General terms and conditions

1. Scope of application

1.1
Shiawa GmbH (hereinafter Shiawa) offers a web-based office management and organisation software (hereinafter: software) for small and medium-sized enterprises, in particular for the organisation of everyday office life, on the website “Shiawa”.

1.2
The following general terms and conditions (hereinafter: GTC) apply to all contracts of use (hereinafter: “contracts”) concluded between Shiawa and customers who are not consumers within the meaning of § 13 of the German Civil Code (BGB) or other corresponding relevant statutory provisions via the “Shiawa” platform.

1.3
Deviating GTC of the customer shall not apply to contracts unless Shiawa expressly agrees to their application in writing.

2. Conclusion of the contract between the customer and Shiawa

2.1
The offer made available on Shiawa to use the web-based software designated and described therein does not constitute a binding offer by Shiawa.

2.2
The use of Shiawa’s software requires the creation of a customer account (hereinafter: account). For the creation of the Account, the required data shall be provided and a password shall be set. Durch Bestätigung der Anlegung des Accounts gibt der Kunde zunächst ein verbindliches Angebot zum Abschluss eines Vertrags über die, abhängig vom gewählten Modul, zeitlich begrenzte, kostenfreie Nutzung der Software für Testzwecke ab. Shiawa may 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.

2.3
Durch den Abschluss eines Vertrags zur kostenfreien Nutzung gemäß Ziffer 2.2 räumt Shiawa dem Kunden das Recht ein, die Software ab Gewährung des Zugangs zur Software bzw. Mitteilung der Zugangsdaten durch Shiawa zu den AGBs zu nutzen.

2.4
Zusätzlich hat der Kunde die Möglichkeit, einen kostenpflichtigen Vertrag über die Nutzung der Software mit Shiawa abzuschließen. Dabei kann der Kunde zwischen den auf der Webseite angebotenen Shiawa Modulen wählen.

2.5
For the preparation of an offer and the conclusion of a contract with monthly billing, the contract is concluded in the account itself. To do this, the customer must select the appropriate version and confirm his selection. Then, in addition to the company name, the billing address must also be entered. By confirming and sending this information, the customer concludes a contract with Shiawa for the paid use of the software with monthly billing.

2.6

The contract is concluded with consent to the GTCs.

2.7

A right of withdrawal only exists for contractual partners who act as consumers towards Shiawa, but not for companies.

2.8

Shiawa reserves the right not to contract with companies or organisations that are hostile to the constitution and fundamental rights and will terminate the contract within the legal provisions if necessary.

3. Services, change of versions

3.1
For the term of a contract, Shiawa provides the customer with access to the version of the software offered on Shiawa and selected by the customer as software-as-a-service (hereinafter: SaaS) via the Internet. The functional scope of the booked software version including any additional functionalities results from the description on Shiawa’s website under the heading “Prices” and “Functions”. Additional services are not the subject of a contract for the (chargeable) use of the software. Such further services may be provided by Shiawa on the basis of a separate offer.

3.2
Additional functionalities whose scope of use is not limited may only be used to a reasonable extent (“fair use”), in particular to ensure the functionality and economic efficiency of the provision for all customers. In case of doubt, an unreasonable use exists if these are not used according to the conditions that Shiawa specifies, e.g. if an email address is stored for a profile as admin or agent that is used by different persons. Inappropriate is also a use unrelated to the essence, i.e. if the additional functionality is not used in relation to the functionality of the software (e.g. ticketing for software development). Shiawa reserves the right to restrict the use of the additional functionality by the customer in case of violation of the fair use principle after Shiawa has pointed this out to the customer. If quotas are provided for additional functionalities, these shall remain in place even if the software version is changed; unused quotas cannot be carried over to the next billing period.

3.3
The Software enables the exchange of data with third party systems (“Third Party System”) via interfaces (“Integrations”). Shiawa’s website contains an overview and description of all available Integrations (“Integrations”), whereby the availability to the customer may depend on the software version and add-ons booked by the customer. Shiawa reserves the right to change the offer of Integrations, in particular if the third party provider adjusts or discontinues the Integration. Where integrations are not marked as such by Shiawa (“Shiawa Integration”), they are integrations provided by third party providers and for which they alone are responsible (“Partner Integration”). The scope of services and the steps required for the set-up of partner integrations primarily result from the description on the website of the third-party provider. Integrations may only be used for the intended data exchange with the explicitly intended third-party system.

Partner integrations are not services provided by Shiawa. The scope of functions, prices, duration and other terms of use for the provision of partner integrations, including support, are governed by the contractual provisions between the customer and the third-party provider (e.g. availability, prices, duration). Shiawa does not assume any liability or warranty for the Partner Integrations. In order to use an integration, the customer must have the usage authorisation for the third-party system to be connected. The customer shall be responsible for the operation of the third-party system, including its availability, in the relationship between the customer and Shiawa.

3.4
In principle, the customer may switch between the versions of the software offered depending on the term of the contract. The resulting remuneration results from sections 7.7 and 7.8 of these General Terms and Conditions.

3.5
Customers with a contract for the paid use of the software with monthly billing can announce this change in writing with regard to the duration of the contract. Customers with a fee-based contract for the use of the software with annual billing must contact Shiawa’s customer support for a change of version.

4. Availability and reaction time in case of malfunctions

4.1
Shiawa gewährleistet eine 97%-ige Verfügbarkeit der als SaaS zur Verfügung gestellten Software im Jahresmittel. Excluded from this are times in which the server cannot be reached due to other technical problems that are not within the sphere of influence of Shiawa (in particular force majeure, fault of third parties). Also excluded are planned maintenance works (e.g. updates of the software) which are either outside the usual business hours from Monday to Friday (taking into account national holidays in Germany) between 9:00 a.m. and 6:00 p.m., or which have been announced in advance in accordance with clause 4.2.

4.2
Shiawa is entitled to interrupt the availability of the software for maintenance purposes and due to other technical requirements. As far as possible, maintenance work shall be carried out outside normal business hours from Monday to Friday (taking into account national holidays in Germany) between 9:00 and 18:00. If a maintenance activity will result in an interruption of the use of the software of more than 30 minutes within the usual business hours from Monday to Friday (taking into account national holidays in Germany) between 9:00 a.m. and 6:00 p.m., Shiawa shall announce this maintenance activity by e-mail. The announcement will be made at least 24 hours in advance. At the customer’s request, the announced maintenance work may be postponed, provided that this is justifiable from Shiawa’s point of view for technical and economic reasons.

4.3
Disruptions to system availability must be reported by the customer immediately after they become known. Shiawa shall endeavour to ensure a response time for the start of the fault clearance of four hours in the case of reports of faults in the system availability which lead to a total failure of the software and which are received within the support hours (Monday to Thursday between 9:00 and 18:00 and Friday between 9:00 and 17:00 taking into account national holidays in Germany). In the case of minor faults that do not result in a total failure of the software and occur during ongoing operation, Shiawa will endeavour to respond no later than one working day after receipt of the fault report.

4.4
In the case of fault reports received outside support hours, fault clearance shall begin on the following working day. Delays in fault clearance for which the customer is responsible (e.g. due to the unavailability of a contact person on the customer’s side or late reporting of the fault) shall not be counted towards the fault clearance time.

5. Cooperation services of the customer

5.1
The following cooperation services are primary obligations of the customer and are not to be classified solely as secondary obligations or duties.

5.2
The customer is obliged to check the functionalities and general condition of the software during the use of the free version of Shiawa in accordance with clauses 2.2 and 2.3 and to notify Shiawa of any defects or other deviations from the condition requirements prior to the conclusion of a contract for the paid use of the software. The customer shall not be entitled to invoke defects or other deviations from the quality requirements which were already known or present during the free use but which were not notified to Shiawa prior to the conclusion of a contract for the use of the software subject to a charge.

5.3
The customer is obliged to provide a qualified contact person together with a deputy who is authorised to make or immediately bring about all necessary decisions which are required for the provision of the contractually agreed service . The customer is obliged to notify any changes in the contact person (including deputy) without delay.

5.4
The customer is exclusively responsible for the contents and data processed with the software. The customer hereby undertakes to use Shiawa’s software only in accordance with the contract and within the scope of the applicable legal provisions and not to infringe any third-party rights in the course of such use. The customer shall inform Shiawa immediately, if possible in writing, of: (i) the misuse or suspected misuse of the contractually agreed service; (ii) a danger or suspected danger to compliance with data protection or data security occurring in the course of the provision of the contractually agreed service; (iii) a danger or suspected danger to the service provided by Shiawa, e.g. through loss of access data or hacker attack.

5.5
The customer is obliged to ensure the technical requirements himself.

5.5.1
The connection to the Internet with sufficient bandwidth and latency is the responsibility of the customer.

5.5.2
For optimal use of the offers and functions of Shiawa, the customer shall use the browser types Google Chrome or Mozilla Firefox in their respective 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 Shiawa’s services may be restricted under certain circumstances. Shiawa is not responsible for these restrictions.

5.5.3
The Customer is responsible for taking state-of-the-art IT security measures within its own organisation and for its employees. These include, but are not limited to, the installation and regular updating of common antivirus software on the laptops, computers or other mobile end devices of the customer’s employees, ensuring the assignment and regular updating of secure passwords in accordance with the BSI IT Grundschutz or other equivalent, recognised security standards for the Shiawa 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.

5.5.4
Furthermore, the customer is obliged to ensure the secrecy of the identification and authentication data assigned to its users as well as access data for interfaces, i.e. also, for example, the organisational and, if necessary, technical prohibition of the disclosure of passwords as well as the prohibition of the use of so-called “shared accounts”. The ban on the use of shared accounts refers to the Shiawa account.

5.5.5

The customer is also obliged not to circumvent the limitation of the free version of Shiawa with regard to the number of persons authorised to access the account by allowing several employees to access the account. Non-compliance on the part of the customer constitutes a contractual breach of duty.

5.5.6
In addition, the customer shall ensure the security of the Internet connection used, i.e. in particular also the use of company-owned instead of public Virtual Private Networks (VPN) as well as ensuring the use of VPN connections in public networks.

5.6
The customer is responsible for the technical set-up and administration of the account. This applies irrespective of whether Shiawa supports the customer in setting up the account, in whatever form. This includes in particular: (i) the functional set-up of the account, in particular migration of data, configuration of processes and products; (ii) the functional set-up of integrations in the Shiawa account and in the third-party system, e.g. determining whether certain data fields are to be transferred and how customer-specific values from multiple selection fields are to be assigned; (iii) checking the correctness of the function of the integration on the basis of test cases (e.g. concerning the text length of free text fields). iv) the technical connection of interfaces on the Customer’s side according to the specification for incoming and outgoing data, including the entry of API keys and the activation of interfaces in the third party system; (v) the administration of the account, in particular the creation of users and roles and the assignment of accesses to the account.

5.7
The customer is obliged to inform Shiawa immediately in text form of any performance disruptions that occur (defects in the services, lack of availability) and to provide comprehensible information on any performance disruptions that occur The customer shall support Shiawa to a reasonable extent in the identification and elimination of errors in the event of service disruptions. Shiawa shall be entitled to show the customer temporary possibilities to circumvent errors and to eliminate the actual cause later by adapting the Shiawa software, provided that this is reasonable for the customer.

6. Granting of rights

6.1
Shiawa grants the customer a non-exclusive, simple, non-transferable right to use the booked software, limited in time to the term of the contract For the rights of use to third-party systems and partner integrations, the provisions of the respective provider shall apply.

6.2
The client undertakes to use the software exclusively in accordance with the contract and not to make it available to third parties for use. When booking the functionalities of the Enterprise Version, the Client’s rights of use shall also extend to companies/ associated companies/ subsidiaries affiliated with the Client within the meaning of § 271 HGB, §§ 15 et seq. AktG or the respective applicable provisions of company law.

7. Prices, payment methods and terms of payment

7.1

Der Kunde kann zwischen den einzelnen Tools bei der Buchung wählen (Ticketing oder Flex Desk und Raumbuchungen). Die Konditionen werden vorab in einem verbindlichen Angebot festgehalten.

7.2

Shiawa gewährt dem Kunden für die monatlich kündbare Vertragsoption eine kostenlose Testversion für 15 Tage ab Vertragsbeginn. Der Kunde muss jedoch bei der Anmeldung seine Rechnungsdaten hinterlegen. Nach Ablauf der Testversion wird die von Shiawa zur Verfügung gestellte Dienstleistung kostenpflichtig.

7.3

Bucht der Kunde zusätzliche Features wie z.B. das Kiwi Paket hinzu, erhöht sich der monatlich zu entrichtende Betrag pro Mitarbeiter.

7.4

Shiawa behält sich das Recht vor, im Rahmen von Vertragsverhandlungen diese Konditionen zu Gunsten von Sonderkonditionen abzuändern.

7.5
The customer may choose between monthly and annual billing. All payments are due monthly upon invoicing.

7.6
Bei monatlicher Abrechnung beginnt der Abrechnungszeitraum mit dem Tag des Abschlusses eines Vertrags zur kostenpflichtigen Nutzung der Software über den Account und endet nach Ablauf eines Monats.
Bei monatlicher Abrechnung wird dem Kunden eine Rechnung von Shiawa per E-Mail versandt.

7.7
Bei einem Ein-Jahres-Vertrag beginnt der Abrechnungszeitraum mit dem Tag der Freischaltung des Accounts und endet nach Ablauf eines Jahres. Exactly the same for a two-year contract. Payments for contracts for the fee-based use of the software with annual billing shall also be made monthly after the exact number of employees has been calculated. The payment deadline for the transfer is two weeks from the invoice date.

7.8
In the event of a return debit note (in particular due to lack of required coverage of the account, due to expiry of the account, unauthorised objection by the account holder or incorrect entry of the account data), the customer authorises Shiawa to submit the debit note for the respective due payment obligation a second time. In such a case, the customer shall be obliged to pay the costs incurred by the return debit note. Further claims are reserved.

7.9
Im Verzugsfall des Kunden, sofern auch nach Ablauf einer dem Kunden gesetzten Frist von zwei Kalenderwochen nach Fälligkeit keine Zahlung geleistet wurde, ist Shiawa berechtigt, den Zugang des Kunden zur Software unverzüglich zu sperren. Shiawa shall inform the customer of this blocking in advance, setting a further deadline of one calendar week. In this case, the customer shall remain obliged to continue to pay the agreed remuneration plus any default interest. Any damages caused to the customer by the blocking for this reason cannot be asserted against Shiawa. Furthermore, Shiawa has no right to block access to the software. Furthermore, in the event of default, the statutory provisions of §§ 286, 288 BGB or other relevant statutory provisions shall apply.

8. Start of contract, minimum term and termination

As soon as the customer has received his access data, a free trial version begins (see sections 2.2 and 2.3).

8.2
In the case of contracts for the use of the software subject to a charge with monthly billing, a minimum term of one month shall apply. Nach Ablauf der Mindestlaufzeit verlängert sich der Vertrag um Verlängerungsperioden von jeweils einem Monat, sofern nicht der Kunde vor Ablauf des dritten Tags des Folgemonats, also bis zum 3. Kalendertag des neuen Monats kündigt.

8.3
In the case of contracts for the chargeable use of the software with annual billing, a minimum term of one year shall apply. Nach Ablauf der Mindestlaufzeit verlängert sich der Vertrag jeweils um ein weiteres Jahr, wenn der Kunde nicht bis zum Ablauf von 3 Monaten vor Vertragslaufzeitende den Vertrag kündigt.

8.4
Shiawa hat das Recht, Verträge über die kostenpflichtige Nutzung der Software mit monatlicher Abrechnung mit einer Frist von zwei Wochen und Verträge über die kostenpflichtige Nutzung der Software mit jährlicher Abrechnung mit einer Frist von drei Monaten zum Ende des jeweiligen Abrechnungszeitraumes zu kündigen.

8.5
Das Recht beider Vertragspartner zur Kündigung aus wichtigem Grund bleibt unberührt.

8.6
Notice of termination must be given in text form. The customer’s account will be blocked when the termination takes effect.

9. Limitation of liability

9. Datenschutz und Vertraulichkeit

9.1
Legal liability in the case of the provision of services against payment. In the case of the provision of services against payment, Shiawa shall be liable in accordance with the statutory provisions for damages arising from injury to life, body or health, as well as for other damages based on an intentional or grossly negligent breach of duty and fraudulent intent. In addition, Shiawa shall be liable in accordance with the statutory provisions for damage covered by liability under mandatory statutory provisions in the case of contracts for the use of the software for a fee, such as in the case of the assumption of guarantees, fraudulent concealment of a defect or under the Product Liability Act. Guarantees by Shiawa shall only be made in writing and shall, in case of doubt, only be construed as such if they are designated as a “guarantee”.

9.2
Limitation of liability for the provision of services against payment. In the event of slight negligence, Shiawa shall only be liable for damages caused by Shiawa in the case of the provision of services against payment and which are attributable to such material breaches of duty which jeopardise the achievement of the purpose of this contract, or to the breach of duties the fulfilment of which is a prerequisite for the proper performance of the contract and the observance of which the customer may rely on (so-called cardinal breaches of duty). In these cases, Shiawa’s liability shall be limited to the foreseeable damage typical for the contract. Liability for the slightly negligent breach of obligations that are not cardinal obligations (see clause 9.2, sentence 1) is excluded, unless Shiawa’s liability is mandatory by law (see clause 9.1, sentence 2).

9.3
Liability in case of free service provision. In the case of gratuitous provision of services (e.g. within the test period), Shiawa shall only be liable for damages caused by intent, gross negligence and fraudulent intent. This limitation of liability shall not apply to damages resulting from injury to life, body or health, for which Shiawa shall be liable without limitation.

9.4
Claims against third parties. The limitations of liability in clauses 9.1 to 9.3 shall also apply to claims against officers, employees, other vicarious agents or subcontractors of Shiawa.

10. Datenschutz und Vertraulichkeit

10.1

Shiawa collects and uses the customer’s personal data only within the scope of the applicable legal provisions . The contracting parties shall conclude an agreement to this effect to the extent required by the respective applicable provisions.

10.2

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 to customers with contracts for both free and fee-based use. All information, whether fixed in writing or transmitted orally, which i) by its nature is considered confidential or in need of secrecy or ii) which the contractual partner to whom the information is transmitted must already recognise as confidential or in need of 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 adequate to prevent disclosure to unauthorised third parties. Both contractual partners are furthermore 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 if there is any misuse of confidential information. Excluded from the foregoing obligation is such information that (i) was already known to the other contracting party prior to transmission and without an existing confidentiality agreement, (ii) is transmitted by a third party that is not subject to a comparable confidentiality agreement, (iii) is otherwise publicly known, (iv) were developed independently and without use of the Confidential Information, (v) have been released for publication in writing, or (vi) must be transmitted due to a court or official order, provided that the contractual partner affected by the transmission is informed in good time in order to still be able to initiate legal protection measures. The obligation of confidentiality shall also apply beyond the duration of the contract until twelve months after the effective termination date of the contract.

11. Änderungsvorbehalte

11.1

Shiawa reserves the right to unilaterally amend the GTC, provided that this appears necessary and the customer is not disadvantaged thereby contrary to good faith. All other necessary changes to the GTC shall be made in the form of an amendment agreement.

11.2

Shiawa 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 significant change in the customer’s work processes supported by the software and/or restrictions in the usability of previously generated data, Shiawa shall announce this to the customer in text form at least four weeks before such a change takes effect. If the customer does not object to the change in text form within a period of two weeks from receipt of the change notification, the change shall become part of the contract. Shiawa shall draw the customer’s attention to the aforementioned deadline and the legal consequences of its expiry in the event of failure to exercise the option to object whenever changes are announced.

11.3

Shiawa also reserves the right to change the software or to offer different functionalities (i) to the extent that this is necessary to bring the services offered by Shiawa into compliance with the law applicable to these services, in particular if the legal situation changes; (ii) to the extent that Shiawa thereby complies with a court or official decision addressed to Shiawa; (iii) to the extent that this is necessary to eliminate security gaps in the software; (iv) because the services or contractual conditions of third-party providers(e.g. integration) or subcontractors (e.g. additional functionalities) change significantly; or or (v) as far as this is predominantly advantageous for the customer.

In particular, Shiawa reserves the right to limit or terminate the provision of additional functionalities or integrations if the technical partners of the additional functionalities or the providers of the third-party systems substantially limit or change their services or service conditions and Shiawa can therefore no longer be reasonably expected to continue to provide them, e.g. because the additional effort by Shiawa is disproportionately high. In the case of annual billing, the customer shall in this case receive an appropriate pro rata refund of fees paid in advance, provided that the additional functionality or integration was billed separately.

11.4

Shiawa is entitled to adjust the prices for the chargeable contractual services annually in an appropriate amount to compensate for increases in personnel and other costs. Shiawa shall notify the customer of these price adjustments and the effective date of the price adjustment in text form. The price adjustments shall not apply to 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 with a notice period of two weeks from notification. A change in the price resulting from a change in the scope of features or number of employees to be managed shall not be deemed a price adjustment within the meaning of this clause 11.4.

11.5

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, Shiawa reserves the right to terminate the contractual relationship extraordinarily with a notice period of one month.

11.6

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

12. Schlussbestimmungen

12.1

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

12.2

The contractual relationship existing between the contracting parties shall be governed exclusively by the laws of the Federal Republic of Germany to 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 Shiawa and the customer shall be, to the extent legally permissible, Shiawa’s place of business.

12.3

For the conclusion of the contract, the customer has access to a version of the T&C in German, which are available on the Shiawa website. For the conclusion of the contract, the customer has access to a version of the GTC in German and English, which are available on the Shiawa website. The German version valid at the time of conclusion of the contract shall be decisive for the conclusion of the contract for all customers.

Version 02-2023