GENERAL TERMS AND CONDITIONS OF HCM4ALL GMBH
HCM4all GmbH, hereinafter referred to as HCM4all, provides the HCM4all product family as Software as a Service (SaaS).
With the service, the CONTRACTUAL PARTNER receives the possibility to access the software application, which is hosted on a central internet server in Germany, through telecommunication and to use the functionality of the software application.
§ 1 Scope of application
The following terms and conditions apply to all deliveries, services and offers of HCM4all. Any conflicting terms and conditions of the customer will not become part of the contract even in the case of delivery, even without express objection.
Deviations from these terms and conditions and/or amendments as well as changes and additions to concluded contracts and the terms and conditions of HCM4all applicable to them must be made in writing.
HCM4all is entitled to amend these terms and conditions by informing the customer in detail in writing about the amendment. The changes will take effect one month after notification. If the changes are to the disadvantage of the customer, the customer can terminate the contract within one month after receipt of the notification of change. If the customer does not terminate the contract, the change shall become effective for him/her at the end of the one-month period.
§ 2 Subject of the contract
HCM4all provides the CONTRACTUAL PARTNER with the HCM4all product family as "Software as a Service (Saas)" within the scope of the existing technical and operational possibilities, taking into account suitable parameters. This service is provided according to the remuneration regulated in § 4.
During the first 30 days, companies can test the platform free of charge and without restrictions except for the competence catalogue. The test phase begins with the activation of the account.
To use the service, the company can register as a possible CONTRACTUAL PARTNER on the platform. Registration may only be carried out by an authorised representative of the CONTRACTUAL PARTNER. The required data must be provided truthfully and must be updated immediately in case of changes in order to ensure smooth usage.
HCM4all is entitled to demand proof of authorisation at any time at its own discretion. If the employee acting on behalf of the contractual partner does not provide the requested proof of authorisation to create within a period of two weeks after receipt of the corresponding request, HCM4all may revoke the registration.
Subsequent to the registration, HCM4all will send an authentication code and a link to change the password, to confirm the terms and conditions and to use the SaaS solution of HCM4all to the registering person at the mobile number provided. There is no right to use the services of HCM4all.
The CONTRACTUAL PARTNER is responsible for the secrecy of the registration data. It will keep its user name and password for access secret, will not pass them on, will not tolerate or enable unauthorised persons or third parties to gain knowledge of them and will take the necessary measures to ensure confidentiality. In the event of misuse or loss of this information or suspicion thereof, the CONTRACTUAL PARTNER will notify HCM4all immediately.
HCM4all provides services which go beyond the standard scope of services on a time and material basis according to the price list valid at the time of service provision.
As far as HCM4all provides services and performances free of charge, these can be discontinued at any time or can continue to be offered against payment. This does not give rise to a claim for reduction, reimbursement or compensation.
§ 3 Right of use
For the duration of this Agreement, the CONTRACTUAL PARTNER shall be granted the time-limited, non-exclusive right to access the Product by means of telecommunications and to use the functionalities associated with the Product by means of a browser. HCM4all undertakes to make the contractual product accessible for use via a data network and to store the product software and data on a server.
The CONTRACTUAL PARTNER does not receive any further rights. The CONTRACTUAL PARTNER is not entitled to use the product beyond the use permitted under this agreement.
The CONTRACTUAL PARTNER shall not be permitted to reproduce, sell or transfer for a limited period of time, rent or lend the Product or parts thereof.
If the contractual use of the product is impaired through no fault of HCM4all by third party property rights, HCM4all is entitled to refuse the services affected thereby.
§ 4 Start and term of contract, termination
Contracts must be in writing. These come into force upon signature by both parties to the contract. The duration of the contract (minimum rental period of HCM4all services) is determined by the price information valid at that time.
The contractual relationship can be terminated by both contractual parties at the earliest at the end of the minimum rental period with a notice period of three calendar months. An existing contract - unless otherwise agreed - is automatically extended by 12 months with the same notice period.
Individual service modules can be terminated at the end of the respective minimum rental period, provided that the operation of the remaining modules allows the functional discontinuation.
All notices of termination under this contract must be made in writing by registered letter. The right to terminate for good cause remains unaffected.
Upon termination of the contract, HCM4all will provide the contractual partner with the data stock of the contractual partner on suitable, machine-readable data carriers and delete the secured data stock.
§ 5 Remuneration and terms of payment
The fees can be adjusted by HCM4all on 01.01. of each year, but at the earliest after the minimum term. An announcement is made at least 3 months before the end of the calendar year.
The CONTRACTUAL PARTNER undertakes to pay the agreed fees in due time. For this purpose, the CONTRACTUAL PARTNER who participates in the direct debit order procedure by means of an electronic direct debit ensures the necessary coverage on his account.
The contractual partner is only entitled to offsetting rights if its counterclaims have been legally established, are undisputed or have been recognised by HCM4all.
The fee(s) for the provision of services and other services are set out in the valid price information and are subject to VAT at the statutory rate.
§ 6 Data protection and security / availability
The parties to the contract shall observe the applicable data protection regulations valid in Germany and oblige their employees employed in connection with the contract to maintain data secrecy in accordance with § 5 BDSG.
If the contractual partner collects, processes or uses personal data itself or through HCM4all, it warrants that it is entitled to do so in accordance with the applicable provisions of data protection law and, in the event of a breach, indemnifies HCM4all against claims by third parties.
It is clarified that the contractual partner remains "master of data" both in general terms in the contractual relationship and in terms of data protection law (§ 11 BDSG). The CONTRACTUAL PARTNER is the sole owner of all data specific to the contractual partner (entered data, processed data, stored data, output data) with the exception of data provided by HCM4all.
HCM4all does not control the data and contents stored for the contractual partner with regard to a legal admissibility of the collection, processing and use; this responsibility is assumed exclusively by the contractual partner.
The software application, server and operating software as well as other system components of the HCM4all product are operated in a computer centre by third parties.
HCM4all points out that despite the use of firewall systems, consistent use of organisational means and other security measures, Internet applications only provide data protection in accordance with the latest technical standards.
The average system availability per year is guaranteed at 99.5%.
In all other respects, the agreement on commissioned data processing in accordance with § 11 BDSG applies.
§ 7 Obligations of the CONTRACTUAL PARTNER
The CONTRACTUAL PARTNER shall fulfill the obligations concerning the performance and handling of this contract. It shall in particular:
Provide appropriate feedback on the design and functional arrangements during the implementation or setup phase(s), if contractually agreed, so that a smooth start ("going live") can be realized.
Protect the user and access authorizations assigned to him as well as identification and authentication safeguards against access by third parties and not pass them on to unauthorized users.
Ensure that (e.g. when transferring texts and data of third parties to HCM4all server) all industrial property rights and copyrights are respected.
Do not misuse the HCM4all product or allow it to be misused, in particular do not transmit any information offers with illegal or immoral content or refer to information that serves to incite the people, incite criminal activity, glorify or trivialize violence, is sexually offensive or pornographic or is likely to seriously endanger the moral well-being of children or young people or damage the reputation of HCM4all.
To refrain from attempting to access information or data or to interfere or allow unauthorized third parties to interfere with programs operated by HCM4all or to penetrate HCM4all's data networks without authorization.
Not to misuse the possible exchange of electronic messages for the unsolicited sending of messages or information to third parties for advertising purposes (spamming).
To indemnify HCM4all from all claims of third parties which are based on an illegal use of the HCM4all product by HCM4all or which are made with its approval or which arise in particular from data protection, copyright or other legal disputes connected with the use of the HCM4all product. If the CONTRACTUAL PARTNER recognizes or must recognize that such a violation is imminent, he is obliged to inform HCM4all immediately.
That after a fault report has been submitted, the CONTRACTUAL PARTNER will reimburse HCM4all for the expenses incurred by the examination if it is established after the examination that there was no fault in HCM4all's technical equipment and the CONTRACTUAL PARTNER could have recognized this in reasonable troubleshooting.
§ 8 Warranty
HCM4all guarantees that the services are not defective when used in accordance with the contract. An insignificant reduction remains out of consideration. Defects are insignificant as long as neither the productive use nor the use of the core functionalities are affected.
The CONTRACTUAL PARTNER shall only be entitled to warranty claims if reported defects are reproducible or can be shown by machine generated outputs. The CONTRACTUAL PARTNER shall report defects in writing in a comprehensible form, stating the information useful for the detection of defects. HCM4all will carry out the analysis and correction of the defect by competent personnel and according to the standards recognized in the market. The contractual partner will support HCM4all - as far as necessary and reasonable - in remedying defects.
HCM4all has the right to eliminate defects. In doing so, the removal of defects which do not seriously impair the use of a program must first be carried out by delivering a further developed version. If necessary, HCM4all will take appropriate measures to eliminate defects between planned release changes, as far as this is reasonable for HCM4all.
The contractual partner may set a reasonable deadline for the removal of defects. If the remedy of defects fails, the contractual partner can demand a reduction of the remuneration or - within the scope of § 11 - compensation for damages under the legal requirements.
§ Section 9 Default
During a delay in payment of the contractual partner in a considerable amount (the fee for two months) HCM4all is entitled to block access to the HCM4all product and to redirect the public web pages to any web page. In this case the CONTRACTUAL PARTNER remains obliged to pay the monthly fees.
If the CONTRACTUAL PARTNER is in default of payment, HCM4all is entitled to charge default interest of 0.5% / month. In addition, the CONTRACTUAL PARTNER has to bear the costs for the dunning procedure.
If the CONTRACTUAL PARTNER is in default of payment in a period exceeding two months, HCM4all is entitled to terminate the contract without notice. In this case, HCM4all is entitled to claim damages.
If HCM4all is in default with the operational provision of the goods, liability is governed by § 11 of this contract. The CONTRACTUAL PARTNER is only entitled to withdraw from the contract if HCM4all does not meet a reasonable extension of time set by the CONTRACTUAL PARTNER.
§ 10 Use of the SaaS product
HCM4all is entitled to block access to the SaaS product and its data in the event of an unlawful breach by the CONTRACTUAL PARTNER of any of the essential obligations set out above (clause 7).
Access will only be restored when the breach of the affected essential obligation has been permanently remedied or the risk of recurrence has been excluded by issuing an appropriate, punishable declaration of discontinuance to HCM4all.
HCM4all is entitled to delete the data concerned in case of misuse or unauthorised access.
§ Section 11 Liability
HCM4all points out that Internet services of any kind are in principle permanently available as a public information medium. Neither HCM4all nor its employees can guarantee that this service will be available without interruption and without errors. Should the guaranteed annual average system availability of 99.5% be significantly undercut, the CONTRACTUAL PARTNER is entitled to reduce the remuneration accordingly.
HCM4all is liable for all damages caused by it and its legal representatives or vicarious agents in cases of intent or gross negligence, claims under the German Product Liability Act as well as in cases of injury to life, body or health without limitation according to the statutory provisions.
Otherwise, HCM4all is only liable to the extent that HCM4all has breached an essential contractual obligation (cardinal obligation). In these cases, liability is limited to compensation for foreseeable, typically occurring damage. For an individual case of damage, liability is limited to the value of the contract, in the case of ongoing remuneration to the amount of the remuneration per contract year, but not exceeding 25,000 Euro.
The parties are released from the obligation to perform under this contract if and to the extent that the non-performance of services is due to the occurrence of circumstances of force majeure. Circumstances of force majeure include war, strikes, riots, cardinal legal changes, storms and other natural disasters as well as other circumstances beyond the control of HCM4all, in particular water ingress, power cuts and interruptions or destruction of data-carrying lines.
Each party to the contract must inform the other party immediately and in writing of the occurrence of a case of force majeure.
§ 12 Final provisions
Any contract concluded with HCM4all is subject to German law. UN sales law is excluded.
HCM4all is allowed to list the CONTRACTUAL PARTNER as a reference customer on the HCM4all website.
In addition, HCM4all is allowed to name the CONTRACTUAL PARTNER as a reference customer in advertising publications after the respective written consent of the CONTRACTUAL PARTNER.
Amendments or supplements to this contract and its annexes must be in writing and signed by both parties.
Should individual provisions of the contract be or become invalid or unenforceable in whole or in part, the validity of the remaining provisions shall not be affected thereby. The same applies in the event that the contract contains a loophole. In place of the invalid or unenforceable provision or to fill the gap, an appropriate provision shall be inserted which, as far as legally possible, comes as close as possible to what the parties would have wanted if they had considered this point when concluding the contract.
The place of jurisdiction is Munich.