General Terms of Business for talent.io Recruitment GmbH

IMPORTANT NOTE: This is an English translation of our Terms of Service for Germany. For all legal intents and purposes the official Terms of Service in German will hold. Click here to view the official Terms of Service for Germany in German.

1. Scope of the present Terms

1.1. talent.io Recruitment GmbH (henceforth referred to as ‘Talent’) is the operator of a website which may be accessed at the URL https://www.talent.io (henceforth referred to as ‘website’) in Germany and of the recruitment service offered via the site in question (henceforth referred to as the ‘service/s’). The entire commercial relation between Talent and the respective contractual partner (candidate or employer, henceforth referred to as ‘candidate’ or ‘employer’ and jointly as ‘customer’), including the future commercial relation, is covered by the present General Terms of Business, unless they are supplemented and modified by special terms and conditions from talent for individual products.

1.2. Any other terms of business pertaining to the customer are hereby excluded. These do not apply unless, by way of exception, Talent expressly agrees to them in writing. This is also the case insofar as the scope of the customer’s terms of business go beyond the scope of the present Terms of Business.

1.3. Talent is entitled to amend its Terms of Business in respect of the entire future commercial relation with the customer, having given relevant notification. The amendment shall be deemed approved if the customer does not file their objection by post or email within six weeks of receiving notification of the amendment by post or email. These circumstances shall be expressly referred to when notifying the customer.

2. Subject of the contract

2.1. Talent offers the customer a chance to find employment opportunities or to find qualified candidates swiftly and transparently and to reduce the cost and effort associated with a job-finding/recruitment process.

2.2. The use of the service is free-of-charge for the candidates; for employers the costs specified under point 5 apply, if a candidate is indeed hired.

2.3. Talent is entitled to offer the services to anyone, include the customer’s competitors (or potential competitors). Protection against competitors is excluded.

2.4. In principle Talent does not undertake to carry out any checks in respect of the customer or any information which they provide, however Talent does reserve the right to carry out such checks at any time. Over and above this the employer themselves bears responsibility for verifying the candidate’s skills, experience and references before hiring them.

3. Conclusion of contract

3.1. The customer shall set up a customer login on the website. After this they shall provide confirmation by following a confirmation link sent to them by email from Talent in order to activate their customer login.

3.2. By virtue of submitting their application via the website the customer confirms that they are only providing information which is accurate, true, comprehensive and up-to-date, that they are using their true identity and that they are only opening one account. This also applies in the case of applications via providers such as Github, LinkedIn or Twitter and the information stored on these platforms. In the case of false, inaccurate, obsolete or non-comprehensive information Talent reserves the right to block the account in question and to refuse access to the website.

3.3. After activation of the customer account candidates have the opportunity of compiling a profile and employers have the opportunity of searching for suitable candidates.

4. Selection procedure and offers

4.1. As soon as a candidate has set up a profile this may be seen by employers looking for the relevant profile type – after prior approval and possible verification by Talent – and the candidate in question may receive legally non-binding requests (henceforth referred to as ‘requests’) from these employers – representing the start of a recruitment process. Every request shall contain a salary offer and, if relevant, a description of the position. The candidate is required to answer a given request within 48 hours of receipt. The candidate has the option of accepting one or more requests.

4.2. As soon as an employer discovers a candidate on the website, they undertake only to communicate with the candidate via the website for the entire duration of the recruitment process.

4.3. If at the end the recruitment process the employer wishes to make the candidate a binding offer of a position, they may do so verbally, by post, fax or email. The conclusion of a contract of employment, service contract or contract of work and labour between the employer and the candidate is the sole responsibility of these parties; Talent does not guarantee the conclusion of any contract/s between the employer and the candidate.

4.4. Once a contract has been concluded between the employer and the candidate, the employer shall be liable to pay the fee specified in the regulations in point 5.

4.5. The recruitment process shall be deemed completed when (i) the contract has been concluded between the employer and the candidate, (ii) the customer or (iii) Talent declares the recruitment process to be completed on the website (henceforth ‘completion of recruitment process’).

5. Commission

5.1. The use of the service is free-of-charge for candidates.

5.2. Employers shall pay Talent a commission for the use of the service and the website.

5.2.1. The commission due from the employer to Talent is payable immediately at the point in time at which a contract is concluded between the candidate and the employer. This is also the case if

  • the contract between the employer and the candidate is concluded subject to fulfilment of condition/s;
  • a contract with the employer is concluded within 18 months of conclusion of the recruitment process, regardless of the specific position on offer; or
  • if the employer shall introduce the candidate to another person or another company within 12 months of conclusion of the recruitment process and the candidate is hired by the other person/company.

5.2.2. If during the course of the recruitment process the employer hires several candidates identified via Talent, the commission is payable for each candidate hired.

5.2.3. Level of commission in respect of the employer and freelance employees.
The employer can choose, for every individual hire, from two commission models:

1) The employer pays a one-off commission of 15 % of the candidate’s set annual gross salary as specified in the employment contract (‘set annual gross salary’). The set annual gross salary comprises the annual gross salary, the full variable component of the salary, all performance-based and annual premiums as well as any benefits which form part of the job offer. If an employer agrees a salary with the candidate which is lower than the market salary and offsets this by assigning stocks or company shares or (virtual) options, Talent reserves the right to use as a reference figure the set annual gross salary originally offered to the candidate in the context of the recruitment process on the website. In the case of a service contract the set annual gross salary comprises the sum of all services charged by the candidate to the employer during the course of 18 months from conclusion of the recruitment process.

a.) If the contractual work relation between the candidate and the employer subsequently lapses within three (3) months of the date of the contractually agreed start of work (e.g. notice or termination). In this case the employer is entitled to demand a refund of the entire sum of the commission paid, subject to the conditions precedent that:

  • the employer has given notification of termination of contract in writing within 10 days of the contract coming to an end and
  • the contract has come to an end on personal or behavioural grounds.

b.) If the contractual work relation between the candidate and the employer subsequently lapses within six (6) months of the date of the contractually agreed start of work (e.g. notice or termination). In this case the employer is entitled to demand a refund of 50% (fifty percent) of the commission paid, subject to the conditions precedent that:

  • the employer has given notification of termination of contract in writing within 10 days of the contract coming to an end and
  • the contract has come to an end on personal or behavioural grounds.

The employer’s right of refund lapses (in the sense of a voiding provision), if the employer or another company connected with them as per §§ 15 ff. of the German Stock Corporation Act (AktG) has rehired the candidate within 12 months of the date of the end of the contract or if the candidate works in a freelance capacity in the context of a service contract for the employer or another company connected to them as per §§ 15 ff. of the German Stock Corporation Act (AktG).

OR

2) For the 18 months after the contract has been concluded between the employer and the candidate the employer shall pay a monthly commission amounting to 1% of the set annual gross salary contained or agreed in the hired candidate’s employment or service contract or the work and labour contract concluded with the candidate, whereby the previous provisions in 5.2.3.1 are applicable respectively with the exception of the right of refund as per paragraphs 5 and 6. The monthly commission is payable on the 15th of each month for each month until the employment/service relation / work and labour contract comes to an end until the 18th payment has been fulfilled.

Consequently, they employers’ obligation to pay the monthly commission lapses, if

  • the employer has given notification of termination of contract in writing within 10 days of the contract coming to an end and
  • the contract has come to an end on personal or behavioural grounds.

5.2.4. In respect of the right of refund as per 5.2.3, this is a goodwill gesture on behalf of Talent. Talent thus reserves the right to issue the employer a voucher for future services in respect of the amount due as a refund. The refund is payable 14 days after the employer has notified Talent of its claim for the refund in question.

5.2.5. All fees are subject to the relevant legally required turnover tax/es.

5.2.6. Within 7 days of conclusion of contract between the employer and the candidate Talent shall send the employer an invoice in respect of the agreed services. The invoice amount is payable immediately and without deduction within 30 days of receipt. Due payment on time shall be determined based on arrival of the funds in Talent’s bank account. If the customer delays payment the sum due shall be subject to an interest rate 5 percentage points above the relevant base rate from the point in time at which the sum was overdue. The employer retains the right to prove that in their case no or little damage has been incurred due to late payment.

5.2.7. The customer’s right to offset liabilities with counter-claims is excluded, unless the customer’s claims are uncontested or justified on legal grounds. The same also applies in respect of the exercise of retention rights.

6. Obligations of the customer

A given candidate is required to notify Talent immediately if they accept an employer’s job offer – regardless of the nature, whether as an employee or a freelancer – and they have entered into contact with the employee in question with the help of the service and/or website or obtained the employer’s contact details via the website and/or service. Moreover the candidate is required to inform Talent of the main details of the contract (salary, date of signature of the contract etc.). These regulations likewise apply (i) in respect of conclusion of contracts with companies connected with the employer as per §§ 15 ff. of the German Stock Corporation Act (AktG), (ii) in respect of conclusion of new contracts with the employer or a company connected with the same as per §§ 15 ff. of the German Stock Corporation Act (AktG) within 12 months of conclusion of the recruitment process as per point 5.2.3.1) and (iii) in respect of employers.

In the case in which an employer violates the present point 6 the employer shall be liable to pay a contractual penalty amounting to a total and one-off sum of 7.5% of the original set annual gross salary originally offered to the candidate by the employer during the course of the recruitment process on the website. This does not affect the right to make other claims, however these will be offset by the contractual penalty.

7. Duration and notice

7.1. The customer may serve notice on the contract at any time with no notice period. Talent may serve notice on the contract at any time at the end of the month while adhering to the notice period of one month.

7.2. This does not affect the right to extraordinary termination on major grounds with no period of notice and with immediate effect. In particular the following constitute major grounds for Talent:

  • The customer gives false, imprecise, obsolete or incomprehensive information on the website and fails to correct the same, despite receiving warning;
  • The candidate does not answer a request from an employer within 48 hours of receipt as per point 4.1;
  • The customer disseminates or compiles content which is demeaning, violent, threatening, vulgar or xenophobic and which represents an affront to human dignity;
  • The customer violates major stipulations in the present contract.

7.3. Any termination by notice must be in writing in order to be effective.

7.4. All cases of termination of contract entail – if relevant after a period of notice has expired – the customer’s access to the website being blocked immediate

7.5. If the customer deletes their customer account this is tantamount to termination of contract.

8. Talent’s liability

8.1. Talent’s liability is limited to its major contractual obligations. Major contractual obligations represent, in abstract terms, those obligations the fulfilment of which facilitates proper implementation of the contract in the first place and the maintenance of which the contractual parties may regularly rely on.

8.2. Furthermore Talent’s liability in respect of violation of other obligations, proscribed actions and positive violations of contract or claims arising from culpa in contrahendo is limited to gross or deliberate negligence.

8.3. In the case of negligence Talent’s liability, also in the case of violation of major contractual obligations, is limited in its extent to damages that were foreseeable and typically associated with the contractual obligations at the time of entering into the contract.

8.4. Insofar as Talent’s liability for damages is excluded or limited, this also applies in respect of the personal liability of legal representatives, employees, employers, members of the workforce or vicarious agents.

8.5. Limitations to liability do not apply insofar as there is damage to life, limb or health.

9. Copyright

9.1. All copyrights, trademark rights or ancillary copyrights on the website which Talent makes available to the customer in the context of the contractual relation – regardless of geographical location, for a limited period of time, non-exclusively and non-transferably – constitute, in respect of the relation between the contractual parties, the exclusive property of Talent. Insofar as rights accrue to Third Parties, Talent holds the corresponding exploitation rights. The customer’s right of use expires in every case when the contract expires as per point 7.1.

9.2. The user is not entitled to use the website for other purposes than those offered to them by Talent, to activate non-approved functions on the website, to transfer the rights of use to Third Parties, to grant Third Parties unauthorised access to the recruitment service/s offered by Talent or to remove, change or conceal references to Talent’s legal ancillary copyrights. With the exception of those cases stipulated by law the customer is not entitled to change, reproduce, decompile or translate the Talent source code.

10. Involvement of Third Parties

Talent reserves the right to commission Third Parties in entirety or in part with the task of implementing and providing the services agreed in the context of the present contract. The customer’s data will be made available to these Third Parties only in the context of the object of the contractual relation.

11. Confidentiality

11.1. The Parties shall treat as confidential all the other party’s business activities which may come to their knowledge. In particular the parties undertake to treat as confidential vis-à-vis Third Parties the content of the present contract, in particular the services provided herewith. Disclosure of contractual agreements of any kind vis-à-vis Third Parties is only permissible with the prior express consent in writing from the other contractual partner, for the purposes of protecting the legitimate interests of one or both contractual parties or in fulfilment of binding legal requirements. These obligations also continue to apply after the contract comes to an end. Only the following information shall be exempt from this obligation:

  • Information which was already common knowledge at the point in time at which it became known, i.e. which is/was readily accessible to any Third Party,
  • Information which, after it became known, was legally made accessible to one of the contractual partners by a Third Party, the former thus in this connection not being bound to secrecy vis-à-vis the other contractual partner,
  • Information which had to be disclosed at the demand of an authority or other state institution or which had to be shared as a matter of obligation for consulting purposes with legal or tax consultants of the respective contractual partner or with other persons professionally bound to secrecy.

11.2. Talent is however entitled, for the duration of the agreement with the customer and subsequently, to use as a reference their company [name] and their relevant identifiable trademark.

11.3. In the case of culpable violation of the obligations above as per point 11.1 or 11.2. the party in violation shall be obligated to pay [the respective other party] a contractual penalty to be set at the discretion of the respective other party and, in the case of dispute, to be verified by the competent court authority – also in relation to the sum of the contractual penalty in question.

11.4 Confidentiality of data Confidentiality of the personal information of the User: personal information is the data pertaining to the User (postal and electronic address, occupation etc.) These details are exclusively for the management of the User Registration and for the commercial relationship between the Users and talent.io. None of this information will ever be made available to a third party other than upon application by a court or a government authority or a competent judicial authority. Personal data of the User is processed in accordance with talent.io's Privacy Policy available at https://www.talent.io/privacy.

Berlin, the 24th of May 2018