Terms and Conditions for SaaS

1             Applicability and Subject Matter

1.1          Applicability. 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”).

1.2          Business 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.

1.3          Exclusion 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.

1.4          Scope. 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”).

1.5          Additional Terms. In addition to the Services provided under these SaaS-Terms, flair.hr provides 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.

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

2             SaaS-Agreement

2.1          SaaS-Agreement. For the purpose of these SaaS-Terms, a SaaS-Agreement shall mean these SaaS-Terms together with the following:

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

(b)           the data processing Agreement (“DPA”);

(c)           the services description document (“Service Description”)

(d)           the service level agreement for SaaS (“Service Level Agreement”); and

(e)           any documents referred to therein or in these SaaS-Terms.

2.2          Conflicts. 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.

2.3          Description 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             Conclusion of the SaaS-Agreement

3.1          Contracting 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.

3.2          Order 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.

3.3          Conclusion. 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.

3.4          Additional 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             Fees and Payment

4.1          Fees. Customer shall pay the fees for the SaaS-Solution as set forth in the Order Form and any other fees stated therein (“Fees”).

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

4.3          Due date. Unless otherwise agreed, invoices are due 14 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.

4.4          Suspension 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.

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

4.6          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.

4.7          Price 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.

5             Provision of the SaaS-Solution

5.1          Provision 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.

5.2          Hosting and transfer point. flair.hr shall operate the SaaS-Solution on servers in data centres that are accessible to Customer via the internet. The transfer point for the SaaS-Solution provided by flair.hr shall be the router output to the internet of the data centres used by flair.hr. flair.hr shall not be responsible for connecting Customer to the internet, maintaining the network connection, or obtaining and installing the hardware and software required by Customer.

5.3          Documentation. flair.hr will provide Customer with a general documentation on how to use the SaaS-Solution.

5.4          Maintenance and support. Maintenance and support related to SaaS-Solution is subject to the provisions in section 7.

5.5          Version and updates. flair.hr shall make SaaS-Solution available to Customer in the current program version. The functional scope of the SaaS-Solution at the time of conclusion of the SaaS-Agreement is specified in the Order Form and the Service Description. flair.hr will develop the SaaS-Solution on an ongoing basis and improve it through new program versions (Updates, Releases). flair.hr will provide updates and/or upgrades necessary to maintain the conformity of the SaaS-Solution. This includes security updates and/or security upgrades.

5.6          Modifications. 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.

1.             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.

5.7          Monitoring. 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.

5.8          Limitations. 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.

6             Customer obligations

6.1          Data 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.

6.2          Access. 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.

6.3          Prohibited 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.

6.4          Uploading 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.

6.5          Customer 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.

6.6          System 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.

6.7          Viruses. 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.

6.8          Responsibility for Authorized Users. Customer is responsible for the use of the Services by its Authorized Users.

6.9          Changes. 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             Maintenance and support

7.1          Maintenance. 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).

7.2          Reporting 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.

7.3          User-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.

7.4          Categorization 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)).

7.5          Exclusions. 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             Defects in quality

8.1          Defect 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.

8.2          Remediation. 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             Defects in title

9.1          Defect 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.

9.2          Remediation. 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.

10          Availability

1.1          Availability. flair.hr shall ensure the availability-rate as specified in the respective Service Level Agreement.

1.2          Calculation. 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.

1.3          In 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.

2             Temporary suspension

2.1          Suspension. 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.

2.2          Customer obligations during suspension. In case of a suspension or limitation, Customer’s obligation to pay the Fees according to section 4 remains unaffected.

2.3          Reactivation 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.

3             Term and termination

3.1          Term. The SaaS-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”).

3.2          Termination 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.

3.3          Termination by flair.hr. In addition, flair.hr may immediately terminate the SaaS-Agreement during the Term for cause, if:

(a)           the Customer breaches section 14 (indemnification), section 15 (intellectual property rights), section 18 (confidentiality); or

(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.

3.4          Fees 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.

3.5          Form. Any termination notice requires at least Textform.

4             Liability

4.1          Liability. 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 fulfillment is essential to the due and proper implementation of the SaaS-Agreement and on whose fulfillment 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.

4.2          Exclusion 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.

4.3          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.

5             Indemnification

2.             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.

6             Intellectual property rights

6.1          Intellectual 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.

6.2          Grant 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.

6.3          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. 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.

7             Customer data, return of data

7.1          Customer 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.

7.2          Return 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.

7.3          Deletion 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.

8             Subcontractors

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.

9             Confidentiality

9.1          Confidential 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.

9.2          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.

10          Data protection

10.1        Data 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.

10.2        Data 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.

10.3        Data 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).

11          Miscellaneous

11.1        Form. 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.

11.2        Language 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.

11.3        Amendments. 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.

11.4        Applicable law. SaaS-Agreements and these SaaS-Terms shall be governed by the laws of Germany.

11.5        Place 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.

11.6        Assignment. 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.

11.7        Severability. 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.

3.             ***