Terms and conditions
Last modified: August 15, 2024
1. Introduction
1.1 About Centify GmbH: Centify GmbH (“Centify”) offers a web-based Software-as-a-Service (SaaS) platform specializing in Incentive Commission Management (ICM) (“Software”), tailored for small and medium-sized enterprises. Centify also provides related services (“Services”) associated with the Software.
1.2 Agreement Scope: These Terms and Conditions (“Terms”) govern the customer’s subscription to the Software and the provision of Services by Centify. The Software and Services may also be subject to additional offer documents or similar agreements provided by Centify (collectively referred to as the “Agreement”). Specific supplemental terms may apply to certain Services, which become part of the Agreement upon subscription.
1.3 Exclusion of Customer Terms: Any terms and conditions proposed by the customer that deviate from or are additional to these Terms shall not apply unless expressly agreed upon in writing by Centify.
2. Account Creation
2.1 Free Version: To use the Software, customers must create an account (“Account”). By creating an Account, the customer makes a binding offer to enter into an Agreement for the complimentary use of the Software. Centify may accept this offer at its discretion by sending a confirmation email with login details to the provided email address. Upon activation, the customer is granted a free license to use the Software for up to three (3) users (“Free Version”). Each customer is entitled to only one Free Version, though Centify may extend this at its discretion.
2.2 Paid Subscriptions: Customers may enter into a paid Agreement for the Software and/or Services. Various Software plans are available, offering different features and allowing management of a predefined maximum number of employees.
2.3 Contract Conclusion for Paid Services: Paid Agreements can be established by (a) selecting desired Software plans and Services within the Account and receiving Centify’s confirmation, or (b) requesting and accepting a written or electronic offer from Centify.
3. Software and Services Provision
3.1 Service Delivery: Centify will provide the Software and Services for the duration of the subscription term specified in the Agreement. Detailed descriptions of the Software functionalities and Services are available on the Centify website or through individual offers (“Service Description”).
3.2 Fair Use Policy: Certain Software components with unrestricted use (e.g., syncing deals, creating incentives) are subject to a fair use policy as reasonably determined and communicated by Centify (“Fair Use Policy”). This policy ensures equitable access to functionalities for all users. If a customer’s usage is inappropriate or excessive, Centify may, after prior notice, limit the customer’s access to the affected functionalities.
3.3 Integrations with Third-Party Systems: The Software enables data exchange with third-party systems (“Third-Party Systems”) via interfaces (“Integrations”). An overview and description of available Integrations are provided on the Centify website, and availability may depend on the chosen Software plan and additional apps. Centify reserves the right to modify or discontinue Integrations, especially if changes occur with the Third-Party System providers. Integrations are intended solely for exchanging data with specified Third-Party Systems. The customer must have the right to use any Third-Party System connected via Integrations and is solely responsible for its operation and availability.
3.4 Plan Adjustments: Customers may upgrade or downgrade between different Software plans and adjust the maximum number of employees managed under a plan. Centify will invoice any additional fees promptly or as agreed. Upgrades take effect immediately upon the customer’s request or confirmation. For downgrades, the notice periods in Sections 7.2 and 7.3 apply. Refunds, including pro-rata refunds, are not provided for downgrades.
3.5 Temporary Suspension: Centify reserves the right to temporarily suspend the customer’s access to any part of the Software or Services (“Suspensions”) without liability if:
(a) Centify reasonably determines that
(i) there is a threat or attack on the Software or other event that may create a risk to the Software, the customer or any other third party;
(ii) the customer’s use of the Software disrupts or poses a security risk to the Software or any other third party; or
(iii) the customer has exceeded the Fair Use Principle as set out in section 3.2; or
(b) Centify has notified the customer that any amount owed by the customer under the Agreement is thirty (30) or more days overdue, and the customer has failed to submit payment in full within five (5) days of receipt of such notice (collectively, “Suspensions”).
Centify shall provide notice in advance (where reasonably possible) of any Suspension and provide updates regarding resumption of Software or Services following any Suspension.
4. Availability and Maintenance
4.1 Service Availability: Centify aims to provide the Software with an annual average availability of 99%. Exclusions include periods when the server is unreachable due to factors beyond Centify’s control (e.g., force majeure) and planned maintenance outside normal business hours (Monday to Friday, 9:00 am to 6:00 pm BST/CEST/CET).
4.2 Error Reporting and Resolution: Error reports received outside support hours will be addressed on the next business day. Any delays in resolution caused by the customer (e.g., unavailability of a contact person or delayed notification) are not counted toward resolution times.
5. Customer Obligations
5.1 Major Obligations: The responsibilities outlined in this section are significant and not merely secondary obligations.
5.2 Testing and Defect Notification: During the Free Version period, the customer must test the Software’s functionalities and report any defects or deviations from the Service Description in writing before entering into a paid Agreement. The customer cannot claim defects or deviations that were known or should have been known during the Free Version but were not reported before upgrading to a paid plan.
5.3 Designation of Contact Person: The customer must appoint a qualified contact person and a deputy who are authorized to make necessary decisions related to the Agreement. Any changes to these contacts must be communicated to Centify promptly.
5.4 Compliance and Notification: The customer is solely responsible for the content and data processed using the Software. The Software must be used in compliance with the Agreement and applicable laws, without infringing on third-party rights. The customer must promptly inform Centify in writing of:
(i) Any misuse or suspected misuse of the Software and Services;
(ii) Any risks or suspected risks to data protection or data security within the scope of the Software and Services;
(iii) Any risks or suspected risks to Centify’s services, such as loss of access data or cyber-attacks.
5.5 Technical Requirements:
5.5.1 Internet Connection: The customer is responsible for maintaining an adequate internet connection with sufficient bandwidth and low latency.
5.5.2 Browser Compatibility: For optimal use, the customer should use the latest versions of supported browsers such as Google Chrome, Microsoft Edge, or Mozilla Firefox, or as notified by Centify. Functional cookies must be enabled for full usability. Centify is not liable for restrictions resulting from disabled cookies.
5.5.3 Security Measures: The customer must implement state-of-the-art IT security measures within their organization to ensure secure use of the Software.
5.5.4 Account Security: Shared accounts (e.g., [email protected]) are prohibited. Users must not share login credentials.
5.5.5 Secure Connections: The customer should ensure secure internet connections, preferably using company-owned VPNs rather than public networks, and use VPN connections when accessing public networks.
5.6 Account Setup and Administration: The customer is responsible for properly setting up and administering their Account, regardless of any assistance from Centify. This includes:
(i) Proper configuration of the Account, including data migration and process setup;
(ii) Technical setup of Integrations, including data field mappings and value assignments;
(iii) Testing the correct functioning of Integrations before production use;
(iv) Technical integration of interfaces on the customer’s side, including API key input and activation in Third-Party Systems;
(v) Account administration, including creating users, assigning roles, and managing access rights.
6. Rights Granted
6.1 License Grant: Centify grants the customer a non-exclusive, non-transferable, time-limited right to use the subscribed Software for the term of the Agreement. For Third-Party Systems and Partner Integrations, the respective providers’ terms apply.
6.2 Restrictions on Use: The customer agrees to use the Software solely in accordance with the Agreement and not to provide access to third parties. If the Software plan allows, the usage rights extend to the customer’s affiliates as defined under applicable corporate law provisions.
6.3 Data Usage for Improvement: Centify may process non-personal or anonymized data to enhance functionality and user experience. Centify may anonymize data stored in the Software and owns all rights to such data, which may be used for development, diagnostics, security, marketing, or other purposes.
7. Term and Termination
7.1 Subscription Terms: Customers can choose between monthly or annual subscription Agreements. Services are subject to the same term unless otherwise specified.
7.2 Monthly Subscriptions: Monthly Agreements have an initial term of one (1) month and automatically renew monthly unless terminated by either party with at least fifteen (15) days’ notice before the renewal date.
7.3 Annual Subscriptions: Annual Agreements have an initial term of one (1) year and automatically renew annually unless terminated by either party with at least three (3) months’ notice before the renewal date.
7.4 Termination for Cause: Either party may terminate the Agreement for good cause without notice.
7.5 Termination Procedure: Notices of termination must be in writing. Upon termination, all licenses and rights granted under the Agreement immediately cease.
8. Payment Terms
8.1 Fees and Payment Authorization: The customer agrees to pay the fees for the Software and any applicable Services as specified in the offer or invoice. The customer authorizes Centify to charge the designated bank account or credit card for these fees in advance for the applicable term. Electronic invoices will be provided.
8.2 Taxes: All fees are exclusive of taxes, duties, levies, tariffs, and other governmental charges (“Taxes”). The customer is responsible for all Taxes related to payments made under the Agreement, excluding taxes based on Centify’s net income.
8.3 Billing Period for Monthly Subscriptions: For monthly subscriptions, the billing period starts on the Agreement commencement date or as otherwise agreed and ends after one (1) month.
8.4 Billing Period for Annual Subscriptions: For annual subscriptions, the billing period starts on the Agreement commencement date or as otherwise agreed and ends after one (1) year. Payment is due within two (2) weeks from the invoice date.
9. Warranty and Defects
9.1 Applicability: Sections 9.2, 9.4, 9.6, and 9.7 apply only to paid Software and Services. For free provisions, Centify’s liability for defects is limited to fraudulent intent.
9.2 Warranty: Centify warrants that the Software will be free from material defects and defects of title (e.g., infringement of third-party intellectual property rights) and will maintain the Software in a condition suitable for contractual use during the Agreement term.
9.3 Defect Reporting: The customer must report any defects or disruptions in system availability promptly, providing details of the circumstances. In case of disruptions, the customer must reasonably assist Centify in identifying and rectifying errors.
9.4 Defect Remedy: Centify will remedy defects within a reasonable time. For total failures reported during support hours, Centify aims for a reaction time of four (4) hours from the start of the disruption. For minor errors not causing total failure, Centify aims to respond within one (1) business day after receiving the error report.
9.5 Temporary Workarounds: Centify may provide temporary solutions and address the root cause later, provided this is reasonable for the customer.
9.6 Limitation of Liability for Initial Defects: Strict liability for initial defects under § 536a (1), Alt. 1 of the German Civil Code is excluded.
9.7 Limitation Period: Defect claims expire twelve (12) months after they arise, except for damage claims where Centify is mandatorily liable under statutory law (see Section 10.1).
10. Limitation of Liability
10.1 General Liability: Centify is liable according to statutory provisions for damages resulting from injury to life, body, or health, and for damages caused by intentional misconduct, gross negligence, or fraudulent intent. Additionally, Centify is liable under mandatory statutory provisions (e.g., assumption of guarantees, fraudulent concealment of defects, German Product Liability Law) for paid services. Guarantees by Centify are only valid if expressly stated in writing.
10.2 Liability for Slight Negligence: For paid services, Centify is liable for damages caused by slight negligence only in cases of breach of essential contractual obligations (cardinal obligations). In such cases, liability is limited to typical and foreseeable damages. Liability for slight negligence not involving cardinal obligations is excluded unless mandated by law (see Section 10.1).
10.3 Free Services: For free services (e.g., Free Version), Centify is liable only for damages resulting from intentional misconduct, gross negligence, or fraudulent intent. This limitation does not apply to damages resulting from injury to life, body, or health.
10.4 Liability Scope: The liability limitations in Sections 10.1 to 10.3 apply equally to claims against Centify’s executive officers, employees, agents, or subcontractors.
11. Data Protection and Confidentiality
11.1 Data Processing Agreement: Centify acts as a processor for customer data stored and processed in the Software, with the customer as the data controller. The Data Processing Agreement (“DPA”) is hereby incorporated into and forms an integral part of the Agreement. In case of conflict, the DPA prevails over these Terms.
11.2 Confidential Information: “Confidential Information” includes any information that is inherently confidential or designated as such, including product descriptions, specifications, and pricing. Each party agrees to:
11.2.1 Non-Disclosure: Not disclose the other party’s Confidential Information to third parties without express consent.
11.2.2 Use Limitation: Use Confidential Information solely for purposes defined in the Agreement.
11.2.3 Protection Measures: Take precautions at least equivalent to those used to protect their own Confidential Information to prevent unauthorized disclosure or use.
11.2.4 Notification: Inform the other party promptly in writing of any misuse or suspected misuse of Confidential Information.
11.3 Exclusions: Confidential Information does not include information that:
11.3.1 Was known prior to disclosure without an existing confidentiality obligation;
11.3.2 Is provided by a third party without confidentiality obligations;
11.3.3 Is publicly available or becomes so without breach of the Agreement;
11.3.4 Is independently developed without use of Confidential Information;
11.3.5 Is released for disclosure with written consent;
11.3.6 Must be disclosed due to legal obligations, provided the affected party is notified in time to seek protective measures.
11.4 No Reverse Engineering: Neither party shall obtain Confidential Information through reverse engineering, which includes any actions aimed at discovering the Confidential Information through analysis, testing, or disassembly.
11.5 Duration of Confidentiality Obligations: The obligations in Sections 11.2 to 11.4 remain in effect until the earlier of when the Confidential Information becomes non-confidential or five (5) years after termination of the Agreement.
12. Changes and Amendments
12.1 Modification of Terms: Centify may modify these Terms or introduce new terms for additional services or features at any time. Changes will be communicated to the customer via email at least four (4) weeks before they take effect. The customer’s consent is deemed given if they do not object in writing within two (2) weeks of notification. The notification will highlight the changes, the right to object, the deadline, and the consequences of non-objection.
12.2 Modification of Software and Services: Centify reserves the right to modify the Software and Services, provided the changes are reasonable for the customer. If significant changes affect the customer’s workflow or limit usability of previously generated data, Centify will notify the customer in writing at least four (4) weeks before the changes take effect. The customer’s consent is deemed given if they do not object in writing within two (2) weeks. Notifications will include details of the changes and information about objection rights.
12.3 Necessary Modifications: Centify may make necessary changes to the Software and Services without the customer’s consent in certain circumstances, such as compliance with legal requirements, court orders, elimination of security vulnerabilities, significant changes from third-party providers, or if changes predominantly benefit the customer.
12.4 Price Adjustments: Centify may adjust its list prices annually to account for increased personnel or other costs. Customers will be notified in writing of any price adjustments and their effective date. If the price increase exceeds 5% of the previous price, the customer may object in writing within two (2) weeks of notification. Changes resulting from adjustments in features or employee numbers are not considered price adjustments under this section.
12.5 Objection and Termination: If the customer objects to changes under this section in accordance with the notification requirements, the Agreement continues under existing terms. Centify may then terminate the Agreement with one (1) month’s notice.
12.6 Mutual Amendments: Except as provided in Sections 12.1 to 12.4, any amendments to the Agreement require mutual agreement in writing.
13. Final Provisions
13.1 Notices and Declarations: Unless otherwise agreed, all notices or declarations under the Agreement must be made in writing, which includes electronic forms such as email. Amendments to the Agreement must be in writing or electronic form, including any waiver of this requirement.
13.2 Severability: If any provision of the Agreement is found to be invalid, illegal, or unenforceable, the remaining provisions remain in effect. The invalid or unenforceable provision will be modified to the extent necessary to make it valid and enforceable.
13.3 Governing Law and Jurisdiction: The Agreement is governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods. The exclusive place of jurisdiction for all disputes arising from or in connection with the Agreement is, to the extent legally permissible, Hamburg, Germany.