General Terms and Conditions of Taledo GmbH
1 SCOPE OF APPLICATION OF THESE GENERAL TERMS AND CONDITIONS
1.1 Taledo GmbH (hereinafter “Taledo”) is the operator of the website accessible under www.Taledo.com (hereinafter “Website” or “Platform”) and the staff recruitment services provided there (hereinafter “Service”). The goal of Taledo is to match and bring together potential candidates (hereinafter “Candidate” or “Applicant”) with potential employers (hereinafter “Employer” or “Customer”). These General Terms and Conditions shall exclusively apply to the entire business relation between Taledo and the Candidate or the Employer (both individually referred to as a “User” and collectively the “Users”) on the Website including the future business relation, and, if applicable, any supplementary written agreements (including by e-mail) concluded between Taledo and the User.
Users and Taledo are hereinafter collectively referred to as “Parties”.
1.2 Taledo hereby expressly rejects any conflicting or deviating terms and conditions of the User. They shall not be part of the Agreement, unless and insofar as Taledo has expressly confirmed their application in writing. The same shall apply if the Customer’s terms and conditions include additional provisions beyond the content of these General Terms and Conditions.
1.3 Taledo shall be entitled to change these General Terms and Conditions for the entire existing and future business relation with the User with effect for the future upon a respective written notification. Such change shall be deemed approved and becomes integral part of the Agreement, unless the User has forwarded its objection by post or e-mail within 4 (four) weeks (“Objection Period”) after having received such notification of change. This consequence will be pointed out separately by Taledo to the User at the moment of notification. If the User objects within the Objection Period, the Parties may extraordinarily terminate the Agreement pursuant to section 8.
1.4 Should the User not give its full approval to these General Terms and Conditions, making use of the Website and/or benefiting from the Service shall be prohibited.
2 SUBJECT MATTER OF THE USE AGREEMENT
2.1 Taledo offers the Customer the possibility to look for job opportunities or seek Candidates in a fast and transparent way.
2.2 The use of the Website and the Service is free of charge for the Candidates; Employers have to bear costs only when the Employer either (i) has booked a certain price model for the use of the Taledo Suite (Plus, Premium or Unlimited) or (ii) has signed an individual agreement for the use of Taledo’s Recruitment Services.
2.3 Minors (natural persons under the age of 18 years) are not permitted to use the Platform or the Service.
2.4 Taledo shall have the right to offer the Service to any person, including such persons who are potential competitors to the Customer. Any protection against competitors is excluded.
2.5 Taledo reserves the right not to enter into agreements on the use of the Platform with individual persons or companies, in particular competitors of Taledo, and to refuse these interested parties the use of the Service and of those parts of the Platform requiring a registration.
2.6 Any interaction between Users on the Platform happens at the Users’ own risk and responsibility. Taledo is not obliged to monitor the interaction of Users. Taledo shall not assume any liability for breaches of rights or duties by Users that may be the result of an interaction between the Users. Nonetheless, all Users undertake to comply with applicable law within the Platform.
2.7 Taledo shall generally not be obliged to examine the Users and the information provided by them, yet in the individual case Taledo reserves the right to carry out such an examination of any unlawful, misleading or incorrect content at its own discretion. Furthermore, the Employer itself is responsible for the examination of the Candidates’ qualifications/skills, experiences and references prior to employment.
2.8 Users are welcome to forward ideas, suggestions or recommendations to improve the Website and/or the Service (collectively “Feedback”) in whatever form (e.g. e-mail, verbally) to Taledo. Should Users provide Feedback, they agree that Taledo will make use of this Feedback and implement it on its Website and/or in its Service at its own discretion.
3 CONCLUSION OF USE AGREEMENT, CREATION OF USER ACCOUNT AND LIMITS OF USE
3.1 The User creates a user account on the Website, supplying an e-mail address and a password. First, the User enters his e-mail address on the Website. Then Taledo sends an e-mail, including a confirmation link for the creation of the user account. By clicking the confirmation link, the User submits an offer for conclusion of an agreement on the use of the Platform and the Service. Taledo accepts this offer by activating the user account in accordance with section 3.2.
3.2 Each user account requires prior activation on www.Taledo.com. Before such activation is executed, Taledo can check the user profile for violations of these General Terms and Conditions and any amendments, together constituting the Use Agreement, as well as any breaches of laws. There is no claim for activation on the Platform. Taledo shall decide in its sole discretion which Applicant shall be accepted to participate and thus be activated.
3.3 Through registration on the Website and conclusion of the Use Agreement, the User undertakes to only provide true, complete and timely information, communicate his true identity and to create just one single account. The same shall apply in the event that a registration is carried out via a third-party provider such as GitHub, LinkedIn or Xing, and for the information stored with these third-party providers which are transferred to and adopted in the user account on the Platform. In case of incorrect, outdated, incomplete or otherwise misleading information, Taledo reserves the right to block the respective account under the conditions of section 8.2 and to refuse use of those parts of the Website requiring a registration.
3.4 Following the activation of the user account, the Candidates can set up and edit their profiles and Taledo provides Employers with candidate proposals (by e-mail, telephone, fax, etc.), or contact the Candidates directly via the Platform by addressing an interview request.
3.5 Users may not distribute, transmit or create content via the Platform which
3.5.1 violates criminal laws,
3.5.2 is of a degrading, violent, threatening, vulgar or xenophobic nature or which may serve to violate human dignity,
3.5.3 may serve to damage the reputation of Taledo,
3.5.4 may serve to violate copyrights, patents, trademarks or other property rights, the privilege as to one’s own image and other personal rights, or other rights of third parties, or
3.5.5 violates mandatory labor law regulations, in particular the German General Equal Treatment Act (“AGG”) or regulations protecting employees.
3.6 Taledo may block access or remove information provided by Candidates if such information violates applicable law or the Use Agreement, including these General Terms and Conditions.
3.7 Employer and Candidates can also contact each other via the Platform. To ensure a proper use of the Platform in the Parties’ interests, Taledo shall be entitled yet not obliged to also look into messages and, if necessary, take into account the contents of these messages, in particular, if these messages clearly indicate violations of these General Terms and Conditions.
4 NOTIFICATION BY TALEDO; PROPOSALS, QUERIES AND OFFERS BY EMPLOYERS
4.1 Once a Candidate’s user account has been activated, the Candidate can receive notifications from Taledo with references to potentially relevant Employers, in particular Employers looking for a fitting Candidate profile. In this context, Taledo may also inform a Candidate via telephone, e-mail or other means of contact indicated by the Candidate about potentially relevant Employers and job offer of an Employer potentially matching the candidate’s profile in order to enable a prompt notification and, if necessary, swift consultation with you, for example with regard to a job offer to be filled on short notice, in line with the interests of the Candidate and an efficient personnel recruitment.
4.2 The Candidate may also receive legally non-binding requests by actively seeking Employers to start an application procedure (hereinafter “Request”). The Candidate may receive a request from Employers not actively seeking after first having initiated a contact by himself.
4.3 Each Request shall contain a proposed salary and, if necessary, a more detailed job description. The Candidate shall be obliged to immediately respond to the respective Request upon receipt, usually within 48 hours. Taledo reserves the right to deactivate the user account of a Candidate pursuant to section 8, should said undertaking not be fulfilled. The Candidate can choose to accept one or several Requests, or to turn down a Request.
4.4 Employers have the opportunity to view the user profiles of the Candidates.
4.5 As soon as the Employer is provided with a Candidate or once a Candidate has initiated a first contact via the Platform, this Candidate is considered as proposed by Taledo (“Proposed Candidate”) – in the sense of the remuneration duty set out in section 5. This shall particularly apply if the Employer has been provided with the name and/or contact details of a Candidate in the context of an individual proposal or otherwise. Exceptions hereto are set forth in section 7.2.
4.6 Should the Employer wish to submit a binding job offer to the Candidate after completion of the application procedure, he may forward it to the Applicant verbally or in written form. A conclusion of an employment, service or work contract or any other contract between Employer and Candidate shall be the sole responsibility of these two parties; Taledo will not guarantee any conclusions of contract between the Employer and the Candidate.
4.7 In the Recruitment Services model, upon conclusion of the contract between the Employer and the Candidate, a consideration as set out in the individual agreement between the Employer and Taledo may fall due for the Employer.
5 COMMISSION, REPAYMENT CLAIM AND LIMITATION OF SET-OFF
5.1 For Candidates the use of the Service and the Website is free of charge.
5.2 Employers have to pay a consideration for using the Service and the Website to Taledo if the Employer either (i) has booked a certain price model for the use of the Taledo Suite (Plus, Premium or Unlimited) or (ii) has signed an individual agreement for the use of Taledo’s Recruitment Services. In the Recruitment Services model, a Commission entitlement may arise if a Proposed Candidate is employed, unless both parties agreed upon a flat rate model in the individual Recruitment Services agreement. This Commission entitlement arises with any type of employment of the Proposed Candidate, regardless of the kind of employment (as employee in full-time or part-time employment, as freelancer under a service or work contract) and any other contract between Candidate and Employer. The Commission shall also arise if
(a) the contract between the Employer and the Proposed Candidate was concluded subject to a condition precedent;
(b) a contract between the Employer and the Proposed Candidate, is concluded within 18 (eighteen) months after proposal of the Candidate as defined in section 4.4, irrespective of the specific job offer placed on the Platform; or
(c) after the Candidate has been proposed by Taledo, the Employer presents the Candidate to another company within 18 (eighteen) months or otherwise discloses information on the Candidate, and a contract is concluded between the Candidate and the other person/the other company. This shall apply regardless of whether the proposal to another person or company has been carried out with or without the consent of Taledo.
5.2.1 The Commission to be paid by the Employer to Taledo in the Recruitment Services model shall be immediately due upon conclusion of a contract between the Proposed Candidate and the Employer.
5.2.2 Should the Employer, who signed up for the Recruitment Services model, hire more than one of the Candidates proposed by Taledo in the course of its placement efforts, the Commission is to be paid for each hired Candidate unless both parties agreed upon a flat rate model.
5.2.3 Amount of Commission in the Recruitment Services model without flat rate agreement:
(a) The Employer pays a one-time Commission in an individually agreed upon amount of the gross annual target salary defined in the employment or service contract of the hired Candidate, but in any case, a minimum Commission of EUR 6,000 (six thousand euros). The gross annual target salary covers the gross annual salary, the fully variable part of the salary, all success and annual bonuses as well as any other benefits in money’s worth that form the complete components of the employment contract. The provision of a company vehicle will be included in the gross annual target salary calculation with a fixed amount of EUR 10,000 (ten thousand euros). For additional services provided by Taledo (e.g. additionally agreed support in the search for and selection of Candidates, creation of profiles for the Employer) the Employer must pay an additional remuneration corresponding to the agreement between the Employer and Taledo. If no agreement is made, Taledo can demand the normal market remuneration.
(b) If the employment or service contract should be concluded for a term shorter than one year, the calculation of the Commission shall be based on the salary to be paid to the hired Candidate for the period of validity of the employment contract (including the fully variable part, all success bonuses and any other benefits in money’s worth).
(c) Should the employment or service contract be extended, the original contract and the extension shall be treated as one single contract in accordance with the above regulations as regards the calculation of the Commission.
(d) Section 5.2.3 c) shall apply accordingly, if within one month after the original employment or service contract has ended another contract is concluded.
(e) If an Employer and a Candidate agree on a salary below standard market practice and, in turn, agree on the transfer of shares or interests or (virtual) options thereupon, the calculation of the Commission shall be based on the gross annual target salary, during the application procedure originally offered by the Employer to the Candidate on the Platform.
(f) In case of a service contract (Werkvertrag) the gross annual target salary comprises the sum of all services the Candidate has invoiced to the Employer within 18 (eighteen) months after completion of the application procedure.
5.2.4 If the open-ended employment relation between the Candidate and the Employer subsequently ends within 3 (three) months after the contractually agreed entry date (e.g. due to dismissal or termination agreement), the Employer may inform Taledo within 5 (five) working days as of the date of contract termination. The decisive factor for the calculation of this time period is the last official working day and not the date of submission of the Candidate’s termination notice or the date of the signing the termination agreement.
If the Employer informs Taledo in writing of the subsequent termination of the employment contract within the aforementioned period the Employer shall be entitled to reclaim a credit note for further Services in an amount of 50% (fifty percent) of the Commission paid to Taledo, provided that neither the Employer nor a company affiliated with the Employer within the meaning of sections 15 et seq. German Stock Corporation Act (AktG) has again employed the Candidate within 12 (twelve) months after the date of contract termination, or the Candidate has started to work for the Employer or a company affiliated with the Employer within the meaning of sections 15 et seq. AktG as freelancer under a service or work contract or any other contract between Candidate and Employer.
If the Candidate notifies the Employer before the commencement of work, i.e. in the period between the signing of the contract of employment, service or work and the beginning of the contractually agreed activity, that he will not start work with the Employer, the Employer is entitled to claim back a credit note for further services amounting to 100 % (one hundred per cent) of the paid Commission of Taledo, provided that the other prerequisites in the previous paragraphs of this Clause 5.2.4 (i.e. notification period and no other employment of the Candidate for the Employer or an affiliated company of the Employer) are met.
The respective credit note will expire if it is not asserted by the Customer within 12 (twelve) months after date of issue.
5.2.5 Taledo reserves the right to make a payment in the amount of the credit to the Employer instead of the credit note specified in section 5.2.4.
5.2.6 If Taledo chooses payment as set out in section 5.2.5 instead of a credit, the repayment claim shall become due within 10 (ten) working days after notification of the Employer to Taledo that the prerequisites for a repayment claim pursuant to section 5.2.4 are met.
5.2.7 Any Prices are exclusive of statutory VAT.
5.2.8 The invoice amount is immediately due and payable without deductions within 10 (ten) business days after sending such invoice. Payment shall be deemed to have been effected in time upon receipt of the amount payable on Taledo’s account.
5.2.9 A set-off by the Customer against counterclaims shall be excluded, except that these counterclaims of the Customer are uncontested or established by a court of law. The same shall also apply to any retention rights being exercised.
6 DUTIES AT SIGNING IN THE RECRUITMENT SERVICES MODEL AND INFORMATION DUTIES OF THE USER
6.1 In the Recruitment Services model without a flat rate agreement, the Employer is obliged to inform Taledo in writing without any delay, however within 5 (five) working days at the latest, of the employment of a Candidate, regardless of the form of contract (with a fixed term or open-ended contract, as employee or freelancer), and of any other contract concluded between the Candidate (e.g. service or works contract) and the Employer or a company affiliated with the Employer within the meaning of sections 15 et seq. AktG (“Placement”). Such notification has to include the start date of the employment and details on the gross annual target salary. Taledo may contact the Customer at any time to obtain an update on the status of current applications.
6.2 A Placement as defined in section 6.1 is also given in any kind of employment, works contract/freelance agreement or any other assignment of the Candidate by the Employer or a company affiliated with the Employer within the meaning of sections 15 et seq. AktG.
6.3 If the Employer signed up for the Recruitment Services model without flat rate agreement violates the duty set out in section 6.1 and does not comply with this duty until the start date as contractually agreed with the Candidate, the Employer is obliged to pay a fine in the amount of 10% (ten percent) of the gross annual target salary, originally offered during the application procedure to the Candidate, unless he has not culpably caused the violation.
The contractual fine shall be set off against a claim for damages due to non-performance. Other claims against which the above contractual fine will not be set off remain unaffected.
6.4 The Candidate shall also be obliged to inform Taledo in writing without delay, at the latest within 5 (five) working days, of a Placement by Taledo with an Employer.
6.5 The duties of Employer and Candidate to communicate a Placement pursuant to this section 6 also include the duty to inform on an extension of a contract, initially concluded for a time period of less than one year between Employer and Candidate. This shall also apply if another contract is concluded between Employer and Candidate following the first contract which was initially concluded by those two parties for a time period of less than one year.
7 UNDERTAKING TO REFRAIN FROM CIRCUMVENTING THE PLATFORM IN THE RECRUITMENT SERVICES MODEL, AND INFORMATION DUTIES OF THE CANDIDATE
7.1 Customers signed up for the Recruitment Services model without flat rate agreement expressly undertake not to contact Proposed Candidates presented pursuant to section 4.5 neither by themselves nor via third parties, especially recruiters or headhunters, outside the Platform for the purpose of concluding a contract, unless Taledo has given its prior written consent to such contacting. This shall in particular apply to Candidates who were presented by way of a specific proposal as defined in section 4.5.
The initiation of a first contact and any subsequent interaction of the Customer with the Candidate has to be made either by involving Taledo or with Taledo’s express written approval. Exceptions to this are the job interview and the Signing of the contract between Candidate and Employer.
The duty under this section 7.1 does not apply if 18 months have passed since the Candidate has been proposed.
7.2 There will be no Commissions set out in section 5.2 and the provisions set out in section 7.1 shall not apply, if the Customer or a commissioned third party (e.g. a headhunter) was verifiably involved in active contract negotiations with the Candidate in the last 2 months prior to the Candidate’s proposal as defined under section 4.5. “Active contract negotiations” are given if there is an active communication, not carried out via the Platform, between Candidate and Customer or a third party commissioned by the Customer, on the possibility of an employment with the Customer which neither the Candidate nor the Customer have explicitly or implicitly refused.
7.3 In case that the Employer violates the duty under section 7.1, the Employer is obliged to pay an amount of 15,000 € (fifteen thousand euros) for each case at hand, unless the Employer is not responsible for the violation or provides evidence that Taledo has, in fact, not suffered any damage or a substantially lower damage. Other claims remain unaffected, yet will be set off against the contractual fine.
7.4 The Candidate will immediately inform Taledo of any contacting by an Employer outside the Platform while the Candidate’s user profile is visible for the Employer.
7.5 The Candidate shall be obliged to initiate the first contact with an Employer, proposed by Taledo, exclusively via the Platform, unless Taledo has given its prior written consent to such contacting outside the Platform. This shall not apply if the Candidate was verifiably involved in active contract negotiations with the Employer as defined under section 7.2 before the proposal, or if 18 months have passed since the Employer’s proposal.
8 TERM AND TERMINATION
8.1 The Agreement is entered into for an indefinite period of time. The User and Taledo are entitled to terminate the Agreement by observing a notice period of 7 (seven) working days to the end of a month.
8.2 The right to extraordinary termination for good cause regardless of any termination period and with immediate effect shall remain unaffected. Good cause as defined by Taledo shall in particular exist, if
8.2.1 the User has supplied incorrect, outdated or incomplete or otherwise misleading information in his user profile or elsewhere on the Website and despite warning notice does not correct these entries;
8.2.2 the User distributes, transmits or draws up content which
(a) violates criminal laws,
(b) is of a degrading, violent, threatening, vulgar or xenophobic nature or which may serve to violate human dignity,
(c) may serve to damage the reputation of Taledo,
(d) may serve to violate copyrights, patents, trademarks or other property rights, the privilege as to one’s own image and other personal rights, or other rights of third parties, or
(e) violates mandatory labor law regulations, in particular the German General Equal Treatment Act (“AGG”) or regulations protecting employees,
8.2.3 the User violates the duty to provide information on the conclusion of a contract between Candidate and Employer pursuant to section 6.1 or 6.4,
8.2.4 the User violates the prohibition of circumventing the Platform pursuant to section 7,
8.2.5 the Candidate violates the duty to immediately respond to a Request of an Employer pursuant to section 4.2 despite warning;
8.2.6 contrary to section 12.4 the User uses the user account in an unlawful manner,
8.2.7 the User culpably breaches the duties arising from the Use Agreement including these General Terms and Conditions, and despite warning notice persistently violates the Use Agreement in the same or similar manner.
In case of a serious violation immediate termination without prior warning notice is permissible. A serious violation is the kind of violation where Taledo cannot reasonably be expected to continue the contractual relationship. A continuation of the contractual relationship can normally not be expected of Taledo, if the User provides cause for termination under section 8.2.2 (a) or 8.2.6 or if the User supplies inaccurate data upon registration.
If the User is responsible for the extraordinary termination, the User is prohibited from again creating a user account after the original account has been blocked, unless Taledo has given its prior express written consent.
Any termination must be in written form to be effective.
8.3 All terminations result in a direct blocking of the Customer’s access to the service and to the parts of the Website requiring registration, if applicable, after lapse of the termination period. Payment obligations already existing or arising in the future, especially in relation to Candidates already discovered or employed before termination and the prohibition of circumvention under section 7 remain unaffected by any termination, irrespective of the legal ground. The regulations on confidentiality pursuant to section 12 continue to be effective after termination for a period of 5 years as from termination of the Agreement.
8.5 The virtual domiciliary right of Taledo remains unaffected by this section 8.
9 PROPERTY RIGHTS & RESTRICTIONS OF THE RIGHT OF USE
9.1 Taledo expressly reserves all rights to the Website, the Platform, the Service and the information and content provided by Taledo which it is entitled to due to applicable laws.
9.2 Taledo shall grant Users a right of use to the Platform provided in the context of performing this Agreement, limited in time to the term of the Agreement, revocable, simple, i.e. non-transferable and non-sublicensable, non-exclusive and limited to the contractually agreed use. The User’s right of use shall expire upon termination of the contractual relationship pursuant to section 8.
The Platform may only be used as intended by Taledo. Data recorded in the Platform may only be retrieved via the pathways intended by Taledo, i.e. usually via the Website. Exploitation or spying out of data by means of other software is not permitted. Furthermore, it is inadmissible to copy, disclose, send or publish data saved to the Platform, unless the Platform expressly provides for such a function or this is essential for the proper use of the Platform.
9.3 The User shall not be entitled to make use of the Website for purposes other than those for which it is offered to him by Taledo, activate functions on the Website that are not released, transfer granted rights of use to third parties, provide third parties with unauthorized access to the Service or the Website, or delete, change or disguise references to property rights of Taledo. Except in cases where legally permitted, the User shall not be entitled to modify, copy, decompile or translate the source code of Taledo.
9.4 In case of a violation of intellectual property rights (specified in this section 9), Taledo reserves the right to immediate termination of the user agreement and final deletion of the user account pursuant to section 8 as well as to take further legal action.
9.5 During the term of the Agreement, the Customers allow Taledo to use their logos and names as references on the Platform and vis-à-vis third parties. Such permission may be revoked by the Customer in writing at any time.
9.6 The users undertake not to violate in any way the property rights of Taledo or third parties on the Platform. If, in your opinion, Users have identified a violation of property rights on the Platform, please inform Taledo by e-mail to [email protected]. Taledo shall verify the notification and, if necessary, shall take all necessary steps.
9.7 The provisions in section 9 shall not limit the termination rights set out in other paragraphs such as, for instance, the right to immediate deletion of a user account pursuant to section 8.2. The virtual domiciliary right of Taledo also remains unaffected by this section 9.
10 INVOLVEMENT OF THIRD PARTIES
Taledo reserves the right to entrust entirely or in part third parties with performing and rendering the services agreed under this Agreement. User data are exclusively made available to third parties as part of the intended purpose of the contractual relationship.
11 RECOMMENDATION OF CANDIDATES – “REFER A FRIEND”
11.1 The “Refer a Friend” program allows Candidates to be rewarded with bonus payments for the recommendation of the Platform, if the following conditions are met.
11.2 If a Candidate (“Referrer”) recommends the Platform to a new User (“Candidate Referee”) whereupon the Candidate Referee within 12 (twelve) months after the recommendation creates a profile on the Platform, is accepted on the Platform and is proposed to and hired by an Employer via the Platform, the Referrer shall receive a bonus payment of 1,000 € (one thousand euros) gross, if the Candidate Referee works for at least 3 (three) months in the new job. This shall apply only if the Candidate Referee had not already applied to Taledo within the last 12 (twelve) months before the recommendation.
11.3 The bonus payment becomes due as soon as the Candidate Referee or the newly hired Candidate has completed the first 3 (three) months of the new employment.
11.4 If a Recruiter or an enterprise recommends the Platform to a new Candidate, the “Refer a Friend” program shall not apply. In this case none of the indicated parties is entitled to a Commission.
12 CONFIDENTIALITY OF USER INFORMATION, INADMISSIBLE BEHAVIOR AND UTILIZATION FOR REFERENCES
12.1 The Parties shall keep any business secrets of the respective other Party that have become known to it in the context of making use of the Platform and the Service confidential. Business secrets of Taledo shall include, in particular, the information on Candidates made available. Information is not considered a business secret, if the information
(a) is not confidential any more but has already become public knowledge, i.e. is readily accessible to any third party,
(b) is lawfully disclosed to a contracting partner by a third party upon learning about it, who is not subject to an obligation of confidentiality vis-à-vis the other contracting partner, or
(c) must be disclosed if demanded by an authority or other governmental agency, or which must be made available to legal or tax advisors of the respective contracting partner or other persons bound by professional secrecy in need of disclosure for consulting purposes.
Disclosure of business secrets is permissible only with the express prior written approval of the other Party, for the protection of certain legitimate interests of one or both Parties or due to mandatory legal provisions.
12.2 The Customers’ use of Candidate information/curriculums vitae provided by Taledo is limited to the extent regulated in this Agreement. No part of the information may be reproduced or disclosed without the prior written consent of Taledo, neither electronically, as photocopy nor in any other way, except one of the cases regulated in section 12.1 (a) – (c) is at hand. The Candidate’s rights to such personal data concerning himself remain unaffected.
12.3 Employers shall merely be entitled to use the Candidate information made available exclusively for own internal application procedures during a reasonable period of time and solely on behalf of the legal entity (for instance, the specific GmbH [German limited liability company]) that has entered into an agreement with Taledo, unless Taledo has in advance expressly agreed in writing to another utilization. The same shall apply with regard to companies and partners affiliated with the Employer in terms of Section 15 et. seq. German Stock Corporation Act (AktG): No information may be disclosed to companies and partners affiliated with the Employer in terms of Section 15 et. seq. AktG without prior express written consent of Taledo.
12.4 The login to the Platform provided by Taledo may only be used by the User. The User is obliged to keep the login name and/or the password for the user account strictly confidential and must not disclose such information to any third party. The User also undertakes not to surrender the user account to a third party in no event, or to transfer it to a third party. The User shall immediately inform Taledo as soon as he becomes aware that unauthorized third parties have gained knowledge of his login details. In the event that a third party makes use of a user account after having obtained the related login data because the User has not sufficiently protected such data against unauthorized access, the User must allow himself to be treated as if he himself had acted.
The User also undertakes not to make unauthorized use of the user account, the login name and/or the password of another User under no circumstances.
The User shall furthermore not be entitled to advertise the services of third parties on the Platform or forward unsolicited advertising or spam e-mails to other Users. The individual privacy of other Users and rights of third parties must not be violated.
12.5 Taledo shall have the right to use the Customer’s company and his respective identifying brand as reference during and after the term of the Agreement with the Customer has expired. The Customer shall be entitled at any time to revoke such permission in writing (by e-mail to [email protected] or by letter).
12.6 In the event of a culpable breach of the above duties pursuant to section 12, the Party in breach of its duty shall be obliged to pay a contractual fine, set by the respective other Party according to its fair judgement which, in case of dispute, shall be subject to review by the competent court, also with regard to its amount.
13 LIMITATION OF LIABILITY FOR TALEDO
13.1 Taledo’s liability for negligent breach of material contractual duties of Taledo shall be limited to damages which were foreseeable and typical of this type of agreement. Material contractual duties including so-called cardinal duties in accordance with case law shall be construed as any duty whose fulfillment is required to, in fact, allow for the proper performance of the contract, and whose compliance the contracting parties may regularly rely on.
13.2 Apart from that, the liability of Taledo shall be restricted to gross negligence and intent.
13.3 The above limitation of liability pursuant to section 13.1 and 13.2 shall, however, not apply to the liability for injury of life, body or health. It shall also not apply to product liability and not in matters in case of a guarantee.
13.4 To the extent that the liability of Taledo is excluded or limited, this shall also apply to the personal liability of representatives, personnel, workers, employees or vicarious agents, and especially to the benefit of shareholders, representatives, organs and their members.
13.5 Apart from the regulations explicitly included in these specific General Terms and Conditions, Taledo shall not assume any additional, legally binding guarantees. Taledo shall not guarantee that the Customer will find a matching Candidate for a vacancy via the Platform.
13.6 Taledo shall also not assume any liability for malfunctions, interruptions, deletion of files, disturbances, defects, delays or other performance failures caused by outside influences, errors of use committed by the Users, force majeure or changes or other manipulations not carried out by Taledo.
13.7 Taledo shall not accept any liability for accuracy, timeliness or correctness of any facts, opinions, views or recommendations or other information to be found on the Platform that have been supplied by Candidates, Employers or third parties. The Users rely upon these facts, opinions, views, statements or recommendations at their own risk.
14 LIABILITY FOR LINKS ON THIRD PARTY WEBSITES
On the Website there might be links to third-party websites. Such third-party websites are beyond Taledo’s control and Taledo has no influence on content, terms and conditions of use and data protection and privacy policies of these websites. Therefore, Taledo shall not assume any responsibility for the content of these websites and no liability for any damages or losses, incurred by calling up/use of these websites. If the User calls up these websites, he shall do so at his own risk.
15 CHOICE OF LAW AND PLACE OF JURISDICTION
15.1 All agreements between Taledo and the Users shall be governed by the laws of the Federal Republic of Germany.
15.2 The exclusive place of jurisdiction for all disputes arising from or in connection with this Agreement, entered into by Taledo and the Employer, shall be Berlin insofar as the Employer is a merchant, a legal person under public law or a special asset under public law, and unless mandatory statutory law provides otherwise. All disputes arising out of or in connection with the Agreement between Taledo and the Candidate, the statutory regulations of place of jurisdiction shall apply.
16 FINAL PROVISIONS
16.1 For reasons of better readability and convenience, these General Terms and Conditions are written in a gender-neutral language, avoiding male or female linguistic forms. All personal designations used herein are to be construed as applying to all genders.
16.2 Unless expressly otherwise provided for in another written agreement (including by e-mail), these General Terms and Conditions constitute the entire Agreement between the Users and Taledo with respect to the use of the Website, the Service and the Platform.
16.3 Should one or more of the provisions of these General Terms and Conditions be or become invalid or legally unenforceable, this shall not affect the validity of the remaining provisions.
16.4 Failure to exercise, enforce or apply the rights or provisions under these Terms and Conditions of Use shall not constitute a waiver of such rights or provisions.
17 ADDITIONAL PROVISIONS FOR USERS WITH RESIDENCE/BUSINESS SEAT IN THE USA
If the User is resident or has its business seat in the United States of America, any agreements remain governed by the laws of the Federal Republic of Germany, except for the provision on copyrights under section 9. In copyright cases Users with residence or business seat in the US are subject to the respective relevant laws of the United States of America.