General Terms and Conditions of talentsconnect AG

General Terms and Conditions of talentsconnect AG

1. Contracting Parties and Definitions

(1) These General Terms and Conditions ("GTC") shall apply to all contracts for the provision of an Internet-based interface to and access to the talentsconnect JobShop, which are concluded between talentsconnect AG, Niehler Straße 104, 50733 Cologne ("talentsconnect") and its contractual partners ("Customer"), who are not consumers within the meaning of Section 13 of the German Civil Code ("BGB") or other corresponding relevant statutory provisions. Deviating GTC of the Customer shall not apply unless talentsconnect expressly agrees to their application in writing.

(2) The following definitions shall apply to these GTC:

"Offer" means the service description provided by talentsconnect and signed by the Customer and the associated service fees. 

"Resolution Time" means the correction of a defect in the Services or the provision of an appropriate Workaround. A Workaround shall not be unreasonably refused by Customer. Times outside of Service Hours shall not be counted toward Resolution Time.

"Force Majeure" means events that could not be averted by talentsconnect or the Customer exercising due diligence, such as natural disasters of any kind, fire, traffic accidents, war, sabotage, strikes and/or power failures.

"JobShop" means the platform operated by talentsconnect and integrated at the Customer's site via an interface, including all functions and content.

"Services" means the provision of the JobShop and the Support Services in accordance with the scope agreed in the Offer.

"Party/Parties" means talentsconnect and/or the Customer.

"Response Time" means that talentsconnect employees actively begin to remedy the defect within the response time agreed upon in the Service Description and notify the Customer of this. The Response Time shall be measured from the time talentsconnect becomes aware of the defect during the Service Hours and in the case of notification by the Customer, from the time talentsconnect receives the notification. If the notification is made outside of service hours, the period shall begin to run on the following working day. Times outside the service hours are not counted towards the Response Time.

"Service Time" means the business days and times defined in the Statement of Work. 

"Support" means the support Services by talentsconnect agreed in the Offer for the Customer's setup and use of the JobShop.

"Confidential Information" shall mean all information and documents, irrespective of the manner of your embodiment or reproduction, including contractual documents, provided to one Party by the other Party, which are not publicly available or the contents of which indicate that they are obviously not intended to be kept confidential. Confidential information includes, but is not limited to, technical, business and other information, for example, information relating to technologies, research and development, products, services, prices of products and services, Customers, employees, subcontractors, marketing plans, financial matters.

"Working Days" are working days (Mondays to Fridays) with the exception of public holidays in the state of North Rhine-Westphalia.

2. Subject Matter and Conclusion of the Contract

(1) talentsconnect operates the JobShop as a software-as-a-service via the medium of the Internet and makes it available to its Customers.

(2) The subject matter of the contract is Internet-based access to the talentsconnect JobShop in its respective current version, with the implemented functionalities, as well as the use of the functions provided by talentsconnect in the JobShop by the Customers for the duration of the contract (the "Services").

(3) The Services include the provision of the necessary storage space for the contractual use of the functions of the JobShop as well as the storage of the data generated from the use of the JobShop by the Customer and/or its U on a server of talentsconnect during the term of the contract. The concrete scope of Services and functions as well as the agreed remuneration model shall result from the service description attached to the respective Offer made by talentsconnect to the Customer. If the Customer wishes to expand the scope of Services, this shall require a corresponding supplementary agreement between the Parties.

(4) Unless otherwise agreed in the Offer, the contract shall be concluded upon signature of the Offer by both Parties.

3. Scope of Services

(1) During the term of the contract, the Customer shall be granted access to all JobShop functions selected in accordance with the Offer, including the scope of Services and support agreed in the Offer and specified in the service description. Talentsconnect shall be entitled to provide additional functions only against separate remuneration. In this case, talentsconnect shall make the Customer an Offer for the additional Services, which shall be concluded by the Customer's signature in accordance with Section 2 (4) of these GTC.

(2) The transfer point for the Services of talentsconnect to the Customer is the router exit of the server of talentsconnect or the external data center service provider commissioned by talentsconnect. In all other respects, the use of third-y computer systems and lines on the Internet shall fall within the Customer's sphere of risk.

(3) talentsconnect shall be entitled to amend this contract as well as to revise the Services and expand the scope of functions without significantly restricting the agreed Services. talentsconnect shall notify the Customer of any amendments to this user contract six (6) weeks before they come into force in writing or by e-mail to the contact address provided. In doing so, talentsconnect will inform the Customer of the changes as well as the deadline for objection and inform the Customer of the consequences of objection. The objection can be made by e-mail to the address provided. If the Customer does not object to the change in writing or by e-mail within a period of 30 days from receipt of the change notification, the change shall become part of the contract. If the Customer objects, the Parties shall agree on a solution by mutual consent. In the event of a failure to reach agreement, talentsconnect shall be entitled to terminate the contract.

4. Availability of the Services

(1) talentsconnect shall make the Services available to the Customer for use 24 hours and 365 days per calendar year. talentsconnect guarantees an availability of the Services in the amount of 98% per month on average in accordance with the calculation method defined in the Service Description ("SLA").

(2) talentsconnect is entitled to interrupt the Services for maintenance work outside the service hours. Furthermore, talentsconnect shall be entitled to interrupt the Services for an additional nine (9) hours per month for maintenance work also within the service hours. talentsconnect shall inform the Customer about maintenance work within the service hours with a lead time of one (1) week by the means described in the service description. The times of the maintenance windows according to this clause 4 (2) shall not be considered times of unavailability in the sense of clause 4 (1) of this contract.

(3) talentsconnect shall not be responsible for Internet or network-related downtimes and in particular for downtimes during which the Services cannot be accessed via the Internet due to technical or other problems that are beyond talentsconnect's control, such as force majeure, fault of third parties, etc. talentsconnect shall not be responsible for such downtimes.

(4) Response and Resolution Times shall be as set forth in the Service Description. If a defect is reported by the Customer, the Customer shall be obliged to provide a detailed description of the defect, stating how it arose and providing the material required to identify the defect. Defects can be made in the way agreed in the service description.

5. Rights of the Customer, Conditions of Use

(1) Access to the Services of talentsconnect shall be provided to the Customer exclusively. The Customer may not disclose them to third parties. The log-in credentials shall be treated as strictly confidential.

(2) The use of the Services requires the Customer to link to the JobShop.

(3) The technical access requirements and recommendations (e.g. with regard to the browser software) necessary for the use of the Services result from the service description.

(4) The Customer shall be entitled to adapt the JobShop to its branding and/or design - if possible - itself within the scope of the individualization options provided by talentsconnect or to have it adapted by talentsconnect. The Customer shall be entitled to post, update and delete the content required and/or desired for its individualized JobShop in accordance with the agreed scope of Services in the JobShop. The rights for these contents remain with the Customer. For the duration of the contract, the Customer grants talentsconnect a simple right to store the contents in the JobShop for the purpose of this contract, to create data backups, to share them with subcontractors as necessary and to keep them available for retrieval. Upon expiration of the contract, talentsconnect shall delete the Customer's content as well as its individual JobShop. The Customer shall be obligated to back up the relevant content itself before the end of the contract.

(5) talentsconnect grants the Customer the non-exclusive, non-sublicensable and non-transferable right to use the Services in accordance with the contract for the duration of the contract. 

(6) All rights to the Services shall remain with talentsconnect. The Customer is not entitled to copy the JobShop or any other content of talentsconnect onto his own computers or otherwise outside the server system of talentsconnect.

(7) The Customer may not pass on the JobShop and other talentsconnect content to third parties (i.e. neither sell, nor rent or lend it) and may not make it accessible to third parties.

(8) The Customer may not translate, modify, edit, decompile, reverse engineer or disassemble the JobShop and other talentsconnect content outside of the customization options provided. Legally binding rights under the Copyright Act shall remain unaffected. 

6. Obligations of the Customer

(1) The Customer shall create the necessary Customer-side requirements for use, in particular the system requirements, infrastructure and for the telecommunications connection between the Customer and the Services of talentsconnect up to the transfer point itself.

(2) The Customer is obligated to check its data and information for viruses or other harmful components before entering them and to use state-of-the-art virus protection programs for this purpose.

(3) The Customer shall take the necessary precautions to prevent the use of the Services by unauthorized persons. For this purpose, the Customer shall, to the extent necessary, instruct its employees to comply with copyright law and appropriate security measures to protect access data. The Customer shall inform talentsconnect immediately if it is suspected that passwords may have become known to unauthorized persons.

(4) The Customer shall also be responsible for supervising its personnel. The Customer shall be obliged to require them to comply in turn with the provisions of the contract applicable to them.

(5) The Customer shall ensure that its employees only select secure passwords for access to guarantee adequate protection of access to the JobShop.

(7) The Customer may not bypass or switch off security measures set up by talentsconnect, and may not modify talentsconnect content.

(8) The Customer itself is responsible for making backup copies of its content before it is posted on the JobShop. Insofar as the Services make this technically possible, the Customer must also regularly back up the data generated by him during the use of the Services by download and create his own backup copies.

(9) The Customer may not use the Services for illegal purposes.

(10) If the Customer becomes aware of disruptions, he shall notify talentsconnect immediately of any disruptions to the Services and shall support talentsconnect - to the extent possible - to a reasonable extent in determining the disruption and its causes as well as its elimination.

(11) The Customer operates the JobShop on its own responsibility vis-à-vis applicants and candidates. The Customer is responsible for the legal compliance of its content as well as for the fulfillment of all provider and information obligations.

(12) If the Customer integrates services of third-party providers - also via interfaces provided by the provider - into its website, this shall be done at the sole responsibility and risk of the Customer. The Customer is aware that talentsconnect neither reviews nor controls third-party services. The use of third-party services is governed solely by the contractual terms and conditions agreed between the Customer and the respective third-party. The Customer is further solely responsible for verifying whether the services of the third-party provider meet the legally applicable requirements. In particular, it is the sole responsibility of the Customer to select a configuration of such third-party services that is in compliance with data protection requirements. talentsconnect does not provide any legal advice in this respect.

7. Term

(1) Unless otherwise agreed in the Offer, the contract shall enter into force upon signature by both Parties and shall have a contract term of one (1) year ("Contract Year").

(2) After the expiry of the first Contract Year, the contract shall be automatically extended by one (1) further year in each case unless it is terminated by one of the Parties with three (3) months' notice to the end of the Contract Year.

(3) The right to terminate the contract for cause remains unaffected. In particular, talentsconnect shall be entitled to terminate the contract without notice if the Customer fails to make due payments despite a reminder and the setting of a grace period or if the Customer violates the contractual provisions regarding the use of the JobShop and the Services. In any case, termination without notice requires that the other Party is warned in writing and requested to eliminate the alleged reason for termination without notice within a reasonable period of time.

(4) Upon termination of the contract, the Customer shall no longer be entitled to use the Services, including the JobShop, or parts thereof.

8. Naming as Reference Customer, Use of Image Material

(1) talentsconnect shall be entitled to name the Customer as a reference customer in press releases or other marketing materials as well as on the talentsconnect website. The Customer may object to the naming in writing (e-mail is sufficient).

(2) The information may also be provided with the display of the Customer's company logo. For this purpose, the Customer grants talentsconnect a simple, temporally and spatially unrestricted, non-transferable right of use with regard to the name and trademark rights required for this purpose.

(3) talentsconnect shall be entitled to use image material from the Customer's websites for the exclusive setup of a "trial version" of the JobShop to design the password-protected trial version in accordance with the appearance of the Customer's website. The right is limited to setting up the trial version of the JobShop, the access data of which is known only to the Customer. After completion of the trial version, talentsconnect will completely delete the image material. 

9. Remuneration

(1) For the provision of the Services, the Customer shall pay the service fee as agreed in the Offer per Contract Year.

(2) The service fee shall be paid in advance for each Contract Year in accordance with Section 9 (3).

(3) The respective service fee shall be paid within 14 days of receipt of the respective invoice from talentsconnect by the Customer to the talentsconnect business account specified in the invoice. All remuneration are subject to the applicable value added tax.

10. Warranty for Defects, Liability

(1) talentsconnect warrants the functional and operational readiness of the JobShop and the Services in accordance with the provisions of this contract.

(2) talentsconnect shall be entitled to immediately block the posted content of the Customer or, in special cases, access to the JobShop if there is reasonable suspicion that the content stored by the Customer is unlawful and/or infringes the rights of third parties. A reasonable suspicion of illegality and/or infringement of rights shall exist in particular if courts, authorities and/or other third parties notify talentsconnect thereof. talentsconnect shall notify the Customer of the block and the reason for the block without delay. The block shall be lifted as soon as the suspicion is invalidated.

(3) The liability of talentsconnect for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contractual negotiations and tort, shall be limited in accordance with this Clause 10, insofar as fault is relevant in each case.

(4) talentsconnect shall not be liable in the case of simple negligence of its organs, legal representatives, employees or other vicarious agents, unless it is a breach of essential contractual obligations. Material contractual obligations are the obligation to provide the Services in a timely manner, their freedom from defects that impair their functionality or usability more than insignificantly, as well as any consulting, protection and care obligations that are intended to enable the Customer to use the Services in accordance with the contract or are intended to protect the life and limb of the Customer's personnel or to protect the Customer's property from significant damage.

(5) Insofar as talentsconnect is liable on the merits for damages pursuant to Section 10 (3), this liability shall be limited to damages that talentsconnect foresaw as a possible consequence of a breach of contract upon conclusion of the contract or that talentsconnect should have foreseen by exercising due care. Indirect damages and consequential damages that are the result of defects in the Services are also only compensable insofar as such damages are typically to be expected when using the Services as intended.

(6) The above exclusions and limitations of liability shall apply to the same extent in favor of the organs, legal representatives, employees and other vicarious agents of talentsconnect.

(7) talentsconnect shall not be liable in the event of force majeure. This applies in particular to a failure to comply with the availability promise in Section 10 (1) of this contract.

(8) talentsconnect shall not be liable for the loss of data insofar as the damage is due to the fact that the Customer failed to perform data backups prior to the transmission of the data and/or later - insofar as it was technically possible for the Customer to do so - and thereby ensure that lost data can be restored with reasonable effort.

11. Confidentiality

(1) The Parties shall keep confidential all Confidential Information communicated by one Party to the otherParty under the contract or received from the otherParty and use it solely for the purpose of providing the Services.

(2) The Parties shall protect Confidential Information from unauthorized access and shall treat it with the same care that they apply to their own equally Confidential Information, but at least with the care of a prudent businessman.

(3) These confidentiality obligations do not apply to information that is

  • were known to the receiving Party before it received them from the other Party under the contract, or
  • the receiving Party has independently developed without recourse to confidential information of the other Party, or
  • the receiving Party has obtained from a third party that is not bound by restrictions on the use and disclosure of such information; or
  • is or becomes generally known through no fault or action of the receiving Party, or which a Party has exempted from confidentiality by writtendeclaration to the receiving Party; or
  • the disclosure is ordered by a judicial or administrative order.

12. Data Protection

(1) The Parties shall comply with the applicable data protection provisions. If the Customer requests special processing by talentsconnect that goes beyond talentsconnect's standard offering, the Customer shall ensure that it is also authorized to process the personal data.

(2) talentsconnect offers the JobShop as a hybrid model: talentsconnect operates the JobShop under its own responsibility until the applicant submits the application, Art. 4 No. 7 GDPR. talentsconnect then transmits the application data directly to the Customer's infrastructure under the Customer's responsibility, Art. 4 No. 7 GDPR. Responsibility vis-à-vis third parties for compliance with the respective data protection requirements, in particular compliance with data protection information obligations, including all information obligations pursuant to Art. 12 et seq. GDPR shall be incumbent on the respective data controller. At the interfaces, the Parties shall jointly agree on corresponding information and/or declarations of consent vis-à-vis the applicants.

(3) Data Processing within the Scope of talentsconnect's own Responsibility

talentsconnect undertakes to comply with the relevant data protection regulations, in particular the provisions of the General Data Protection Regulation (GDPR) and the German Federal Data Protection Act (BDSG), when providing the JobShop as the responsible Party. talentsconnect is responsible for the lawful handling of personal data provided to talentsconnect in connection with the provision of the JobShop, in particular by applicants and visitors, and for safeguarding the rights of the data subjects (e.g. to information, correction, deletion, restriction of processing).

talentsconnect further undertakes in particular to take technical and organizational measures to the extent provided for by the relevant data protection regulations to safeguard the confidentiality, availability, integrity and authenticity of the personal data made available as part of the provision of the JobShop. These include, in particular, the technical and organizational measures specified in Annex 2 of the order processing agreement to be concluded separately. talentsconnect also obligates its employees to maintain confidentiality and to delete personal data within the scope of the legal requirements.

(4) Data Processing within the Scope of Commissioned Processing

talentsconnect will act as a processor for the Customer as of the transmission of the application data and within the scope of the Recruiter Cockpit. The Parties shall conclude a separate order processing agreement for this purpose that complies with the requirements of Art. 28 GDPR. In this order processing contract, the details of the processing of all personal data within the processing on behalf are regulated.

13. Final Provisions

(1) The contract as well as the agreements made under it 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. The exclusive place of jurisdiction is the registered office of talentsconnect.

(2) There are no verbal agreements to the contract. Amendments or supplements to the contract must be made in writing to be effective. The same shall apply to any waiver of this written form requirement.

(3) Should individual provisions of the contract be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions of the contract. The invalid or unenforceable provision shall be replaced by a provision that comes as close as possible to the economic purpose of the invalid or unenforceable provision. The same shall apply in the event that the Parties subsequently determine that the contract is incomplete.

Status June 2023