1.1Applicability. These
Terms and Conditions for SaaS (“SaaS-Terms”) shall apply to any agreement
between flair.hr GmbH, c/o Fibusys GmbH, Elsenheimerstr. 5, 80687 Munich, Germany
(“flair.hr”) and the customer as stated on the order form (“Customer”)
for the provision of software as a service (SaaS) through the Salesforce
AppExchange, the online directory of applications that interoperate with the services of Salesforce, Inc., (“SaaS-Agreement”).
1.2Business use. These
SaaS-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.
1.3Exclusion
of Customer’s terms. These SaaS-Terms apply exclusively. Deviating, conflicting
or supplementary terms and conditions shall only become part of the SaaS-Agreement
if and to the extent that flair.hr has expressly agreed, by way of prior
consent, that such terms shall apply to the SaaS-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 flair.hr starts
providing services without reservation as to the terms and conditions of the
Customer flair.hr has become aware of.
1.4Scope. flair.hr will
provide the flair.hr platform and related software and services to the extent selected
by the Customer on the Order Form as SaaS (the “SaaS-Solution”), and a
documentation of such SaaS-Solution (“Documentation”) (together the “Services”).
1.5Additional Terms. In addition to the Services provided under these SaaS-Terms,
flair.hr or a third party may provide other services which are subject to
specific terms:
(a)The provision of implementation services is
subject to flair.hr’s Terms and Conditions for Implementation Services.
(c)Access to and use of the Salesforce platform and
use of Salesforce products and services are subject to the agreements
and user terms for poducts and services by Salesforce available
at https://www.salesforce.com/company/legal/customer-agreements/(“Salesforce Terms”). If the Customer is not yet a Salesforce customer
and has commissioned flair.hr to set up a Salesforce account for the Customer
to enable the Customer to use the flair.hr SaaS solution, the relevant Salesforce
Terms shall also apply and become legally binding for the Customer upon
submission of the order form to flair.hr.
(c)the service level agreement for SaaS (“Service
Level Agreement”); and
(d)any documents referred to therein or in these SaaS-Terms.
2.2Conflicts. If
there is a conflict between these SaaS-Terms and any of the documents referred
to in section 2.1, provisions in the Order Form
shall take precedence over these SaaS-Terms, and provisions in the Service
Level Agreement shall take precedence over the provisions of these SaaS-Terms to
the extent service level are concerned. Except for the DPA, these SaaS-Terms shall
prevail over any other documents referred to in these SaaS-Terms.
2.3Description of Services. The scope, nature and characteristics of the Services are described
in a service description or other documents attached to or referenced in the
respective Order Form (“Service Description”). The Service Description does
not constitute and must not, in any event, be interpreted as an assurance (Zusicherung)
of certain characteristics or as a guarantee (Garantie).
3.1Contracting parties. For the use of Services provided by flair.hr, Customer will solely contract
with flair.hr. Salesforce, Inc. is not a contracting party with respect to the
Services offered and provided by flair.hr.
3.2Order Form. flair.hr
provides the Customer with an Order Form which can be submitted to flair.hr to
place an order. All quotations made by flair.hr in an
Order Form are without any commitment and non-binding. They become binding upon
acceptance of the Order Form by flair.hr. as described in section 3.3.
3.3Conclusion. Customer can place an offer by submitting an
Order Form with reference to these SaaS-Terms. The SaaS-Agreement is concluded upon acceptance of the respective
Order Form by flair.hr and is made as of the Effective Date.
3.4Additional agreements and amendments. Any additional agreement to
the SaaS-Agreement shall be concluded in Textform and with explicit reference
to the respective SaaS-Agreement in order to be effective. Any
amendment to an Order Form accepted by flair.hr 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 SaaS-Terms require a separate agreement
between flair.hr and the Customer.
4.1Fees. Customer
shall pay the fees for the SaaS-Solution as set forth in the Order Form and any other fees stated therein (“Fees”).
4.2Invoicing. Fees shall be invoiced to Customer in accordance with
the conditions set out in the accepted Order Form and the provisions of these SaaS-Terms.
4.3Due date. Unless otherwise agreed, invoices are due 30 days after
invoice date and must be paid without deduction to the account of flair.hr as
specified in the Order Form. All amounts are exclusive of taxes and other
charges.
4.4Suspension of Services. If Customer is in default on a payment
pursuant to the terms of payment as set forth in these SaaS-Terms, flair.hr
shall, after providing a reminder with a reasonable deadline, be entitled to
suspend all Services under the SaaS-Agreement for as long as payment remains
outstanding. flair.hr 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 Services due to default of payment.
4.5Default interests. The customer shall pay default interest for the period of default.
The interest rate is nine percentage points above the base interest rate
applicable at the time of default.
4.6Offsetting. Customer may only offset against undisputed or
finally awarded claims and may only base a right of retention on undisputed or
finally awarded claims.
4.7Price modifications. flair.hr reserves the right to unilaterally
determine and modify its pricing for the Services. To the extent the Customer
has concluded a SaaS-Agreement with flair.hr and such SaaS-Agreement is in
effect, flair.hr may, at its reasonable discretion, increase the Fees once per
year to the development of the costs that are decisive for the calculation of
Fees but by no more than 10 %. A fee increase may be considered, and a fee reduction
shall be made, if, for example, the costs for hosting provider or procurement result
in a different cost calculation. Increases in one type of cost (e.g., hosting
provider fees), shall only be used for a fee increase to the extent that they
are not offset by any declining costs in other areas (e.g., employment costs).
In the event of cost reductions, flair.hr shall reduce the Fees insofar as
these cost reductions are not fully or partially offset by increases in other areas.
flair.hr shall notify Customer of the increase in Fees in Textform three months
prior to the date on which the increase in Fees takes effect. If Customer does
not consent to the increase, it may, in Textform within a period of four weeks
from receipt of the notification, terminate the SaaS-Agreement for special cause
(Sonderkündigungsrecht) at the point in time at which the increase in
Fees planned by flair.hr comes into effect. If Customer does not terminate the SaaS-Agreement,
Customer shall be deemed to have accepted the increase in Fees, and the
increased Fees shall apply to the SaaS-Agreement with flair.hr for the
remainder of the Term of the SaaS-Agreement.
5Provision of the SaaS-Solution
5.1Provision of SaaS-Solution. flair.hr shall make the
SaaS-Solution available to Customer for the during the Term of the
SaaS-Agreement and enable Customer and its agreed number of authorized users as
specified in the Order Form (hereafter referred to as “Authorized Users”)
to use the SaaS-Solution and its functions, store and process data, and be able
to retrieve the results thereof.
5.6Modifications. flair.hr shall be entitled, but not obliged, to
modify the SaaS-Solution, in particular, to adapt it based on technological
progress. flair.hr reserves the right to modify or discontinue individual parts
of the Services. flair.hr may modify the SaaS-Solution at any time without
degrading its functionality or security features. Customer will be informed by flair.hr
by email about any major updates. flair.hr shall give Customer at least two (2)
weeks’ notice of any material changes that alter the functionality of the
SaaS-Solution.
For current subscriptions, flair.hr
may degrade the functionality of the SaaS-Solution or discontinue the
SaaS-Solution only in case of (i) legal requirements; (ii) the termination of a
contractual relationship with a provider of software and/or services used by flair.hr
that are material for the provision of services; and/or (iii) security risks. flair.hr
will notify Customer of any material degradation of functionality or the
discontinuation of the SaaS-Solution and the effective date at least sixty (60)
days prior to such a change, and Customer may terminate usage of the modified
SaaS-Solution thirty (30) days prior to the effective date of such change. In
the event of a termination or discontinuation of the SaaS-Solution, flair.hr
will not refund any applicable prepaid amounts for the remainder of the
subscription term. flair.hr does not maintain prior versions of the SaaS-Solution.
5.7Monitoring. flair.hr may monitor Customer’s usage of the
SaaS-Solution for internal purposes, including: (i) for security and
availability reasons; (ii) to ensure compliance with these SaaS-Terms or any SaaS-Agreement
thereunder; (iii) to detect, prevent, and suspend any use of the SaaS-Solution
that violates restricted use rights under these SaaS-Terms or any SaaS-Agreement
thereunder; and (iv) to offer Customer, in accordance with any applicable legal
requirements, other products or services that are not yet part of the
SaaS-Solution. flair.hr may also use usage information on an aggregated basis
to improve the SaaS-Solution or other flair.hr products and services.
5.8Limitations. The
undertakings in section 5.1, 5.2, 5.3, 5.4, 5.5 will not apply to the extent any
non-conformance is caused by use of the SaaS-Solution contrary to flair.hr’s
instructions, or modification or alteration of the SaaS-Solution by any party
other than flair.hr or our authorised contractors or agents.
6Customer obligations
6.1Data connection. Customer shall, at its own expense, establish
the data connection via the internet between its hardware and the data transfer
point defined by flair.hr. Customer shall have sole responsibility for the
operation and maintenance of this data connection and shall bear all associated
costs.
6.2Access. Customer shall (i) carefully store access credentials,
protect them from unauthorized access and prohibit use by third parties; (ii)
not gain access to the Services by any means other than through the customer
account provided by flair.hr under the SaaS-Agreement; (iii) not circumvent or
disclose any authentication or security measures; and (iv) not use a false
identity or credentials of another person to gain access to any account. If
Customer becomes aware that access credentials may have been unlawfully
obtained or could be misused by a third party, Customer must inform flair.hr
immediately.
6.3Prohibited Uses: Customer
may use the Services only for lawful purposes and not in any way that breaches
any applicable law or regulation. In addition, Customer may not use the
Services: (a) for harming, bullying, insulting, intimidating or attempting to
harm, bully, insult, intimidate any individual; (b) to send, receive, upload,
download, use or re-use any material which does not comply with the standards
set out in section 6.4 below; (c) to transmit, or procure the
sending of, any unsolicited or unauthorised advertising or promotional material
or any other form of similar solicitation (spam); (d) subject to these SaaS-Terms,
to license, sell, rent, lease, transfer, assign, distribute, display, disclose,
or otherwise commercially exploit, or otherwise make the SaaS-Solution
available to any third party except the Authorised Users; (e) to attempt to
obtain, or assist third parties in obtaining, access to the SaaS-Solution,
other than as provided under this Agreement; (f) to build a service or product
which competes with the SaaS-Solution; attempt to de-compile, disassemble,
reverse engineer or otherwise reduce to human-readable form all or any part of
the SaaS-Solution, and (g) to create liability for or cause damage to flair.hr in
any way. Customer must not reproduce, duplicate, copy or resell the SaaS-Solution
(or any part of it) in breach of any of the provisions of these SaaS-Terms and must
not access, interfere with, damage or disrupt any part of the SaaS-Solution, or
any equipment or network on which the SaaS-Solution is stored, or any software
used in the provision of the Services. flair.hr reserves the right, without
liability or prejudice to our other rights to Customer, to suspend Customer’s
or any Authorised User's access to the Software Services for any breach of this
clause.
6.4Uploading material. Customer agrees
to not upload any content onto the SaaS-Solution or use the SaaS-Solution in
any way that would: (a) infringe any third-party copyright, patent, trademark,
trade secret, or other proprietary rights or rights of publicity or privacy;
(b) be fraudulent or involve the sale of counterfeit or stolen material,
including, but not limited to, use of the SaaS-Solution to impersonate another
person or entity; (c) violate any law, statute, ordinance, or regulation; (d)
be false, misleading, or inaccurate; (e) create liability for flair.hr or cause
flair.hr to lose (in whole or in part) the services of any of flair.hr’s
service providers; (f) be defamatory, libelous, unlawfully threatening, or
unlawfully harassing; or (g) potentially be perceived as illegal, offensive, or
objectionable. With regard to its obligations under (a) through (g) above,
Customer shall be liable for all content uploaded by any Authorized User
related to Customer. Customer shall properly handle any notices and claims sent
to Customer claiming that Customer’s content violates a third party’s rights or
laws.
6.5Customer data. Customer is solely responsible for the use of its
own data used in connection with the Services and the means by which Customer
acquires and shares such data with third parties. This includes taking steps to
maintain legally required or otherwise appropriate security and protection,
including regular backup and archiving of Customer’s data and any document
retention or archiving obligations resulting from laws, company policies, or
the state of the art.
6.6System requirements. Customer shall fulfill the system
requirements necessary for the use of the SaaS-Solution, which are specified in
the Order Form and documents referenced therein. flair.hr may modify these
system requirements in the course of enhancing the SaaS-Solution. Customer will
be notified of any modifications to the system requirements.
6.7Viruses. Customer
must not deliberately access, store, distribute or transmit any viruses on to
or through the SaaS-Solution or systems used to provide the SaaS-Solution to Customer
(or anything that is designed to adversely affect the hardware, software or
systems used to deliver the Services). Customer must use all reasonable
endeavours to protect against this being done without deliberate intent,
including by using up to date virus protection software.
6.8Responsibility for Authorized Users. Customer is responsible for
the use of the Services by its Authorized Users.
6.9Changes. Customer shall inform flair.hr in Textform of any
changes to its business that are relevant to the performance of the Services.
Such changes include, but are not limited to, changes to Customer’s business
address, company, legal form or contact person.
7.1Maintenance. flair.hr will provide maintenance for the SaaS-Solution
in accordance with the following provisions. Maintenance shall include (i) the
remediation of Defects (as defined in section 7.2);
(ii) the provision of new releases of the SaaS-Solution in accordance with the
provisions of section 5.5 and as required by law; and (iii) the provision of a
user-helpdesk (subject to the provisions section 7.3).
7.2Reporting of defects. Customer shall immediately
report any defect (Defect in Quality within the meaning of section 8
or Defect in Title within the meaning of section 9
(together “Defect”)) to the user-helpdesk provided by flair.hr as
specified under section 7.3. Customer shall give a detailed description of the
effects of the Defect.
7.3User-helpdesk. flair.hr provides Customer a user-helpdesk.
Any Defect and any support request submitted to the user-helpdesk will be
assigned to categories as defined in section 7.4.
According to the categorization of the request, corresponding actions shall be
carried out by flair.hr within the reaction times specified in the relevant
Service Level Agreement. The contact details of the user-helpdesk are specified
in the Service Level Agreement.
7.4Categorization of requests. If the request is categorized as
a Defect, flair.hr shall remedy the defect in accordance with the respective
provisions in section 8 and section 9. If the request is not categorized as a
Defect, flair.hr is under no obligation to offer any additional support
services to Customer, unless the Customer has concluded a separate support
agreement for additional support services, such support services to be charged
separately and subject to the Support Terms (see section 1.5(b)).
7.5Exclusions. Customer shall have no remedy for defects of
the SaaS-Solution that are the result of unauthorized changes to the
SaaS-Solution by Customer or where Customer has not used the SaaS-Solution in
accordance with the applicable Documentation. To the extent the Customer uses
third-party services in connection with the SaaS-Solution, flair.hr is not
responsible for defects based on third party services or software, in
particular the error-free functionality of the SaaS-Solution.
8.1Defect in Quality. A “Defect in Quality” exists if the SaaS-Solution does not
have the contractually agreed quality which is determined in the respective Order
Form and documents referenced therein. Insofar as the quality
has not been agreed, it shall be assessed in accordance with statutory
provisions.
8.2Remediation.flair.hr will categorize submitted
reports in accordance with section 7.4.
If the request is categorized as a Defect in Quality, flair.hr shall, at its
reasonable discretion, choose one of the following measures to remedy the
defect:
(a)deploying an update or release;
(b)issuing instructions to Customer on how to circumvent the problem or to
remedy the defect. Customer shall, as far it is reasonably possible, ensure
that such instructions are implemented by competent personnel.
9.1Defect in Title.A “Defect in Title” exists where it is not possible
for Customer to be validly granted the rights required for the use of the
SaaS-Solution.
9.2Remediation.flair.hr will categorize submitted
reports in accordance with section 7.4.
If the request is categorized as a Defect in Title, flair.hr shall provide
Customer with a legally unchallengeable means of using the SaaS-Solution. flair.hr
may exchange the service concerned for an equivalent service unless this is
unacceptable to Customer. If third parties assert intellectual property rights
against Customer, Customer must immediately inform flair.hr in Textform. flair.hr
shall defend or settle the claims at its discretion and in consultation with
Customer. Customer shall, without undue delay, provide flair.hr with all
information required for defense against such claims. Customer must not
acknowledge the claims of third parties on its own initiative. flair.hr shall
defend the claims against Customer at its own expense and shall indemnify
Customer against all reasonable and legal costs and loss or damage associated
with the defense, unless these result from a breach of duty by Customer.
10Availability
10.1Availability. flair.hr
shall ensure the availability-rate as specified in the respective Service Level
Agreement.
10.2Calculation. For
the purposes of calculating the availability of the SaaS-Solution in relation
to the relevant Service Level Agreement, any of the following reasons for
non-availability or reduced availability of the SaaS-Solution shall not be
taken into consideration:
(a)Any unavailability or reduced availability of
the SaaS-Solution that was pre-announced and due to planned maintenance;
(b)any unavailability or reduced availability of
the SaaS-Solution in order to prevent any possible damage, disruptions or other
severe consequences for flair.hr or Customer;
(c)any unavailability or reduced availability of
the SaaS-Solution which is due to third-party software provided by Salesforce;
(d)any unavailability or reduced availability of
the SaaS-Solution caused by any unforeseen event beyond
the reasonable control of a flair.hr that cannot be avoided even by
exercising reasonable care, including, but not limited to natural disasters,
epidemics, pandemics, war, blockade, embargo, energy supply or operational
disruptions, energy shortage, official orders, statutory prohibitions,
industrial action or other cases of force majeure.
10.3In the event of any planned unavailability for maintenance purposes, flair.hr
shall try to minimize the duration of the suspension as much as possible and,
where possible, perform the maintenance outside office hours. In the event of
any non-planned unavailability or reduced availability, flair.hr shall notify
Customer immediately and inform Customer of the probable duration. Customer shall cooperate with flair.hr in order to identify the
source of any problem if it is in Costumer’s sphere. If flair.hr is
unable to perform any Service due to force majeure, Customer shall also be
released from its performance obligation.
11Temporary suspension
11.1Suspension. flair.hr may suspend or limit Customer’s use of
Services immediately if flair.hr reasonably determines that there is a material
breach of Customer’s obligations as set forth in these SaaS-Terms or the SaaS-Agreement
or a security incident or threat to the security of the Services in connection
with Customer’s access to or use of its functionalities; or if such suspension
or limitation is required by law, a court decision, or a request from a
governmental body. In particular, breaches for failure to pay Fees due under
these SaaS-Terms or failure to comply with section 6.3
(Prohibited Uses) section 14 (Indemnification), section 15
(Intellectual Property Rights) and section 18
(Confidentiality) will constitute a material breach. flair.hr’s right to
terminate any SaaS-Agreement in accordance with section 12
and all other rights and remedies of flair.hr remain unaffected.
11.2Customer obligations during suspension. In case of a suspension
or limitation, Customer’s obligation to pay the Fees according to section 4
remains unaffected.
11.3Reactivation of Services. If Customer can reasonably remedy the
cause of the suspension or limitation, flair.hr will notify Customer of the
actions that Customer must take to reinstate access to the Services. The
suspension or limitation will be lifted as soon as the reason for such
suspension or limitation no longer exists. flair.hr reserves the right to
charge a reasonable reactivation fee.
12.1Term. TheSaaS-Agreement
shall be effective as of the effective date specified in the Order Form (“Effective
Date”) and shall remain effective during the initial term as specified in
the Order Form (“Initial Term”). The Initial Term will automatically
renew for additional 12 months (each a “Renewal Term”) after the
Initial Term or any Renewal Term, unless either party terminates the
SaaS-Agreement upon a six weeks’ notice before the end of the respective
Initial Term or Renewal Term (the Initial Term together with any Renewal Term
together the “Term”).
12.2Termination by either party. Either party may terminate the
SaaS-Agreement for cause (Kündigung aus wichtigem Grund). Termination of
the SaaS-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 SaaS-Agreement only if it provides
written notice to the other party, granting the other party a reasonable term
of at least thirty 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. 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 insolvency
proceedings, suspends payments, or files a petition for insolvency, bankruptcy,
winding-up, or similar procedure.
12.3Termination by flair.hr.In addition, flair.hr
may immediately terminate the SaaS-Agreement during the Term for cause,
if:
(b)the Customer undergoes a change of control, such as the transfer of the
majority of its (or its direct or indirect parent company) shares or assets, or
the consolidation or merger with another entity.
12.4Fees and refunds. Upon termination of the SaaS-Agreement, all
unpaid fees will be immediately due and payable and Customer shall not be
entitled to a refund of any amounts paid under these SaaS-Terms. Termination
shall not relieve Customer of its obligations to pay any amounts then due to
flair.hr.
12.5Form. Any termination notice requires at least Textform.
13Liability
13.1Liability. flair.hr 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 SaaS-Agreement
and on whose fulfilment Customer could reasonably rely (“Essential
Obligations” – Kardinalpflicht), the liability of flair.hr 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.
13.2Exclusion of Liability. flair.hr is not liable for slightly
negligent breaches of accessory obligations that are not Essential Obligations.
To the extent the liability of flair.hr is excluded or limited, this shall also
apply to the personal liability of flair.hr’s employees, members of staff,
representatives, and vicarious agents.
13.3Exclusions. 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.
Customer shall indemnify flair.hr,
its suppliers and contractors, and each of their respective employees,
officers, directors, and representatives from and against, and, at flair.hr’s
option, defend flair.hr against, any claims, damages, liabilities, losses,
costs, and expenses (including reasonable attorney’s fees) arising from or in
connection with: (i) the use of the Services by Customer not in accordance with
the SaaS-Agreement; (ii) any violation of laws or rights of others by
Customer’s use of the Services; (iii) any breach by Customer or any of its
employees; (iv) operation, combination, or use of the Services in conjunction
with any of Customer’s own data, information, content, software, materials, or
services and/or in conjunction with any third party data, information, content,
software, materials, or services; (v) an adjustment or different configuration
of the Services made or caused by Customer, or a third party to which Customer
facilitates or permits access to the Services; (vi) any claims by any member or
employee of Customer, or contractor or other third party to which Customer
facilitates or permits access to the Services; and (vii) the Customer’s unauthorized
use of flair.hr’s trademarks, designations, and logos.
15.1Intellectual property. The SaaS-Solution is protected by
copyright and other intellectual property rights. flair.hr and its licensors
shall exclusively retain all right, title and interest to the SaaS-Solution and
Documentation, and any intellectual property rights that can be exercised in
relation to the Services. The Customer shall acquire no rights whatsoever other
than explicitly described in section 15.2.
15.2Grant of rights. Subject to
compliance with the provisions of these SaaS-Terms and SaaS-Agreements, flair.hr
grants Customer a non-exclusive, non-sublicensable and non-transferable right,
limited to the Term and the number of Authorized Users, to use the
SaaS-Solution within the specified scope via the internet as a cloud solution
as well as the corresponding Documentation. Further restrictions may be listed
in the respective SaaS-Agreement.
15.3Third-party technology. If and to the extent as the 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. flair.hr will notify Customer of
third-party terms and conditions by referencing them in the SaaS-Agreement or
by providing other written or electronic notice. With respect to such
third-party technology, the applicable third-party terms and conditions shall
replace any provisions set forth in these SaaS-Terms or SaaS-Agreements
concluded thereunder between flair.hr and Customer. flair.hr is not responsible
for such third-party technology and such third-party terms do not govern flair.hr’s
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 flair.hr 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, and to comply with the license requirements stated by
such third party.
16Customer data, return of data
16.1Customer Data. Customer shall retain ownership of or exclusive
rights over its data that are stored on the Customer’s storage space provided
by flair.hr (hereafter referred to as “Customer Data”) and may access
Customer Data at any time during the Term subject to these SaaS-Terms and the
Order Form.
16.2Return of Customer Data. Upon expiration or termination of the SaaS-Agreement,
the return of Customer Data shall take place by the provision of an internet
download option in a format to be determined by flair.hr. Customer must inform flair.hr
at least 14 calendar days before the end of the SaaS-Agreement in Textform if Customer
wants to receive Customer Data at the end of the SaaS-Agreement. Customer shall
notify flair.hr of any issues with the Customer Data provided within 14
calendar days upon receipt of the Customer Data from flair.hr. If Customer
fails to inform flair.hr about the intention to receive Customer Data or any
issue with the Customer Data received within the given time frames, flair.hr
has the right to delete Customer Data 90 calendar days after the expiration or termination
of the SaaS-Agreement.
16.3Deletion of Customer Data. flair.hr shall delete Customer Data
still available to it 90 calendar days after the data is returned to Customer
following the end of a contract, unless Customer notifies flair.hr within this
period that the data provided to Customer is not legible or is incomplete.
17Subcontractors
flair.hr
shall be entitled to involve subcontractors for the provision of Services,
e.g., cloud space and data hosting providers. The use of subcontractors shall
not relieve flair.hr of its obligation vis-à-vis Customer.
18.1Confidential Information. “Confidential Information” shall mean any and all information and data – either of
technical, financial or business nature – received from 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 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.
18.2Exclusions. 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.
19Data protection
19.1Data protection. flair.hr 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. flair.hr
and the Customer each shall impose their respective statutory data protection
obligations on their staff and any subcontractors engaged.
19.2Data analysis. Customer consents to the data analysis of usage
data in anonymous form for the purposes of improving the SaaS-Solution, the
user experience, and security. This consent includes granting flair.hr the
right to use the results in anonymous form for the benefit of other flair.hr customers.
19.3Data processing agreement. For the processing of personal data by
flair.hr on behalf of the Customer within the scope of the GDPR, the parties
shall conclude a data processing agreement pursuant to Art. 28 of the GDPR.
Customer shall inform flair.hr of the persons authorized to issue instructions.
The data processing agreement shall take precedence over the provisions of
these SaaS-Terms (see section 2.2).
20Miscellaneous
20.1Form. Any SaaS-Agreement shall be concluded in text form within
the meaning of section 126b of the German Civil Code (“Textform”), and
any amendment to a SaaS-Agreement requires Textform.
20.2Language and Interpretation. These SaaS-Terms have been drafted
in the English language and the English language version shall be solely
binding upon the parties to the SaaS-Agreement. Any translation of these SaaS-Terms
shall be considered as convenience translation and not be binding upon the
parties to the SaaS-Agreement. To the extent these SaaS-Terms include legal
terms in German used in brackets, such legal term shall be used for the
interpretation of these SaaS-Terms and the SaaS-Agreement based upon these SaaS-Terms.
20.3Amendments. flair.hr reserves the right to amend the SaaS-Terms considering
the legitimate interests of the parties to the SaaS-Agreement. In the event of
a change to the SaaS-Terms, flair.hr shall notify the Customer of the changes
to the SaaS-Terms in Textform (“Notification”). The amendments shall
become effective vis-à-vis the Customer, and the contractual
relationship shall continue under the amended conditions, if the Customer does
not object to such amendments within four weeks of receipt of the Notification
by flair.hr in Textform. The timely dispatch of the objection to flair.hr shall
suffice to meet this deadline. In the event of an objection, both parties shall
be entitled to terminate the SaaS-Agreement for special cause (Sonderkündigungsrecht).
flair.hr will inform the Customer of the Customer’s termination right and the consequences
of a failure to object to the Notification.
20.4Applicable law. SaaS-Agreements and these SaaS-Terms shall
be governed by the laws of Germany.
20.5Place of Jurisdiction. The place of jurisdiction for all
disputes arising from or in connection with SaaS-Agreements under these SaaS-Terms
shall be the registered seat of flair.hr in Germany.
20.6Assignment. Neither
the SaaS-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. flair.hr may transfer and assign the SaaS-Agreement
and its obligations under these SaaS-Terms to an Affiliate of flair.hr. “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.
20.7Severability. If any provision of these SaaS-Terms or any SaaS-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 much as possible in
accordance with applicable law.
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