KUNO GmbH | General Terms and Conditions (GTC)

October 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 Clients of KUNO who are entrepreneurs within the meaning of § 14 of the German Civil Code (BGB) ("Clients") and to whom KUNO provides 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 Client (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 Client, without the need for a corresponding reference by KUNO in individual cases. These GTC are considered confirmed by the Client at the latest when the Client uses the KUNO Services.

1.4       These GTC apply to the exclusion of all other GTC of the Client or third parties. Deviating, contradictory or supplementary general terms and conditions of the Client or third parties only become part of an Order if KUNO has agreed to them in writing.

1.5      KUNO reserves the right to stipulate supplementary conditions ("Supplementary Conditions") in each order. Supplementary Conditions are an integral part of these GTC.

1.6       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.

1.7       All notifications and declarations made by the Client 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.

1.8       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.

1.9       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.

1.10     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 Services

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 Extra judicial Legal Services Act (Rechtsdienstleistungsgesetz, RDG).

2.2       KUNO shall be entitled to engage third parties (“KUNO Service Partner”) 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

3.1       KUNO provides services to the Client in the areas of Human Resources Management, Payroll, Finance and Accounting as specified in the Order (“KUNO Services”).

3.1       Unless expressly agreed otherwise, the KUNO Services constitute of services in accordance with § 611 German Civil Code. The KUNO Services are provided on a fixed-price basis or according to time and material expenditure.

3.2       KUNO 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 Services are provided).

4.        Cooperation Obligations of the Client

4.1       The timely cooperation of the Client is essential for the contractual fulfillment of KUNO Services by KUNO. The Client 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 Client's business processes, and to ensure their availability to the necessary extent.

4.2      The Client 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 Client to be provided by third parties).

4.3       If KUNO is unable to fulfill its contractual obligations due to the Client's failure to cooperate, KUNO shall be released from the obligation to provide the service.

4.4       In the event of delayed or defective fulfillment of cooperation obligations by the Client, 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 Client's duty to cooperate are to be reimbursed by the Client to a reasonable extent.

5.        Deadlines and Dates

5.1       Deadlines and dates stated by KUNO for KUNO Services are in each case non-binding planned dates, unless the dates are expressly designated by KUNO in writing as binding performance dates.

5.2       If KUNO is unable to provide a KUNO service (on schedule) on time, KUNO shall inform the Client 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.

6.        Personnel | Non-solicitation

6.1       With regard to KUNO personnel and personnel from KUNO Service Partners providing KUNO Services to the Client, there shall be no hiring out of employees. The Client's personnel or representatives may not instruct KUNO personnel or personnel from KUNO Service Partners. KUNO personnel or personnel from KUNO Service Partners may not be integrated by the Client into the Client'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 Services.

6.2       The contractual cooperation of the parties requires a special relationship of trust between KUNO and the Client, especially with regard to KUNO Services. Therefore, during the Initial Term and any Extended Term and in any case for a period of twelve (12) months thereafter, the Client must not solicit KUNO’s employees or employees from KUNO Service Partners as its own employees or consultants who have been involved in the provision of the KUNO Services without the prior written consent of KUNO.

6.3       In the event of a breach of the above obligation, the Client shall be obligated 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 or the respective KUNO Service Partner reserves the right to claim further damages.

7.        Cooperation with Qualified Third Parties

7.1       KUNO shall be entitled to cooperate with qualified Third Parties after prior approval by the Client. 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 Client 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.

7.2      The Client 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.

7.3       Insofar as information within the meaning of clause 7.2 is being exchanged directly between KUNO and third parties, the Client authorizes KUNO to act on behalf of the Client.

7.4       In particular, the Client is solely responsible for the content of the declarations made by him to KUNO or Qualified Third Parties, as well as for the completeness and correctness of the data or information exchanged by him with KUNO or with Qualified Third Parties. This also applies in particular to the release or execution of payments by the Client to third parties, which may be suggested to the Client by KUNO or Qualified Third Parties.

Part C – General Provisions

8.        Fees | Terms of Payment

8.1       The Client shall pay to KUNO the fees for KUNO Services ("Fees") specified in the Order.

8.2       Unless otherwise specified, the Client is obliged to make all payments by bank transfer. Full payment is due within fourteen (14) days from the date of dispatch of the invoice.

8.3       The Fees exclude all applicable taxes, duties and levies of any kind, which shall be borne by the Client.

8.4       KUNO reserves the right to adjust the fees for KUNO Services for inflation every calendar year. This increase is based on the increase in the consumer price index, but at least five percent (5%). This shall apply for the first time after the expiration of a contractual year beginning with the Order.

8.5       The Client shall reimburse KUNO for expenses and other costs incurred in connection with the provision of KUNO Services on a time and material basis.

8.6       KUNO is entitled to interrupt the execution of KUNO Services by notification in text form (a simplee-mail is sufficient) in accordance with § 320 German Civil Code, if payments are not received by KUNO within fourteen (14) days after their due date.

9.        Term | Termination

9.1      The term of an Order shall commence at the time designated therein.

9.2      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 month and then-current Term. The Client shall not be entitled to terminate an Order with effect prior to the expiry of the Initial Term or the respective Extended Term.

9.3       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 Client is in arrears with payments for more than forty-five (45) days; (c) the Client breaches the restrictions on use pursuant to clause 4; or (d) the Client ceases to make payments when due or experiences a material deterioration in his financial condition.

9.4       KUNO shall store the information provided by the Client as part of the KUNO Services or the KUNO 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.

10.        Confidentiality | Client Data

10.1       The Client and KUNO understand that they have shared or may share with each other certain business, personal, technicalor financial information relating to KUNO's or the Client'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 Client’s Confidential Information includes any non-public information that the Client provides to KUNO to enable the performance of the KUNO Services ("Client Data").

10.2       The Client 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 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 Client 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 Client or KUNO, as the case may be, prior to its receipt; or (c) was lawfully made available to the Client 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.

11.        Proprietary rights | Work Results | Brand Names and Logos | Updates | Feedback

11.1       KUNO and KUNO 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 Client acknowledges that the rights granted after an Order do not give the Client any ownership rights to the KUNO Services.

11.2       The Client 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 Client 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.

11.3       The permitted transfer of Work Results by the Client to third parties requires the express written consent of KUNO. In particular, the Client 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 Client. If the Client 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.).

11.4       All rights to the Client Data and all Content, as well as data based on or derived from the Client Data or Content, remain with the Client. The Client grants KUNO a simple, non-transferable, sub-licensable right of use, unlimited in terms of space and Content, to use the Client Data and Content exclusively in connection with the provision of KUNO Services. KUNO shall not be liable for the Client Data or Content.

11.5       The Client agrees that KUNO may refer to the Client in marketing materials, in social media marketing measures and on KUNO’s website by mentioning the Client’s company name, the illustration of its logo and a short description. This consent of the Client shall be revocable at any time.

12.        Privacy

12.1       The Client and KUNO shall at all times comply with the requirements of applicable data protection laws, in particular the General Data Protection Regulation (GDPR).

12.2       In the event that the provision of KUNO Services involves the processing of personal data relating to the Client, KUNO shall process such data exclusively as a 'processor' on behalf of the Client 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 Client.

12.3       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.

12.4       The Client shall be solely responsible for ensuring that the processing of personal data of the Client's employees by KUNO is in accordance with all relevant employment relationships, collective bargaining agreements, company agreements and applicable labor laws.

13.        Indemnification Obligation

13.1       Without prejudice to the Client's other contractual or legal liability, the Client 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 Client'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 by the Client or otherwise in connection with the provision of KUNO Services. The Client 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.

13.2       In connection with a claim for indemnification according to this clause 13 KUNO must inform the Client immediately of a claim by a third party on the basis of which KUNO assumes that it is entitled to demand indemnification from the Client. If KUNO fails to provide such information, this does not release the Client from his obligations under this clause 13 unless the omission of the information significantly impairs the Client'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 Client'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.

13.3      KUNO shall defend the Client 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 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 Client. If the use of the KUNO 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 with functionally equivalent services or technology that does not infringe any rights; (b) obtain a right for the Client to continue to use the relevant KUNO 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 Services. This obligation of KUNO does not exist: (i) if the KUNO Services have been modified by the Client or by a third party under the Client's responsibility; (ii) if the KUNO 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. This clause 13.3 conclusively regulates the rights of the Client with regard to claims based on an infringement of intellectual property rights and trade secrets of third parties.

14.       Limitation of Liability

14.1      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) and (d) damage due to the absence of a guaranteed quality.

14.2      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 Client 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.

14.3       Subject to the provisions of clause 14.1 and 14.2 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).

14.4       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 Client had made proper and regular data backups.

14.5       Subject to the provision in clause 14.1 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.

14.6       Any liability of KUNO beyond the cases regulated in this clause 14 shall be excluded.

14.7       The Client agrees and acknowledges that the KUNO Services are essentially based on data and information submitted by the Client. As a result, KUNO shall not be responsiblefor (a) the correctness, completeness, integrity and accuracy of the data submitted to KUNO; (b) any conclusions drawn by the Client or a third party from the use of the KUNO Services; (c) the technical, scientific, legal andcommercial feasibility of projects, products and undertakings of the Client or a third party; and (d) the economic and financial viability of projects, products and undertakings of the Client or a third party.

14.8       Before the Client can claim damages from KUNO due to an alleged poor performance, the Client is obliged to give KUNO the opportunity in text form (a simple e-mail is sufficient) to correct the alleged poor performance within a reasonable period of time.

15.       Limitation of set-off | Limitation of the Right of Retention

The Client shall not be entitled to off set 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.

16.        Transfer | Novation

16.1       The Client may not transfer an Order without the prior written consent of KUNO; a transfer that violates this clause 16 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.

16.2       At KUNO's request, the Client 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 16.

17.      Complete Agreement | Severability Clause | Amendments | Updates

17.1     An Order, including these GTC, constitutes the entire agreement between the Client 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.

17.2     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.

17.3     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.

17.4     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 Client in text form (a simple e-mail shall be sufficient) at least six (6) weeks before its intended entry into force. The Client 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 Client if the Client does not object to the change before the day it is intended to take effect. KUNO shall explicitly inform the Client of this in the corresponding announcement. With effect for future Orders, KUNO may change and/or update these GTC at any time without notice.

18.      Governing Law | Jurisdiction

18.1     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.

18.2     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 Orderor its subject matter or conclusion.

19.      Final Provisions

19.1     The person signing or otherwise accepting an Order, including these GTC, on behalf of the Client 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 Client.

19.2     Without prejudice to § 354a of the German Commercial Code (HGB), the Client may not assign his rights or obligations arising from an Order and these GTC without the prior written consent of KUNO.

19.3     An Order does not create any agency, partnership, holding company or employment relationship(s) and the Client 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

Commercial Register Berlin Charlottenburg, Germany, HRB 224375

October 2022