GENERAL TERMS AND CONDITIONS OF HRWORKS GMBH

Valid from 17.01.2019

PART 1 GENERAL PROVISIONS

  • 1 Validity of the General Terms and Conditions of Business

(1) HRworks GmbH, headquartered in Freiburg, hereinafter referred to as HRworks, offers a cloud-based software solution for personnel management and related services on its website www.hrworks.de, hereinafter referred to as the "Website". These General Terms and Conditions, hereinafter referred to as "GTC", apply to all contracts concluded between HRworks and the client for the following services:

  • Month-based rental of the software HRworks, hereinafter referred to as software, so-called user license, hereinafter referred to in more detail in Part 2 of these General Terms and Conditions
  • Provision of individual consulting services, hereinafter more closely regulated in Part 3 of these General Terms and Conditions
  • Participation in training courses, hereinafter regulated in more detail in Part 4 of these GTCs
  • Purchase of vouchers, hereinafter more closely regulated in Part 5 of these General Terms and Conditions

(2) These General Terms and Conditions shall also apply to all future transactions, insofar as they are of the same type.

(3) The general provisions (part 1 of these GTC) and the general final provisions (part 6 of these GTC) apply to all services of HRworks mentioned in paragraph 1. Parts 2 to 5 of these GTC shall apply in addition, depending on the content of the agreed service.

(4) Customers within the meaning of these GTC are exclusively entrepreneurs. Entrepreneurs are natural or legal persons or partnerships with legal capacity with whom a business relationship is entered into and who act in the exercise of a commercial or independent professional activity. The GTC shall also apply to legal entities under public law or to clients with special assets under public law.

  • 2 Deviating General Terms and Conditions, amendments to the General Terms and Conditions, ranking in relation to the order processing contract

(1) These General Terms and Conditions shall apply in the version valid at the time the contract is concluded. Conflicting or deviating terms and conditions of the client will not be recognized unless HRworks has agreed to them in text form in individual cases. These General Terms and Conditions shall also apply if HRworks provides the service to the client without reservation in the knowledge that the client's terms and conditions conflict with or deviate from these General Terms and Conditions. The client undertakes to give notice if he does not agree with this regulation.

(2) HRworks informs the client about changes to the GTC. The information regarding any changes will be sent to the client by e-mail. The amended version of the GTC becomes part of the contract if the client does not object in text form within six weeks of receipt and the contractual relationship is continued by the client. The customer will be informed of the legal consequence of his silence with the notification.

(3) HRworks concludes a contract with the client for order processing "Order for processing personal data", provided that order processing takes place on the part of HRworks in accordance with Art. 28 DSGVO. The provisions of the order processing contract shall then take precedence over these GTC.

  • 3 Obligations of the client to cooperate

(1) The following cooperation services are the main obligations of the customer and are not to be classified alone as secondary obligations or duties.

(2) The client shall support HRworks in the performance of the services contractually owed by HRworks to the extent necessary. For this purpose, the client shall provide information, data and other material necessary for HRworks to perform the agreed services in a timely manner. Any deadlines to the detriment of HRworks shall only begin to run when the client has fulfilled his obligations.

(3) The client is obliged to maintain the contact data of a qualified contact person together with a deputy in HRworks. They are entitled to make all necessary decisions or to bring them about promptly, which are necessary for the performance of the contractually agreed service.

  • 4 Conclusion of contract and content of services

(1) The services offered on the HRworks website do not constitute a legally binding offer, but merely an invitation to submit an offer. The contract between the client and HRworks is concluded in different ways depending on the type of service. The contract can only be concluded in German. Which (technical) steps lead to the conclusion of the contract in individual cases is described in more detail in Parts 2 to 4.

(2) The concrete content of the services to be rendered by HRworks as well as the fee to be paid for them are based on the agreement made between HRworks and the client, on the information on the website as well as on the provisions of these GTC.

(3) Subsidiary agreements, amendments and supplements to the contractual agreement are only valid if they have been expressly agreed between HRworks and the client in text form.

  • 5 Remuneration, price components and terms of payment, offsetting

(1) All prices and price components which are available under prices and costs on the website or which are stated in the offer or order confirmation are, unless otherwise stated, net amounts plus statutory value added tax. The deduction of discounts is not permitted. The prices valid at the time of submission of the offer shall apply.

(2) Invoices are due immediately upon receipt. Default in payment shall occur no later than thirty days after invoicing. In case of default of payment HRworks will charge a reminder fee of EUR 5 for the first and second reminder and a processing fee of EUR 15 for each unauthorized return debit. If the client is in default with his payment obligation, HRworks is entitled to charge interest from the respective point in time in the legally determined amount. According to § 288 Para. 2 BGB (German Civil Code), the interest rate corresponds to nine percentage points above the base interest rate valid at the time each year.

(3) In case of default HRworks is entitled to block access to the use of the software after prior notice. The announcement may also be included in a reminder.

(4) The client may only offset claims of HRworks against undisputed or legally established counterclaims. Client shall only be entitled to assert a right of retention or a right to refuse performance on the basis of undisputed or legally established counterclaims.

(5) The client authorizes HRworks to collect the agreed fees in the SEPA basic direct debit procedure. The client grants HRworks a SEPA Direct Debit Mandate for this purpose. The fee for the services provided by HRworks will be collected afterwards. The period for pre-notification will be reduced to 5 bank working days. The authorization also extends to HRworks handling fees for unauthorized return direct debits. This paragraph does not apply to the purchase of vouchers (see Part 5 of these GTC).

  • 6 Form of legally binding notifications and consent to e-mail dispatch

(1) HRworks shall deliver legally binding notifications to the client by HRworks, which are provided for in these GTC, in writing or electronically. The electronic delivery will be made by e-mail. The client expressly agrees that HRworks may send an e-mail to the stored e-mail addresses of the administrators regarding communication regarding the contract. The administrator is entitled to receive legally binding communications from HRworks. The notifications are deemed to have been received by the client upon receipt.

(2) HRworks is entitled to communicate other declarations concerning the contractual relationship (e.g. about new or improved functions of the software) to the clients in the "News" section of the software. As a rule, these notifications are deemed to have been received four weeks after the start of their publication.

(3) Legally binding notifications of the client to HRworks, which are provided for in these terms and conditions, can be made electronically via the contact form on the website.

  • 7 Data Security on the Internet and Liability of HRworks for Damages

(1) HRworks uses the SSL Certificate to encrypt the data transmission in order to protect the data from access by third parties during the transmission. Data storage is also encrypted. As soon as new security standards are established in the future, which optimize the protection of data against access by third parties, HRworks will endeavor to implement these security standards.

(2) HRworks is not liable outside the area of responsibility of HRworks and its vicarious agents for faulty or incomplete transmission of data on the Internet due to faulty functioning of Internet software, browsers or the Internet infrastructure.

(3) Unless otherwise stated in these GTC including the following provisions, HRworks shall be liable for any breach of contractual and non-contractual obligations in accordance with the statutory provisions.

(4) In the event of simple negligence, HRworks shall only be liable, subject to a milder standard of liability under statutory provisions (e.g. for care in its own affairs), for

for damages resulting from injury to life, limb or health,

for damages arising from the not inconsiderable breach of an essential contractual obligation (i.e. obligations the fulfilment of which is essential for the proper performance of the contract and the observance of which the contractual partner regularly relies on and may rely on); in this case, however, liability is limited to compensation for the foreseeable, typically occurring damage.

Otherwise HRworks is only liable for damages in case of intent and gross negligence.

(5) The limitations of liability resulting from paragraph 4 also apply to breaches of duty by persons whose fault HRworks is responsible for according to legal regulations. They shall not apply if HRworks fraudulently concealed a defect or assumed a guarantee for the quality of the product and for claims of the client under the Product Liability Act.

(6) Due to a breach of duty which does not consist in a defect, the client may only withdraw or terminate the contract if HRworks is responsible for the breach of duty. Otherwise, the statutory requirements and legal consequences shall apply.

  • 8 Use of vicarious agents and representatives, minimum wage

(1) HRworks is entitled to commission third party service providers and vicarious agents with the provision of parts or the entire range of services. HRworks is entitled to change the Internet infrastructure used and the service providers and vicarious agents commissioned with the implementation at any time without separate notification, provided that this does not result in any disadvantages for the client. With regard to the involvement of subcontractors for the collection, processing and use of personal data on behalf of the customer, Clause 10 of the contract shall apply. With regard to the processing of data in third countries, Clause 11 of the contract processing agreement shall apply.

(2) HRworks undertakes to pay its employees at least the legally prescribed minimum wages and to use only subcontractors for the provision of the contractually owed services who have also undertaken to pay at least the legally prescribed minimum wages to their employees. HRworks releases the client from justified claims of third parties, which are asserted against the client due to violations of the minimum wage law by HRworks or its vicarious agents.

PART 2 SPECIAL RULES FOR THE SOFTWARE LICENSE ("SOFTWARE RENTAL")

  • 9 Right to use the software, property rights, guarantee of rights, data collection

(1) With the acquisition of the user license, the customer receives a simple (non-exclusive), non-transferable right of use limited to the agreed number of employees as well as to the duration of the contract. With the acquisition of the right of use, the customer is entitled to process and store his own data for his own purposes within the scope of the account set up for him or his employees and the functionalities of the software for the employees working in his business (hereinafter referred to as "user data").

(2) The software made available to the client by HRworks is protected by copyright. HRworks remains the owner of the software and the underlying source code. The source code is not part of the Software and is not provided by HRworks. Client may not and may not make any changes to the Software.

(3) HRworks guarantees that the software provided is free of third party industrial property rights.

(4) HRworks collects anonymized statistics, usage profiles and business ratios, evaluates them for load distribution on the servers, performance optimization and for security measures and provides them anonymized.

  • 10 Conclusion of the contract for software rental

(1) The client will receive an offer by e-mail either via the website or by telephone after a non-binding inquiry to HRworks. By clicking on the corresponding link, the client will get to the offer. All services are listed individually within the scope of the offer.

(2) The customer must check his data again within the scope of the offer review.

(3) At the end of the ordering process, the individual services are again summarized. An acceptance of the offer by the customer is only possible if the customer agrees to the collection via SEPA Direct Debit Mandate and the validity of the GTC and agrees to the processing of the submitted data for the processing of the inquiry. Upon acceptance of the offer, the contract between the client and HRworks is concluded.

(4) HRworks will then send the client an order confirmation by e-mail. In this e-mail the contract text (consisting of order and order confirmation, which contains a link to call up the GTC) will be sent to the client by HRworks on a permanent data carrier (contract confirmation). The text of the contract will be stored in compliance with data protection regulations.

  • 11 Monthly fee, availability, updates and invoice

(1) The software shall be used at the agreed monthly fee. The rental period begins with the individual determination of a start date by the customer when the software is installed. Begun months are to be paid in full. The fee is calculated and due at the end of each calendar month. The basis of the fee calculation is all persons who were registered in the system at any time during the respective month, but at least 20 persons. Persons who received the status "retired" in the previous month are excluded from the fee calculation.

(2) As a rule, the software can be used 24 hours a day, 7 days a week. HRworks guarantees an availability of the servers and thus of the stored data of on average 98% per annum. If the servers are not accessible for reasons for which HRworks is not responsible, the inaccessibility shall not be taken into account when calculating the 98% quota in accordance with sentence 2.

(3) Upon conclusion of the contract, the customer books an online facility (HRworks Starter). Here HRworks supports the client on an hourly basis with the setup of the software (so-called "individual consulting service"; more details under part 3 of these GTC). The customer also books at least one administrator training course when concluding the contract (so-called "training"; further details under part 4 of these GTC).

(4) During the contract period the client can use the online support of HRworks integrated into the application according to the support level chosen by the client. HRworks is not liable for a certain performance success.

(5) The client can also use the software via web app on a smartphone or a tablet. With this use, the customer has no claim to the fact that all functions that are otherwise usable can also be used.

(6) HRworks voluntarily provides the client with software updates at appropriate intervals. These updates are automatically imported into the software. No additional fee will be charged for this. HRworks strives to implement legal changes and innovations in an update within a reasonable period of time. The client is not entitled to updates and is responsible for compliance with legal changes. Relevant changes to new versions can be viewed in the "News" section of the software.

(7) The functions of the software can only be used from the beginning of the paid period of use. Additional fees shall be charged for the retrospective recording of past data such as travel, absences and working hours.

(8) The customer is not permitted to manage data about a person existing in the system or to create statements of account concerning persons who are not present in the system. In such cases, HRworks reserves the right to recalculate the lost sales according to paragraph 1 of this regulation.

(9) The client receives a separate electronic invoice for each billing period. The customer agrees to receive the invoice electronically in accordance with the provisions of the Value Added Tax Act.

(10) The customer is also obliged to pay any fees that other persons may or may not cause via his access code, unless the customer can prove that he is not responsible for this.

(11) Vouchers, individual consulting services and training courses are not included in the scope of the software rental, even if the software is partly required for its use. These are additional services to be remunerated, about which independent agreements are concluded and which are regulated in parts 3, 4 and 5 of these GTC.

  • 12 System requirements, responsibility of the customer

(1) Which system landscapes, browsers and operating systems are supported by the software in detail is determined by HRworks. HRworks informs the customer online about the supported browser versions. There is no claim to the support of certain system landscapes, operating systems or browser versions.

(2) It is expressly pointed out that the customer himself is responsible for compliance with data protection and other statutory provisions. The customer is not entitled to pass on his user data to third parties within the scope of the software used or to enable third parties to use or gain knowledge of the user data in connection with the software. The customer must take appropriate precautions to protect the software from unauthorized access by third parties. The client is obliged to bear the costs which are caused by a violation of this obligation and exempts HRworks from costs and claims of third parties which are caused by the violation of this obligation. Third parties within the meaning of this paragraph are non-affiliated companies within the meaning of § 15 AktG.

(3) The customer is responsible for the professional setup and administration of all accounts. This applies regardless of whether HRworks supports the client in setting up the accounts in any form whatsoever (for more information see part 3 of these GTC).

(4) The client is exclusively responsible for the contents and data processed with the software. The customer hereby undertakes to use the software only in accordance with the contract and within the framework of the applicable statutory provisions and not to infringe any rights of third parties during use. The Customer further undertakes not to use the Software solely as a data archive, which means that the Customer shall not only retain access to the Software in order to be able to access the data already entered and stored.

(5) If the client or a user endangers the security of the software through his behaviour, HRworks is entitled to block access to the software application after prior notification.

  • 13 Data backup

(1) The data on the HRworks servers are carefully backed up on a daily basis. In the rare event of a total failure of the HRworks application, data from one or more days may be lost under unfavorable circumstances. In this case HRworks imports the last available backup.

(2) HRworks undertakes not to pass on client data to third parties, even beyond the end of the contract.

  • 14 Liability of HRworks for Software Defects

(1) Any defects occurring shall be reported immediately by the client, i.e. without culpable hesitation, and documented in a manner comprehensible to HRworks. The customer is requested to primarily use the integrated online support of the software for error messages.

(2) HRworks shall be entitled to remedy the defects at its discretion either by rectification of the defect or by new delivery. The client has to set HRworks a reasonable deadline for this. HRworks shall also be entitled to remedy the defect by telephone or written or electronic instructions. Online support, for example, can be used for this purpose.

(3) If it turns out that a defect reported by the client does not actually exist, HRworks is entitled to charge the client for the expenses associated with the analysis and other processing, provided this has been agreed in advance with the client. A calculation shall not be made if the Customer uses the online support for the error message and is entitled to use the online support free of charge in accordance with these GTC.

  • 15 Termination of the Software Rental

(1) The contractual relationship can be terminated by both parties to the contract at the end of a calendar month without stating reasons, observing the text form. HRworks must observe a period of notice of one month to the end of the month.

(2) The right to termination without notice for good cause remains unaffected. Good cause shall be deemed to exist in particular in the event of serious or continued breaches of the contractual provisions and in the event that the contract cannot be performed. In the event of termination for good cause, HRworks is entitled to immediately block access to the software application.

(3) All data stored by HRworks will be deleted after expiration of the contract period. The client is obliged to store data stocks such as reports, lists etc. on his own data carriers if and to the extent that he wishes to prevent the loss of data after expiry of the contract period. This shall also apply in the event of termination for good cause in accordance with paragraph 2 above.

PART 3 SPECIAL REGULATIONS FOR INDIVIDUAL CONSULTING SERVICES

  • 16 Individual consulting services

(1) An individual consulting service within the meaning of these GTC is any form of chargeable support for an individual customer during the introduction and/or use of the software. Individual consulting services can be provided by telephone and/or online via the software at the customer's request. Individual consulting services also include individually agreed consulting hours in the form of the so-called starter. HRworks may discontinue or change these services at any time without prior notice. HRworks may offer further individual consulting services at any time, which are also subject to the provisions of these GTC for individual consulting services.

(2) HRworks additionally offers the client to use the remote desktop software mentioned in the order processing contract free of charge within the scope of online support in order to make the support even more effective.

(3) Telephone consulting services are provided via a HRworks hotline, which is subject to a fee. The availability and costs of the telephone hotline can be found on the website. Different prices may apply for calls from the mobile network.

(4) If no date for the individual consulting service has been agreed, the client has three months after the conclusion of the agreement to propose a date to HRworks. HRworks may accept or reject this appointment. If no proposal is made by the client within the three months, HRworks is entitled to charge for the individual consulting service. In this case, however, the client is entitled to request an appointment from HRworks; § 18 paragraph 2 does not apply. Contrary to the statutory provisions, the client's claim to use the individual consulting service expires one year after the invoice date on the HRworks invoice.

(5) HRworks is liable for the timely and proper execution of individual consulting services, not for a specific performance success.

(6) After individual consulting services have been performed, the client shall be presented with the so-called delivery note, an electronic document summarizing the services rendered. Only then will the individual consulting service be invoiced by HRworks. If, during or after the performance of the individual consulting services, further services are to be rendered by HRworks, these services shall be additionally remunerated according to a separate agreement. This paragraph does not apply to the individual consulting services via the telephone hotline and the integrated online support via the software.

  • 17 Conclusion of contract when booking individual consulting services

(1) At the request of the client, HRworks will prepare a consulting offer. A link to the offer will then be sent to the client. By clicking on "Accept" the client accepts the offer bindingly. The contract between the client and HRworks is thereby concluded.

(2) The client will then receive an order confirmation summarizing the individual consulting services.

(3) This § 17 does not apply to individual consulting services in the form of the starter. These are part of the software rental and therefore the conclusion of the contract is governed by § 10.

  • 18 Withdrawal and cancellation of individual consulting services

(1) In the event of loss of individual consulting services due to events not foreseeable at the time of the conclusion of the contract (force majeure, operational disruptions of any kind or lack of manpower) for which HRworks is not responsible, HRworks shall only be entitled to withdraw from the contract if these events make the performance of the individual consulting services significantly more difficult or impossible for HRworks and the hindrance is not only of temporary duration. In case of obstacles of temporary duration, the originally agreed date for the individual consulting service shall be postponed by the period of the hindrance plus a reasonable start-up period. If the customer or his employees cannot reasonably be expected to make use of the individual consulting service due to the delay, the customer may withdraw from the contract.

(2) Withdrawal requires text form. In the event of rescission, the fee already paid by the customer shall be refunded.

(3) The cancellation of booked but not yet used individual consulting services by the customer must be made in text form. In the event of a cancellation received by HRworks four weeks before the agreed commencement date of the individual consulting services or earlier, the cancellation shall be free of charge. In the event of a cancellation received by HRworks between one and four weeks prior to the start of the individual consulting services, 50% of the agreed fee shall be paid as compensation. In the event of a cancellation received by HRworks one week or less prior to the start of the individual consulting services, 100% of the agreed fee shall be paid as compensation.

PART 4 SPECIAL RULES FOR TRAININGS

  • 19 Subject matter of the contract and remuneration

(1) HRworks offers training courses in which several customers/participants can participate. Training takes place in premises provided by HRworks.

(2) The content, time and duration of the training courses are determined by the individual agreement with the client in conjunction with the information on the website.

(3) The number of participants per training course is limited. Registrations will be considered in the order of their order.

(4) The agreement extends bindingly to the concrete date when the selection of HRworks is confirmed.

(5) The fee is calculated and due immediately upon or after the provision of the training.

  • 20 Conclusion of contract when booking training courses via the website

(1) The customer or his employees shall select the desired training courses on the website.

(2) After clicking the "Checkout" button, the customer or employee can log in with the company and user ID and password or as a new customer with the complete company address. New customers and customers who do not register with the company ID must agree to the SEPA direct debit and the general terms and conditions of HRworks before further processing.

(3) By clicking the button "Buy now" he submits a binding request to order the training courses in the shopping cart. Before submitting the order, the customer can change and view the data at any time.

(4) HRworks will then send the client an order and registration confirmation by e-mail. The contract is concluded by the submission of the declaration of acceptance by HRworks. In this e-mail the contract text (consisting of order and order confirmation, which contains a link to call up the GTC) will be sent to the client by HRworks on a permanent data carrier (contract confirmation). The text of the contract will be stored in compliance with data protection regulations.

  • 21 Withdrawal and Cancellation

(1) If a training course is cancelled due to events not foreseeable at the time of the conclusion of the contract (force majeure, operational disruptions of any kind or lack of manpower) for which HRworks is not responsible, HRworks shall only be entitled to withdraw from the contract if these events make the execution of the training course considerably more difficult or impossible for HRworks and the hindrance is not only of a temporary duration. In case of obstacles of temporary duration, the originally agreed date for the training shall be postponed by the period of the hindrance plus a reasonable start-up period. If the customer or his employees cannot reasonably be expected to participate in the training due to the delay, the customer may withdraw from the contract.

(2) If there are fewer registrations for a training course than the specified minimum number of participants, HRworks is entitled to withdraw from the contract.  

(3) Cancellation must be in text form. In the event of withdrawal, the fee already paid by the client will be refunded.

(4) Training courses can be cancelled by the customer free of charge up to 14 days prior to the start of the training at the latest. Thereafter, the full course fee shall become due. In this case, the customer remains entitled to use free places for a training course within the scope of the agreement. Contrary to the statutory provisions, the client's claim to use the training expires two years after the invoice date on the HRworks invoice. Cancellation of participation in training must be made in writing. The participation of a substitute person is possible.

PART 5 SPECIAL RULES FOR THE PURCHASE OF VOUCHERS

  • 22 Subject matter of the contract, additional contract Procurement of vouchers

(1) The client can purchase vouchers from third party voucher publishers from HRworks. The Client and HRworks shall conclude an "Additional Contract for the Procurement of Vouchers". Together with these General Terms and Conditions, this forms the contractual basis for the procurement of vouchers.

(2) The client is advised that HRworks itself is not responsible for providing the services specified in the vouchers. The services specified in the voucher are therefore provided solely by the voucher issuer. The customer or his employees enter into a contractual agreement with the voucher issuer exclusively on the basis of the general terms and conditions of the voucher issuer valid at the time.

PART 6 GENERAL CONCLUDING PROVISIONS

  • 23 Applicable law and place of jurisdiction

Contracts between HRworks and the client shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods. If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction shall be Freiburg.

  • 24 Severability clause

Should any provision of the contract be or become invalid or the contract be incomplete, this shall not affect the legal validity of the remaining provisions. The ineffective provision shall be replaced by a provision that comes closest to the meaning and purpose of the ineffective provision in a legally effective manner. The same applies to any loopholes in the contract.

  • 25 Decisive language

In the event there is any inconsistency between the German and English or other language text on the website, including these General Terms and Condtitions, the German text shall be binding.