Terms and Conditions for Support and Additional Services

1             Applicability and Subject Matter

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

1.2          Service Provider. 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 Services under these Support Terms.

1.3          Business use. These Support 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.

1.4          Exclusion of Customer’s terms. These Support Terms apply exclusively. Deviating, conflicting or supplementary terms and conditions shall only become part of the Support Agreement if and to the extent that Service Provider has expressly agreed, by way of prior consent, that such terms shall apply to the Support Agreement. This requirement of prior consent 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.

1.5          Additional Terms. In addition to the Services provided under these Support Terms, the Service Provider may provide other services which are subject to specific terms.

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

(b)           The provision of implementation services is subject to the Terms and Conditions for Implementation Services.

2             Support Agreement

2.1          Support Agreement. For the purpose of these Support Terms, a Support Agreement shall mean these Support Terms together with any of the following documents (to the extent applicable):

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

(b)           the statement of work (“SOW”);

(c)           the Service Level Agreement for Premium Support (“PSLA”);

(d)           the data processing Agreement ("DPA");

(e)           any documents referred to in the documents.

2.2          Conflicts. If there is a conflict between these Support Terms and any of the documents referred to in section 2.1, the provisions in the Order Form shall take precedence over the provisions of these Support Terms and the SOW, and the provisions in the SOW shall take precedence over these Support Terms. Except for the DPA, these Support Terms shall prevail over any other documents referred to in these Support Terms.

3             Conclusion of the Support Agreement

3.1          Contracting parties. For the use of Services provided by Service Provider under the Support Terms, Customer will solely contract with Service Provider. Salesforce, Inc. is not a contracting party with respect to the Services offered and provided by Service Provider under the Support Terms.

3.2          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 3.3.

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

3.4          Additional agreements and amendments. Any additional agreement to the Support Agreement shall be concluded in Textform and with explicit reference to the respective Support 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 Support Terms require a separate agreement between Service Provider and Customer.

4             Scope of the Services

4.1          Services. Service Provider shall provide technical support (“Support Services”) and/or additional services (“Additional Services”) to Customer as specified in the Order Form and SOW (together the “Services”). Support Services hereunder include the services stated on the Order Form and the PSLA and are further described below. Additional Services hereunder include the services stated in the Order Form and the SOW, and may include, for example, the development and implementation of additional features, further customization of the SaaS-Solution, and individual training. The user helpdesk (section 4.5), as the first point of contact for any initial request, is always provided by flai.hr. under flair.hr’s Terms and Conditions for SaaS.

4.2          Description of Services. The scope, nature and characteristics of the Services described in the respective Order Form, SOW, PSLA, or other document applicable to the Support Agreement does not constitute and must not, in any event, be interpreted as an assurance (Zusicherung) of certain characteristics or as a guarantee (Garantie).

4.3          Standard Support. To the extent support is provided under the SaaS-Agreement concluded based on flair.hr’s Terms and Conditions for SaaS, such support is not subject to these Support Terms. Any remediation of defects and any standard maintenance of the SaaS-Solution are not considered Support Services under these Support Terms and are provided by flair.hr under and subject to flair.hr’s Terms and Conditions for SaaS.

4.4          Premium Support. To the extent selected in the Order Form, Service Provider will provide premium support as part of the Support Services based on these Support Terms and the applicable PSLA.

4.5          User-helpdesk. To determine the nature of and to track Customer requests, flair.hr provides Customer with a user-helpdesk which is subject to flair.hr’s Terms and Conditions for SaaS. The user helpdesk is the first point of contact for any Customer request. Any request submitted by the Customer to the user-helpdesk will be categorized as stated below. According to the categorization of the request, corresponding actions will be carried out. The user-helpdesk will categorize requests as follows:

(a)           Categorization as defect: If the request is categorized as a defect, flair.hr will react to the request and rectify the defect as provided under and within flair.hr’s Terms and Conditions for SaaS.

(b)           Categorization as support request: If the request is not categorized as a defect as defined above, but is a request for technical support (e.g., a general enquiry regarding the use of the SaaS-Solution or any of its features, plans to implement new features, or technical issues that do not constitute a defect of the SaaS-Solution) such request will be categorized by flair.hr as support request. To the extent a request is categorized as support request by the user-helpdesk, Service Provider will provide premium support to the extent selected on the Order Form and subject to these Support Terms.

5             Fees and Payment

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

5.2          Invoicing. Fees shall be invoiced to Customer in accordance with the conditions set out in the accepted Order Form and the provisions of these Support Terms.

5.3          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.

5.4          Suspension of Services. If Customer is in default on a payment pursuant to the terms of payment as set forth in these Support Terms, Service Provider shall, after providing a reminder with a reasonable deadline, be entitled to suspend all 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 Services due to default of payment.

5.5          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.

5.6          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. 

6             Cooperation and customer duties

6.1          Cooperation. The parties agree that they shall cooperate closely and efficiently in a spirit of mutual trust and good faith. Customer shall, in particular (i) specify the requirements for the Services to a sufficient extent; (ii) supply proper notes, documentation and information necessary for the Services, (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 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.

6.2          Backups. It is Customer’s obligation to retain backups of Customer’s data. Customer shall in particular prior to any Services 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.

6.3          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 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.

6.4          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 4. This shall not affect any legal rights of Service Provider to terminate the Support Agreement.

7             Acceptance

7.1          Acceptance. If and to the extent provided by law or agreed in the Support Agreement, completed 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 Support Agreement. Acceptance of a work product, e.g., the development of a new feature, shall be in accordance with the following provisions of this section.

7.2          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 fulfils all material requirements as set forth in the respective Order Form and documents attached thereto or referenced therein, in particular, the SOW.

7.3          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.

7.4          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 Support Agreement.

7.5          Protocols. Upon request of either party, a written protocol shall be prepared and signed by both parties at the end of the acceptance review (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.

7.6          If Customer does not declare its acceptance without undue delay, Service Provider may in writing 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.

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

8             Defects after acceptance

8.1          The Services provided by Service Provider shall be substantially in accordance with the description in the respective Support 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. 

8.2          In case of a defect, Customer may demand subsequent performance (Nacherfüllung). Service Provider shall have the right to choose between improvement and replacement. If the defect is not cured within a first time limit Customer shall set a reasonable second time limit. If the defect 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 Support Agreement.

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

8.4          Any claims for damages are subject to the limitations set forth under section 9.

8.5          Amendments or additions to the Services 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 shall also not be responsible for defects, which are caused by improper use or improper operation or the use of unsuitable means of operation by Customer.

8.6          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.

9             Liability

9.1          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 Support 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.

9.2          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.

9.3          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.

10          Term and termination

10.1        Term. The Support Agreement shall be effective as of the effective date specified in the Order Form (“Effective Date”) and shall remain effective during an initial contract 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 Support 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”).

10.2        Termination by either party. Either party may terminate the Support Agreement for cause (Kündigung aus wichtigem Grund). Termination of the Support 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 Support Agreement only if it provides written notice to the other party and grants 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. For errors and defects of the Services, the specific provisions on remediation terms in section 7.4 and section 8.2 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 proceedings, suspends payments, or files a petition for bankruptcy, winding-up, or similar procedure.

10.3        Termination by Service Provider. In addition, Service Provider may immediately terminate the Support Agreement during the Term for cause, if Customer breaches section 11 (indemnification), section 12 (intellectual property rights), or section 14 (confidentiality); or

10.4        Fees. If the Support Agreement is terminated prior to the completion of Services or individual work products, Service Provider shall be entitled to charge an amount which corresponds to the Services or work products which it has provided up until the termination of the Support Agreement. Upon termination of the Support Agreement, all unpaid fees will be immediately due and payable and Customer shall not be entitled to a refund of any Fees prepaid for a predefined term, e.g., annual support fees, are non-refundable.

10.5        Form. Any termination notice requires at least Textform.

10.6        Statutory withdrawal rights. Statutory withdrawal rights remain unaffected to the extent specified under section 7.4 and section 8.2.

11          Indemnification

1.             Customer shall indemnify Service Provider, its suppliers and providers, and each of their respective employees, officers, directors, and representatives from and against, and, at Service Provider’s option, defend Service Provider 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 Support 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 service provider or other third party to which Customer facilitates or permits access to the Services; and (vii) the Customer’s unauthorized use of Service Provider’s trademarks, designations, and logos.

12          Intellectual property rights

12.1        Intellectual Property. Any work results based on 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 Services that are protected by copyright. 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. The Customer shall acquire no rights whatsoever other than explicitly described in section 12.2. If, as part of the Services under these Support Terms, changes will be made to the SaaS-Solution for the benefit of the Customer, flair.hr remains the sole owner of the amended or customized SaaS-Solution and the legal owner and holder of all rights thereto, with the exception of any third-party technology (see section 12.3).

12.2        Grant of rights. Subject to full compliance with the Support Agreement between Service Provider and the Customer based on the Support Terms, Service Provider grants Customer a non-exclusive, non-sublicensable and non-transferable right, timely limited to the Term of the Support Agreement, to use the work results created based on the Services under the Support Agreement. Further restrictions may be listed in the respective Support Agreement.

12.3        Third-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. Service Provider may notify Customer of third-party terms and conditions by referencing them in the Support 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 Support Terms or Support Agreements 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 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.

13          Subcontractors

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

14          Confidentiality

14.1        Confidential Information. “Confidential Information” shall mean any and all information and data – either of technical, financial or business nature – received from Service Provider 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, 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.

14.2        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.

15          Data protection

15.1        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 Support Agreement. To the extent required under applicable law, each party shall impose the statutory data protection obligations on their staff and any subcontractors engaged.

15.2        Data processing agreement. With regard to the processing of personal data by Service Provider on behalf of Customer within the scope of and as required under the GDPR, the parties shall conclude, or amend an existing DPA in force, as the case may be, a data processing agreement pursuant to Art. 28 GDPR. Customer must inform Service Provider directly of the persons authorized to issue instructions. The data processing agreement shall take precedence over the provisions of these Support Terms.

16          Miscellaneous

16.1        Form. Any Support Agreement shall be concluded in text form within the meaning of section 126b of the German Civil Code (“Textform”), and any amendment to a Support Agreement requires Textform.

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

16.3        Applicable law. Support Agreements and these Support Terms shall be governed by the laws of Germany.

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

16.5        Assignment. Neither the Support 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 Support Agreement based on these Support Terms, flair.hr may transfer and assign its Support Agreement and its obligations under these Support Terms to an Affiliate of flair.hr.

16.6        Severability. If any provision of these Support Terms or any Support 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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