GENERAL TERMS AND CONDITIONS OVASOFT

§1 Scope of application

§2 Conclusion of contract between customer and Ovation, test period

§3 Services, change of versions

§4 Availability and response time in the event of malfunctions

§5 Cooperation services of the customer

§6 Granting of rights

§7 Prices, payment methods and terms of payment

§8 Start of contract, minimum term and notice of termination

§9 Limitation of liability

§10 Data protection and confidentiality

§11 Reservations for changes

§12 Final provisions

§1 Scope of application

(1) Ovation AG (hereinafter referred to as „Ovation“) offers web-based enterprise management software (hereinafter referred to as „Software“) for companies on the „ovaSOFT“ website.

(2) The following General Terms and Conditions (hereinafter referred to as „GTC“) shall apply to all usage agreements (hereinafter referred to as „Agreements“) concluded between Ovation and customers who are not consumers within the meaning of § 13 BGB (German Civil Code) or other relevant legal provisions via the „ovaSOFT“ platform.

(3) Deviating General Terms and Conditions of the Customer shall not apply to contracts unless Ovation expressly agrees to their application in writing.

2. Conclusion of contract between the Customer and Ovation, test period

(1) The offer provided on ovaSOFT to use the web-based software described and described there does not constitute a binding offer by Ovation.

(2) The use of Ovation’s software requires the creation of a customer account (hereinafter referred to as „Account“). The necessary data and a password must be specified for the creation of the account. By confirming the creation of the account, the customer first submits a binding offer to conclude a contract for the free use of the software for test purposes. Ovation can accept this offer by setting up and granting access to the account or by sending a message to the specified e-mail address with the access data for the account set up.

(3) By concluding a contract for free use in accordance with Section 2.2, Ovation grants the Customer the right to use the Software exclusively for test purposes (test period) for 14 days from the date on which Ovation grants access to the Software or communicates the access data. Each Customer shall only be entitled to one test period. However, the trial period may be extended upon request by Ovation. Whether the trial period is extended shall be at Ovation’s sole discretion. After the trial period has expired, the customer’s account will be blocked. There will be no automatic changeover to a contract for the fee-based use of the software.

(4) After expiry of the test period in accordance with section 2.3, the Customer has the option of concluding a contract with Ovation for the use of the software that is subject to a fee. The Customer may choose between the offered software modules. The decisive factor is the number of users within the software or the number of employees to be managed.

(5) For the preparation of an offer and the conclusion of a contract with monthly billing, the contract is concluded in the account itself. For this purpose, the customer must select the appropriate module and confirm his selection. Subsequently, in addition to the company name and billing address, account or credit card data must also be deposited. By confirming and sending this information, the customer concludes a contract with Ovation for the fee-based use of the software with monthly billing.

(6) For the conclusion of a contract for the fee-based use of the software with annual invoicing, the Ovation sales team shall prepare an offer in writing or text form upon request, which shall be accepted by the customer through confirmation in text form, written form or verbally, but at the latest through payment of the invoice.

§3 Services, Modules

(1) For the duration of a contract, Ovation shall provide the Customer with access to the version of the software offered on Ovation and selected by the Customer as Software-as-a-Service (hereinafter referred to as SaaS) via the Internet. The functional scope of the booked software version results from the description on Ovation’s website under the heading „Prices“ and „Products“.

(2) In general, the Customer may switch or upgrade between the offered modules of the software and the maximum number of employees that can be managed by a module at any time with effect from the time of the conversion of the Customer’s access by Ovation. The resulting remuneration results from §7 (5) to §7 (7) General Terms and Conditions.

(3) Customers with a contract for the chargeable use of the software with monthly billing can make this change to the version directly in the account. Customers with a paid contract to use the Software with annual billing must contact Ovation Customer Support (support@ovation.de or +49 (0) 361 34949 160) for a version change. If the Customer changes during an ongoing billing period within the module with a larger scope or with a larger number of employees to be administered, the Customer may use the additional functions of the software or administer a larger number of employees from the time of the conversion of the account by Ovation. If the customer changes to a lower number of employees within the module or with a lower number of employees to be managed, the customer can only use the lower number of employees from the time of the conversion of the customer access by Ovation.

§4 Availability and response time in the event of malfunctions

(1) Ovation guarantees 99% availability of the software made available as SaaS on an annual average. This does not include times when the server cannot be reached due to other technical problems beyond Ovation’s control (in particular force majeure, fault of third parties). Also excluded are planned maintenance work (e.g. updates of the software) which either takes place outside normal business hours from Monday to Friday (taking into account the public holidays at the Erfurt location) between 9:00 and 18:00 or which has been announced in advance in accordance with §4 (2).

(2) Ovation is entitled to interrupt the availability of the Software for maintenance purposes and as a result of other technical requirements. Maintenance work shall be carried out as far as possible outside normal business hours from Monday to Friday (taking into account public holidays at the Erfurt location) between 9:00 and 18:00 hours. In the event that a Maintenance Action results in an interruption of more than 30 minutes in the use of the Software during normal business hours from Monday to Friday (taking into account the holidays at the Erfurt location) between 9:00 and 18:00, Ovation will announce such Maintenance Work by e-mail. Notice will be given at least 24 hours in advance. At the customer’s request, the announced maintenance work may be postponed if Ovation is responsible for this for technical and economic reasons.

(3) The customer must report any faults in the system availability immediately after they become known. Ovation will endeavour to ensure a response time of four hours for the beginning of the fault clearance in the event of reports of system availability faults which lead to a total failure of the software and which are received within the support hours (Monday to Friday between 9:00 and 18:00 taking into account the public holidays at the Erfurt location). For minor faults that do not result in a total failure of the Software and occur during operation, Ovation will endeavour to respond no later than one business day after receipt of the fault report.

(4) For fault reports received outside support hours, fault resolution shall commence on the following business day. Delays of the fault clearance for which the customer is responsible (e.g. due to unavailability of a contact person on the customer side or late reporting of the fault) shall not be credited against the fault clearance time.

§5 Cooperation services of the customer

(1) The following cooperation services are the main obligations of the customer and are not to be classified alone as secondary obligations or duties.

(2) During the test period, the customer is obliged to check the functionalities and general quality of the software in accordance with §2 (2) and §2 (3) and to notify Ovation of any defects or other deviations from the quality requirements prior to the conclusion of a contract for the chargeable use of the software. The Customer may not invoke defects or other deviations from the quality requirements that were already known or existed during the test period but were not reported to Ovation prior to the conclusion of a contract for the fee-based use of the Software.

(3) The Customer shall be obliged to provide a qualified contact person and deputy who is entitled to make all necessary decisions or to bring about such decisions immediately as are necessary for the performance of the contractually agreed service. The customer is obliged to inform the contact person (and deputy) immediately of any changes.

(4) The customer is exclusively responsible for the contents and data processed with the software. The Customer hereby undertakes to use Ovation’s software only in accordance with the contract and within the framework of the applicable statutory provisions and not to infringe any rights of third parties during use. The Customer shall inform Ovation immediately, if possible in writing:

1. abuse or suspicion of abuse of the contractually agreed service;

2. a risk or suspicion of a risk for compliance with data protection or data security that occurs within the framework of the provision of the contractually agreed service;

3. a danger or suspicion of a danger for the service provided by Ovation, e.g. through loss of access data or hacker attack.

(5) The Customer shall be obliged to ensure the technical requirements itself, in particular:

1. the connection to the internet in sufficient bandwidth and latency is the responsibility of the customer.

2. for an optimal use of the offers and functions of Ovation the customer will use the browser types Google Chrome or Mozilla Firefox in their current version. In addition, the use of cookies must be permitted in the settings of the browser used. If these technical requirements are not met by the customer, the usability of Ovation’s services may be restricted under certain circumstances. Ovation is not responsible for these restrictions.

3. the customer is responsible for taking IT security measures within his own organization and for his employees that are state of the art. This includes, but is not limited to, the installation and regular updating of a common antivirus software on the laptops, computers or other mobile end devices of the Customer’s employees, ensuring the allocation and regular updating of secure passwords in accordance with the BSI IT Basic Protection or other equivalent, recognised security standards for the Ovation Account as well as for the laptops, computers or other mobile end devices of the employees or the use of appropriate mechanisms such as 2-factor authentication, automatic inactivity blocking, firewall, etc., as well as the installation and regular updating of antivirus software on the laptops, computers or other mobile end devices of the Customer.

The customer is further obliged to ensure the confidentiality of the identification and authentication data assigned to his users, i.e. also, for example, the organizational and, if applicable, technical prohibition of the disclosure of passwords as well as the prohibition of the use of so-called „Shared Accounts“. The prohibition on the use of shared accounts applies to the Ovation account.

In addition, the customer shall ensure the security of the Internet connection used, i.e. in particular the use of company-owned instead of public Virtual Private Networks (VPN) as well as ensuring the use of VPN connections in public networks.

(6) The customer is responsible for the professional setup and administration of the account. This applies regardless of whether Ovation supports the customer in setting up the account, in whatever form. This includes in particular:

1. the technical setup of the account, in particular migration of data, configuration of processes and products;

2. the technical connection of interfaces on the part of the customer according to the specification for incoming and outgoing data;

3. the administration of the account, in particular the creation of users and roles and the assignment of accesses to the account.

(7) The customer is obliged to inform Ovation immediately in text form of any service interruptions that occur (defects of the services, lack of availability) and to provide comprehensible information on any service interruptions that occur. The Customer shall provide Ovation with reasonable support in identifying and rectifying any faults that occur. Ovation shall be entitled to temporarily show the Customer the possibilities to avoid errors and to eliminate the actual cause later by adapting the Ovation software, if this is reasonable for the Customer.

§6 Granting of Rights

(1) Ovation grants the customer a non-exclusive, non-exclusive, non-transferable right to use the booked software, limited in time to the term of the contract.

(2) The customer undertakes to use the software exclusively in accordance with the contract and not to make it available to third parties for use. When the modules are booked, the Customer’s rights of use shall also extend to the use of the software with the Customer within the meaning of § 271 HGB (German Commercial Code), §§ 15 ff. AktG or the respectively applicable provisions of company law, affiliated companies/ holding companies/subsidiaries.

§7 Prices, payment methods and terms of payment

(1) The prices quoted at the time of the order as displayed on Ovation’s website shall apply. The prices shown there are monthly net prices in Euro and do not include the statutory value added tax at the applicable statutory rate, if applicable.

(2) The customer has the choice between monthly and annual billing. All payments are due in advance upon invoicing.

(3) In the case of monthly invoicing, the invoicing period begins on the day of the conclusion of a contract for the chargeable use of the software via the account and ends at the end of one month.

Payments for contracts for the fee-based use of the software with monthly billing shall be made monthly in advance by credit card. The credit card will be charged with the due date. In the case of payment by credit card, Ovation reserves the right to check the validity of the card, the credit limit for debiting and the address details. Ovation has the right to reject the credit card as a means of payment for good cause.

In the case of monthly billing, an invoice from Ovation is made available to the Customer in electronic form in his profile for retrieval and sent by e-mail.

(4) In the case of annual billing, the billing period begins on the day the account is activated and ends after one year.

The invoiced amount shall be the 12-fold monthly fee for the software ordered (§7 (1)), less the discount noted on Ovation’s website for annual advance payment. Ovation shall initially activate the customer access for one year in accordance with the performance period agreed with the customer and stated on the invoice.

Payments for contracts for the fee-based use of the software with annual billing shall be made by bank transfer, Paypal or direct debit annually in advance.

In the case of annual billing, the customer will receive an invoice for 12 months in electronic form by e-mail. The payment term of the transfer is two weeks from the invoice date.

(5) Should the price class of the modules change during the monthly billing due to a change in the number of employees or the number of users, Ovation will invoice the difference between the advance payment already made and the changed price until the end of the billing month with the following invoice for the next billing month.

(6) Should the price class of the module increase during the annual billing period due to a change in the number of employees (Section 3.2), Ovation shall additionally charge the difference between the advance payment already made and the changed price up to the end of the annual term (daily billing). The same applies in the event of an increase in the price due to the addition of a further module by the customer during the billing period.

(7) Should the price class of the module decrease during the annual billing period due to a change in the number of employees or users (Section 3.2), the customer shall not be entitled to a (pro rata) refund of the advance payment already made.

(8) In the event of default on the part of the customer, Ovation shall be entitled to block the customer’s access to the software immediately if no payment has been made even after expiry of a period of one calendar week set for the customer after the due date. Ovation shall notify the Customer of this block in advance, setting a further period of one calendar week. In this case, the customer shall remain obliged to continue to pay the agreed remuneration plus any interest on arrears. Any damages caused to the customer by the blocking for this reason cannot be asserted against Ovation. Furthermore, Ovation has no right to block access to the software. Furthermore, in the event of default, the statutory provisions of §§ 286, 288 BGB (German Civil Code) or other relevant statutory provisions shall apply.

§8 Commencement of contract, minimum term and notice of termination

(1) As soon as the customer has received his access data, a free 14-day test phase begins (see §2 (2) and §2 (3)). After expiration of this 14-day test phase, the term is not automatically extended. At the end of the test phase, the Customer may decide whether to conclude a contract for the use of the Software subject to a fee.

(2) In the case of contracts for the fee-based use of the software with monthly billing, a minimum term of one month shall apply. After expiry of the minimum term, the contract shall be extended by extension periods of one month in each case, unless the customer terminates the contract before the beginning of an extension period.

(3) In the case of contracts for the fee-based use of the software with annual billing, a minimum term of one year shall apply. After expiry of the minimum term, the contract shall be extended by extension periods of one year in each case, unless the customer terminates the contract with a notice period of three months prior to the beginning of an extension period. Ovation shall provide the Customer with a new annual invoice for bank transfer no later than two weeks prior to the start of the new renewal period for the renewal of contracts for the fee-based use of the software with annual billing.

(4) Ovation shall have the right to terminate contracts for the fee-based use of the Software with a monthly billing period of two weeks and contracts for the fee-based use of the Software with an annual billing period of three months to the end of the respective billing period.

(5) The right of both contractual partners to terminate the contract for good cause remains unaffected.

(6) Notice of termination must be given in writing. The customer’s account shall be blocked as soon as the termination becomes effective.

§9 Limitation of liability

(1) Ovation shall be unrestrictedly liable to the customer with a contract for the paid use of the software for damages resulting from injury to life, limb or health as well as for other damages resulting from an intentional or grossly negligent breach of duty as well as fraudulent intent. In addition, Ovation shall be liable without limitation for any damages arising out of or in connection with the use of the Software for which a fee is charged, which are covered by liability in accordance with mandatory statutory provisions, such as in the case of warranties.

(2) In the event of slight negligence, Ovation shall only be liable for damage caused by Ovation and attributable to such material breaches of duty which endanger the achievement of the purpose of this contract, or to the breach of duties the fulfilment of which is essential for the proper performance of the contract and the compliance with which the Customer may rely, in the case of contracts for the fee-based use of the software. In such cases, Ovation’s liability shall be limited to the foreseeable damage typical for the contract.

(3) Liability for the slightly negligent breach of minor ancillary obligations is excluded.

(4) In the case of customers with contracts for the free use of the software, Ovation shall only be liable for damages based on intent, gross negligence and fraudulent intent. This limitation of liability shall not apply to damages resulting from injury to life, limb or health, for which Ovation shall be liable without limitation.

(5) The limitations of liability in clauses 9.1 to 9.4 shall also apply to claims against executives, employees, other vicarious agents or subcontractors of Ovation.

§10 Data Protection and Confidentiality

(1) Ovation collects and uses the customer’s personal data only in accordance with the applicable legal provisions. The contracting parties shall conclude an agreement to the extent required by the applicable provisions.

(2) None of the contracting parties is entitled to transmit confidential information of the respective other contracting party to third parties without express consent (at least in text form). This applies both to customers with contracts for use free of charge and to customers with contracts for use subject to a charge. All information, whether fixed in writing or transmitted orally, which (i) by its nature is considered confidential or subject to secrecy or (ii) which the contractual partner to whom the information is transmitted must already recognize as confidential or subject to secrecy due to the external circumstances of the transmission. Confidential information includes in particular product descriptions and specifications as well as prices. Both contracting parties undertake to use confidential information only for contractually agreed purposes. Both contracting parties shall take at least those precautionary measures which they also take with regard to their own confidential information. Such precautions must at least be appropriate to prevent disclosure to unauthorised third parties. In addition, both contracting parties shall be obliged to prevent the unauthorised disclosure or use of confidential information by their customers, employees, subcontractors or legal representatives. The contracting parties shall inform each other in writing of any misuse of confidential information. Excluded from the foregoing obligation shall be such information which (i) was already known to the other party prior to transmission and without an existing confidentiality agreement, (ii) is transmitted by a third party not subject to a comparable confidentiality agreement, (iii) is otherwise publicly known, (iv) was independently developed without the use of the confidential information, (v) is released for publication in writing or (vi) must be transmitted as a result of a court order or official order, provided that the party affected by the transmission is informed in good time in order to be able to take legal action. The confidentiality obligation shall continue to apply beyond the duration of the contract until twelve months after the effective termination date of the contract.

§11 Reservations for changes

(1) Ovation has the right to amend these General Terms and Conditions at any time or to add regulations for the use of any newly introduced additional services or functions of the software. Changes and amendments to the General Terms and Conditions shall be notified to the customer by e-mail to the e-mail address specified by the customer at least four weeks prior to the planned entry into force. The customer’s consent to the amendment of the General Terms and Conditions shall be deemed to have been given if the customer does not object to the amendment in text form (e.g. letter, fax, e-mail) within a period of two weeks, beginning with the day following the announcement of the amendment. Ovation undertakes to indicate separately in the notice of change the possibility of objection, the deadline for objection, the text form requirement and the meaning or consequences of omitting an objection.

(2) Ovation reserves the right to change the software or to offer different functionalities, unless changes and deviations are unreasonable for the customer. If the provision of a modified version of the Software or a modification of functionalities of the Software is accompanied by a substantial change in the Customer’s workflows supported by the Software and/or restrictions in the usability of previously generated data, Ovation shall notify the Customer of this in text form no later than four weeks before such a modification becomes effective. If the customer does not object to the amendment in text form within a period of two weeks from receipt of the notification of amendment, the amendment shall become part of the contract. Ovation shall draw the customer’s attention to the aforementioned deadline and the legal consequences of its expiration in the event that the customer does not take advantage of the opportunity to object to any changes at any time.

(3) In addition, Ovation reserves the right to modify the Software or to offer different functionalities, (i) to the extent necessary to bring the services offered by Ovation into compliance with the law applicable to such services, in particular if the legal situation changes; (ii) to the extent that Ovation thereby complies with a court decision or official decision addressed to Ovation; (iii) to the extent necessary to eliminate security gaps in the Software; or (iv) to the extent this is predominantly beneficial to the Customer.

(4) Ovation shall be entitled to adjust the prices for the contractual services subject to a charge annually by an appropriate amount to compensate for increases in personnel and other costs. Ovation shall notify the customer in writing of these price adjustments and the effective date of the price adjustment. The price adjustments shall not apply to the periods for which the customer has already made payments. If the price increase amounts to more than 5% of the previous price, the customer may object to this price increase within two weeks of notification. A change in the price resulting from a change in the scope of features or the number of employees to be managed shall not be deemed a price adjustment within the meaning of this Clause 11.4.

(5) If the customer objects to a change within the meaning of this Clause 11 in due form and time, the contractual relationship shall be continued under the previous conditions. In this case, Ovation reserves the right to extraordinarily terminate the contractual relationship by giving one month’s notice.

(6) Amendments to these General Terms and Conditions must be made in writing. This also applies to the waiver of the text form itself.

§12 Final provisions

(1) If individual provisions of the General Terms and Conditions of Business have not become an integral part of the contract in whole or in part or are ineffective, the remaining provisions of the contract shall remain effective. Insofar as the provisions have not become part of the contract or are ineffective, the content of the contract shall be governed by the statutory provisions.

(2) The contractual relationship existing between the contracting parties is subject exclusively to the law of the Federal Republic of Germany with the express exclusion of the UN Convention on Contracts for the International Sale of Goods. The exclusive place of jurisdiction for all disputes arising out of and/or in connection with this contractual relationship between Ovation and the Customer shall, to the extent legally permissible, be the place of business of Ovation.

(3) The Customer shall be provided with the languages in which these GTC can be downloaded from the website of ovaSOFT. The German version valid at the time of conclusion of the contract shall be decisive for the conclusion of the contract for customers from the DACH region – Germany, Austria, Switzerland.

Version 08/2019