General Terms and Conditions – Talentcube GmbH
The Talentcube GmbH, Leonrodplatz 2, 80636 Munich, (hereinafter referred to as “provider”) offers companies (hereinafter referred to as “customer”) the temporary use of a software application with different individual applications for recruiting personnel via a telecommunication connection for a fee.
§ 1 General regulations
(1) The following terms and conditions for corporate customers of the provider for the temporary use of software applications together with the order (hereinafter referred to as “order”) contain the conditions for the services offered by the provider
- Use of the software application (s) listed on the order (hereinafter also referred to as “application” in the majority) for access via a telecommunication connection and
- providing storage space for data generated by the Customer through use of the Application and / or the data required to use the Application (hereinafter referred to as “Application Data”);
and related services of the provider.
(2) Insofar as the provisions of the order contradict the provisions of these terms and conditions, the provisions of the order shall take precedence over the provisions of these GTC.
(3) The terms and conditions of the provider apply exclusively. Conflicting, additional or deviating from these terms and conditions of the customer will not be part of the contract, unless the provider has expressly agreed to their validity. The terms and conditions of the provider also apply if the provider performs a service in knowledge of conflicting or deviating conditions of the customer without reservation.
(4) The terms and conditions of the provider are only valid if the customer is an entrepreneur (§ 14 BGB), a legal entity under public law or special fund under public law.
§ 2 Subject of the contract
The subject matter of these GTC is the provision of the application agreed upon in the order for the use of their functionalities, the technical enabling of the use of the application and the granting or brokering of rights of use for the application as well as the provision of storage space for the application data in the agreed scope by the provider with the Customers against payment of the agreed fee.
§ 3 Provision of application and storage space for application data
(1) From the date agreed upon in the order, the Provider shall maintain on a central data processing system or several data processing systems (hereinafter also referred to as “server” in the case of plural) the application agreed in the order in the respective current version for use in accordance with the regulations in the order and these General Terms and Conditions. The Provider may use its own IT systems and third-party IT systems within the scope of the data protection regulations.
(2) The functional scope of the application shall be determined by the performance description of the application in accordance with the order.
(3) Agreements on access, system and functional requirements on the part of the customer shall be made in the order.
(4) The provider shall provide the customer with the number of user names and user passwords agreed in the order. All user names and passwords must be changed by the customer immediately into names and passwords known only to him and to be protected against unauthorized access by third parties. If the customer suspects that his access data has become known to a third party or that a third party is unauthorized to use the customer’s access to the application, the customer is obliged to change the access data immediately and to inform the provider immediately.
(5) The provider is entitled, but not obliged, to continuously further develop the software.
(6) The provider provides sufficient storage space on the server for the application data from the time of the operational provision agreed in the order.
(7) The application and the application data are regularly saved on the server, at least every calendar day. The customer is responsible for compliance with commercial and tax retention periods.
(8) The delivery point for the application and the application data is the router output of the data center in which the application is operated.
(9) The provider is not responsible for the quality of the required hardware and software on the part of the customer or for the telecommunications connection between the customer and the provider up to the delivery point. The customer can only use the application if he fulfils these technical requirements. The required bandwidth of the telecommunication connection depends on the intensity of the use and the amount of data of the customer.
§ 4 Technical availability of the application and access to the application data
(1) The provider owes the following agreed availability of the application and the application data at the delivery point. The parties understand availability to mean the technical usability of the application and the application data at the transfer point for use by the customer.
(2) The availability of software applications is 98.99% annual average for Web Services and 98.99% annual average for SMTP Services.
(3) The available use (given availability) also includes the following periods.
- a) Disruptions in or due to the condition of parts of the technical infrastructure required for the execution of the application not to be provided by the provider or its vicarious agents;
- b) faults due to culpable causation by the customer or third parties;
- c) only an insignificant reduction in the suitability for contractual use;
- d) Maintenance work in accordance with para. 4.
(4) In agreement with the customer, the provider may interrupt the provision of services for a defined period of time in order to carry out necessary maintenance work. The maintenance work shall not exceed the period of fifteen hours per quarter. The customer shall not unreasonably withhold his consent to carry out the maintenance work.
§ 5 Instructions for use, training courses and other services of the provider
(1) The provider shall provide the customer with a one-time usage instruction for the application at the beginning of the contract.
(2) If an update of the application has been agreed and is carried out, the user instructions will be adapted accordingly.
(3) Further services of the provider, in particular training courses on the application, are only owed if these are agreed in the order. If remuneration has not been expressly agreed in the order, such further services will be provided against reimbursement of the proven expenditure at the Supplier’s prices generally applicable at the time of the order.
§ 6 rights of use of the application; Rights of use to contents of applicants
(1)Rights of use of the application
- (a) The Customer shall be granted simple, non-sublicensable and non-transferable rights of use to the application, limited to the term of the contract, in accordance with the following provisions.
- (b) The application shall not be transferred to the customer.
- (c) The customer may only use the application for his own business activities by his own personnel.
- (d) If the Provider makes new versions, updates, upgrades or other changes with regard to the application during the term, the above rights also apply to them.
- (e) The Customer shall not be entitled to any rights not expressly granted to the Customer above. In particular, the customer is not entitled to use the application beyond the agreed use or to have it used by third parties or to make the application accessible to third parties.
(2) Violation of the provisions according to paragraph 1 by the customer
- (a) If the customer violates the regulations in paragraph 1 for reasons for which he is responsible, the provider can block the access of the customer to the application or the application data after prior written notification of the customer and unsuccessful setting of an appropriate deadline for remedy if the violation can be demonstrably eliminated by this.
- (b) For each case in which the customer culpably enables the use of the application by unauthorized third parties, the customer shall pay an appropriate contractual penalty, the amount of which shall be determined by the provider at its reasonable discretion and in the event of a dispute shall be reviewed by the competent court. With the assertion or payment of the contractual penalty, the assertion of a claim for injunctive relief or a claim for damages against the customer exceeding the contractual penalty by the provider is not excluded. A forfeited and paid contractual penalty shall be fully offset against such damages.
- (c) Further rights of the provider remain unaffected.
(3) Rights of use to contents of applicants
The customer receives a simple right of use for purely internal purposes for information which applicants make available to the customer within the framework of an application. In particular, the disclosure to third parties and/or making available to the public is prohibited. The documents may not be downloaded from the platform and/or duplicated on other storage media.
§ 7 General cooperation obligations of the customer
(1) The customer will fulfill all obligations which are necessary for the execution of the contract. He will in particular…
- (a) take the necessary precautions to prevent the use of the application by unauthorized persons. In particular, he shall take suitable protective measures (e.g. password requirements, passwords on his computers, burglary protection) to ensure that no unauthorised third party can access the application. The Customer shall inform the Provider immediately if it is suspected that the access data and/or passwords may have become known to unauthorized persons;
- (b) create and maintain the access, function and system requirements agreed in the order as well as other requirements for the use of the application;
- (c) ensure that the users authorized to use the application are sufficiently familiar with the operation of the application on the part of the customer, in particular that they receive sufficient training from the users;
- (d) ensure that (e.g. when transmitting texts/data of third parties to the server of the provider) the rights of third parties to the material used by him are not violated;
- (e) according to § 13 Abs. 2 to obtain the necessary consent of the person concerned, as far as the customer collects, processes or uses personal data during the use of the application and no legal permission is given;
- (f) Before sending data and information to the Provider, check them for viruses and use state-of-the-art virus protection programs;
- (g) Send user data only in encrypted form;
- (h) oblige authorized users to comply with the provisions of the contract applicable to them.
(2) The customer will compensate the provider for all damages and expenses incurred by the provider due to a breach by the customer of his obligations to cooperate in accordance with paragraph 1, unless the customer is not responsible for the breach.
§ 8 Data security by the customer and liability of the provider for the loss of data
(1) If the customer transmits application data or other data to the provider for the generation of data with the help of the application, he shall regularly back these up in accordance with the significance of the data and create his own backup copies in order to enable the reconstruction of the same in the event of loss of the data and information.
(2) The customer shall regularly back up the data stored on the server by downloading if and to the extent that the technical possibility to do so is opened to him by mutual agreement.
(3) The customer shall store his data backups in such a way that it is possible to restore the backed up data at any time.
(4) The provider shall not be liable for the loss of data insofar as the damage is due to the fact that the customer, contrary to his obligation under paragraphs 1-3, has failed to carry out data backups and thereby ensure that lost data can be restored with justifiable effort.
§ 9 Remuneration
(1) The remuneration for the services to be provided for the granting of use with regard to the application and provision of storage space, including data backup, results from the order.
(2) Remunerations shall be owed plus VAT at the statutory rate applicable in each case.
(3) Unless otherwise agreed in the order, the following shall apply to the performance of the remuneration:
- (a) The usage-dependent fee for the use of the application shall be invoiced at the end of the first month after the start of the contract.
- (b) Services of the provider with a flat fee (e.g. for training courses) are to be paid in advance, if requested by the provider.
- (c) In the case of remuneration based on expenditure, this shall be invoiced after performance of the service.
Remuneration according to (a) to (c) shall be due for payment immediately without deduction after the invoice date, unless otherwise agreed. The date of receipt by the Supplier shall be decisive for the date of payment.
§10 Price adjustments
(1) In the event of changes to individual cost components that influence the provider’s total service costs, the provider shall be entitled to adjust the prices in accordance with the percentage change in the total service costs. Both increases and decreases in the total service costs shall be directly taken into account. Individual cost components considered are in particular costs for administration, technology provision or customer service.
(2) The price adjustment shall be made no more than once per calendar year.
(3) The supplier will inform the customer immediately about an upcoming price adjustment. The adjusted prices shall become effective 6 weeks after the customer has been informed unless the customer has objected to the price adjustment in writing within this period. In the event of an effective objection, the previous price shall continue to apply. The contradiction of the customer against a price adjustment entitles the supplier to the extraordinary termination opposite the customer within a period of 6 weeks starting from entrance of the written contradiction of the customer.
(4) Price increases of more than 5% of the previously valid price entitle the customer to extraordinary termination of the contract with effect from the time of the price increases. This requires a written notice of termination within 6 weeks of notification of the price increase. The provider will inform about this possibility separately at each corresponding price increase.
§ 11 Liability for defects
(1) The customer must immediately notify the provider of any defects in writing by e-mail to firstname.lastname@example.org.
(2) The provider is only liable for defects in the application, which already existed when the application was handed over to the customer, if he is responsible for these defects.
(3) The provider eliminates defects of the service duly reported by the customer within reasonable periods of time. A proper notification of a defect exists if the customer has described the defect in as much detail as possible. Proper notifications must contain in particular:
- Wording of any error messages,
- Screenshot of the error state,
- Steps to reproduce the error state,
- System in use,
- Hardware environment used, including all third-party software used.
If reports by the customer are not in accordance with the contract, time limits for remedying defects will not begin to run.
(4) Customer’s claims for defects do not exist if Customer has caused the defect, in particular:
- (a) in the event of unauthorised intervention by the customer in the application by means of software or other technical equipment which changes, extends or endangers the functioning of the application,
- (b) in the event of access to the application by other technical means than the Internet browsers specified in the service description,
- (c) in the event of use of hardware or a software environment which does not meet the system requirements specified in the service description, unless the customer proves that he is not responsible for the defect.
(5) If an inspection reveals that a defect is not present or the provider is not responsible for this within the scope of liability for defects, the provider is entitled to reimbursement of the expenses incurred as a result of the inspection in accordance with the provider’s price list valid at the time of the inspection, unless the customer proves that he is not responsible for the misconception of the existence of a defect or the provider’s responsibility for this defect.
(6) A termination of the contract according to § 543 Abs. 2 No. 1 BGB due to non-granting of the contractual use is only permissible if the provider has been given sufficient time to remedy the defect and this has failed. A failure of the removal of defects is only to be assumed if this is impossible, if it is seriously and finally refused by the provider or delayed in an unreasonable way or if it is unreasonable for the customer for other reasons.
(7) A termination due to an only insignificant hindrance of the contractual use is excluded.
(8) The customer may only claim damages in accordance with § 12.
§ 12 Liability for third party rights
(1) The parties will inform each other immediately in writing if claims are asserted against them. This applies in particular if third parties assert rights to the application against the customer. In this case, the customer authorizes the provider to conduct the dispute with the third party alone. The customer supports the provider in the dispute. In particular, he provides the necessary information as well as relevant documents in writing and answers questions of the provider. The customer is not entitled to acknowledge the claims asserted by the third party without the prior written consent of the provider.
(2) The provider is not liable for a violation of the rights of third parties by the customer, if and to the extent that this violation results from a violation of the contractually granted rights of use or other violation of the contract by the customer. In this case the customer exempts the provider from all claims of third parties on first request, unless the customer proves that he is not responsible for the breach of contract.
(3) For the rest, § 10 applies to defects of title.
§ 13 General Liability of the Provider
(1) The provider is liable – for whatever legal reason – for damages or reimbursement of futile expenses only in accordance with the following provisions under letter (1). (a) and (b):
- (a) In the case of intent and gross negligence, the provider is liable without limitation. In the case of simple negligence, the Provider shall only be liable for damages arising from the breach of an essential contractual obligation (obligation, the fulfilment of which is essential for the proper performance of the contract and on the observance of which the Customer regularly relies and may rely); in this case, however, the liability of the Provider shall be limited to compensation for the foreseeable damage typical of the contract.
- (b) The liability arising from letter (b) shall be limited. (a) shall not apply if the Provider maliciously concealed a defect or assumed a guarantee for the quality of the item, for damages resulting from injury to life, limb or health, or in the case of liability under the Product Liability Act.
(2) Insofar as the liability towards the provider is excluded or limited, this also applies to the personal liability of its legal representatives and vicarious agents.
§14 Data security, data protection
(1) If the customer collects, processes or uses personal data, he is responsible for ensuring that he is entitled to do so in accordance with the applicable provisions of data protection law and, in the event of a breach, releases the provider from third-party claims, unless the customer proves that he is not responsible for the breach.
(2) The provider will only collect and use customer-related data to the extent required for the execution of the contract. The customer agrees to the collection and use of such data to this extent.
(3) The obligations according to paragraphs 1 to 3 exist as long as application data are within the provider’s sphere of influence, also beyond the end of the contract.
(4) If necessary, the parties shall conclude an agreement on order data agreements in accordance with Art. 28 DSGVO. In the event of contradictions between these GTC and the agreement on order data processing, the latter shall take precedence.
Unless a separate non-disclosure agreement has been concluded between the provider and the customer, the following applies to non-disclosure:
(1) The contracting parties shall maintain secrecy with regard to all information to be treated confidentially which has come to their knowledge within the scope of this contractual relationship or shall only use this information for third parties – for whatever purpose – with the prior written consent of the respective other party. The information to be treated as confidential includes in particular the information expressly designated as confidential by the party providing the information and such information the confidentiality of which clearly results from the circumstances of the surrender. The provider must treat the application data in particular as confidential if he becomes aware of this.
(2) The obligations under subsection 1 shall not apply to such information or parts thereof for which the receiving party proves that it
- were known or generally available to it before the date of receipt;
- were known or generally accessible to the public before the date of receipt;
- became known or generally accessible to the public after the date of receipt, without the party receiving the information being responsible for this.
The obligations pursuant to para. 1 shall also cease to apply if the party receiving the information is legally or officially obliged to disclose the information.
(3) Public declarations of the parties regarding cooperation shall only be made by prior mutual agreement.
(4) The obligations pursuant to para. 1 shall continue to exist beyond the end of the contract for an indefinite period of time, as long as an exceptional event pursuant to para. 2 has not been proven.
§16 Contract term, termination
(1) The contractual relationship begins with the conclusion of the contract and is concluded for an indefinite period of time, unless otherwise expressly specified in the order. The services shall be provided from the time agreed in the order.
(2) Unless otherwise agreed in the order, the contractual relationship may be terminated by either party in writing with 14 days’ notice to the end of a calendar month.
(3) The extraordinary termination due to or in connection with a breach of duty is only possible after a prior written warning with an appropriate deadline of not less than 14 working days.
If the party entitled to terminate the contract has knowledge of the circumstances justifying the extraordinary termination for longer than 14 working days, he can no longer base the termination on these circumstances.
(4) Regardless of the regulation in paragraph 3 the provider can terminate the contract without observance of a period of notice if the customer is for two consecutive months with the payment of the remuneration or a not insignificant part of the remuneration or in a period, which extends over more than two months, with the payment of the remuneration in height of an amount, which reaches the remuneration for two months, in default. In this case, the Provider may additionally demand a lump-sum compensation due immediately in one sum in the amount of one quarter of the monthly basic lump-sum remaining until expiry of the regular contract term. The customer reserves the right to prove a lower damage.
§17 Force majeure
None of the parties is obliged to fulfil the contractual obligations in the event and for the duration of force majeure. The following circumstances shall be regarded as force majeure in this sense:
- fire/explosion/flood for which the party is not responsible,
- War, mutiny, blockade, embargo,
- industrial action lasting more than 6 weeks and not culpably brought about by the party,
- technical problems of the Internet which cannot be influenced by a party; this does not apply if and to the extent that the provider also offers the telecommunications service.
Each party must immediately inform the other in writing of the occurrence of a case of force majeure.
§18 Final provisions
(1) The provider is entitled to use third parties as subcontractors for the provision of his services.
(2) If the customer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the place of jurisdiction for any disputes arising from the business relationship between the provider and the customer shall be Stuttgart. The provider is also entitled to bring an action at the customer’s place of business as well as at any other admissible place of jurisdiction.
(3) The relations between the provider and the customer are subject exclusively to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
(4) The provider is entitled to amend these General Terms and Conditions subject to a notice period of 6 weeks if the amendment appears reasonable taking into account both the interests of the customer and the provider. This right to change does not include essential contents of the contractual relationship, in particular the scope and quality of the mutual performance obligations as well as the duration of the contract. The customer has a right of objection after the announcement. This requires a written statement of objection within 6 weeks starting with notification of the change. If the customer does not object, the change shall be deemed approved. Together with the announcement of the change, the provider will inform the customer of this circumstance.
(5) Should individual provisions of these GTC be or become invalid, this shall not affect the validity of the remaining provisions.
§ 1 General regulations
(1) Talentcube GmbH, Leonrodplatz 2, 80636 Munich, Germany (hereinafter referred to as “we” or the “Platform Operator”), offers the Talentcube App (hereinafter referred to as the “Platform”) to users of the Platform (hereinafter referred to as the “Users”) the opportunity to create applications and apply for vacancies.
§ 2 Services of the Platform Operator
(1) The platform operator shall provide a platform on which users can create applications via a mobile device, in particular video applications. Use of the platform is free of charge.
(2) Users can register on the platform via their Xing profile, LinkedIn profile or Facebook profile. The information of the respective user is displayed in the same way as it is made available by the user on his Xing profile, LinkedIn profile or Facebook profile. We do not guarantee that this information is correct. The respective user is solely responsible for the content of such information. We expressly do not adopt the contents of the users as our own.
(3) The platform operator does not guarantee the permanent accessibility of the website to the user. In particular, the website is not accessible if maintenance work is carried out on the website. The inaccessibility of the website due to technical faults is not excluded.
§ 3 Registration of users
(1) Users can register free of charge on the platform. There is no entitlement to admission to the Platform. Only natural persons with unlimited legal capacity are entitled to participate.
(3) Every user has the possibility to store different data in his account. The user is obliged to enter this data truthfully and completely and to keep the personal data in his member profile up to date at all times and to add relevant changes – e.g. address or account data – without delay. Changes can be made online in your own account.
(4) Each user of the platform may only open one member account. The member account is not transferable.
(5) Violence glorifying, youth-endangering, racist or pornographic contents in the profile of a user are prohibited.
(6) Every user of the platform must ensure that the contents and materials used by him are free of third-party rights.
(7) Users may not refer in their profiles or messages to external offers that directly or indirectly compete with the services of the platform provider.
(8) In the event of a violation of these conditions, we reserve the right to delete content on profiles at any time and to exclude the respective user from using the platform. If the user is responsible for a violation, the user is obliged to compensate us for all damages and expenses incurred and to indemnify us against all claims by third parties which arise for us due to the user’s violation of the conditions according to paragraphs 3 to 7 or which are asserted against us for this reason.
§ 4 Rights of use
(1) We are entitled to forward any application of a user to potential employers with his consent or to make an application accessible to them. In this respect, the user grants the platform operator a non-exclusive, spatially unlimited and free right of use to the application documents and application videos provided by the user on the platform. The granting of rights of use includes the right of reproduction, the right of distribution and the right of public accessibility.
(2) The right of use according to paragraph 1 ends with the deletion of his account by the user.
§ 5 Warranty by the platform operator
(1) We make information about users available in the same way as it is made available to us by the user. We assume no responsibility for the accuracy and completeness of user information or for the content of a user’s profile. Should we become aware that a user’s profile contains illegal content, we will delete this content.
(2) We make the platform available to users free of charge. Our liability is governed by §§ 599, 600 of the German Civil Code. In addition, we are liable in the event of simple negligence for damages resulting from injury to life, limb or health. The provisions of the Product Liability Act remain unaffected by this.
§ 6 Data processing; data protection
Our data protection regulations apply, which can be viewed here at any time: https://talentcube.de/datenschutz.
§ 7 Final provisions
(1) German law shall apply exclusively to the exclusion of conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CSIG) shall not apply. Mandatory provisions of the state in which the user has his habitual residence shall remain unaffected.
Status May 2019