General Terms and Conditions of HeavenHR GmbH for Contracts with Employees of Companies
§ 1 Preamble
1.1. HeavenHR GmbH (hereinafter, "HeavenHR "), Mittenwalder Strasse 6, 10961 Berlin, is the owner of all copyrights of the online human resource management software "HeavenHR" (hereinafter, the "Software"). This human resource management software enables additional connections of free and fee-based related functions and services such as human resource management, vacation planning, payroll, etc. HeavenHR provides this Software by remote access via the Internet ("Software as a Service" or "SaaS").
1.2. These General Terms and Conditions of HeavenHR GmbH for Contracts with Employees of Companies (hereinafter, the "Terms and Conditions") shall regulate the relation between HeavenHR and employees of companies using the Software offerings of HeavenHR for their human resource management (hereinafter, "Users"). The free offerings of HeavenHR consist in Software provided for exclusive use via the Internet. Companies organize their human resource management via a company account for the Software and urge their employees to register as Users with an employee account in the Software and to likewise use the Software.
1.3. If special or supplementary terms and conditions are agreed beyond the use of free Software for additional, fee-based services, such terms and conditions shall take precedence over these Terms and Conditions. For the use of fee-based services, the approval of the User of each separate use agreement shall be required, which shall not prejudice the use agreement concluded based on these Terms and Conditions between HeavenHR and the User. Additional separate contracts shall be agreed for fee-based offerings.
1.4. General terms and conditions of the User shall not form part of the content of the contract, even if they are attached to requests for offers, orders, acceptance declarations, etc. and even if HeavenHR has not objected to such terms and conditions.
§ 2 Subject of Contract and Service Specifications
2.1. The subject of the contract is the free provision of the Software in an IT center for access and use via the Internet as a SaaS solution and the facilitation of the storage of data by Users on servers operated on behalf of HeavenHR ("Hosting"). Individual upgrades and adaptations of the functionality of the Software shall not form part of the scope of performance or the subject of this Agreement.
2.2. The free subject-services shall encompass an individual employee portal that provides the following functions:
Direct access to personal data
Overview of employment relation and salary
Uploading of necessary documentation
2.3. The assumption of any guarantee for particular features (condition) shall require the written approval of HeavenHR to be valid.
2.4. The offered application is standard software. HeavenHR shall not be responsible for the fulfillment of legal or regulatory requirements applicable to the Users. The User shall be obliged to check HeavenHR in terms of suitability for data processing pursuant to the legal or regulatory requirements relevant to it.
2.5. HeavenHR shall be entitled to perform the services stipulated herein in conformance with the data protection agreement in whole or in part through third parties as subcontractors. Documents, information and data of the User and his or her employer may be made available to such subcontractors for the fulfillment of the service by HeavenHR, if necessary.
§ 3 Conclusion of Contract
3.1. An employee or future employee of a company can become a User of the Software by having the company send such person an invitation e-mail via the Software. If the employee or future employee follows the link in this e-mail, the person can register as a User by specifying his or her contact data. Within the framework of this registration procedure, the User must confirm these Terms and Conditions. Whether a contract will be concluded between HeavenHR and the employee or future employee shall be decided by HeavenHR through sending the login credentials to the employee. As soon as the employee has received his login credentials the contract with HeavenHR shall be concluded.
3.2. HeavenHR reserves the right to set up phased accounts for test purposes. These accounts may be blocked at any time without notice by HeavenHR.
§ 4 Instruction on the right of withdrawal
If you as User are a consumer, you are entitled to the following right of withdrawal stipulated by law. A "consumer" is any natural person who concludes a legal transaction for purposes that cannot be ascribed to the person's commercial or self-employed professional activity.
Instruction on withdrawal
Right of withdrawal
You have the right to withdraw this Agreement within 14 days without specifying any grounds.
The withdrawal period shall amount to 14 days from the closing date of this Agreement.
In order to exercise the right of withdrawal, you must inform us, HeavenHR GmbH, Bergmannstraße 72, 10961 Berlin, e-mail: firstname.lastname@example.org, by way of a clear declaration (e.g. a letter sent by regular mail or e-mail) of your decision to withdraw from this Agreement. For this purpose, you may use the attached withdrawal form template, though this is not obligatory.
To maintain the withdrawal period, it shall be sufficient if you send the notice about the exercise of the right of withdrawal before the expiry of the withdrawal period.
Consequences of withdrawal If you withdraw from this Agreement, we must repay you for all payments which we have received from you, including the delivery costs (except for additional costs resulting from the fact that you have selected a different type of delivery than the least expensive standard delivery offered by us), without delay and within 14 days at the latest from the date on which we receive the notice of your withdrawal from this Agreement. For this repayment, we shall use the same means of payment which you used for the original transaction, unless expressly agreed otherwise with you; in no case shall you be charged fees due to this repayment.
End of Instruction on withdrawal
§ 5 Support Services
Support queries may be placed at any time over the phone, by chat or e-mail. "Support queries" shall mean questions to the support staff of HeavenHR concerning the Software. Support for the free use of HeavenHR shall be limited to the response to questions concerning the accurate use and settings and help concerning technical problems with the Software by a support staff member.
§ 6 Contractual Duties of the User
6.1. The User shall duly, completely and professionally fulfill all duties necessary for the performance and settlement of the services under this Agreement. Users shall be responsible for their use of the services of HeavenHR, the due processing of their data and the achieved results. This shall also include the fulfillment of legal and regulatory requirements regarding the use, storage and archiving of user data.
6.2. Users shall be obliged under their own responsibility:
to check and, if relevant, to obtain advice as to the extent to which the services offered by HeavenHR meet the legal requirements actually addressed to them;
to ensure that the minimum requirements placed by HeavenHR on the hardware and Software deployed by Users as necessary for the agreed use of the Software are fulfilled;
to follow instructions given by HeavenHR in order to avert errors;
to protect their local IT systems against infestations by viruses, Trojans and other malware through the use of appropriate software;
to regularly back up the data and content transmitted to HeavenHR and to create their own backup copies in order to warrant the reconstruction of data information if lost.
6.3. The User shall not misuse the Subject-Software in any way or have such misused by third parties; in particular, Users shall not transmit unlawful content. Users shall desist from any attempt to retrieve information or data in an unauthorized fashion either themselves or through unauthorized third parties and from interfering with programs run by HeavenHR or having such interfered with or penetrating such programs.
6.4. In the event of a serious breach by the User of his or her obligations from these Terms and Conditions or in the event of a violation of provisions of law or in the event of repeated breaches or violations, HeavenHR shall be entitled, at its own choice, to restrict the use of the subject-services by the User in whole or in part or to terminate the contractual relation without notice. If the User is responsible for the breach or violation, the User shall be obliged to compensate HeavenHR for the resulting damage.
6.5. The User shall ensure that the agreed use in provision of data and contents not infringe on any third-party rights. The User shall be obliged to check before providing such data and content to HeavenHR whether the User may use such data and content as foreseen, to secure any necessary licenses and/or to obtain the necessary third-party approvals. The User shall indemnify HeavenHR against third-party claims arising from the breach of the aforementioned duties.
6.6. If a third-party asserts a rights infringement through the data and content provided by the User, HeavenHR shall be entitled to block the contents completely or provisionally, should any doubts exist about the lawfulness of the data and/or content justified on objective grounds. HeavenHR shall request the User in such event to discontinue the rights infringement within a reasonable period of time or to document the lawfulness of the content. If the User fails to meet this request, HeavenHR shall be entitled, without prejudice to any further rights and claims, to terminate this Agreement without notice. Expenses incurred by HeavenHR through the aforementioned measures may be invoiced by HeavenHR to the User. If the User is responsible for the rights infringement, the User shall compensate HeavenHR for the resulting damage. Any further rights are hereby reserved.
6.7. Otherwise, the User shall be obliged to undertake all collaborative performances necessary for the fulfillment of the contractual purpose immediately and free of charge, particularly if HeavenHR requests the User to do so and the necessary measures do not exceed a reasonable degree of expense.
6.8. The cloud material and HeavenHR material are subject to export restrictions in various countries. The User agrees not to export these materials without the prior written approval of HeavenHR to countries or persons or companies where or to whom export is legally prohibited. With regard to the use of the materials, the User shall be obliged to respect the applicable provisions of law of the country in which the User is registered as well as the provisions of other countries.
§ 7 Access Data
The User shall keep secret the user and access authorization assigned to him or her as well as any agreed ID and authentication codes, protect them against access by third parties and not disclose them to unauthorized third parties. Such data are to be protected through suitable, customary measures. For security reasons, the password should be changed not only before the initial use of the Software, but also otherwise at regular intervals in order to prevent use by unauthorized parties using the User's own password or infrastructure. Passwords are to be selected so that they are not easy to guess, calculate or determine. The User shall inform HeavenHR without delay if it is suspected that the access data and/or passwords might have become known to unauthorized third parties.
§ 7 Compensation and Default
The use of the basic functions of HeavenHR stipulated in these Terms and Conditions is free of charge. HeavenHR, its associated companies and partners are authorized to charge fees for functions, products, product elements or services additionally offered using the Software. For the use of fee-based offerings, the User must approve a separate use agreement, which shall be independent of this Agreement concluded with HeavenHR and take priority over the provisions of these Terms and Conditions. Additional separate contracts shall be agreed for fee-based offerings.
§ 9 Terms and Conditions of Use
9.1. The Software is protected by copyright. Exclusively HeavenHR shall be entitled to the copyrights, patent rights, trademark rights and all other neighboring rights to the Software and to other agreed objects. Insofar as third parties are entitled to the rights, HeavenHR holds the corresponding licenses.
9.2. HeavenHR shall grant the User the non-exclusive, non-transferable and non-sub-licensable right, temporally limited to the term of this Agreement, to use the Software to the degree granted in these Terms and Conditions.
9.3. The User shall not be entitled to have the Software used by third parties or to make such accessible to third parties; in particular, the User shall not be permitted to reproduce, sell, translate, process, modify, decompile, reverse engineer or disassemble the Software or parts thereof in order to create a separate application or to have these acts carried out by third parties, unless permitted by the Copyright Act.
9.4. If the User is a test user, HeavenHR shall grant a non-exclusive license for test purposes, which may not be transferred, assigned or sublicensed.
§ 10 Warranty for Free Software Elements and Test Access
The Software is provided in its current condition. HeavenHR assumes no warranty that the Software can be used free of faults or errors. Any warranty by HeavenHR for free Software elements and test access shall be excluded, subject to the provisions in § 11 of these Terms and Conditions.
§ 11 Liability
11.1. HeavenHR shall not be liable to damage incurred by the User, unless such damage results from the breach of material contractual duties. "Material contractual duties" shall mean those duties the fulfillment of which at first enables the due performance of this Agreement and in whose observance the User may regularly trust. Likewise, the liability for consequential damage, particularly for loss of profit or compensation of damage to third parties, and shall hereby be excluded, unless HeavenHR can be attributed intentional action or gross negligence.
11.2. If services are performed in the rooms and with the resources of third parties by persons who are not vicarious agents of HeavenHR, HeavenHR shall likewise not be liable for the resulting damage.
11.3. The aforementioned liability exclusions shall not apply to any liability for damage arising from injury to life, body or health, which is based on at least a negligent breach of duty by HeavenHR or on an intentional or negligent breach of duty by a vicarious agent of HeavenHR. The aforementioned liability exclusions shall likewise not apply to any liability for other damage based on an at least grossly negligent breach of duty by HeavenHR or on an intentional or grossly negligent breach of duty by a vicarious agent of HeavenHR. Moreover, the strict liability of HeavenHR for initial material defects in the Software shall be excluded hereby.
§ 12 Termination
12.1. This Agreement shall take effect upon confirmation by HeavenHR. The term shall be indefinite.
12.2. The contractual relation for free services may be terminated by either Party upon observance of the following periods: HeavenHR may terminate this Agreement upon notice of three months effective from the end of any month. The User may terminate this Agreement at any time.
12.3. The right to terminate for good cause shall not be prejudiced hereby. With respect to the use of free functions, HeavenHR reserves the right to terminate an account upon non-user inactivity thereof upon observance of four weeks' notice.
12.4. In the event of termination, HeavenHR shall be entitled to delete the data stored on its servers four weeks after the cessation of this Agreement, after previously giving the User the possibility to back up the data.
12.5. All terminations in accordance with this Agreement must be made in text form in order to be valid.
§ 13 Collateral Arrangements, Requirement for the Written Form
13.1. HeavenHR shall provide the Users its Software templates for employment agreements. These may be modified through individual adjustments within the Software using variable fields, as desired by the User. Moreover, the User may also upload his or her own contract templates.
13.2. The use of contract templates shall not exonerate the User from his or her duty to duly review the templates on his or her own responsibility. The templates merely represent a suggestion for a potential arrangement. Many determinations may be freely agreed upon. Before assuming the unaltered content of the templates provided by HeavenHR, it must therefore be considered precisely in the User's own interest whether and, if relevant, what parts of the template must be adjusted to legal developments and to the situation concretely to be regulated. HeavenHR has no influence on this procedure and may therefore by nature not assume any liability for the effects on the legal positions of the contractual parties to the employment agreement. Though the contract templates provided by HeavenHR are created with the greatest diligence, they nevertheless make no claim to be complete and accurate or to fit the specific situation between the employer and employee.
13.3. The closing of the contract and the contractual terms and conditions are the exclusive responsibility of the parties concluding the employment agreement. The parties alone shall decide on the contractual content agreed between them. The User shall have an independent obligation and is solely responsible for duly reviewing the filled-out forms itself.
13.4. The User shall ensure that the notices and declarations of a party to the relevant employment agreement foreseen in accordance with the contractual arrangements and necessary in the miscellaneous course of business can be validly transmitted to the User and his or her employer at the online address of the respective party.
13.5. HeavenHR points out to the User that a requirement for the written form is stipulated by law with respect to the closing of contracts concerning specific objects. Employment agreements signed merely with an electronic signature might therefore under certain circumstances (e.g. in the case of temporally limited employment agreements) not meet the formalities stipulated by law. The User alone is therefore responsible for duly reviewing the extent to which a version of the contracts signed in writing is required in addition to the contractual documentation in the subject-Software in order to create a valid employment agreement.
§ 14 Collateral Arrangements, Requirement for the Written Form
14.1. These Terms and Conditions conclusively and fully regulate the mutual contractual duties.
14.2. HeavenHR shall be entitled to make modifications of these Terms and Conditions and other terms and conditions. HeavenHR shall inform the customer of any modifications two weeks in advance by e-mail. HeavenHR shall carry out these modifications only for good cause, particularly based on new technical developments, changes in legal rulings or other equivalent grounds. If the contractual balance between the Parties is significantly disturbed through the modification, the modification shall require the approval of the User.
14.3. Unilateral modifications of these Terms and Conditions by HeavenHR shall become contractual content when notified to the User by HeavenHR in text form, the User does not expressly object within two weeks from the receipt of the modification notice and has been instructed of this consequence in the modification notice.
§ 15 Collection, Processing and Use of Data
Information on data protection and data security may be found here in the Data Protection Agreement.
§ 16 Applicable Law and Jurisdiction
16.1. The law of the Federal Republic of Germany shall apply, to the exclusion of conflict of law rules in private international law and to the exclusion of the UN Convention on Contracts for the International Sale of Goods. Exempt from this choice of law shall be the compulsory consumer protection provisions of the country in which the customer has his or her habitual place of residence.
16.2. Berlin shall be the place of jurisdiction if the User is a merchant and this Agreement pertains to the operation of his or her commercial business or the User has no place of general jurisdiction in Germany and if no exclusive place of jurisdiction is given. However, HeavenHR shall be entitled to sue the User at any other place of jurisdiction stipulated by law. In the case of non-merchants, the places of jurisdiction stipulated by law shall apply.
In the event of the invalidity of any clauses of these General Terms and Conditions or the Agreement concluded with HeavenHR, the validity of the other provisions shall not be affected thereby. Any provision that is invalid in whole or in part shall be replaced by that provision the economic outcome of which most closely approximates the invalid provision and the intention of the Parties. This shall also apply in the event of any contractual gaps.