KUNO GmbH | General Terms and Conditions (GTC)February 2022

Part A - Introductory provisions

1.    General | Scope

1.1    These General Terms and Conditions ("GTC") apply to all contracts between KUNO GmbH, Cuvrystraße 53, 10997 Berlin, Germany ("KUNO") and Customers of KUNO who are entrepreneurs within the meaning of § 14 of the German Civil Code (BGB) ("Customers") and to whom KUNO grants access to its KUNO Services and or for whom KUNO provides KUNO Consulting Services (each as defined below).
1.2    These GTC apply to all contracts that are executed online, by e-mail or via an app and are concluded between KUNO and the Customer (each an "Order"). These GTC become an integral part of each Order.
1.3    These GTC also apply to future contracts between KUNO and the Customer, without the need for a corresponding reference by KUNO in individual cases. These GTC are considered confirmed by the Customer at the latest when the Customer uses the KUNO Services or KUNO Consulting Services.
1.4    These GTC apply to the exclusion of all other GTC of the Customer or third parties. Deviating, contradictory or supplementary general terms and conditions of the Customer or third parties only become part of an Order if KUNO has agreed to them in writing.
1.5    Insofar as the terms 'in writing', 'in written form' or similar are used in these GTC, these refer to the written form within the meaning of § 126 German Civil Code. The electronic exchange of copies of handwritten signed documents as well as documents with a simple electronic signature (such as by means of DocuSign or Adobe Sign) shall be sufficient in this respect. Unless otherwise expressly stipulated in these GTC, the exchange of simple e-mails shall be sufficient.
1.6    All notifications and declarations made by the Customer to KUNO, in particular notices of termination and setting of deadlines, must be made at least in text form within the meaning of § 126b German Civil Code (for clarification: a simple e-mail shall be sufficient), unless otherwise specified in these GTC.
1.7    References in these GTC to the applicability of statutory provisions are for clarification purposes only. Consequently, the statutory provisions shall apply even if such clarification is not made, unless the statutory provisions are supplemented or expressly excluded in these GTC.  
1.8    For reasons of practicability, these GTC do not use the feminine, masculine and diverse forms of language simultaneously and use the generic masculine. All personal terms apply equally to all genders.  
1.9    The provisions of these GTC in the German language apply exclusively. Where KUNO provides versions of these GTC in other languages, these are merely non-binding convenience translations.

2.    General Principles of Service

2.1    KUNO does not provide services that may only be provided by tax consultants, auditors or lawyers. In particular, KUNO does not provide legal advice within the meaning of the German Extrajudicial Legal Services Act (Rechtsdienstleistungsgesetz, RDG).
2.2    KUNO shall be entitled to engage subcontractors for the fulfillment of its contractual obligations in accordance with the Order. In this case, among other things, the data protection regulations in clause 20 apply

Part B - KUNO Services

3.    KUNO Services | Customer Account | Trial Use

3.1    If agreed in an Order, KUNO grants the Customer access to KUNO's software platform offered as software as a service, including all associated websites, services, applications and the respective content and functions to the extent described in more detail in the respective Order ("KUNO Services"). The KUNO Services may include one or more KUNO Products, which are described on the KUNO website and updated from time to time. In accordance with the Order, the KUNO Services are provided against payment of a Fee (as defined below) with certain agreed functions.
3.2    For the unrestricted use of the KUNO Services, it may be necessary for the Customer to conclude separate contracts with third parties (cf. clause 6). If the Customer does not do so, only limited functions of the KUNO Services may be available to the Customer. In this case, the Customer shall be not released from his obligation to pay the agreed fee.
3.3    KUNO can provide the Customer with an online account (“Customer Account”), in which the Customer manages his Orders and licenses. KUNO supports the Customer free of charge in the administration of the Customer Account.
3.4    For a period of time to be determined by KUNO in its sole discretion, KUNO may provide the Customer with access to the KUNO Services for trial purposes free of charge or at reduced fees (“Trial Use”). KUNO has the right to reduce, limit or otherwise modify the KUNO Services provided for Trial Use at any time without prior notice. Subject to the provisions in clause 22 KUNO shall not be subject to any warranty, compensation, maintenance or support and availability obligations for the Trial Use. KUNO has the right to revoke or terminate the Trial Use at any time with immediate effect. The use of the trial does not constitute a guarantee for (future) product properties.

4.    Rights of use | Permitted users | Restrictions on use

4.1    In accordance with the respective Order, KUNO grants the Customer a simple, non-transferable, non-sublicensable, worldwide right during the Initial Term and the Extended Term (each as defined below) to use the KUNO Services exclusively for the Customer’s internal business purposes (“License”). The KUNO Services are offered as described on the KUNO website and updated from time to time including the onboarding process ("Documentation").
4.2    The Customer may only allow its employees (including employees and freelancers) (collectively "Authorized Users") to use the KUNO Services. In doing so, the Customer shall ensure that (a) the Customer has obtained a license for each such user; (b) such users fully comply with the provisions of these GTC; (c) the Customer shall be responsible to KUNO for all acts and omissions of all such users; and (d) the KUNO Services are used solely for the benefit of the Customer.
4.3    The Customer shall not (and shall not permit any third party, including Authorized Users, to) directly or indirectly: (a) sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, outsource, use on a timeshare or service bureau basis, or use the KUNO Services in an application service provider or managed service provider environment, or, unless otherwise expressly agreed, otherwise generate revenue from the KUNO Services; (b) copy the KUNO Services onto a public or distributed network; (c) decompile, reverse engineer, disassemble, or otherwise attempt to obtain source code, object code, or underlying structural idea(s), know-how, or algorithm(s) or other functional mechanism(s) of the KUNO Services, except as permitted in a particular case by mandatory legal requirements; (d) modify, adapt, translate or create derivative works based on the KUNO Services in whole or in part (except to the extent permitted by KUNO or as authorized by the KUNO Services); (e) modify any proprietary rights notices appearing in the KUNO Services or any portion thereof; (f) use the KUNO Services in a manner that violates applicable laws and regulations (including export regulations and restrictions, national security controls and regulations) or outside the scope of the license described in this para. 4; (g) configure the KUNO Services to collect the following data: (i) data that is considered sensitive personal data or 'special categories of data' within the meaning of the General Data Protection Regulation ("GDPR") or applicable national data protection legislation; (ii) passwords or other authentication data; (iii) payment or other financial data, biometric data or genetic data; or (iv) data relating to an individual who is under the age of sixteen (16) (collectively, "Prohibited Data"); or (h) use the KUNO Services to (i) store, download or transmit infringing, defamatory or otherwise unlawful or tortious material or malicious code or malware; or (ii) engage in phishing, spamming, denial of service attacks or other fraudulent or criminal activity; (iii) interfere with or disrupt the integrity or performance of any third party system or the offerings or data contained therein; (iv) attempt to gain unauthorized access to the KUNO Services or KUNO's systems or networks; or (v) conduct or engage any third party to conduct penetration testing, vulnerability analysis or other security assessments.
4.4    The Customer and/or Authorized Users may not copy, process, share or publicly reproduce the content of the KUNO Services without the written consent of KUNO, unless expressly permitted by functions integrated into the KUNO Services.
4.5    The Customer and/or Authorized Users may use the KUNO Services only as described in the Documentation.
4.6    KUNO may monitor the Customer's use of the KUNO Services and may prohibit and/or suspend use of the KUNO Services if KUNO believes that the Customer and/or an Authorized User is in violation of the provisions of this clause 4.

5.    Duties of the Customer

5.1    The Customer represents and warrants that the Customer and the Authorized Users will use the KUNO Services solely in full compliance with all applicable laws and regulations.
5.2    The Customer shall be responsible for procuring and maintaining, at his own expense, technical equipment and related ancillary services required to connect to, access, or otherwise use the KUNO Services.
5.3    The Customer shall also be responsible for the security of the technical equipment, its Customer Account, passwords (in particular administrator and user passwords) and files, as well as any use of its Customer Account or technical equipment known or unknown to the Customer. The Customer and Authorized Users may not disclose passwords or access codes to unauthorized third parties.
5.4    The Customer shall be solely responsible for the content of all data and other material displayed, published, uploaded, stored, exchanged or transmitted by the Customer or users through or by means of the KUNO Services (collectively "Content"). KUNO is unable to control the information transmitted by the Customer or users during the use of the KUNO Services or to guarantee the accuracy of this information. KUNO may - without notice and without liability - investigate complaints or suspected violations of the Order and may take actions that KUNO deems appropriate. This includes rejecting Content, removing Content, and restricting, blocking, or terminating the Customer's or a user's access to the KUNO Services.
5.5    The Customer shall provide to KUNO in a timely manner all information that KUNO reasonably requires to implement an Order. The Customer shall ensure that the information in his Customer Account is always current and correct. In the event of unauthorized use of a password or account, or any other known or suspected breach of security or misuse of the KUNO Services, the Customer shall be required to notify KUNO immediately.

6.    Interaction of Customers with other Customers or third parties

6.1    In the KUNO Services, KUNO may offer the Customer the possibility to interact with other Customers or with third parties, for example to exchange data and information or to conclude contracts.
6.2    In this respect, too, the Customer acts on its own responsibility and shall be solely responsible for inter alia the content of the declarations it makes to other Customers or third parties and for the completeness and accuracy of the data or information it exchanges with other Customers or third parties.
6.3    An Order placed by the Customer via the Order function shall be an offer by the Customer to the relevant supplier to conclude a contract for the purchase of goods and/or services. The supplier shall not be obliged to accept an offer of the Customer.
6.4    If the supplier accepts an offer from the Customer, the corresponding contract shall be concluded exclusively between the Customer and the supplier in accordance with the agreements made by them. KUNO does not become a party to such a contract.

7.    Maintenance and support for the KUNO Services

7.1    Subject to payment of the fees by the Customer, KUNO provides maintenance and support services for the KUNO Services to the extent resulting from the Order. In this context, “Support” refers to KUNO’s obligation to respond to justified support requests from the Customer by assisting in error identification and providing support. “Maintenance” means KUNO’s obligation to fix malfunctions and so-called bugs and to provide the updates and upgrades published by KUNO at its own discretion.
7.2    Support shall be available to the Customer by e-mail via support@kuno.io or via another e-mail address provided by KUNO for this purpose and/or via live chat on KUNO’s website and/or under the telephone number indicated on KUNO’s website, in any case from Monday to Friday during regular business hours (from 9:00 to 18:00 CET).
7.3    KUNO shall use reasonable efforts, consistent with applicable industry standards, to maintain the KUNO Services in a manner that minimizes disruptions and interruptions to the KUNO Services. Customer may report disruptions to KUNO via email at support@kuno.io or any other email address provided by KUNO for this purpose and/or via live chat on KUNO’s website. KUNO shall use commercially reasonable efforts to correct all reported errors in a timely manner, provided that (a) the Customer provides KUNO with a detailed description of the error and its reproducibility and (b) this shall be done depending on the priority of the error, which shall be determined by KUNO in its sole discretion.
7.4   If the analysis by KUNO shows that an error reported by the Customer did not actually occur or cannot be attributed to the KUNO Services, KUNO can charge the Customer for the costs that KUNO can prove to have incurred in connection with such an analysis.
7.5    Maintenance and support costs are included in the fees.

8.    Availability of KUNO Services

8.1    Subject to payment of the fees by the Customer, KUNO provides the KUNO Services to the Customer in accordance with the provisions of this clause 8 at the Customer’s disposal.
8.2    KUNO shall use reasonable efforts to ensure that KUNO Services are available to the Customer via the Internet no less than ninety-nine point five percent (99.5%) of the calendar year (based on twenty-four (24) hours per day, seven (7) days per week), except for (a) temporary unavailability due to scheduled or unscheduled maintenance by KUNO or by third party providers, and (b) unavailability for reasons beyond KUNO’s control. KUNO shall make reasonable efforts to provide advance notice of scheduled interruptions to the KUNO Services.
8.3    The Customer is aware and the Customer acknowledges that Customer-side access to KUNO Services, such as Customer Internet access, cannot be guaranteed by KUNO and that KUNO shall not be liable for failures of the Internet connection or the Customer’s technical devices and equipment.

9.    IT Security

9.1    The Customer guarantees that user IDs and passwords, which the Customer receives together with his registration for the KUNO Services, are stored, kept and used in a secure manner and that third parties do not have access to them and consequently cannot use them. The Customer shall be liable for any unauthorized use of the KUNO Services.
9.2    If there is a suspicion that an unauthorized person has gained knowledge of a user ID and/or password, the Customer shall be obliged to inform KUNO immediately and furthermore to change the user ID and/or password in question.
9.3    The Customer shall be liable for any loss or damage incurred by KUNO as a result of the Customer intentionally or negligently disclosing a user ID or password to third parties, or a user ID or password becoming known to an unauthorized party, unless the Customer notifies KUNO immediately if the Customer suspects that such a case may have occurred.
9.4    KUNO shall take reasonable measures to ensure that the security of the KUNO Services meets market industry standards.

10.    Limited warranty for KUNO Services

10.1    It is the Customer’s responsibility to check whether the KUNO Services, as described in the Documentation, meet the Customer’s needs and wishes. The Customer is aware of the essential functions and features of the KUNO Services. The scope, type and quality of the KUNO Services are determined by these GTC, the Order and the Documentation. Other information or GTC only become part of the Order if the Customer and KUNO have expressly agreed this in writing or if KUNO expressly confirms this in writing. Product descriptions, illustrations, test programs etc. are not guarantees or agreements on quality. The issuance of a guarantee shall be only effective if it is confirmed in writing by the management of KUNO.
10.2    KUNO warrants that the KUNO Services have the essential functions described in the current Documentation of the respective version. In the event of a breach of this warranty, KUNO shall be obligated to use commercially reasonable efforts to modify the KUNO Services to substantially conform to the Documentation. To the extent that KUNO is unable to substantially restore such function within thirty (30) days after written notice of the breach, the Customer shall be entitled to terminate the engagement by written notice and receive a pro rata refund of any fees paid in advance by the Customer, if any, for unused access to KUNO Services. The Customer may only exercise the foregoing rights if the Customer notifies KUNO of such violations in writing and has installed and configured the KUNO Services in accordance with the Documentation. A strict liability of KUNO for the existence of initial defects according to § 536a German Civil Code is excluded. Claims for damages by the Customer, which are based on a breach of this warranty, are subject to the limitations according to clause 22.
10.3    The Customer shall not be entitled to receive the source code of the KUNO Services under any circumstances.

Part C - KUNO Consulting Services

11.    KUNO Consulting Services

11.1    To the extent agreed in an Order, KUNO shall provide consulting services to the Customer – independent of or in addition to granting access to the KUNO Services – in the areas of Finance & Accounting, Human Resources Management & Payroll, Controlling & Reporting, Visa & Relocation and Talent Acquisition Support as specified in the Order (“KUNO Consulting Services”).
11.2    Unless expressly agreed otherwise, the KUNO Consulting Services constitute of services in accordance with § 611 German Civil Code. The KUNO Consulting Services are provided on a fixed-price basis or according to time and material expenditure.
11.3    KUNO Consulting Services are provided on business days (a business day means Monday through Friday, excluding legal holidays, during normal business hours, at the location where the KUNO Consulting Services are provided).

12.    Cooperation obligations of the Customer

12.1    The timely cooperation of the Customer is essential for the contractual fulfillment of KUNO Consulting Services by KUNO. The Customer shall therefore be obligated to appoint, free of charge and to the extent necessary, among other things, contact persons for KUNO who know the technical know-how about the requirements from the Customer's business processes, and to ensure their availability to the necessary extent.
12.2    The Customer shall be obligated to promptly ensure the elimination of obstacles in the provision of services by KUNO that lie within his area of responsibility (including provision services of the Customer to be provided by third parties).
12.3    If KUNO is unable to fulfill its contractual obligations due to the Customer's failure to cooperate, KUNO shall be released from the obligation to provide the service.
12.4    In the event of delayed or defective fulfillment of cooperation obligations by the Customer, any deadlines and dates shall be postponed accordingly. In this case, KUNO's claim to payment of the contractual remuneration remains in full. Costs incurred by KUNO due to the delayed or defective fulfillment of the Customer's duty to cooperate are to be reimbursed by the Customer to a reasonable extent.

13.    Deadlines and Dates

13.1    Deadlines and dates stated by KUNO for KUNO Consulting Services are in each case non-binding planned dates, unless the dates are expressly designated by KUNO in writing as binding performance dates.
13.2    If KUNO is unable to provide a KUNO service (on schedule) on time, KUNO shall inform the Customer of the reasons for the delay and the expected duration of the delay, at least in text form (a simple e-mail shall be sufficient), as well as the new scheduled dates. In addition, KUNO will, as far as possible, indicate measures to avoid similar causes of delay in the future.

14.    Personnel | Non-solicitation

14.1    With regard to KUNO personnel providing KUNO Consulting Services to the Customer, there shall be no hiring out of employees. The Customer's personnel or representatives may not instruct KUNO personnel. KUNO personnel may not be integrated by the Customer into the Customer's operational organization. KUNO decides at its own discretion how and where to deploy its resources (including KUNO personnel) and plans its service provision within the scope of the contract (and the respective Order) in accordance with the agreed content and scope of the KUNO Consulting Services.
14.2    The contractual cooperation of the parties requires a special relationship of trust between KUNO and the Customer, especially with regard to KUNO Consulting Services. Therefore, during the Initial Term and any Extended Term and in any case for a period of twelve (12) months thereafter, the Customer must not solicit KUNO’s employees as its own employees or consultants who have been involved in the provision of the KUNO Consulting Services without the prior written consent of KUNO.
14.3    In the event of a breach of the above obligation, the Customer shall be obliged to pay KUNO a contractual penalty in the amount of the last three gross monthly salaries of the employee concerned for each case of breach. KUNO reserves the right to claim further damages.

15.    Cooperation with Qualified Third Parties

15.1    KUNO shall be entitled to cooperate with Qualified Third Parties after prior approval by the Customer. These include, in particular, tax consultants, lawyers, as well as other persons subject to a comparable professional duty of confidentiality, as well as other third parties whose confidentiality is ensured due to a suitable contractual obligation to KUNO ("Qualified Third Parties"). If the Customer does not consent to the cooperation with a Qualified Third Party, he hereby acknowledges that KUNO may not be able to provide certain services without the consent.
15.2    The Customer declares his consent to KUNO to make information available to Qualified Third Parties to the extent necessary for the provision of services by this group of persons.
15.3    Insofar as information within the meaning of clause 15.2 is being exchanged directly between KUNO and third parties, the Customer authorizes KUNO to act on behalf of the Customer.

Part D - General provisions

16.    Fees | Terms of payment

16.1    The Customer shall pay to KUNO the fees for KUNO Services and/or KUNO Consulting Services (collectively "Fees") specified in the Order.
16.2    The Customer shall pay to KUNO all Fees resulting from the fact that the Customer exceeds the scope of use of the KUNO Services specified in the Order or that the Customer is obliged to pay for other reasons.
16.3    If the number of active licenses in a Customer Account falls below the number originally ordered by the Customer for the then-current Initial Term or Extended Term, Customer shall continue to owe the full amount of Fees corresponding to the licenses originally ordered.
16.4    KUNO reserves the right to change the Fees, effective for the then-current Extended Term, at least one hundred twenty (120) days prior to the expiration of the Initial Term or the end of the then-current Extended Term.
16.5    Unless otherwise specified, the Customer shall make all payments by credit card using KUNO's website. KUNO may also choose the option of payment by electronically sent invoice, in which case full payment must be received by KUNO within thirty (30) days from the date the invoice is sent.
16.6    The Fees exclude all applicable taxes, duties and levies of any kind, which shall be borne by the Customer.
16.7    The Customer shall reimburse KUNO for expenses and other costs incurred in connection with the provision of KUNO Services on a time and material basis.  
16.8    KUNO shall be entitled to block the Customer's access to the KUNO Services in accordance with § 320 German Civil Code by notification in text form (a simple e-mail shall be sufficient) if payments are not received by KUNO within fourteen (14) days after their due date.

17.    Term | Termination

17.1    The term of an Order shall commence at the time designated therein.
17.2    Each Order shall remain in effect for the duration of the initial term set forth therein ("Initial Term"). Unless otherwise agreed in writing, the Initial Term shall be automatically and continuously renewed for an additional period equal to the duration of the Initial Term (each an "Extended Term"), unless the Order is terminated by either party upon three (3) months' notice to the end of the then-current Term. The Customer shall not be entitled to terminate an Order with effect prior to the expiry of the Initial Term or the respective Extended Term.
17.3    The right of the Parties to extraordinary terminate the Order due to important reasons shall remain unaffected. Such important reasons shall exist in particular if (a) one of the parties breaches its contractual obligations in a material way and such breach is not cured within thirty (30) days after receipt of a written notice (a simple e-mail shall be sufficient) of such breach; (b) the Customer is in arrears with payments for more than forty-five (45) days; (c) the Customer breaches the restrictions on use pursuant to clause 4; or (d) the Customer ceases to make payments when due or experiences a material deterioration in his financial condition.
17.4    KUNO shall store the information provided by the Customer as part of the KUNO Services or the KUNO Consulting Services for a maximum period of three (3) months after the end of the relevant Order and KUNO shall be entitled to delete the information permanently and irretrievably after this period.

18.    Confidentiality | Customer data

18.1    The Customer and KUNO understand that they have shared or may share with each other certain business, personal, technical or financial information relating to KUNO's or the Customer's business ("Confidential Information"). KUNO’s Confidential Information includes, but shall not be limited to, non-public information relating to features, functions and performance of KUNO Services and deliverables. The Customer’s Confidential Information includes any non-public information that the Customer provides to KUNO to enable the provision of the KUNO Services or that Customer provides during the use of the KUNO Consulting Services ("Customer Data").
18.2    The Customer and KUNO shall use reasonable efforts to protect each other's Confidential Information and shall not use or disclose such Confidential Information to any third party (other than to provide the KUNO Services or to provide the KUNO Consulting Services or in any other manner permitted by these GTC). This shall not apply after the expiration of two (2) years after the disclosure of such information and with respect to information that the Customer or KUNO, as the case may be, can demonstrate (a) is or becomes generally available to the public; or (b) was already in the possession of the Customer or KUNO, as the case may be, prior to its receipt; or (c) was lawfully made available to the Customer or KUNO without restriction by a third party; or (d) was independently developed without the use of Confidential Information; or (e) is required to be disclosed by law.
18.3    Notwithstanding anything to the contrary, KUNO shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the KUNO Services and related systems and technologies (including, without limitation, information relating to, and data derived from, Customer Data), and KUNO shall be free (during and after the end of the Order) to (a) use such data and information to improve and develop the KUNO Services and for the purpose of other development, diagnostic and corrective actions related to the KUNO Services and other KUNO offerings; and (b) share such data and information only in aggregated or otherwise anonymous form in connection with KUNO's business operations.

19.    Proprietary rights | Work results | Brand names and logos | Updates | Feedback

19.1    KUNO and KUNO's contractors, if any, are and shall remain the owner of all proprietary rights, including copyrights, database rights, patents, trade secrets, trademarks and all other intellectual property rights and technical solutions in and relating to the KUNO Services or Deliverables. The Customer acknowledges that the rights granted after an Order do not give the Customer any ownership rights to the KUNO Services or KUNO Consulting Services.  
19.2    The Customer receives the non-exclusive, non-sublicensable and non-transferable right to use, reproduce, process and combine the created work results (“Work Results”) with other Work Results, programs or materials for his own purposes, insofar as this is necessary for the contractual use of the Work Results in accordance with the relevant Order. Work Results are in particular specifications, evaluations, planning documents, reports and other materials that the Customer may receive from KUNO in fulfillment of the contractual services. Work Results are created by KUNO in accordance with the Order and are exclusively intended and suitable for use in accordance with the Order.
19.3    The permitted transfer of Work Results by the Customer to third parties requires the express written consent of KUNO. In particular, the Customer shall not be permitted to rent, sell or otherwise distribute the materials and Work Results. Not third parties in the sense of this regulation are organs, employees, tax consultants and lawyers as well as affiliated companies of the Customer. If the Customer is obliged to pass on the work results to a competent authority or body on the basis of the applicable laws, the consent of KUNO shall not be required (e.g. passing on to the tax office, employment agency, etc.).
19.4    All rights to the Customer Data and all Content, as well as data based on or derived from the Customer Data or Content, remain with the Customer. The Customer grants KUNO a simple, non-transferable, sub-licensable right of use, unlimited in terms of space and Content, to use the Customer Data and Content exclusively in connection with the provision of KUNO Services or KUNO Consulting Services. KUNO shall not be liable for the Customer Data or Content.
19.5    KUNO reserves the right to make new versions and updates of the KUNO Services, including but not limited to changes in the design, operational procedure, technical specifications, systems and other features of the KUNO Services, at any time and without prior notice.
19.6    The Customer agrees that KUNO may refer to the Customer in marketing materials, in social media marketing measures and on KUNO’s website by mentioning the Customer’s company name, the illustration of its logo and a short description. This consent of the Customer shall be revocable at any time.
19.7    The Customer may occasionally make suggestions to KUNO for new features or functions of the KUNO Services or KUNO Consulting Services or provide other feedback on the KUNO Services or KUNO Consulting Services. KUNO shall be free to consider such suggestions or feedback. The Customer grants KUNO, free of charge, a fully compensated, perpetual, sublicensable right to use such feedback for any purpose.

20.    Privacy

20.1    The Customer and KUNO shall at all times comply with the requirements of applicable data protection laws, in particular the General Data Protection Regulation (GDPR).
20.2    In the event that the provision of KUNO Services or KUNO Consulting Services involves the processing of personal data relating to the Customer, KUNO shall process such data exclusively as a 'processor' on behalf of the Customer acting as the 'controller' for the processing, in each case as defined under applicable data protection laws, in particular the GDPR. To the extent required by law, KUNO shall enter into a written data processing agreement with the Customer.  
20.3    The processing of personal data by KUNO and by subcontractors engaged by KUNO is explained in more detail in KUNO's privacy policy, which can be found on KUNO's website.
20.4    The Customer shall be solely responsible for ensuring that the processing of personal data of the Customer's employees by KUNO is in accordance with all relevant employment relationships, collective bargaining agreements, company agreements and applicable labor laws.

21.    Indemnification obligation

21.1    Without prejudice to the Customer's other contractual or legal liability, the Customer shall be obliged to defend KUNO and any affiliated companies of KUNO, employees and subcontractors as well as suppliers and dealers of KUNO at the Customer's expense against claims of third parties, to indemnify KUNO against such claims and to hold KUNO harmless to the extent that such claims arise or are asserted as a result of a breach of clause 4 by the Customer or otherwise in connection with the provision of KUNO Services or the provision of KUNO Consulting Services. The Customer shall pay in full all costs and damages that are legally determined by a court of competent jurisdiction to be to the detriment of KUNO as a result of such a claim. An "Affiliate" is any entity that KUNO directly or indirectly controls, is controlled by, or is under direct or indirect common control with KUNO, or is a wholly owned subsidiary of KUNO, where 'control' means direct or indirect ownership of at least fifty-one percent (51%) of the shares or beneficial interest in an entity.
21.2    In connection with a claim for indemnification according to this clause 21 KUNO must inform the Customer immediately of a claim by a third party on the basis of which KUNO assumes that it is entitled to demand indemnification from the Customer. If KUNO fails to provide such information, this does not release the Customer from his obligations under this clause 21 unless the omission of the information significantly impairs the Customer's legal defense against such a claim. KUNO may, at its own expense and discretion, assist in the legal defense, but it shall be the Customer's responsibility to take appropriate measures to defend itself and to conduct any settlement negotiations. A settlement that would legally bind KUNO only becomes effective when KUNO has consented to it in writing; consent may not be unjustifiably refused, subjected to GTC or delayed by KUNO.
21.3    KUNO shall defend the Customer at its own expense against claims of third parties (or settle them comparatively at KUNO's option), if in connection with such claims it is alleged that the KUNO Services or KUNO Consulting Services infringe or misuse a patent, a copyright, a trademark right or a trade secret of a third party. KUNO shall settle all costs and compensation obligations that are legally determined by a competent court as a result of such a claim to the detriment of the Customer. If the use of the KUNO Services or KUNO Consulting Services is the subject of such a claim, or may become so in KUNO's sole discretion, KUNO may, at its option and expense, (a) replace the relevant KUNO Services or KUNO Consulting Services with functionally equivalent technology that does not infringe any rights; (b) obtain a right for the Customer to continue to use the relevant KUNO Service or KUNO Consulting Services; or (c) immediately terminate the engagement in whole or in part and refund Fees pro rata (from the effective date of termination) that may have been paid in advance for the relevant KUNO Service or KUNO Consulting Services. This obligation of KUNO does not exist: (i) if the KUNO Services or KUNO Consulting Services have been modified by the Customer or by a third party under the Customer's responsibility; (ii) if the KUNO Services or KUNO Consulting Services have been combined with other products, applications or processes not provided by KUNO, provided that the alleged breach has been caused by such combination; or (iii) in case of unauthorized use of the KUNO Services or KUNO Consulting Services. This clause 21.3 conclusively regulates the rights of the Customer with regard to claims based on an infringement of intellectual property rights and trade secrets of third parties.

22.    Limitation of liability

22.1    KUNO shall be liable without limitation for (a) injury to life, body or health caused by KUNO, KUNO's legal representatives or vicarious agents; (b) damage caused intentionally or by gross negligence by KUNO, KUNO's legal representatives or executives; (c) damage caused intentionally by KUNO's vicarious agents not mentioned in (b); (d) damage due to the absence of a guaranteed quality; and (e) claims arising from the Product Liability Act (ProdHaftG­).
22.2    KUNO shall be liable for damages from the violation of cardinal obligations by KUNO, KUNO's legal representatives, executives or vicarious agents. Cardinal obligations are those obligations whose fulfillment enables the proper execution of the Order and on whose compliance the Customer regularly relies and may rely. If the breach of cardinal obligations is due to (a) slight negligence on the part of KUNO, KUNO's legal representatives or executives or (b) slight or gross negligence on the part of KUNO's vicarious agents not mentioned in (a), KUNO's liability shall be limited to the amount that was foreseeable for KUNO at the time the respective service was provided.
22.3    Subject to the provisions of clause 22.1 and 22.2 KUNO shall not be liable for damages resulting from the breach of obligations that are not cardinal obligations and that are caused (a) by slight negligence on the part of KUNO, KUNO's legal representatives or executive employees; or (b) by slight or gross negligence on the part of KUNO's vicarious agents not named in (a).
22.4    KUNO shall not be liable for any loss, damage or harm incurred by the Customer caused directly or indirectly by the Customer's unauthorized use of the KUNO Services for processing Prohibited Data.
22.5    KUNO shall be liable for data loss only up to an amount that covers the typical costs of recovery that would have been incurred if the Customer had made proper and regular data backups.
22.6    Subject to the provision in clause 22.1 KUNO’s liability for damages arising out of or in connection with an Order, whether in contract, tort or otherwise, shall be limited to an amount equal to one hundred fifty percent (150%) of the total Fees under the affected Order.
22.7    Any liability of KUNO beyond the cases regulated in this clause 22 shall be excluded.
22.8    The Customer agrees and acknowledges that the KUNO Services and KUNO Consulting Services are essentially based on data and information submitted by the Customer. As a result, KUNO shall not be responsible for (a) the correctness, completeness, integrity and accuracy of the data submitted to KUNO or uploaded by the Customer to the KUNO Services; (b) Content as defined in clause 5.4; (c) any conclusions drawn by the Customer or a third party from the use of the KUNO Services; (d) the technical, scientific, legal and commercial feasibility of projects, products and undertakings of the Customer or a third party; and (e) the economic and financial viability of projects, products and undertakings of the Customer or a third party.

23.    Limitation of set-off | Limitation of the right of retention

The Customer shall not be entitled to offset his own claims against claims of KUNO or to assert rights of retention unless his claims (a) have been legally established; (b) are undisputed; or (c) have been recognized by KUNO.

24.    Transfer | Novation

24.1    The Customer may not transfer an Order without the prior written consent of KUNO; a transfer that violates this clause 24 shall be null and void. KUNO may, at its own discretion, assign or transfer an Order and/or all associated rights in whole or in part to third parties.
24.2    At KUNO's request, the Customer shall enter into a novation agreement in an appropriate form specified by KUNO without delay, but in any case, within fourteen (14) days, so that KUNO can exercise the rights under this clause 24.

25.    Complete Agreement | Severability Clause | Amendments | Updates

25.1    An Order, including these GTC, constitutes the entire agreement between the Customer and KUNO with respect to its subject matter and supersedes and excludes all prior written or oral negotiations, arrangements, understandings, exercises or agreements between the parties with respect to the subject matter of the agreement.
25.2    Should any provision of an Order, including these GTC, be or become invalid or void in whole or in part, this shall not affect the validity of the remaining provisions. In this case, the invalid or void provision shall be replaced by a provision that comes closest to what the parties would have agreed in a legally permissible manner according to the meaning and purpose of the original provision and the Order if they had recognized the invalidity or voidness of the original provision. If the ineffectiveness or invalidity of a provision is based on a measure of performance or time (deadline or date) specified therein, it shall be replaced by a provision with a legally permissible scope that comes closest to the original scope. The foregoing shall also apply to any loophole in the Order, including these GTC, not intended by the parties. It is the express intention of the parties that this severability clause does not result in a mere reversal of the burden of proof, but that § 139 German Civil Code is waived in its entirety.
25.3    Changes or additions to an Order must be made in writing (the exchange of simple e-mails shall be sufficient). The same applies to agreements to deviate from this written form requirement or to waive it completely.
25.4    KUNO may amend and/or update these GTC with effect for an ongoing Order if this is necessary for technical, economic or legal reasons. Any such amendment to these GTC shall be announced to the Customer in text form (a simple email shall be sufficient) at least six (6) weeks before its intended entry into force. The Customer may agree or object to the amendment prior to the date of its intended entry into force. The change shall be considered accepted by the Customer if the Customer does not object to the change before the day it is intended to take effect. KUNO shall explicitly inform the Customer of this in the corresponding announcement. With effect for future Orders, KUNO may change and/or update these GTC at any time without notice.

26.    Governing Law | Jurisdiction

26.1    Any Order and any disagreement, dispute or claim (whether contractual or non-contractual) arising out of or in connection with the Order or the subject matter or conclusion thereof shall be governed by and construed in accordance with the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
26.2    The courts in Berlin (Germany) shall have exclusive jurisdiction to settle any contractual or non-contractual disputes or claims arising out of or in connection with an Order or its subject matter or conclusion.  

27.    Final provisions

27.1    The person signing or otherwise accepting an Order, including these GTC, on behalf of the Customer represents and warrants that he or she has been duly authorized by all necessary and appropriate corporate action to enter into the Order on behalf of the Customer.
27.2    Without prejudice to § 354a of the German Commercial Code (HGB), the Customer may not assign his rights or obligations arising from an Order and these GTC without the prior written consent of KUNO.
27.3    An Order does not create any agency, partnership, holding company or employment relationship(s) and the Customer shall not be authorized to legally bind KUNO in any way. There shall be no employee leasing in the sense of the German Employee Leasing Act (AÜG).
KUNO GmbH
Amtsgericht Berlin Charlottenburg, Deutschland, HRB 224375F
Februar 2022