer takes suitable steps to ensure that each account is only used by one specific user.
The Customer may only use the access to the Software for itself and hereby agrees to take suitable security precautions to ensure that the Software will not be accessed by unauthorized persons.
Kwest shall not be responsible for the production and maintenance of a data connection between the IT systems of the Customer and the Delivery Point. The “Delivery Point” shall be the router exit of the computing center of Kwest or its subcontractor via whose server the Software is operated. Kwest shall not be responsible for malfunctions beyond the Delivery Point. The Customer shall itself be responsible for the procurement and maintenance of the hardware and connections to public telecommunications networks required by it. The costs for the installation of the online connection and the maintenance on the Customer’s side shall be borne by the Customer. Kwest shall not be liable for the security, confidentiality or integrity of the data communications conducted via third party communications networks. Kwest shall also not be liable for disruptions in data transmission caused by technical errors or configuration problems on the side of the Customer.
The Customer consents for Kwest to disclose the collaboration between Kwest and the Customer for marketing purposes and in this connection also use the name and company logo of the Customer (even if protected by trademarks or other registrations). The Customer may revoke this consent at any time by declaration in text form with effect to the future.
Software Operation and Changes
Kwest intends the Software to always correspond to the latest state of technology. Kwest shall be entitled to regularly carry out or introduce updates, new versions or upgrades of the Software (hereinafter referred to uniformly as “Updates”) in order to adapt the Software to new technical or commercial requirements, to implement new functions, or to make changes to existing functionalities in order to improve the Software. If possible, Kwest shall inform the Customer about Updates in due time in advance. Prior notice is, however, not required inter aliaa) in the event malfunctions or security issues within the Software are to be urgently remedied through an Update; orb) if no notable changes to the usability of the Software by the Customer are associated with the Update.
If and insofar as (i) the suitability of the Software for the Purpose is materially impaired or (ii) a material feature essential for the Purpose is removed or materially changed by an Update (such an Update a “Material Change”), Kwest shall inform the Customer in text form of the introduction of the Material Change at least two weeks prior to it becoming effective (a “Change Notice”). If the Customer does not object to the Material Change within two weeks after receipt of the Change Notice in text form (the “Objection Notice”), the Material Change shall become an integral component of the Contract. With each Change Notice, Kwest shall inform the Customer of the Customer’s rights with regard to the Material Change, in particular: (i) the objection right, (ii) the period foreseen for objection and (iii) the legal consequences of not declaring an objection to the Material Change in time.
If the Customer objects to the Material Change, Kwest shall further provide the Software for use to the Customer without the Material Change unless this is impossible for technical or organizational reasons or Kwest cannot reasonably be expected to do so.
Warranty for Material and Legal Defects
Kwest warrants that the Software is not encumbered with material or legal defects (“Defects”) which more than insignificantly impair the suitability of the Software for the Purpose. Immaterial deviations shall not be considered as Defects.
The Customer shall be obliged to communicate any Defect to Kwest immediately upon appearance and also to specify and describe in this course how the Defect manifests itself, its effects, and the circumstances in which it occurs. Kwest shall remedy any duly notified Defects appearing in the Software within a reasonable period of time.
Kwest enables the Customer via the Software to standardize and automate business processes as described in Sec. 2. Kwest shall not be liable for the correct and timely handling of the requests.
The no-fault based liability pursuant to Section 536a(1) German Civil Code for Defects in the Software existing at the time of contracting shall be excluded, unless the Defect relates to the suitability for the Purpose.
Customer shall be entitled to claim damages if arising from (i) willful misconduct or gross negligence of Kwest or its legal representatives or agents (gesetzlicher Vertreter oder Erfüllungsgehilfe), or (ii) any compulsory statutory liability of Kwest or its legal representatives or agents.
In case of breaches of cardinal obligations (Kardinalpflichten), Kwest shall also be liable for slight negligence. Cardinal obligations are such contractual obligations, whose fulfillment the proper execution of the contract only facilitates in the first place and whose observance the contractual partner may regularly rely on, and whose violation on the other hand endangers the fulfillment of the purpose of the contract. Liability in this case is limited to such damages that must typically and foreseeably be expected to occur in the course of the provision of services such as the contractual services. The aggregate liability shall be limited to the total amount of Subscription Fees payable in the twelve (12) months preceding the date of the event for which the liability arises. This also includes the reimbursement of expenses incurred in vain.
Furthermore, Kwest’s liability for gross negligence pursuant to Sec. 9.3 (i), however without limiting the liability pursuant to Sec. 9.3 (ii), 9.3 (iii) and 9.4, is limited to the full compensation received by Kwest from the Customer under the Contract until the date of the occurrence of such liability.
Any contributory negligence on the part of the Customer shall be taken into account. In particular, Kwest shall only be liable for the recovery of data if the Customer has taken all necessary and reasonable data backup precautions and ensured that the data can be recovered at reasonable cost from data material kept in machine-readable form.
This liability arrangement is conclusive. It shall apply with respect to all damage compensation claims, irrespective of their legal ground, particularly also with respect to pre-contractual claims or collateral contractual claims. This liability arrangement shall also apply in favor of legal representatives and agents of Kwest if claims are asserted directly against them.
The Customer is obliged to immediately notify any damage pursuant to the above liability provisions to Kwest in text form.
Limitation of Claims
Claims of the Customer based on the breach of any duty not consisting of a Defect shall become time-barred, except in the event of intention or gross negligence, within one year from beginning of the limitation period according to Section 199 German Civil Code. This shall not apply if the damage in question incurred by the Customer consists in personal injury.
Any rescission of contract or reduction of payments shall be invalid if the claim to performance or subsequent performance of the Customer has become time-barred.
The software underlying the Software is protected by copyright. Kwest is the sole holder of all intellectual and commercial property rights. Kwest represents that the general operation of the Software is permitted by law, does not violate any statutes, regulations or directives and, in particular, does not infringe on any third party rights. Kwest undertakes to indemnify the Customer against legitimate third party claims due to the operation of the Software and to compensate the Customer for any damage incurred in this context (including reasonable costs of legal defense) in accordance with Sec. 9.
The Customer shall have the non-transferrable, non-exclusive right, temporally restricted to the term of the Contract, to use the functionalities of the Software via the Internet for the Purpose. The Customer shall not obtain any rights beyond this. The Customer, in particular, shall not be entitled to allow the Software to be used by third parties or to make the Software accessible, with exception to third parties. In this context, freelancers or guest accounts engaged by the Customer are not considered as third parties.
Data Ownership; Data Storage; Data Protection
The Parties shall observe the applicable provisions of data protection law. Within the framework of the provision and operation of the Software, Kwest will be data processor pursuant to Article 28 General Data Protection Regulation. The details shall be stipulated in a data processing agreement corresponding to statutory requirements.
In relation to the data processed via the Software, Kwest shall not have any storage or custody duties beyond the degree necessary for the use of the Software. The Customer itself shall be responsible for observing any potential storage duties under commercial or tax law.
With regard to personal data (personenbezogene Daten) provided by Customer to Kwest or imported or integrated by the Customer into the Software, Customer bears responsibility and ensures that all statutory requirements for the processing of personal data are being observed, in particular that the data subjects (betroffene Personen) have validly consented to the use of their personal data if and to the extent required for Kwest to perform its obligations towards the Customer under the Contract.
The Customer is the owner of all data provided to Kwest or collected via the Software. Kwest is not authorized to use such data for purposes other than fulfillment of the Contract. Such fulfillment includes the usage of a machine learning technique in order to improve the Software. In any case, Kwest may use the data in anonymized form in order to improve the Software.
The Customer shall indemnify Kwest on first demand from all claims of third parties, in particular from data subjects or authorities, and hold Kwest harmless from any damage or costs suffered related to an inadmissible or incorrect data processing according to the applicable statutory provisions for the protection of personal data, unless Kwest is responsible for the damage or violation.
Retention; Reduction of Payment
The Customer may only assert a retention right if the counterclaim is based on the same contractual relation.
The right of the Customer to demand back compensation that was not actually owed shall not be prejudiced.
The Contract and these Terms shall be governed by the laws of Germany without recourse to conflict of laws principles.
The District Court of Berlin (Landgericht Berlin) shall exclusively be competent for all disputes from or in connection with the Contract, including concerning the validity hereof.
The Parties undertake to maintain temporally unlimited secrecy regarding all confidential information which they will obtain or have already obtained in the context of the contractual relation and not to disclose or otherwise use such information, unless necessary to perform the Contract. Confidential information are all information and documents of the Parties labeled as confidential or to be considered confidential based on the circumstances, particularly information concerning operating routines, business relations, further business or trade secrets and know-how.
Exempt from this obligation shall be confidential information:a) that can be demonstrated to have already been known to the other Party upon initiation of the Contract or become known thereafter through third parties without any breach of a confidentiality agreement, of statutory provisions, or of administrative orders;b) that was known to the general public, unless this was due to a breach of this Contract;
c) that had to be disclosed based on statutory obligations on the order of a court or authority. As permissible and feasible, the Party obliged to disclose shall inform the other Party in such an event in advance, providing it with the opportunity to take action against the disclosure.
Any disclosure of confidential information to third parties shall require the express written approval of the other Party.
The Parties shall ensure through suitable contractual arrangements that the employees and contractors working for them shall also, without temporal restriction, refrain from individual use or disclosure of confidential information. The Parties shall only disclose to employees or contractors confidential information to the extent such employees or contractors need to know the information for the fulfillment of the Contract.
Wherever these Terms make reference to declarations to be made in “text form”, email shall be sufficient.