The use of the software “Clypp” of Zesavi GmbH by individuals and companies, which are considered as companies in the sense of § 14 German Civil Code (in German: BGB), (“client”) is subject to the following general terms and conditions (“terms and conditions”):
Definitions and scope of application
(1) “Clients” are the customers of Zesavi (individuals or companies) who rent and pay for the software.
(2) “Users” are the persons authorized by the client for the use of the software, who are either in an employment relationship with the client, with a company affiliated with the client in accordance with §§ 15 ff. AktG, or who work exclusively on behalf of the client and require the software in order to perform their tasks. The users shall not become a party to this agreement.
(3) “Software” is the software provided by Zesavi, which is available via online access in a web app.
1 Subject matter of the contract
1.1 Zesavi provides the software “Zesavi” (hereinafter referred to as “Software”) to the client for use as Software-as-a-Service for the duration of the contract by means of online access for users via the Internet against payment. Zesavi shall grant the client a non-exclusive, non-transferable right, limited in time to the term of this agreement and against payment of the usage fee by the client, to access the software in accordance with these General Terms and Conditions and without prejudice to the mandatory statutory provisions in accordance with the scope of use specified on the service order form by means of the log-in data sent by Zesavi and to use it for its own business purposes in accordance with the above provisions.
1.2 The software is provided to the client for use with the modules specified in the service order form. The service order form depending on the client’s order and Zesavi‘s confirmation determines the exact scope of delivery.
1.3 If agreed, Zesavi shall assist the client in implementing the software.
2.1 The compensation, as well as the agreement of monthly or annual advance payment, results from the service order form.
2.2 Unless otherwise specified in the service order form, the remuneration is due for the first time after the end of a free trial period of 14 days if the renter has agreed to purchase one or multiple Pro or Enterprise licenses.
3 Services of Zesavi
3.1 Zesavi provides the customer with software that enables any employee as a user to share in-house knowledge clearly and efficiently by creating short video tutorials.
3.2 Zesavi provides the following services during the contract period:
a) Operation of the software: Zesavi offers the client and the users the possibility to access the web app via a standard browser (preferably Google Chrome and Microsoft Edge) by means of online access.
b) Further development: Zesavi shall further develop the software in terms of quality and modernity, adapt it to changed requirements, eliminate errors in order to maintain the accustomed quality and grant the client access to new versions of the software resulting from this. This also includes minor functional enhancements.
c) Troubleshooting: Zesavi supports the client with advice on software use, error prevention, error correction and error avoidance.
3.3 The software helps the customer digitize the knowledge of its employees in video form and makes the content available as video files with a server-based software. Each customer gets a separate space – separated from other customers – where internal videos can be shared securely and exclusively within the organization. Additionally, videos can be shared with external parties such as customers or partners. It is the customer’s responsibility to ensure the accuracy and quality of video content before publishing it internally or externally, and to define what content can be shared externally.
3.4 Zesavi provides the services in accordance with acknowledged rules of technology and in such a way that they are oriented towards the interests of all Zesavi clients. The services are only provided in relation to the latest software version operated by Zesavi.
3.5 Zesavi shall use reasonable technical and organisational measures to keep the software available during normal working hours. Nevertheless, failures can occur, e.g. due to technical faults, errors, or planned or unplanned maintenance. In the event of a failure, Zesavi will attempt to restore availability within the scope of error classes. Zesavi will inform the client in advance about planned maintenance.
3.6 Not subject of the service of Zesavi is the consultation of the customer in legal matters as well as the examination of the video contents on legal aspects. This is the sole responsibility of the customer.
4 Client’s rights to the software
4.1 Subject to the provisions of this contract and the service order form, the client is only entitled to use the software to process his/her own data in his/her company for his/her purposes. Zesavi hereby grants the user the necessary authority for this purpose as a non-exclusive, simple right for the duration of the contract.
4.2 The client must ensure that the software is used exclusively by those users who are authorized to use Zesavi’s services. The scope of use results from the service order form.
4.3 The client is not entitled to pass on the software or parts of it to a third party or to allow a third party to use or take note of it or to utilize the software for a third party or to edit the software. The client is not entitled to reverse engineer, decompile, disassemble, modify, reproduce or use any part of the software to create a separate application. The client undertakes (i) not to modify, copy, use the software in any way or create derivative works from the software, unless expressly permitted in this contract (ii) not to attempt to circumvent, disable or thwart technical limitations on the use of the software; (iii) not transfer, sell, rent, lease, distribute, sublicense, lend or otherwise transfer the software in whole or in part to any third party (other than the users); (iv) not alter or remove any proprietary notices on the software; (v) not use the software to provide its own timesharing services, software-as-a-service (“SaaS”) offerings, service bureau services, or as part of an Application Service Provider or service offerings. The software and its components may not be unbundled for use on different computers. In particular, unbundling or repackaging of the software for distribution, transfer or (sub)lease is not permitted. If the client breaches any of the above provisions, all rights of use granted under the user agreement shall become immediately invalid and shall automatically revert to Zesavi. Zesavi is entitled to block access to the software. In any event, the client must immediately and completely cease using the software.
Zesavi is entitled, in the event of circumstances that indicate that the software may be used by users other than the authorized users, to request from the client a list of the persons who actually use the software within the scope of the right of use granted. The client shall be obliged to produce this list completely and truthfully immediately upon request and to make it available to Zesavi. If the client does not properly comply with its obligation to produce such a list or if the list is incorrect and/or incomplete, Zesavi shall be entitled to terminate the right of use concerned on an extraordinary basis. This shall not affect Zesavi’s further claims.
4.4 Zesavi is entitled to all industrial property rights existing in or related to the software. The property of the client or user of data carriers, data storage devices and other hardware shall not be affected by this, nor shall the rights of the client or user to the video data stored and saved in the download file. However, the client shall ensure that any material stored therein is completely deleted before the destruction, sale or other transfer of data carriers, data storage devices or other hardware.
5 Duration of contract
5.1 The service order form contains the individual contents of the contract between the client and Zesavi. Zesavi will send a service order form to the client based on their order. The contract is then concluded when the client approves the service order form in writing (e-mail is sufficient) and Zesavi accepts this offer by means of a written confirmation (e-mail is sufficient).
5.2 The term of the contract results from the service order form and is extended by the same term in each case if the contract is not terminated before the end of the contract term in due time.
5.3 The contract regarding one or multiple Pro licenses can be terminated with a notice period of four weeks to the end of the agreed contract period. The contract regarding Enterprise licenses can be terminated with a notice period of eight weeks to the end of the agreed contract period. The right to extraordinary termination for good cause remains unaffected. Good cause shall be deemed to exist for Zesavi in particular in cases in which the client substantially breaches the obligations incumbent on it under these General Terms and Conditions or the client is in default of payment of the remuneration for more than four weeks from the due date.
5.4 The client can terminate the contract by sending an e-mail to email@example.com.
5.5 Upon receipt of the notice of termination, the client shall be given the opportunity to self-reliantly download the contents and documents placed by him on the Zesavi platform onto his own data carrier for a period of six weeks or – should this be later – until the date of termination of the contract. The client agrees that the stored contents and documents may be deleted by Zesavi thereafter. If the six weeks are not sufficient for the client to back up his data, the client can apply to Zesavi in writing (e-mail is sufficient) for extensions of one month each, whereby the agreed monthly fee is due for each extension. As soon as the client no longer wishes to retain his data, he may notify Zesavi in writing (e-mail is sufficient) at any time after giving notice of termination. The client agrees that Zesavi may then delete the stored content and documents.
6 Warranty and Cooperation Obligations of the client
6.1 In the event of an error in the software, the client is entitled to demand first the removal of the error and, if the error has not been removed within four weeks of notification, to a reasonable reduction of the user fee for the duration of the error.
6.2 Zesavi does not guarantee that the software is free from defects, errors, bugs and temporary server failures despite the greatest possible care.
6.3 The client is obliged to provide Zesavi with verifiable documentation and information on the nature and occurrence of deviations from the specifications of the software and to cooperate in the containment and identification of errors and sources of error.
7 Industrial Property Rights, Copyrights and Legal Deficiencies
7.1 Unless otherwise agreed, Zesavi is obliged to provide the delivery free of industrial property rights and copyrights of third parties (hereinafter referred to as property rights) only in the country of the place of delivery. If a third party asserts justified claims against the client due to the infringement of industrial property rights by deliveries made by Zesavi in accordance with the contract, Zesavi shall be liable to the client as follows:
7.2 Zesavi shall, at its own discretion and at its own expense, either obtain a right of use for the relevant deliveries, modify them so that the property right is not infringed or replace them if and to the extent that the owed functionality of the software is not significantly impaired. If this is not possible for Zesavi under reasonable conditions or if Zesavi’s subsequent performance fails within a reasonable period of grace set by the client, the client shall be entitled to withdraw from the contract or to reduce the price under the statutory conditions.
7.3 Zesavi’s aforementioned obligations shall only exist if the client immediately notifies Zesavi in writing of the claims asserted by the third party, does not acknowledge an infringement and leaves all defensive measures and settlement negotiations to Zesavi’s discretion; in this respect, the client shall grant Zesavi all powers and authority necessary to defend the software against the asserted rights of third parties. If the client stops using the delivery for reasons of damage reduction or other important reasons, he shall be obliged to point out to the third party that the cessation of use does not imply any acknowledgement of an infringement of property rights.
7.4 Claims of the client are excluded if he is responsible for the infringement of property rights.
7.5 Claims by the client shall also be excluded insofar as the infringement of the property right is caused by special specifications of the client, by an application that Zesavi could not foresee or by the fact that the delivery is modified by the client.
7.6 Zesavi shall retain its unrestricted property rights and copyrights to cost estimates, drawings, manuals and other documents (hereinafter referred to as “documents”). The documents may only be made available to third parties with the prior consent of Zesavi and, if the order is not placed with Zesavi, shall be returned to Zesavi immediately on request.
7.7 In the event of any other defects of title, the provisions of Section 6 of these General Terms and Conditions (warranty for material defects) shall apply accordingly.
7.8 Any further or other claims of the client against Zesavi and its vicarious agents on account of a defect of title other than those regulated in this clause 7 shall be excluded.
8 Obligations of the client and the users
8.1 The client is obliged to comply with the details of this contract, in particular the following conditions also with regard to his users, to instruct and oblige his users accordingly. The client is liable to Zesavi for the conduct of its users in accordance with § 278 German Civil Code (in German: BGB).
8.2 In connection with the use of the software, the client must observe minimum technical requirements for its use. A modern browser (preferably Google Chrome and Microsoft Edge) in the latest version is required for the use of the web app. Furthermore, the client must provide a functioning data connection between the end device and the servers of Zesavi via the internet.
8.3 The client is responsible for compliance with the legal provisions and the following regulations when using the software. In particular, the client may not (i) offend common decency with his usage behaviour, (ii) misuse the services provided, (iii) violate national and international copyrights and trademark, patent, name and labelling rights as well as other industrial property rights or other property rights of third parties, (iv) transmit content with viruses, so-called trojan horses or other programming that could damage the software (hereinafter “malware”), or (v) distribute pornographic or violence-glorifying content, advertising, unsolicited emails (spam), inaccurate warnings of viruses, malfunctions and similar may not participate in lotteries, snowball systems and comparable, criminal activities. Furthermore, any actions must be omitted that are suitable for (i) causing an excessive load on the software or otherwise affecting or manipulating the functionality of the underlying technical infrastructure or (ii) endangering the integrity, stability or availability of the software.
8.4 The client is obliged to ensure that the input and transmission of data is correct, complete and truthful.
8.5 If the client collects, processes or uses personal data in the context of using Zesavi’s services and no legal authorization is involved, the necessary consent of the person concerned must be obtained.
8.6 The client shall keep his account data secret and inaccessible to third parties. If there is reason to suspect that unauthorised persons have obtained knowledge of the access data, the client must inform Zesavi of this immediately and change the access data immediately.
8.7 The client is obliged to immediately notify Zesavi of any malfunction of the software provided by Zesavi. After a fault report has been submitted, Zesavi shall be reimbursed for any expenses incurred by Zesavi in checking its technical equipment if there was no fault in Zesavi’s technical equipment and the client could have recognized this in the event of reasonable troubleshooting.
8.8 The software digitizes internal knowledge of the customer’s employees in the form of short video tutorials. Despite the use of state-of-the-art technologies, transmission errors cannot be ruled out when processing the recordings. The customer is therefore responsible for checking the video content before publishing it internally or externally.
8.9 The client declares that all acts and declarations of third parties are available that are required for the provision of Zesavi’s service in accordance with the German Federal Data Protection Act and other legal regulations.
8.10 Further, the client agrees that the client or the respective Users are authorized to share the client’s internal knowledge internally or externally with appropriate customers and partners. As a result, and without limiting the generality of the foregoing, the client agrees to indemnify, defend and hold harmless Zesavi from and against any and all actions, claims, costs, damages, demands, expenses, liabilities, fines, penalties, losses and proceedings that Zesavi may incur, directly or indirectly, or that may be brought against Zesavi in the event that the client or any user has acted fraudulently or negligently, the client or any user has failed to comply with legal obligations.
9.1 In the case of services provided against payment, Zesavi shall be liable in accordance with the statutory provisions for damages resulting from injury to life, body or health, as well as for other damages resulting from an intented or severe negligent breach of duty or fraudulent intent. In addition, in the case of contracts for the use of the software for a fee, Zesavi shall be liable in accordance with the statutory provisions for damage covered by liability under mandatory statutory provisions, such as in the case of the assumption of guarantees, fraudulent concealment of a defect or under the Product Liability Act. Guarantees by Zesavi shall only be made in writing and, in case of doubt, shall only be interpreted as such if they are referred to as a “guarantee”.
9.2 In the event of simple negligence, Zesavi shall only be liable for breaches of cardinal obligations (breaches of obligations whose fulfilment is essential for the proper execution of the contract, on whose compliance the client may rely and whose breach endangers the achievement of the purpose of the contract) in the case of services provided against payment. In such cases, Zesavi’s liability shall be limited to the foreseeable damage typical of the contract. Liability for the simple negligent breach of obligations that are not cardinal obligations (see sentence 1) is excluded, unless Zesavi has mandatory liability by law (see 9.1 sentence 2).
9.3 In the case of services provided free of charge (e.g. within the test period), Zesavi shall only be liable for damage caused by intent, severe negligence and fraudulent intent. This limitation of liability does not apply to damage resulting from injury to life, body or health; Zesavi is liable for this in accordance with statutory provisions.
9.4 In accordance with the present contract, Zesavi’s liability is limited to the costs and fees paid by the client during the period of the calendar year preceding the period of the calendar year in which the event giving rise to the liability occurred. In addition, the parties agree that the foreseeable damage typical for the contract does not exceed a maximum of EUR 1,000 per case of damage and a maximum of EUR 10,000 for all cases of damage arising from and in connection with the contract.
9.5 Zesavi’s liability is excluded in all other respects than those referred to in articles 9.1 to 9.3. In particular in the following cases:
A) Zesavi shall not be liable for damage, in particular loss of data, or damage to software or hardware, or for loss of profits or other financial losses suffered by the client.
b) Zesavi is not liable for unauthorized access to personal client data by third parties (e.g. through unauthorized access to the database by hackers). Zesavi shall also not be held liable for the misuse by third parties of data and information that the client has made available to third parties.
c) The client alone is responsible for the content of the files he stores. It is his responsibility to ensure that no files are stored that violate the law. Zesavi declines all responsibility for the files stored by the client.
d) Zesavi shall not be liable for any indirect or consequential damage caused to the client by Zesavi’s services. Zesavi is also not liable for any damage caused by the client, users or other third parties acting on their own responsibility in connection with the provision of Zesavi’s services.
e) Zesavi shall be indemnified against all claims by third parties that are based on or arise with the approval of the client due to the illegal use of Zesavi’s services by the client or that arise, in particular, from data protection, copyright or other legal disputes connected with the use of Zesavi’s services. If the client realizes or must realize that such a breach is imminent, it shall be obliged to inform Zesavi immediately.
f) Zesavi shall not be liable for compensation for defects existing at the time the contract is concluded in accordance with § 536a para. 1 of the German Civil Code (in German: BGB).
g) Zesavi shall not be liable for any damage suffered by the client as a result of its failure to comply with its duty of inspection in accordance with article 8.8 of these General Terms and Conditions.
h) Zesavi will take all reasonable commercially acceptable measures to ensure the data security of the stored documents and address data. However, Zesavi will not be liable for the storage of the documents. The client can download data at any time if desired for its own data backup. In particular, Zesavi shall not be liable for compliance with the retention periods applicable under tax and commercial law (§§ 238, 257 HGB; § 147 AO) during a valid subscription.
9.6 The client shall be liable for all breaches of duty by its users and other third parties who commit breaches of duty within the sphere of control of the client, unless the client can prove that it is not responsible for the breaches of duty.
9.7 Insofar as Zesavi’s liability is excluded or limited, this shall also apply to the personal liability of Zesavi’s employees, workers, staff, representatives and vicarious agents and to Zesavi’s liability for their conduct.
9.8 Unless a shorter or longer statutory period of limitation or objection period applies, all claims and/or claims for damages on the part of the client shall become time-barred at the latest one (1) year after the date on which the claim arose and the client became aware of the circumstances giving rise to the claim or would have become aware of them without severe negligence.
9.9 The statute of limitations shall commence at the latest upon expiry of the maximum periods specified in § 109 German Civil Code (in German: BGB). However, in the case of compensation for damages and expenses arising from intent, severe negligence and fraudulent intent, the statutory limitation rules shall always apply.
10 Confidentiality and Data Privacy
10.1 The parties agree to keep all items confidential, even beyond the end of the contract, unless they are publicly known without violation of the obligation to maintain secrecy. This includes items made available either before or during the contract execution by the respective other party (e.g. software, documents, information), items that are legally protected or contain business or trade secrets or are designated as confidential. The parties shall store and secure these items in such a way that access by third parties is impossible.
10.2 The client is obliged to protect the software from unauthorized access or access by third parties and must ensure that no copy, publication or other form of disclosure of the software, in whole or in part, is made, unless this is permitted under the user agreement. The client acknowledges that the software contains valuable confidential information and trade secrets and that its unauthorized use and/or unauthorized copies may cause damage to Zesavi.
10.3 Confidential for the purposes of this agreement is any information that is marked as such by Zesavi or whose confidentiality is evident from the circumstances.
10.4 The client shall only make the software available to users. The client shall inform such individuals about the confidentiality of the items.
10.5 Zesavi processes the data required for the handling of the business transactions of the client and users in compliance with data protection regulations. Zesavi may use logos and brands and/or the name of the client as a reference customer after conclusion of contract.
10.6 The data protection notice made available at www.getclypp.com/privacy-policy shall apply. The client shall inform its users of Zesavi’s data processing.
10.7 For the implementation of the Service, in particular for the processing of media content in real time, Zesavi uses external service providers. The data protection regulations of the external service providers shall apply.
11 Final Provisions
11.1 Changes and amendments to the contract must be made in writing to be legally binding. The written form requirement may only be waived in writing. A communication in text form, especially by e-mail, is also sufficient to maintain the written form requirement.
11.2 Zesavi has the right to change these terms and conditions for the future. The client shall be informed of any changes in writing (e-mail is sufficient). The changes shall become effective unless the client objects to them in writing to Zesavi within four (4) weeks of receipt of the notification in accordance with sentence 2.
11.3 The law of the Federal Republic of Germany shall apply, excluding the UN Convention on Contracts for the International Sale of Goods. Place of pertinent jurisdiction for contracts with merchants for all disputes arising from and in connection with this contract is Kempten (Allgäu).
11.4 Should a provision of this contract be or become invalid, ineffective or unenforceable in whole or in part, this shall not affect the validity and enforceability of all remaining provisions. The parties agree to replace the invalid, ineffective or unenforceable provision with a valid and enforceable provision that comes closest to the economic purpose of the invalid, ineffective or unenforceable provision in terms of subject matter, measure, time, place or scope of application. The same shall apply mutatis mutandis to any irregular loopholes in this contract.
11.5 These Terms and Conditions are written in German and English. In case of questions of interpretation and disputes, only the German version of these provisions shall apply.