Additional Terms and Conditions d.vinci Enterprise

Transcription

1 Additional Terms and Conditions d.vinci Enterprise 1 General information a) The offer d.vinci easy is exclusively directed at entrepreneurs according to 14 BGB [German Civil Code]. The conclusion of a contract with consumers will be refused. b) These conditions of use apply to the provision of the possibility for use on the software d.vinci easy by us, d.vinci HR-Systems GmbH, which is hereinafter referred to as Provider. c) Deviating, contradictory or supplementary General Business Terms of the client, even with our knowledge, will not become a part of the contract unless their validity is explicitly approved by the Provider in writing. d) These Enterprise conditions of use supplement the general conditions of use for the software d.vinci easy and shall have precedence over said conditions. 2 Conclusion of contract / special provisions a) With its order the client declares binding that it intends to acquire the ordered service. We are entitled to accept the contractual offer represented by the order according to 147 Par. 2 BGB. The acceptance can also be declared by the start of the processing of the order. b) The client is obligated to provide truthful information upon its registration and shall the information change, the Licensee is obligated to correct it accordingly in the Software and in any other medium as applicable in relation to this Agreement and the Licensor. 3 Provision of d.vinci easy and of storage space for application data, Hotline a) The Provider shall make the software d.vinci easy available for the client in the respective version released by the Provider as well as storage space for the filing of the application data of the client for the use according to the following regulations from the start of the contract on a server operated by it. The client is not entitled to any provision of a certain server for its sole use, but the Provider can, with the separation of the data stocks of the clients within the framework of the efficiency of the server, simultaneously provide this to a multitude of clients for use. b) The Provider shall send the user name and user password to the client for the first user appointed by it with the first order. The code is to be changed immediately by the client into a Page 1

2 code that is only known to it. After the first order the client can create further users itself free of charge. c) The application data will be backed up on every calendar day. The client is responsible for the compliance with storage deadlines under commercial and fiscal law. d) The client requires an Internet connection as well as browser of the types Internet Explorer, Chrome, Safari or Firefox in the most up-to-date or at least in the previous version for the access to d.vinci easy. e) The Provider needs to make an https-encoded connection available for the access to d.vinci easy. f) A hotline for user questions is available from 8am to 6pm CET Mondays to Fridays with the exception of national, legitimate holidays under +49(0) Availability of d.vinci easy and access to the application data a) The Provider shall owe an availability of d.vinci easy and the application data at the transfer point (interface to the Internet of the computer centre, in which the servers, upon which d.vinci easy runs, stand) of 99 % per contractual year. Incidentally, the general conditions of use shall apply accordingly. b) The Provider shall make a Hotline, against payment of costs, for questions of users available under the telephone number T +49(0) (35,00 Euro per started 10 minutes) during the period of time from 08:00 am and 6:00 pm CET, from Monday Friday with the exception of national public holidays. 5 Service-Level-Agreement a) For the event of defects to the services owed by the Provider the parties agree upon the following fault classes: a. Fault class 1: Defects, which render all uses of the software impossible. The software is either not executable at all or interrupts its function arbitrarily. b. Fault class 2: Defects, which render the use of the software substantially more difficult without making it impossible. c. Fault class 3: Defects, which do not render the use of the software substantially more difficult. b) As soon as the Provider has gained knowledge of a defect it shall classify this defect into the afore-mentioned fault classes at its reasonable discretion. It shall subsequently take the following measures depending on which fault class exists: a. Fault class 1: Immediate commencement of the work to remedy the defect during the Page 2

3 working hours by using all resources available to the Provider insofar as deemed financially reasonable; b. Fault class 2: Immediate commencement of the work to remedy the defect during the working hours; c. Fault class 3: Remedy of the defect in the customary course of business within a reasonable deadline; 6 Training At the request of the client the Provider shall conduct training for the client s employees according to its price list. 7 Non-fulfilment of main service obligations The following regulations apply if the Provider does not fully satisfy the obligations for which it is responsible. a) If the Provider is in default with the operational provision of d.vinci easy for the first time, the client is entitled to cancel the contract if the Provider does not adhere to a reasonable final deadline set by the client, i.e. does not make the full functionality of d.vinci easy available for the first time within the final deadline. b) The Provider has to present that it is not responsible for the reason for the delayed provision or the failure of the service. If the client has not reported the failure of the service to the Provider then it has to prove in case of dispute that the Provider gains knowledge thereof otherwise. 8 Rights of use of the client to d.vinci easy, rights of the Provider with the exceeding of the usage authorizations a) The client receives simple rights of use (which cannot be sub-licensed and are nontransferrable) to d.vinci easy limited to the term of this contract. b) Upon granting access to the client to the Software by the Provider and as the system allows, the client must change the access codes immediately in order to ensure the security. In the Page 3

4 event the client has a suspicion that the user names and passwords have been used in an unauthorised way, it shall immediately inform the Provider. The burden of proof lies on the client for the responsibility of any abuse connected to the unauthorised access to the Software. The Provider may block the client s access to the Software and/or delete the data in the Software if it is necessary to minimise the damages if such above-mentioned events occur. c) In the event of abuse of the user codes and / or passwords handed over to it the client bears the burden of proof that it is not responsible for this abuse. d) The client is liable for the fact that it does not use d.vinci easy for unlawful purposes. e) If the client breaches the afore-mentioned regulations for reasons for which it is responsible, the Provider can block the client s access to the application or the application data if the breach can as proven be remedied hereby. Insofar as it is deemed reasonable for the Provider it has to request the client to remedy the breach by setting a reasonable deadline. f) If the client breaches the afore-mentioned paragraph e) the Provider is entitled to delete the data or application data affected hereby immediately. g) If the client continues to breach or repeatedly breaches the afore-mentioned regulations despite a corresponding written warning of the Provider and if it is responsible for this then the Provider can terminate the contract extraordinarily without observing a period of notice. h) If the client is responsible for the breach of obligation then the Provider can assert damages according to the provisions of this contract. 9 Design and publication of job advertisements a) The client has the possibility to commission the design and publication of job advertisements via the software d.vinci easy. The contractual partner of the client that is integrated into the system for corresponding orders is solely d.vinci Personalmarketing GmbH, Am Schulland 2, Rosengarten, Hamburg County Court, HRB The sending of a corresponding order by the client is an offer for conclusion of a contract, which d.vinci Personalmarketing GmbH can explicitly accept or accept by starting the processing of the order. b) The contract is concluded subject to the reservation of the correct and timely self-delivery by the respective providers of the advertising media. This only applies to the event that the nondelivery was not caused by d.vinci Personalmarketing GmbH, in particular with the conclusion of a congruent hedging transaction with its component suppliers. In this case d.vinci Personalmarketing GmbH is entitled to cancel the contract with the customer. In the event of the cancellation this shall inform the client about the non-availability immediately and reimburse the consideration immediately. Page 4

5 c) The selection of the media, in which the advertisement is to be published, is to be carried out within the framework of the commission by the client. Insofar as the client commissions the publication of an online advertisement, only one job can be put out to tender in such an advertisement. d) The remuneration respectively owed from the commission derives from the price details within the framework of the placement of the order. The prices are deemed net. e) The appropriate sorting by key words, choice of the categorisation, sectional entry or placement of the job advertisement lie exclusively at the discretion of the provider of the advertising medium so that there is no entitlement to certain designs. f) d.vinci Personalmarketing GmbH is entitled, however not obliged, at its own account and own risk to also distribute the job advertisement commissioned by the client otherwise, in particular through printed material at trade fairs, in the d.vinci career market, by fax upon call or by telephone. It hereby concerns additional and voluntary services of d.vinci Personalmarketing GmbH, which are not to be remunerated separately by the client. g) If the client requests the use of another or own agency for the publication of job advertisements then this must be agreed in an individual case. 10 Renumeration a) The client has to pay the remuneration agreed for the package commissioned by it monthly prior to the contract (see Annex Remuneration). The agreed remuneration is due for each started month of the contractual term from the operational provision (respective day of the calendar month of the provision). It is due and payable in advance with the provision of the application and subsequently on the third but last workdays of the respective preceding contractual month. If the client has justifiably terminated the contract extraordinarily then the remuneration paid for upcoming periods of time is to be repaid pro rata temporis. b) The Provider is entitled to send invoices in a digital form to the address of the client notified to it. c) The Provider may increase the License Fees with a two (2) months prior notice to the client. Before the date when the new License Fees shall become effective, the client may extraordinarily terminate the Agreement upon receipt of such notice with a one (1) month prior notice to the Provider. Page 5

6 11 Cooperation of the contractual partners, general obligations to provide assistance a) The parties hereby agree that the success of the project essentially depends on the good cooperation of the parties involved and one contractual party alone cannot achieve the success of the project without the assistance of the other party. Both parties therefore agree that they will make every effort to promote the achievement of the targets pursued with this project with the due care and attention for which an ordinarily acting merchant is responsible. For this purpose they shall in particular satisfy the obligations to provide assistance, for which they are responsible, in time and in the required quality and coordinate the processing of the respective tasks with each other. b) For work, which is carried out in the client s rooms, it shall make suitable workplaces available for our employees free of charge and grant these employees access to the equipment which is necessary for the provision of services. c) The customer shall guarantee sufficient time reserves for its IT department and the test users for the communication with us, for the participation in workshops, for the coordination and release of project documents, for the tests as well as for the system equipment and the other assistance services. 12 Project management sharing of tasks and assistance a) The parties can respectively name a contact to each other as project manager for the coordination of the tasks for the joint project management. b) The respectively named contacts and in the event that they are prevented their representatives are not authorized to the representation in legal transactions. c) In cases, which require substantiation, the parties are entitled to exchange their respective project managers. The exchange is to be reported to the respective other party immediately in writing. Insofar as the client changes its project manager an, if applicable, agreed time schedule will be postponed by at least one day per started month of the project term. An at least two-day initial instruction of the new project manager must further be carried out by us in the project history and in the project documents. We will submit an offer in this respect. If the client does not accept this within five workdays at its registered seat as well as during the time in which the offer is being examined by it, additional work possibly caused by the new project manager is to be remunerated and delays for which it is responsible shall lead to the Page 6

7 corresponding postponement of agreed dates. d) The parties shall, if required, hold project steering committee meetings with a corresponding agreement, for the term of very complex projects, in which the project manager as well as representatives of each party, who entitled to representation in legal transactions, take part. Upcoming, project-relevant decisions will be jointly discussed in these meetings and a binding decision finally made in this meeting. The meetings can also be held by telephone. e) Minutes will be prepared by us concerning meetings of the parties which are relevant to the contract, which will be sent to all parties involved at our registered seat within seven workdays. If not objected to by the client within five workdays after the receipt of the minutes then the minutes are binding for both parties. f) Decisions of the client, which we request in writing (in particular concerning topics, which have an influence on the project budget or the project time schedule, e.g. changes to requirements, changes to organisational flows, changes to the project procedure, etc.), will be made by no later than within seven workdays after receipt. Exceptions require a substantiation and extend possibly agreed deadlines accordingly, insofar as they depend on this decision. g) The work for the project management on our part envisaged in the budget (organisational coordination of all parties involved, specialist supervision by the project manager, time required for the forwarding and clarification of information between the parties) is based on the assumption that a maximum work of 8 hours is necessary per calendar week. Should the actual necessary work be greater for reasons, for which the client is responsible, we can invoice this at the agreed rates. 13 Obligations of the client The client is obliged a) not to intervene or have interventions carried out in programmes, which are operated by the Provider, outside of the customary use or to penetrate data networks of the Provider or to request such a penetration without authorization; b) to indemnify the Provider from claims of third parties, which are due to an unlawful use of d.vinci easy by it or which ensue from legal disputes caused by the client under data protection law, copyright law or other legal disputes, which are associated with the use of d.vinci easy; c) to obligate its authorized users on their part to comply with the provisions of which contract that are applicable to them; d) to obtain the necessary consent of the respective person concerned insofar as it collects, processes or uses personal data when using d.vinci easy and no statutory fact for permission is applicable; Page 7

8 e) to inform the Provider about all and any faults, errors or any other malfunctions in the Software. If the client fails to do so in a timely manner, the client shall be also responsible for the possible consequences stemming hereof provided that the client does not present reasonable proof that it is not responsible for the failure to report on such occasions. 14 Data Protection The Provider will operate within the framework of an order data processing for the client. Insofar the d.vinci order data processing contract shall apply in addition 15 Certification of the Provider The Provider has a certification according to DIN/ISO 9001 and DIN/ISO and will uphold this for the duration of this contract. 16 Change request /Change Management a) The client is entitled to request changes to the delivered configuration. It has to inform us of its change request in writing for this purpose, at our request by using our online ticket system JIRA in the standardised change format. b) We will inform the client immediately whether we have to examine the change request liable to costs owing to the scope of the request and will in this case only carry out the examination with the release of the client. c) After the first examination of the client s request we will inform it, a. whether the execution of the change request can be solved from a technical point of view or will exceed our resource capacities, b. which implications on dates are caused and c. which time requirements we are expected to require in order to offer a more detailed offer from a price and date point of view for the execution of the change request. d. that we refuse the change request, as it concerns a change, with which a take-over into the standard for all clients is not useful. d) With the release of the client, we will submit the change offer to the client for release within the agreed deadline. Services possibly affected hereby shall be suspended during this period of time and dates agreed for this purpose will be postponed accordingly. If the client declares the release the order shall be modified accordingly. If the client refuses the release the order will remain unaffected. e) Changes to the software within the meaning of individual special programming are excluded. Page 8

9 f) The circumstance that no agreement is reached concerning the change request shall not entitle to an extraordinary termination. 17 Updates of the software a) Insofar as we publish new versions of the software for our clients, we will install these regularly and in real time on the client s system. b) If the client requests the take-over of individual adjustments /configurations for updates, we will submit it a corresponding offer. 18 Liability, limitations to liability, statute-of-limitations of claims c) The parties are liable towards each other in case of wilful intent, gross negligence or with the injury to life, the body or the health for all damages caused by them as well as their legal representatives or vicarious agents to an unlimited extent. d) Incidentally, a party is only liable insofar as it has breached an essential contractual obligation. Deemed as essential are such obligations for which the other party can as a rule rely on their fulfilment and which particularly serve the achievement of the aims of this contract. Insofar the liability is limited to the compensation for the foreseeable typically occurring damages, a maximum however limited to EUR 10,000 per damaging event and EUR 50,000 per contractual year. e) The liability of the Provider for damages irrespective of fault ( 536a BGB) for defects existing upon conclusion of the contract is incidentally excluded. f) The liability according to the Product Liability Act remains unaffected. g) Claims for liability and defects are statute-barred with the expiry of one year. This does not apply to claims arising from injury to body, health, life or fraudulent activity upon acceptance of the warranty and for claims under the Product Liability Act. 19 Term, termination a) The contractual relationship begins with the conclusion of the contract and is concluded for an indefinite period of time. b) The contractual relationship can be terminated ordinarily by both parties in a written or text form with a period of notice of one month to the end of a calendar month. c) Irrespective of the afore-mentioned regulation the Provider can terminate the contract without Page 9

10 observing a period of notice if the client is in default with the payment of the remuneration for two consecutive months or in a period of time, which extends over more than two months, with the payment of the remuneration in an amount, which reaches the remuneration for two months. 20 Obligations with and after termination of the contract With the termination of the contractual relationship the Provider shall, at the client s request, make the application data stored by it available in a digital form in the data format of d.vinci easy. It is entitled to a work-based remuneration for this work according to the respective actual hourly rates of the Provider. The Provider shall hand over a corresponding offer and a data record description to the client at its request. 21 Non-disclosure obligation a) The contractual parties undertake to maintain secrecy concerning all information about the respective other contractual partner received from this contractual relationship. This shall apply in addition to the operational organisation flows in particular for all b) Information, which is explicitly described or marked as confidential, or are obviously business and trade secrets. Insofar as not required by the object of the contract, they may not make any records and notifications to third parties. A forwarding to third parties beyond this or all other kinds of disclosure requires the prior written consent of the other party. c) The respective other party is forbidden from using the received business secrets for purposes which do not relate to the contract, directly or indirectly for own or third party purposes, or commercially or from applying for thus associated property rights. d) Excluded from the secrecy is such information, which (i) was generally known at the time of the transmission or becomes known subsequently without the fault of the other party -, (ii) was already lawfully known by the other party at the time of the disclosure, (iii) becomes known after the time of the transmission on the part of third parties without a non-disclosure obligation, without the third party on its part being obliged to secrecy, (iv) irrespective of the disclosed information was developed by the other party or one of its holding companies, which is proven by the inspection of written documents or was lawfully procured in an unlimited form from another source, which is entitled to make this information available or (v) has to be disclosed owing to mandatory statutory, official or court regulations or orders. In the latter case the other party is however to be informed hereof in advance in writing, insofar as permitted. Page 10

11 e) Received business and operation documents are to be stored to the extent that third parties cannot gain any access hereto. They are to be returned to the opposing party after termination of this contract insofar as no statutory storage obligation exists. f) This non-disclosure agreement is not be affected by a termination of the contract. The duties ensuing from such shall lapse five years after the ending or termination of the contract. 22 Final provisions a) German law applies to the contractual relationship under the exclusion of the UN Convention on Contracts concerning the International Sale of Goods. b) There are no secondary provisions outside of this contract and its annexes. Amendments or addendums to this contract and the annexes require a written form in order to be valid. This shall also apply to the exclusion of the written form requirement. c) The possible invalidity of individual provisions of this contract do not impair the validity of the other contractual contents. d) If the Client is a merchant, legal entity under public law or special assets under public law, the place of jurisdiction for all disputes from this contract is the court of jurisdiction at the registered seat of the Provider, insofar as no exclusive place of jurisdiction exists. The same applies if the client has no general place of jurisdiction in Germany or the place of residence or customary place of abode are not known at the time when the action is filed. Page 11