The company flair.hr GmbH, Sendlinger Str. 44, c/o Salesfive, 80331 Munich, Germany (hereinafter referred to as "flair.hr"), grants companies (hereinafter referred to as the "Customer") on the basis of the following General Terms and Conditions (hereinafter referred to as "GTC") the possibility,
to use software for human resources related processes as Software-as-a-Service (hereinafter "SaaS"), as well as
to make use of (optional) supplementary services in connection with the SaaS (such as consulting services, configuration services) (hereinafter "Supplementary Services").
SaaS and Supplementary Services are hereinafter collectively referred to as "Services". The Services will be made available to the Customer on the basis of an offer and its acceptance (hereinafter "Individual Contract") in accordance with these GTC, unless flair.hr and the Customer agree otherwise in the Individual Contract in text form as defined in § 126b BGB (hereinafter "Textform"):
1. Conclusion of Individual Contracts
1.1 The Customer's general terms and conditions of business or purchase only apply to flair.hr insofar as flair.hr has expressly agreed to them in Textform. These GTC also apply exclusively if flair.hr grants the use without reservation in the knowledge of conflicting general business or purchasing conditions of the Customer.
1.2 Offers of flair.hr are non-binding unless the offer expressly provides otherwise.
1.3 Offers and acceptances each require Textform in order to be effective. Ancillary and additional agreements to an Individual Contract, quality and property specifications and agreements, which are respectively made before, at or after the conclusion of an Individual Contract, also require Textform as well as an explicit reference to the respective Individual Contract in order to be effective.
1.4 If flair.hr offers the Customer several/different Services (e.g. SaaS, enforcement services, payment services, consulting services, sale of hardware, etc.) as well as prices in an offer which can be allocated to the respective Services ("Individual Prices"), a legally independent Individual Contract exists for each of these Services, unless it is expressly stated in the offer or Individual Contract that flair.hr intends to offer one Individual Contract for the entirety of all Services. If a total price for several Services is shown in the offer of flair.hr or in the Individual Contract in addition to Individual Prices, this alone is not sufficient for considering this as one Individual Contract for the entirety of all Services.
2. Scope and Subject Matter of the Services
2.1 The scope, nature and characteristics of the Services are conclusively listed in these GTC and the respective current Service Description, insofar as nothing deviating or additional is agreed in Textform in the Individual Contract. "Service Description" means the then-current descriptions of the nature and characteristics of the Services (such as data sheets, release notes, manuals, online documentation, etc.) made available by flair.hr on the website, as accompanying materials, or otherwise in Textform.
2.2 All Services are provided at and from the location of flair.hr (remote).
2.3 Service Descriptions may in no event be understood as an assurance (“Zusicherung”) of certain characteristics or as a guarantee (“Garantie”). Additional agreements regarding the Services in the Individual Contract can only to be understood as assurances or guarantees by flair.hr if these are made in Textform by the management of flair.hr and are expressly marked as "assurance" or "guarantee".
2.4 Prior to the conclusion of the Individual Contract the Customer will either inform himself about the suitability of the Services for the use specifically planned by him and their technical requirements (e.g. with regard to database connection, hardware, ability to integrate into his IT environment) or will make use of Supplementary Services of flair.hr in the form of consulting services.
2.5 The Customer acknowledges that the availability of the SaaS is limited to the SaaS-availability specified in the respective Service Description or agreed upon in the Individual Contract.
2.6 (Optional) Supplementary Services will be delivered by flair.hr only if and to the extent these have been expressly ordered by the Customer in the Individual Contract. Under Supplementary Services flair.hr shall perform the agreed activities and efforts, but is not committed to realize a certain success or result. flair.hr will provide these additional services with the diligence of a prudent businessman using technologies and knowledge which correspond to recognized state of art technology.
2.7 The Customer as well as flair.hr each designate a central contact person authorized to make decisions and his representative for the time of the performance of the Services.
2.8 Time limits or Service delivery dates stated in the Individual Contract are non-binding estimates for flair.hr unless they are expressly agreed as binding or fixed timelines in the Individual Contract in Textform. The adherence to fixed timelines and delivery dates by flair.hr requires the timely performance of all agreed cooperation duties and other obligations on the part of the Customer. If these prerequisites are not fulfilled in time by the Customer, the fixed timelines and delivery dates will automatically be postponed accordingly. In the case of slight and normal negligence, a claim by the Customer against flair.hr for damages due to delay in performance or non-performance is limited to the amount of the foreseeable damage, however, to a maximum of 10% of the Service fee payable for the Service that is affected by the delay or non-performance.
2.9 flair.hr is entitled to engage third party companies with the performance of Services or parts thereof (e.g. within the scope of SaaS a data center operator, within the scope of Supplementary Services sub-suppliers), provided that flair.hr ensures that these fulfill their obligations towards flair.hr in accordance with the Section 10 of these GTC. flair.hr is liable for these third parties to the same extent as for its own conduct in accordance with these GTC or the Individual Contract. A change of the third party company requires the prior consent of the Customer in Textform, which the Customer will not unreasonably refuse, especially if flair.hr evidence that such third party has committed to obligations similar to those under Sect. 10 of these GTC. Customer´s consent is deemed to be granted if the Customer is silent for more than four weeks after receipt of a corresponding request by flair.hr.
3. Customer´s License
3.1 Subject to the conclusion of the corresponding Individual Contract as well as the Customer's compliance with these GTC and against payment of the Service fees agreed upon in the Individual Contract, flair.hr grants the Customer a non-exclusive, non-transferable, non-sublicensable license, limited to the term of the Individual Contract, to use the SaaS for internal purposes. Further restrictions to this non-exclusive license are conclusively listed in the following documents, which apply in the following order of precedence:
this Sect 3 of the GTC.
3.3 The Customer is obligated to inform flair.hr of all hardware and software components of third party suppliers which the Customer uses in connection with the Services (hereinafter "Customer Environment") prior to the conclusion of an Individual Contract and to inform flair.hr immediately in Textform about planned changes or additions to the Customer Environment during the term of an Individual Contract.
3.5 In addition to the non-exclusive rights of use granted by flair.hr under this Section 3, the Customer does not receive or acquire any other rights to the Services, even if the Customer and the area users can temporarily technically access additional functions. All intellectual property rights concerning the Services (such as copyrights, patent rights) are the exclusive property of flair.hr and/or its licensors. The Customer is aware that the proprietary software also contains confidential information of flair.hr in the sense of clause 11 beyond the above protection, which is to be treated by the Customer and the Peter Park end users in accordance with this clause 11.
3.6 The above-limited license shall apply accordingly to any accompanying material (online documentation, manuals) and releases which flair.hr makes available to Customer under the relevant Individual Contract.
4. Customer Obligations
4.1 The hardware and system of the Customer Environment required for the use of the Services are described in the Service Description. The Customer Environment required for the Services shall be procured and installed in due time before the start of the SaaS by the Customer and shall be operated and maintained by the Customer for the term of the SaaS, all at the Customers expense.
4.2 The Customer shall ensure that
he grants flair.hr remote access and access to the Customer Environment and other systems of the Customer on-site, as far as this is necessary for the use of the Services and for purposes of warranty and support;
he employs only qualified and trained personnel who have sufficient experience for the use and receipt of Services;
he instructs the personnel he employs in the use and operation of the SaaS;
he provides all information and data necessary for the performance of the Services and reasonably requested by flair.hr.
5. Service Fees
5.1 The Service fees to be paid by the Customer for the Services (SaaS fees for SaaS, hourly rates for Supplementary Services) are set forth in the respective Individual Contract and are to be transferred without deduction to the account of flair.hr specified therein, unless the parties agree in the Individual Contract on payment by SEPA corporate direct debit. In the absence of an hourly rate agreement in the Individual Contract, consulting services as well as all T&M services billable according to the Individual Contract shall be billed as follows:
Hourly rate: 100 Euro for Supplementary Services.
50 % of travel time is considered working time
plus expenses and travel costs incurred.
5.2 Unless otherwise agreed in Textform in the Individual Contract, the Customer shall pay the Service fees monthly in arrears in accordance with its use or utilization in the billing month. Payment shall always be due 14 days after the date of a proper invoice containing sufficient proof of expenditure (SaaS usage, time spent on Supplementary Services).
5.3 All amounts mentioned in these GTC or in Individual Contracts relating to Service fees are exclusive of taxes and other charges (net).
5.4 The Customer ensures timely payment to the bank account designated by flair.hr. Timely means the complete receipt of the due payment on the account of flair.hr named in the Individual Contract.
5.5 The Customer can only offset against undisputed or finally awarded claims and can only base a right of retention on undisputed or finally awarded claims.
5.6 flair.hr is entitled to restrict and/or discontinue the Services if the Customer does not make payment despite a reminder in Textform in which grace of at least another 10 days has been set. flair.hr will inform the Customer about the impending consequences of a default in the reminder.
6. Warranty („Gewährleistung“) and Support
6.1 Within the scope of the Service availability defined in Sect. 2.5, flair.hr solely warrants that the currently usable SaaS corresponds to the quality and property specifications agreed upon in the Individual Contract and the specifications stated in the most current Service Description. flair.hr is entitled to further develop the SaaS and to adapt it to future market requirements through corresponding releases. If a specific quality and specific characteristics of the SaaS are agreed upon in the Individual Contract, deviations from this are only permitted if these are either insignificant (e.g. adaptation of the interface design) or are technically or legally mandatory (e.g. new data format or change in law such as e.g. for data protection). No warranty is granted by flair.hr for Supplementary Services.
6.2 flair.hr is obligated to rectify existing defects of the SaaS at the expense of flair.hr by way of the support described in the Service Description. Further rights and remedies of the Customer only exist in the case of
significant defects and insofar as flair.hr has caused such a significant defect through gross negligence or intent or the rectification of such a significant defect by way of support has failed at least three times;
fraudulent concealment of the defect by flair.hr or
in the case of personal injury as a result of the defect.
In the case of any infringement of third-party property rights by the Services, Section 8 applies exclusively.
7. Indemnification from Third Party IP Infringement Claims
7.1 flair.hr indemnifies the Customer during the term of the Individual Contract from payment and compensation claims of third parties which are asserted by them against the Customer due to the infringement of intellectual property rights through the use of the Services (including reasonable attorney's fees of the third party and the Customer). This does not apply if such infringement was caused (i) by the combination of the Services with software or services not supplied by flair.hr or (ii) by the modification or integration of the Services without the consent or cooperation of flair.hr. flair.hr is obligated to either (i) acquire the right of use necessary for Customer from the third party or (ii) modify the Services in such a way that they no longer infringe the intellectual property rights of the third party within a reasonable period of time at the discretion of flair.hr. If this is not possible for flair.hr with a reasonable effort in view of the Service fee paid by Customer, flair.hr will inform the Customer of this in Textform, each of the parties is entitled to terminate the affected Individual Contract for cause in writing in accordance with Section 10.2.
7.2 A condition for the indemnification according to Section 7.1 is that the Customer (i) has immediately informed flair.hr in Textform about the claim and all communication in connection with the case of infringement; (ii) has not acknowledged the claim of the third party itself, (iii) grants flair.hr the sole authority to defend against the claim; and (iv) supports flair.hr within the scope of what is reasonable in the defense against such claims.
7.3 For infringements of third party intellectual property rights by Third Party Software or Third Party Services, the Customer can only assert and insofar make claims against flair.hr which flair.hr can assert and realize against the third party supplier with reasonable effort, unless flair.hr, at the time of the conclusion of the Individual Contract, had knowledge of the property right infringement or should have had knowledge thereof. In this case, the regulations according to Sections 7.1 and 7.2 apply accordingly.
7.4 This Sect. 7 regulates conclusively the liability of flair.hr in the event of an infringement of intellectual property rights in connection with Customer´s use of the Services. The Customer is only entitled to further statutory rights and remedies in the case of gross negligence or intent on the part of flair.hr or in the case of fraudulent concealment of the violation of intellectual property rights by flair.hr.
8. Limitation of flair.hr´s Liabilty
8.1 flair.hr is liable, for whatever legal reason and with regard to both the SaaS and the Supplementary Services towards the Customer only for its own negligence or intent. Any warranty and liability of flair.hr under statutory law not requiring any fault (in particular for initial defects of the SaaS) as well as any liability for circumstances which flair.hr cannot directly control, such as for Third-Party Software, for Third Party Services or for the availability of the internet or app stores, is excluded.
8.2 For all cases of negligence, the liability of flair.hr from and in connection with an Individual Contract for lost sales of the Customer is excluded, and part from that limited to a maximum amount of 50,000 Euros per event and contract year of the Individual Contract. This maximum amount applies to the sum of all Individual Contracts concluded with the Customer with regard to the Services.
8.3 flair.hr is prepared to negotiate higher liability caps at the request of the Customer, provided that the Customer bears the costs associated with a customer-specific or project-specific insurance.
9. Term and Termination of Individual Contracts
9.1 Individual Contracts shall be concluded upon the date of confirmation issued in Textform, provided such confirmation conforms to an offer issued in Textform. Concluded Individual Contracts for Services shall have the term specified in the Individual Contract.
9.2 Either party may terminate an Individual Contract during its term only by written notice for good cause, provided that these GTC expressly so provide or if the other party breaches any of its material obligations under such Individual Contract and such breach is not remedied within a reasonable period of time from the date of receipt of the warning.
9.3 Any statutory rights of rescission (“Rücktritt”) of the Customer shall be excluded. The Customer's right of termination under this Section 9 shall be limited in each case to the Individual Contract affected by the cause for termination. Only insofar as the continuation of other Individual Contracts becomes unreasonable or technically impossible for the Customer as a result of a termination of an Individual Contract for which flair.hr is responsible, is the Customer entitled to terminate the other affected Individual Contracts for cause as well. The Customer must justify and prove the unreasonableness or impossibility in writing at the request of flair.hr.
9.4 In the case of each termination of an Individual Contract, the Customer must pay for the Services rendered up to that point and the use made of them, without prejudice ta additional statutory rights and remedies on the part of flair.hr. In case of termination of an Individual Contract regarding SaaS, the Customer has to cease using the SaaS and the Customer's access to support will be blocked. The Customer is obligated to return the originals as well as all copies and partial copies of the software, all components of the documentation, and all other provided documents and information to flair.hr or to irrevocably delete them within three (3) business days after the termination of the Individual Contract and to confirm this deletion in writing upon request by flair.hr. If required by the Customer due to mandatory legal regulations, the Customer can demand the retention of certain documents for archiving purposes.
9.5 All data generated or managed using the SaaS remain the sole property of the Customer even after the termination of individual order and can be used by the customer without restriction. The data shall be backed up by the Customer on a regular basis, in particular in due time before termination of the Individual Contract.
9.6 Termination of an Individual Contract shall have no effect on any rights and obligations of the parties under Sections 8, 10, 11.5 to 11.7 of these GTC.
10. Confidentiality and Data Protection
10.1 "Confidential Information" means all technical and/or business information received by either party in any form whatsoever with or during the conclusion or performance of an Individual Contract from the other party by oral or text form communication, demonstrations, devices, models, any type of samples and visual recording of the said, including information relating to the respective business activities or operations. All terms and conditions of an Individual Contract shall be deemed to be Confidential Information of each party. The Accompanying Materials shall be deemed to be Confidential Information of flair.hr. Data processed by the Hardware shall be considered Confidential Information of the Customer. Not considered Confidential Information is information,
which is freely accessible without this being due to a failure of the other party to comply with its contractual obligations,
already known to the other party or demonstrably already in the other party's possession,
which can be shown to have already been developed independently of one party by the other party; or
which the other party has obtained without any disclosure restrictions.
10.2 Each party agrees (a) to keep confidential the other party's Confidential Information, exercising the same degree of care with which it customarily protects its own information, or at least exercising reasonable care, (b) to use the Confidential Information disclosed by the other party only for the purpose of entering into or performing the respective Individual Contract, (c) to use the other party's Confidential Information only restrictively or to disclose it to its employees or the employees of any of its affiliates or to any other contractor or consultant it engages, or to Customer or Customer's employees, as the case may be, only for the purpose of entering into or performing Individual Contract and subject to equivalent written confidentiality obligations, (d) to make employees, contractors, consultants and Customer aware of their obligations with respect to the other party's Confidential Information and (e) not to reverse engineer or de-compile the other party's Confidential Information (except as permitted by mandatory statutory law).
10.3 flair.hr shall be entitled to use Customer's name and the respective trademarks and logos as well as general information about the cooperation for reference purposes, subject to the aforementioned confidentiality obligations.
10.4 Each of the parties undertakes to observe the applicable data protection law. Only insofar as flair.hr should process personal data on behalf of the Customer within the meaning of Art. 28 DSGVO, the parties will conclude a separate agreement in Textform in accordance with Art. 28 Para. 2 DSGVO.
11.1 Neither the Individual Contract nor any rights or obligations hereunder are assignable or otherwise transferable by either party, in whole or in part, without the prior written consent of the other party, unless Section 11.2 provides otherwise.
11.2 flair.hr shall be permitted to transfer Individual Contracts to a third party who acquires the business of flair.hr or all essential assets of this business. flair.hr will inform the Customer of such an assignment in Textform in advance if possible.
11.3 Changes and additions to an Individual Contract require Textform. The waiver of this Textform requirement also requires Textform.
11.4 The content of an Individual Contract and all appendices thereto constitute the entire agreements between the parties with respect to the subject matter of the contract regulated therein and shall take precedence over any prior or contemporaneous written or oral communication, representation or agreement.
11.5 All disputes arising out of or in connection with an Individual Contract, including all questions of its existence, validity or termination, shall be exclusively and finally settled by arbitration in accordance with the German Institution of Arbitration (DIS) by 3 arbitrators in accordance with these Rules. The seat of the arbitral tribunal shall be Munich. The arbitration proceedings shall be conducted in English.
11.6 The Individual Contract shall be governed by German law to the exclusion of its rules on private international law.
11.7 If any of the provisions of these GTC or of an Individual Contract should prove to be invalid, unenforceable or illegal under applicable law, the validity of the remaining provisions shall not be affected thereby. The parties shall make every reasonable effort to replace the invalid provision or the invalid part thereof with a new provision that reflects, as far as possible, the economic result intended by the parties.