Terms and Conditions for Implementation Services

1             Applicability and Subject Matter

1.1          Applicability. These Terms and Conditions for Implementation Services (“Implementation Terms”) shall apply to any agreement between Service Provider (as defined below) and the customer as stated on the order form (“Customer”) regarding Implementation Services (as defined below) (the “Implementation Agreement”) for flair.hr’s SaaS-Solution (as defined in flair.hr’s Terms and Conditions for SaaS).

1.2          Service Provider. Implementation Services may be provided by flair.hr, a flair.hr Affiliate, or Authorized Provider (each a “Service Provider”). “flair.hr” means flair.hr GmbH, c/o Fibusys GmbH, Elsenheimerstr. 5, 80687 Munich. “Affiliate” means any corporation or other entity which controls, is controlled by, or is under common control with flair.hr or any successor entity. A corporation or other entity shall be deemed to control another corporation or entity if (i) it owns, directly or indirectly, fifty percent (50%) or more of the voting shares or other interest, (ii) has the power to elect more than half the directors, of such other corporation or entity, or (iii) has the ability, via contract or otherwise, to direct the affairs of such other corporation or entity. “Authorized Provider” means any person or entity authorized and appointed by flair.hr to provide Implementation Services under these Implementation Terms.

1.3          Additional Terms. In addition to the Implementation Services provided under these Implementation Terms, flair.hr may provide other services which are subject to other terms and conditions, as stated below:

(a)           The provision of the flair.hr SaaS-Solution is subject to flair.hr’s Terms and Conditions for SaaS.

(b)           The provision of support and additional services, if any, is subject to the Terms and Conditions for Support and Additional Services.

1.4          Business use. These Implementation Terms shall only apply to businesses, whether a natural or legal person or a partnership with legal personality within the meaning of section 14 of the German Civil Code who or which is acting in exercise of his or its trade, business or profession, to legal persons under public law and special funds under public law within the meaning of Section 310 (1) of the German Civil Code and to other commercial or professional customers.

1.5          Exclusion of Customer’s terms. These Implementation Terms apply exclusively. Deviating, conflicting or supplementary terms and conditions shall only become part of the Implementation Agreement if and to the extent that Service Provider has expressly agreed, by way of prior consent, that such terms shall apply to the Implementation Agreement. This requirement of prior consent must be met at least in Textform by a duly authorized representative of flair.hr and applies in any case, even if Service Provider starts providing services without reservation as to the terms and conditions of the Customer the Service Provider has become aware of.

2             Implementation Agreement

2.1          Implementation Agreement. For the purpose of these Implementation Terms, an Implementation Agreement shall mean these Implementation Terms together with the following documents:

(a)           the order form (“Order Form”);

(b)           any documents referred to in these Implementation Terms or the Order Form.

2.2          Order Form. Service Provider provides Customer with an Order Form which can be submitted to Service Provider to place an order. All quotations made by Service Provider in an Order Form are without any commitment and non-binding. They become binding upon acceptance of the Order Form by Service Provider as described in section 2.3.

2.3          Conclusion. Customer can place an offer by submitting an Order Form with reference to these Implementation Terms. The Implementation Agreement is concluded upon acceptance of the Order Form by the Service Provider and is made as of the Effective Date.

2.4          Additional agreements and amendments. Any additional agreement to the Implementation Agreement shall be concluded in Textform and with explicit reference to the respective Implementation Agreement in order to be effective. Any amendment to an Order Form accepted by Service Provider will require Textform and will only apply to the relevant Order Form for which the amendment has been agreed. Any services not covered by these Implementation Terms require a separate agreement between Service Provider and Customer.

2.5          Conflicts. If there is a conflict between these Implementation Terms and any of the documents referred to in section 2.1, the provisions in the Order Form shall take precedence over these Implementation Terms.

3             Implementation Services and Period

3.1          Implementation Services. Service Provider shall provide Implementation Services as specified in the respective Implementation Agreement to enable Customer to migrate to and/or use the SaaS-Solution in connection with the Customer’s IT infrastructure. Implementation Services can include, for example, the initial technical setup and customization of the SaaS-Solution, onboarding services, training of admin users, project management services, and basic support services during the Implementation Period (as defined below). Each of these services represent a partial service of the Implementation Services. The exact scope of the Implementation Services, which are determining the obligations of the Service Provider under the Implementation Agreement, are described in the Order Form and any other document attached thereto or referenced therein. Any description of the Implementation Services does not constitute and must not, in any event, be interpreted as an assurance (Zusicherung) of certain characteristics or as a guarantee (Garantie).

3.2          Implementation Period. Implementation Services are only provided within the period necessary to setup and customize the SaaS-Solution for the use of Customer as stated in the Order Form (the “Implementation Period”). Once the Implementation Period has been completed, any further configuration, customization, or modification of the IT infrastructure and/or other software used by the Customer in conjunction with the SaaS-Solution and any further training and support will be charged separately and is subject to a separate agreement under the Terms and Conditions for Support and Additional Services.

4             Project management

4.1          Contact persons. The parties shall designate to each other contact persons and their alternates who shall be responsible and competent for directing the performance of the obligations of the respective party. Service Provider’s contact person is the implementation manager (“Implementation Manager”) and is responsible for all questions arising during the project as well as for requesting and receiving all information from Customer. The Implementation Manager shall, without undue delay, provide Customer with all information relating to the project and regularly monitor compliance with time frame and scope of the project as specified in the Order Form and documents referenced therein as well as the quality of the implementation performed.

4.2          Changes in personnel. The parties shall inform each other of any changes in the personnel named without undue delay. Until receipt of such notification, the aforementioned contact persons and/or their deputies shall be deemed entitled to make and receive declarations within the scope of their previous power of representation.

4.3          Changes to the agreed services. Agreed changes to the Implementation Services shall be documented by the Implementation Manager and confirmed by Customer. The documentation shall be in in writing (Textform suffices).

5             Cooperation and customer duties

5.1          Cooperation. The parties agree to cooperate closely and efficiently in a spirit of mutual trust and good faith during the Implementation Period. Customer shall, in particular, (i) specify the requirements for the Implementation Services to a sufficient extent; (ii) supply proper notes, documentation and information necessary for the implementation, especially an analysis of existing HR processes and how and to what extent they should be automated; (iii) make available the necessary materials and data; (iv) make available test data as well as prepare and make available the test environment; (v) document and inform Service Provider without undue delay of errors determined in the course of the test or production running of the services provided in a form that can be reproduced, in any event which is comprehensible; (vi) make available at its own cost all facilities, equipment and suitably qualified personnel for the cooperation, to the extent necessary for the provision of the Implementation Services; and (vii) fulfil these obligations and all cooperation activities on time and give declarations in accordance with the time limits. If a party becomes aware that information and requirements, whether provided by itself or by the other party, are erroneous, incomplete, ambiguous or impracticable, it shall notify the other party thereof without undue delay and of the consequences which it has identified.

5.2          Backups. It is Customer’s obligation to retain backups of Customer’s data. Customer shall in particular prior to any Implementation Service and/or access by Service Provider or third parties mandated by Service Provider to its systems make a complete data security backup of all system and application data.

5.3          Time limits. The parties shall agree in the Order Form and documents referenced therein whether time limits are to be considered as binding or non-binding. If the parties do not make any provision on this, the time limits shall be non-binding. In addition, the provision of all Implementation Services by Service Provider shall be subject to the correct and timely delivery of its suppliers as well as the fulfilment and carrying out of the duties and cooperation activities by Customer.

5.4          Default of Customer. If Customer fails to perform the activities for which Customer is responsible, the obligations of Service Provider which cannot be rendered without such activity or only by incurring disproportionate additional expenses, shall be suspended for the duration of such default. Additional expenses caused thereby shall be reimbursed by Customer to Service Provider in addition to the agreed fees in accordance with Section 10. This shall not affect any legal rights of Service Provider to terminate the Implementation Agreement.

6             Acceptance

6.1          Acceptance. If and to the extent provided by law or agreed in the Implementation Agreement, completed Implementation Services require acceptance which shall be conducted in accordance with the following terms and conditions. This does not apply to the provision of services within the meaning of Section 611 of the German Civil Code, in particular consulting and support services, unless the requirement for the acceptance of the service is expressly stated in the Implementation Agreement. Acceptance of a work product shall be in accordance with the following provisions of this section.

6.2          Procedure and conditions. Service Provider shall inform Customer that the relevant performance or part performance is ready for acceptance. Without undue delay, however, at the latest within a period of 14 calendar days after receipt of the notification, Customer and Service Provider shall carry out an acceptance review. After the acceptance review has been successfully completed, Customer must declare its acceptance in writing (Textform suffices) without undue delay. The acceptance review shall be deemed to have been successfully concluded if the performance or part performance fulfills all material requirements as set forth in the respective Order Form or documents attached thereto.

6.3          Errors. Errors determined in the performance or part performance under review shall be divided into the following error categories:

(a)   Error category 1: As a result of the error, the system as a whole or the part of the system under review cannot be used;

(b)   Error category 2: The error causes substantial restrictions in the use of important functions, which cannot be circumvented by suitable measures for a reasonable time from Customer's point of view;

(c)   Error category 3: All other errors.

6.4          Refusal of acceptance and right to withdraw. Customer shall only be entitled to refuse its acceptance as a result of errors in the error categories 1 and 2. Category 3 errors shall not prevent the acceptance but shall be remedied as part of the rights in case of defects. Such errors shall be recorded as defects in the written acceptance declaration. If the acceptance is refused, Service Provider shall remedy the acceptance inhibiting errors without undue delay and present the relevant performance or part performance for acceptance again. If the error is not cured within a first time limit, Customer shall set a reasonable second time limit. If the error is not cured within the second time limit or if a reasonable number of attempts to remedy were unsuccessful, Customer may, subject to applicable statutory provisions withdraw from the Implementation Agreement.

6.5          Protocols. Upon request of either party, at the end of the acceptance review, a written protocol shall be prepared and signed by both parties (electronic form electronically signed by both parties suffices). Any errors determined shall be described in the protocol, divided into error categories, and the reasons for any refusal of acceptance shall be stated.

6.6          Deadline. If Customer does not declare its acceptance without undue delay, Service Provider may set a time limit of seven calendar days for the provision of this declaration. The acceptance shall be deemed to have taken place, if Customer does not specify in writing within this period the reasons for the refusal of the acceptance.

6.7          Right to withhold Implementation Services. Service Provider shall be entitled to withhold Implementation Services if Customer is in default of the acceptance of performance or part performance.

7             Defects after acceptance

7.1          The Implementation Services provided by Service Provider shall be substantially in accordance with the description in the respective Implementation Agreement. In case of defects, the Customer’s rights shall be excluded (i) in the event of minor or immaterial deviations from the agreed or assumed characteristics and (ii) in the event of slight impairment of use.

7.2          In case of a defect, Customer may demand subsequent performance (Nacherfüllung). To the extent feasible, Service Provider shall have the right to choose between improvement (Nachbesserung) and replacement (Nachlieferung). If the defect is not cured within a first time limit Customer shall set a reasonable second timeframe. If the defect is not cured within the second timeframe or if a reasonable number of attempts to remedy were unsuccessful, Customer may, subject to applicable statutory provisions, withdraw from the Implementation Agreement.

7.3          Defects must be notified to Service Provider with a detailed description of the effects of the defect.

7.4          Any claims for damages are subject to the limitations set forth in section 8.

7.5          Amendments or additions to the Implementation Services or items delivered which Customer carries out itself or through third parties, shall cause Customers rights in case of defects to be cancelled, unless Customer proves that the amendment or addition did not cause the defect. Service Provider’s responsibility and liability for defects caused by improper use or improper operation or the use of unsuitable means of operation by Customer are excluded.

7.6          Service Provider may refuse to remedy defects or deliver replacements, until Customer has paid the agreed fees to Service Provider, less an amount which corresponds to the economic value of the defect.

8             Liability

8.1          Liability. Service Provider shall be unrestrictedly liable for any damage caused by intent or gross negligence. In the event of a slightly negligent breach of a major obligation (Hauptpflicht) or an accessory obligation, (Nebenpflicht), whose breach puts the achievement of the contractual purpose at risk or whose fulfilment is essential to the due and proper implementation of the Implementation-Agreement and on whose fulfilment Customer could reasonably rely (“Essential Obligation” – Kardinalpflicht), the liability of Service Provider is limited to damage foreseeable at the time of conclusion of the contract and characteristic for the contract (vertragstypischer vorhersehbarer Schaden). The parties understand that the typical foreseeable damage regularly does not exceed the annual contractual volume.

8.2          Exclusion of Liability. Service Provider is not liable for slightly negligent breaches of accessory obligations that are not Essential Obligations. To the extent the liability of Service Provider is excluded or limited, this shall also apply to the personal liability of the Service Provider’s employees, members of staff, representatives, and vicarious agents.

8.3          Exclusions. The above exclusions and limitations of liability shall not apply in the event of malicious concealment of defects or a guarantee as to quality, to the liability for claims under the Product Liability Act (Produkthaftungsgesetz), and to claims based on personal injuries (life, limb, or health). This shall not entail a reversal of the burden of proof to Customer’s disadvantage.

9             Term and termination

9.1          Term. The Implementation Agreement shall be effective as of the effective date specified in the Order Form (“Effective Date”) and shall remain effective during the Implementation Period specified in the Order Form (“Term”).

9.2          Termination by either party. Either party may terminate the Implementation Agreement for cause only (Kündigung aus wichtigem Grund). Termination of the Implementation Agreement for cause may include any of the following causes, or another cause:

(a)           Breach of contract: As a result of a material breach by the other party. Except where performance by a party is permanently impossible, the non-breaching party may terminate the Implementation-Agreement only if it provides written notice to the other party and grants the other party a reasonable term of at least thirty (30) calendar days to remedy the material breach, and such material breach is not rectified within the period granted by the non-breaching party in the notice of default. For errors and defects of the Implementation-Services, the specific provisions on remediation terms in Section 6.4 and Section 7.2 apply. Any breach by Customer of its payment obligation will constitute a material breach; or

(b)           Lack of funds: If the other party becomes subject to any insolvency procedures, such as suspension of payments, a petition for bankruptcy and winding-up procedure.

9.3          Termination by Service Provider. In addition, Service Provider may immediately terminate the Implementation Agreement during the Term for cause, if Customer breaches section 11 (intellectual property rights), or section 13 (confidentiality and data protection).

9.4          If the Implementation Agreement is terminated prior to completion of the Implementation Services, Service Provider shall be entitled to charge an amount which corresponds to the Implementation Services which it has provided up until the termination of the Implementation Agreement.

9.5          Form. Any termination notice requires at least Textform.

9.6          Statutory withdrawal rights. Statutory withdrawal rights remain unaffected to the extent specified under Section 6.4 and Section 7.2.

10          Fees and Payment

10.1        Fees. Customer shall pay to the Service Provider the fees for the Implementation Services as set forth in the Order Form and any other fees stated therein (“Fees”).

10.2        Invoicing. Fees shall be invoiced to Customer in accordance with the requirements set out in the accepted Order Form and the provisions of these Implementation Terms.

10.3        Due date. Unless otherwise agreed, invoices are due 14 calendar days after invoice date and must be paid without deduction to the account of Service Provider as specified in the Order Form. All amounts are exclusive of taxes and other charges.

10.4        Suspension of Implementation Services. If Customer is in default on a payment pursuant to the terms of payment as set forth in these Implementation Terms, Service Provider shall, after providing a reminder with a reasonable deadline, be entitled to suspend all Implementation Services for as long as payment remains outstanding. Service Provider will inform Customer about the impending consequences of a default in the reminder. The obligation to pay Fees shall remain in effect during the suspension of Implementation Services due to default of payment.

10.5        Interests. Interests shall accrue on a daily basis on any amount that have not been paid in full within 14 calendar days after invoice date at an annual rate equal to nine per cent over the then current base interest rate, commencing 14 calendar days after invoice date and continuing until fully paid.

10.6        Offsetting. Customer may only offset against undisputed or finally awarded claims and may only base a right of retention on undisputed or finally awarded claims.

11          Intellectual property rights

11.1        Intellectual Property. Any work results based on the Implementations Services are protected by intellectual property rights such as copyrights. The Service Provider shall be and remain the sole owner and holder of all intellectual property rights to the work results created within the scope of the Implementation Services that are protected by copyright. If and to the extent that changes to the SaaS-Solution are made, flair.hr remains the sole owner of the SaaS-Solution to be provided and the holder of all rights thereto, with the exception of any third-party components and rights relating thereto.

11.2        Grant of rights. Subject to compliance with these Implementation Terms and the Implementation Agreement, Service Provider grants Customer a non-exclusive, non-sublicensable and non-transferable right, limited to the term of the SaaS-Agreement between Customer and flair.hr to use the work results of the Implementation Services in connection with and solely for the purpose of using the SaaS-Solution provided by flair.hr.

11.3        Third-party technology. If and to the extent as the Implementation Services include third-party technology (such as proprietary or open-source software), such third-party technology shall be subject to third-party terms and conditions governing such technology. Service Provider may notify Customer of third-party terms and conditions by referencing them in the Implementation-Agreement, by providing other written or electronic notice from time to time, or by the relevant third party. Applicability of third-party terms and conditions shall with respect to such third-party technology replace any provisions set forth in these Implementation Terms or Implementation Agreement concluded thereunder between Service Provider and Customer. Service Provider is not responsible for such third-party technology and such third-party terms do not govern Service Provider’s Implementation Services. Customer agrees to comply with such third-party terms and conditions, as updated from time to time by the third party. Unless the third-party technology is incorporated into the SaaS-Solution by Service Provider and forms an inextricable part thereof, it is Customer’s sole responsibility to obtain at its own cost adequate licenses for third-party technology directly from the relevant third parties.

12          Subcontractors

Service Provider shall be entitled to involve subcontractors for the provision of the Implementation Services. The use of subcontractors shall not relieve Service Provider of its obligations to Customer.

13          Confidentiality and data protection

13.1        Confidential Information. “Confidential Information” shall mean any and all information and data – either of technical, financial or business nature – received from Service Provider or flair.hr that is marked or otherwise designated as confidential or that can be reasonably recognized by the Customer as confidential information. Confidential Information includes, but is not limited to technical information (e.g., computer code, inventions, algorithms, know-how and ideas), business, financial, and other information (whether written, oral, graphic, machine recognizable, sample or visual). Customer agrees not to disclose any Confidential Information, which Customer has become aware of, or which Customer has received from Service Provider or flair.hr, to a third party or the public. The Customer shall protect the Confidential Information in a way to prevent misuse by third parties and in accordance with the Customer’s own protective measures for its own confidential information, and shall at least be in accordance with the current state of the art at the time of protection.

13.2        Exclusions. The obligation to maintain confidentiality shall not apply to information and documents which were in the public domain and generally available at the time of disclosure or which were already known to the receiving parties at the time of disclosure or which were later legitimately made available to the receiving party by third parties.

13.3        Data protection. Each party shall comply with all applicable data protection regulations – including, but not limited to, the General Data Protection Regulation (GDPR) and the German Federal Data Protection Act – in relation to the performance of the Implementation Agreement. To the extent required under applicable law, each party shall impose the statutory data protection obligations on their staff and any subcontractors engaged.

14          Miscellaneous

14.1        Form. Any Implementation Agreement shall be concluded in text form within the meaning of Section 126b of the German Civil Code (“Textform”), and any amendment to an Implementation Agreement requires Textform.

14.2        Language and Interpretation. These Implementation Terms have been drafted in the English language and the English language version shall be solely binding upon the parties to the Implementation Agreement. Any translation of these Implementation Terms shall be considered as convenience translation and not be binding upon the parties to the Implementation Agreement. To the extent these Implementation Terms include legal terms in German used in brackets, such legal term shall be used for the interpretation of these Implementation Terms and the Implementation Agreement based upon these Implementation Terms.

14.3        Applicable law. These Implementation Terms and any Implementation Agreement hereunder shall be governed by the laws of Germany.

14.4        Place of Jurisdiction. The place of jurisdiction for all disputes arising from or in connection with Implementation-Agreements under these Implementation-Terms shall be the registered seat of flair.hr in Germany.

14.5        Assignment. Neither the Implementation Agreement 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. To the extent flair.hr has concluded the Implementation Agreement based on these Implementation Terms, flair.hr may transfer and assign its Implementation Agreement and its obligations under these Implementation Terms to an Affiliate of flair.hr.

14.6        Severability. If any provision of these Implementation Terms or any Implementation Agreement thereunder is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions will not be affected or impaired in any way, and such provision will be deemed to be restated to reflect the original intentions of the Parties as nearly as possible in accordance with applicable law.

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