General terms and conditions

for the use of TesseraFlow, offered by Thomas Hattert, Rombacher Straße 5E, 46049 Oberhausen, Germany (the "Provider").

Language note: this English version is a convenience translation. The legally binding version is the German version.

§ 1 Scope

1. These terms govern all contracts on the use of the TesseraFlow software-as-a-service application between the Provider and the customer.
2. The offering is directed exclusively at entrepreneurs within the meaning of § 14 of the German Civil Code (BGB), legal entities under public law and special funds under public law. Contracts with consumers are excluded. With the enquiry or order the customer confirms acting as an entrepreneur.
3. Deviating or supplementary terms of the customer do not become part of the contract unless the Provider expressly agrees to them in text form.

§ 2 Subject of the contract

1. The Provider makes TesseraFlow, a web-based application for workforce and resource scheduling, available for use over the internet. The scope of functions follows from the product description on the website as applicable at the time of contracting.
2. The service is provided at the handover point (data center egress). The customer's internet connection and the suitability of the customer's devices are not part of the service.
3. The Provider continuously develops the application and may change it as long as the contractually agreed core functionality is preserved or the change is reasonable for the customer considering the customer's interests.

§ 3 Conclusion of contract

Onboarding is personal ("high-touch"): the customer submits an enquiry via the website form or by e-mail. The contract is concluded when the Provider confirms the order in text form or activates access, whichever occurs first. When activating access, the customer confirms the inclusion of these terms and of the data processing agreement (§ 9(2)) in the electronic procedure provided for this purpose. The Provider logs the time and version of the confirmation.

§ 4 Free trial

1. The Provider may offer a free 30-day trial. No payment details are collected for it. The trial ends automatically. A paid subscription only comes into existence if the customer actively orders it.
2. Either party may end the trial at any time in text form, without notice period.
3. If the customer subscribes no later than 30 days after the trial ends, the trial data is carried over into the subscription. Otherwise it is deleted from the production systems 30 days after the trial ends. § 14(1) (export) and § 14(3) sentence 2 (expiry of backups) apply accordingly.
4. For the free trial the Provider is liable, apart from the cases of § 11(1), only for intent and gross negligence.
5. For the trial, § 9 (data protection and data processing agreement) applies accordingly. The data processing agreement is concluded at the latest when the trial access is activated.

§ 5 Usage rights and scope of use

1. For the contract term the customer receives the simple, non-exclusive, non-transferable and non-sublicensable right to use the application to the ordered extent (in particular the number of scheduled resources) for its own business purposes.
2. Not permitted are in particular: making the application available to third parties outside the agreed user group, systematic automated scraping, reverse engineering beyond what is mandatorily permitted by law, and use to build a competing product.
3. In the data entered by the customer ("customer data") the Provider only receives the rights technically required to perform the contract (hosting, backup, display, export).
4. The Provider makes functions without an express quantitative limit available for use as intended within the ordered scope of use. If usage deviates significantly from this (in particular through automated access outside the interfaces provided by the Provider, or usage that impairs system stability for other customers), the Provider may, after prior notice in text form, restrict usage to a reasonable level. For provided interfaces (APIs) the Provider may set reasonable technical access limits (rate limits). § 12(2) remains unaffected.

§ 6 Customer obligations

1. The customer keeps access credentials confidential, obliges its users accordingly and informs the Provider without delay of suspected misuse.
2. The customer does not use the application unlawfully and does not enter infringing content. The customer is responsible for the lawfulness of the customer data it processes. When processing employee data, compliance with the applicable rules (in particular § 26 of the German BDSG and co-determination rights, § 87 BetrVG) is the customer's responsibility as data controller.
3. The customer does not load the application beyond its intended use (in particular no load tests and no automated bulk scraping without the Provider's consent).
4. The customer performs regular data exports (§ 14(1)) to the extent the data is indispensable for its business operations.
5. The customer does not enter special categories of personal data within the meaning of Art. 9 GDPR (such as diagnoses, health, religious or trade-union data) into free-text fields (in particular notes and labels). For recording absences, the structured absence types provided for this purpose are available. The customer is responsible for the lawfulness of their use under data protection law (paragraph 2).
6. If the customer culpably breaches its obligations under § 5 or this § 6 and third parties assert claims against the Provider as a result, the customer indemnifies the Provider against these claims, including the reasonable costs of legal defence. The Provider informs the customer of the claim without delay and, to the extent reasonable, leaves the defence to the customer.

§ 7 Availability, maintenance and support

1. The Provider owes an availability of the application of 99% on average over a calendar quarter at the handover point. Availability is calculated per calendar quarter as the ratio of actual to possible availability time. Times under paragraph 2 count as available. No service level beyond this is owed.
2. The following do not count as downtime: announced maintenance windows (at most once per month, at most two hours, usually Sundays between 02:00 and 04:00 German time, announced at least seven days in advance by e-mail), disruptions outside the Provider's sphere of influence (force majeure, failure of third-party networks) and short interruptions to avert acute security threats.
3. Support is provided by e-mail to support@tesseraflow.de on working days. Fixed response times are not owed. The customer reports faults of the application to the Provider without delay via the same channel.

§ 8 Fees and payment

1. Fees are based on the number of scheduled resources per the order or the prices shown at ordering. All prices are net plus statutory VAT.
2. Billing is monthly in advance via the payment provider Stripe. Invoices are provided electronically.
3. In case of payment default the Provider may, after prior notice in text form, suspend access until all due claims are settled. The payment obligation for the suspension period remains. Further statutory rights remain unaffected.
4. The Provider may adjust prices at most once per twelve-month period, to the extent the costs relevant to providing the service (in particular hosting, personnel, purchased inputs) have changed. The adjustment corresponds in scope to the cost development. Price adjustments are announced at least six weeks before taking effect, in text form, and apply at the earliest from the billing period following their effective date. If the price increases by more than 5%, the customer may, notwithstanding § 12(1), terminate the contract effective as of the date the increase takes effect. The Provider points this out in the announcement. The ordinary termination right under § 12 remains unaffected.
5. The customer may only set off against, or exercise a right of retention based on, undisputed claims or claims established by final judgment. This does not apply to counterclaims of the customer for defects arising from the same contractual relationship.

§ 9 Data protection and data processing agreement

1. The Provider processes personal data per its privacy policy.
2. Where the customer processes personal data in the application (in particular its employees' data), the customer is the controller and the Provider the processor. The parties conclude the data processing agreement per Art. 28 GDPR, which the Provider makes available to the customer in text form before the contract starts. It forms part of this contract and lists the sub-processors used (among others Hetzner [DE], Ubicloud [DE, managed database], Resend [USA, safeguarded by EU SCC/DPF], Sentry [EU region]). In case of conflict, the data processing agreement prevails over these terms in data protection matters.
3. The Provider uses Stripe for payment processing. To the extent Stripe processes payment data for its own purposes, Stripe is an independent controller under data protection law.

§ 10 Confidentiality and customer reference

The parties keep confidential all information of the other party that is marked as confidential or is recognisably confidential and use it only to perform the contract. This obligation continues for the duration of the contract and three years thereafter. It does not apply to information that is or becomes publicly known without breach of this obligation, that the receiving party already knew without a confidentiality obligation, that it lawfully received from third parties without a confidentiality obligation, or that it developed independently. Statutory disclosure duties remain unaffected.

The Provider may name the customer, with name and logo, as a reference customer on its website and in sales materials. The customer may object to being named at any time in text form. The Provider then removes the reference within ten working days.

§ 11 Liability

1. The Provider is liable without limitation for intent and gross negligence, for injury to life, body or health, under the German Product Liability Act, and to the extent of any guarantee given.
2. In case of slightly negligent breach of a material contractual obligation (cardinal obligation, that is, an obligation whose fulfilment makes proper performance of the contract possible in the first place and on whose observance the customer may regularly rely), liability is limited to the foreseeable damage typical for this type of contract. Otherwise, liability for slight negligence is excluded.
3. Liability under paragraph 2 is limited in total, per contract year, to the fees paid by the customer in the twelve months preceding the damaging event.
4. Strict liability for defects already existing at the time of contracting (§ 536a(1) alt. 1 BGB) is excluded.
5. For data loss the Provider is liable, within the preceding paragraphs, only up to the amount that would have been required for recovery with proper daily backups by the Provider and contractual performance of regular data exports by the customer (§ 6(4)).
6. The preceding limitations also apply to the personal liability of the Provider's legal representatives, employees and vicarious agents. The preceding provisions do not involve a change of the burden of proof to the customer's detriment.

§ 12 Term and termination

1. The contract runs for an indefinite period with monthly billing periods. Either party may terminate with 14 days' notice to the end of a billing period. The customer terminates in text form or via the customer portal.
2. The right to extraordinary termination for cause remains unaffected. Cause for the Provider exists in particular if the customer is in default with fees for two consecutive billing periods or seriously breaches § 5 or § 6. Extraordinary termination requires text form.

§ 13 Discontinuation of the service

1. The Provider is entitled to discontinue the operation of TesseraFlow entirely, in particular if continued operation is economically unreasonable. In that case the Provider may terminate the contract, notwithstanding § 12(1), with at least three months' notice in text form.
2. Fees already paid that relate to the time after the termination takes effect are refunded pro rata.
3. In the termination notice the Provider points out the export options under § 14 and keeps them available until the end of the contract and for the period stated in § 14(2).

§ 14 Data export and deletion after the contract ends

1. During the contract term the customer can obtain its customer data at any time in a common, machine-readable format (structured JSON export). The export is provided on request from the Provider. In-app export functions are in preparation.
2. After the contract ends, the Provider keeps the export available on request for 30 days.
3. After this period the customer data is deleted from the production systems within 30 days. It disappears from backups at the latest when the backup retention of at most 13 weeks expires. Statutory retention duties remain unaffected.

§ 15 Changes to these terms

1. The Provider may change these terms with effect for the future to the extent the change is reasonable for the customer considering the customer's interests and changes neither main performance obligations nor the agreed price-performance ratio to the customer's detriment.
2. Changes are communicated in text form at least six weeks before taking effect. If the customer does not object within four weeks of receipt, the changes are deemed approved. The Provider points this consequence out separately in the notice. If the customer objects, the contract continues under the previous terms, and in that case either party may terminate effective as of the date the change takes effect.

§ 16 Final provisions

1. German law applies, excluding the UN Convention on Contracts for the International Sale of Goods.
2. Exclusive place of jurisdiction for all disputes arising from or in connection with this contract is Oberhausen, Germany, provided the customer is a merchant, a legal entity under public law or a special fund under public law.
3. Declarations under this contract require at least text form (§ 126b BGB), unless written form is mandatory by law.
4. The Provider is entitled to transfer the contract with all rights and obligations to a company that continues the TesseraFlow business. The Provider announces the transfer at least four weeks in advance in text form. In that case the customer has a right to terminate effective as of the date the transfer takes effect.
5. The German version of these terms prevails. This English version is for information only.
6. Should individual provisions be or become invalid, the validity of the remaining provisions remains unaffected.