Standard Contractual Terms of HR Improvement GmbH for the Provision of Standard Software

This translation of the standard terms are for information purpose only. They are NOT legally binding. For legal requirements the german standard terms and conditions are valid only.

1 Subject matter of the contract, material scope of application

1.1 These contractual terms and conditions apply to the use and operational support of standard software programs of HR Improvement GmbH, hereinafter referred to as HR Improvement or Provider, in accordance with the current product description and the contract as Software as a Service ("SaaS") or cloud offering. 

1.2 The software is operated by HR Improvement as a SaaS or cloud solution. The Customer is enabled to use the software stored and running on the servers of HR Improvement or a service provider commissioned by the Provider via an Internet connection for its own purposes during the term of this Agreement and to store and process its data with its help.

1.3 These contractual terms and conditions shall apply exclusively. Contractual terms and conditions of the customer shall not apply. Counter-confirmations of the customer with reference to his own terms and conditions are expressly rejected.

2 Type and scope of the service

HR Improvement provides the Customer with the Software for use via the Internet, in the respective agreed version at the router exit of the data center in which the server with the Software is located ("Transfer Point"). For this purpose, HR Improvement grants the Customer a non-exclusive, non-transferable and non-sublicensable right to use the software specified in the contract within the framework for the duration of the contract. The software, the computing power required for its use and the necessary storage and data processing space are provided by HR Improvement. HR Improvement does not owe the establishment and maintenance of the data connection between the Customer's IT systems and the transfer point described. The scope of services defined in the contract is deemed to be the agreed quality. Decisive for this are:

• the defined scope of performance of the software specified in the contract,
• the suitability for the use presupposed in the contract,
• the conditions defined in the contract,
• the following conditions.

In the event of discrepancies, the contractual agreements shall apply in the above order.

3 Availability of the Software

3.1 HR Improvement draws the Customer's attention to the fact that restrictions or impairments to the services provided may arise that are beyond HR Improvement's control. This includes, in particular, actions of third parties not acting on behalf of HR Improvement, technical conditions of the Internet that cannot be influenced by the Provider, and force majeure. The hardware, software and technical infrastructure used by the Customer may also have an influence on the services of HR Improvement. Insofar as such circumstances have an influence on the availability or functionality of the service provided by the Provider, this shall have no effect on the contractual conformity of the services provided.

3.2 The Customer is obligated to notify the Provider immediately and as precisely as possible of any functional failures, malfunctions or impairments of the Software in accordance with the agreements in the contract.

4 Data Processing Rights, Data Backup

4.1 HR Improvement complies with the legal data protection regulations.

4.2 The Customer grants HR Improvement the right, for the purposes of executing the contract, to duplicate the data to be stored by the Provider for the Customer, insofar as this is necessary to provide the services owed under this contract. HR Improvement is also entitled to keep the data in a failover system or separate failover computer center. Furthermore, HR Improvement is entitled to make changes to the structure of the data or the data format in order to eliminate faults or for technical further development.

4.3 HR Improvement regularly backs up the Customer's data on the server for which the Provider is responsible to an external backup server. The Customer may, as far as technically possible, excerpt this data at any time for backup purposes and is obliged to do so at regular customary intervals.

4.4 For the processing of personal data on IT systems for which the Provider is technically responsible, a separate order data processing agreement is concluded between the Customer and HR Improvement.

5 Support

5.1 A support case exists if the Software does not fulfill the contractual functions according to the product description. The type and manner of the error message is determined by the contract, as is the scope of the support services.

5.2 If the Customer reports a support case, it shall provide as detailed a description as possible of the respective malfunction in order to enable the most efficient troubleshooting possible.

5.3 The parties may enter into a separate agreement on the provision of support, maintenance and servicing services.

6 Remuneration

6.1 The payment period and the amount of the remuneration as well as the method of payment shall be governed by the concluded contract.

6.2 If the Customer delays the payment of a due remuneration by more than fourteen days, HR Improvement is entitled to block the access to the Software after the expiration of the 14-day period. HR Improvement's claim to remuneration remains unaffected by the blocking. Access to the Software will be reactivated immediately after payment of the arrears. The right to block access also exists as a mitigating means if HR Improvement has a right to extraordinary termination in accordance with Section 11.2. 

6.3 HR Improvement can adjust the prices as well as the rates for an agreed remuneration according to the general price development after the expiration of the initial term in accordance with the order sheet. If the fee increase is more than 5%, the Customer may terminate the contractual relationship at the end of the current contractual month.

6.4 The remuneration for other services is based on the respective valid price sheet of HR Improvement.

7 Obligations of the Customer to Cooperate

7.1 The customer shall support HR Imrovement in the performance of the contractual services to a reasonable extent.

7.2 The Customer is responsible for the proper and regular backup of its data. This also applies to documents provided to the Provider in the course of contract execution.

7.3 For the use of the software, the system requirements resulting from the product description or the contract must be met by the customer. The customer shall be responsible for this.

7.4 The Customer shall keep the access data provided to it secret and ensure that any employees to whom access data is provided do likewise. The service of the Provider may not be made available to third parties, unless this has been expressly agreed by the parties.

8 Warranty

In principle, the statutory provisions on warranty apply. The §§ 536b (knowledge of the tenant of the defect at the conclusion of the contract or acceptance), 536c (defects occurring during the rental period; notice of defects by the tenant) BGB apply. However, the application of § 536a para. 2 (Tenant's right of self-remedy) is excluded. The application of Section 536a (1) of the German Civil Code (Landlord's liability for damages) shall also be excluded insofar as the standard provides for strict liability.

9 Liability and Compensation

9.1 HR Imrovement shall be liable for damages of the Customer caused intentionally or by gross negligence, which are the consequence of the non-existence of a guaranteed quality, which are based on a culpable breach of essential contractual obligations (so-called cardinal obligations), which are the consequence of a culpable injury to health, body or life, or for which liability is provided for under the Product Liability Act, in accordance with the statutory provisions.

9.2 Cardinal obligations are such contractual obligations, the fulfillment of which enable the proper execution of the contract in the first place and the observance of which the contractual partner may regularly rely on, and the violation of which endangers the achievement of the purpose of the contract on the other side.

9.3 In the event of a breach of a cardinal obligation, liability - insofar as the damage is merely due to slight negligence - shall be limited to such damage as may typically be expected to occur when using the contractual software.

9.4 In any case, the contractual as well as tortious liability of HR Improvement is limited to 50,000 EUR for personal injury, 10,000 EUR for financial loss, property damage and damage to activities, and 5,000 EUR for loss of data, except in cases of intent and gross negligence. Liability for loss of profit is excluded.

9.5 HR Improvement assumes no liability for disruptions on telecommunication connections, for disruptions on line paths within the Internet, in the event of force majeure, for the fault of third parties or the Customer itself. HR Improvement assumes liability for damages that occur when the Customer passes on passwords or user IDs to unauthorized persons.

9.6 In all other respects, liability - for whatever legal reason - is excluded.

9.7 If damages of the Customer result from the loss of data, HR Improvement is not liable for this, as far as the damages would have been avoided by a regular and complete backup of all relevant data by the Customer. The Customer will carry out or have carried out a regular and complete data backup itself or by a third party and is solely responsible for this.

10 Customer Data and Indemnification from Third Party Claims

10.1 As a technical service provider, HR Improvement stores content and data for the Customer, which the Customer enters and stores when using the Software and makes available for retrieval. The Customer undertakes vis-à-vis HR Improvement not to post any contents and data that are punishable by law or otherwise illegal in absolute terms or in relation to individual third parties, and not to use any programs containing viruses or other malware in connection with the Software. The Customer remains the responsible party with regard to personal data and must therefore always check whether the processing of such data via the use of the Software is supported by the relevant permissions.

10.2 The Customer is solely responsible for all content and processed data used by it as well as any legal positions required for this. HR Improvement does not take note of the Customer's content and does not check the content used by the Customer with the Software as a matter of principle. 

10.3 In this connection, Customer agrees to indemnify HR Improvement against any liability and any costs, including possible and actual costs of legal proceedings, if a claim is made against Provider by third parties, including employees of Customer personally, as a result of Customer's alleged acts or omissions. HR Improvement shall notify Customer of the claim and, to the extent legally possible, provide Customer with an opportunity to defend the asserted claim. At the same time, the Customer shall immediately provide the Provider with all information available to it regarding the facts that are the subject of the claim.

10.4 Any further claims for damages by HR Improvement remain unaffected. 

11 Contract Term and Termination of the Contract

11.1 The term of the contract is determined by the contract.

11.2 Both parties reserve the right to extraordinary termination for good cause if the legal requirements are met. An important reason for HR Improvement exists in particular if the Customer is more than two months in arrears with the payment of a due remuneration despite a reminder. If the Customer is responsible for the reason for termination, the Customer is obligated to pay the Provider the agreed remuneration less any expenses saved by the Provider until the date on which the contract would have ended at the earliest in the event of ordinary termination. For the sake of simplicity, 70% of the agreed remuneration shall be used as the basis for calculating the claim. 

11.3 Declarations of termination must be in text form to be effective. Compliance with this form is a prerequisite for the effectiveness of the termination. Fax and e-mail shall not satisfy the written form requirement.

11.4 After termination of the contract, HR Improvement shall return to the Customer all documents provided by the Customer and still in the possession of HR Improvement, as well as data carriers related to the present contract, and shall delete the data stored at HR Improvement, unless there are obligations or rights to retain such data. 

12 Confidentiality

12.1 The parties are obliged to keep permanently secret, not to disclose to third parties, record or otherwise use all information about the respective other party which has become known to them or becomes known to them in connection with this Agreement and which is marked as confidential or is identifiable as business and trade secrets on the basis of other circumstances (hereinafter: "Confidential Information"), unless the respective other party has expressly consented in writing to the disclosure or use or the information is required to be disclosed by law, court decision or an administrative decision.

12.2 The information shall not be confidential information within the meaning of this Section 12 if it

• was already known to the other party beforehand without the information being subject to a confidentiality agreement,
• is generally known or becomes known without breach of the confidentiality obligations assumed,
• is disclosed to the other party by a third party without breach of a confidentiality obligation. 

12.3 The obligations under this Clause 12 shall survive the termination of this Agreement.

13 Assignment of rights and obligations

The assignment of rights and obligations under this contract is only permitted with the prior written consent of HR Improvement. HR Improvement is entitled to entrust third parties with the fulfillment of the obligations arising from this contract.

14 Miscellaneous

14.1 This Agreement and its amendments as well as all declarations, notification and documentation obligations relevant to this Agreement must be in writing, unless another form has been agreed or is required by law.

14.2 The contract shall be governed by the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods. The place of jurisdiction is the registered office of HR Improvement, insofar as the Customer is a merchant, a legal entity under public law or a special fund under public law. 

14.3 Should individual provisions of this agreement be invalid, this shall not affect the validity of the remaining provisions. In this case, the parties shall cooperate to replace ineffective provisions with provisions that correspond as closely as possible to the ineffective provisions.