General Terms and Conditions for Clients - Status 16.10.2021
ELEVEL supports organizations in the areas of employer branding and in the recruitment of new employers. ELEVEL's services therefore include not only offers in the recruitment of new employees, but also solutions in the area of employer branding.We would like to point out that we operate exclusively on the basis of the following General Terms and Conditions (hereinafter "GTC").
Please read the GTC carefully.
§ 1 Validity of the GTC, conclusion of the contract
1.1 The following terms and conditions shall apply to all agreements concluded between Kruse & Middelhauve GbR, Seidenstraße 57, 70174 Stuttgart, Germany (hereinafter also referred to as "we" or "ELEVEL") and the Client (hereinafter also referred to as "Employer" or "Company") regarding the provision of branded webinars and the placement of personnel as well as related activities of ELEVEL. Client in the sense of these GTC can also be an organization that is not considered a "company" (e.g. associations, societies, foundations, NGOs, public corporations, etc.).
1.2 These GTC also apply to all future business relations between us and the Client, even if they are not expressly agreed again. The current version of the GTCs at the time of the conclusion of the contract shall apply in each case.
1.3 These GTCs shall apply exclusively; counter confirmations or general terms and conditions of the Client are expressly rejected. This shall also apply if the Client's offer or acceptance of an offer is made with reference to the overriding validity of the Client's own GTC, or if we perform the service without reservation in the knowledge that the Client's terms and conditions conflict with or deviate from these GTC.
1.4 The inclusion of these General Terms and Conditions in the contractual relationship of the Parties shall be effected by reference to their validity prior to the conclusion of the contract by ELEVEL in text form or in the course of registration and confirmation on our website. Verbally placed orders are only binding if they are confirmed by us in text form and the Customer does not object immediately after receipt in text form.
1.5 The services of ELEVEL are exclusively available to companies (§ 14 BGB) or organizations that have hired or intend to hire personnel. A registration and commissioning by consumers (according to § 13 BGB) is not allowed. ELEVEL can demand appropriate proofs if necessary. If such evidence is not provided within 14 days, ELEVEL is entitled to deactivate the user account.
1.6 The platform and the offers of ELEVEL may only be used for the purposes stated in § 2. In particular, it is not permitted to advertise for own products or services of the Customer. It is not allowed to send or present information that may offend the personality of others or is of an offensive nature as well as the recruitment of club memberships and activities in the sexual trade.
§ 2 Purpose of the Internet Platform, Scope of Services of ELEVEL
2.1 At www.elevel-academy.de ELEVEL operates an e-learning platform, which publishes job offers of Clients, brings the Client in contact with potential applicants and creates the opportunity for the Clients to strengthen their own employer brand through a software solution via branded webinars.
2.2 The services of ELEVEL include the marketing of the webinars, the provision of an Employer Page, as well as the publication of job advertisements. An obligation to perform on the part of ELEVEL shall exist if the Customer carries out a corresponding chargeable assignment in accordance with § 5. The filling of a position by a candidate provided by ELEVEL is the responsibility of the Client and the candidate themselves and is therefore not a service of ELEVEL.
2.3 The ELEVEL platform is not an archiving system for data, files and content of the Client. Therefore, ELEVEL cannot assume any liability and warranty for the storage, retrievability and availability of the uploaded and posted contents beyond the scope of the mere obligation to perform the contract.
§ 3 Registration and Obligations of the Customer
3.1 The Customer shall have the possibility to organize and conduct its own Branded Webinars on ELEVEL's website. Furthermore, there is the possibility to publish current job advertisements on the Employer Page of the Principal via an interface.
3.2 The Client undertakes to use our services only within the scope of the contractually agreed scope of services and exclusively for its own business purposes, unless the Client acts as an agency, personnel service provider or recruiter for third parties on a business basis and has permission from ELEVEL to use our services for this purpose, subject to approval.
§ 4 Job Vacancies, Rights of Use
4.1 The Client shall formulate the job vacancies and its company profile itself and shall be fully responsible for compliance with all legal requirements, including in particular the General Equal Treatment Act (AGG). This also applies to any interaction with candidates or employees of ELEVEL. In such cases, the Customer shall fully indemnify ELEVEL from any claims of third parties. At the same time the Customer declares that ELEVEL receives all necessary rights of use and exploitation, including the right of editing for the fulfillment of the contractual obligations, for the texts and contents created in this way and that he himself has the necessary rights.
4.2 In the cases of § 4.1 ELEVEL remains entitled at any time to modify the text and other contents of the job offers in the interest of the Employer. Should ELEVEL make a modification itself or should the Employer arrange for ELEVEL to make a modification, compliance with the General Equal Treatment Act (AGG) shall be incumbent upon ELEVEL with respect to the modified jobs, provided that the Employer itself is not responsible for the modification.
4.3 For the publication of job offers and company profiles ELEVEL requires detailed information about the positions to be filled and the organization of the Customer. The Customer grants ELEVEL a simple, irrevocable, free of charge and worldwide right of use and exploitation for this information for the duration of the contractual relationship and for the performance of the service in terms of this contract. This includes the reproduction, editing, distribution, dispatch and public access to individual or entire contents, including the right to use and exploit the logo(s) or name of the client as well as all necessary rights of use and exploitation of images, files and the like uploaded or released by the client.
4.4 By publishing the job offer, the Client confirms that it holds all rights of use to the content submitted, released or posted by it.
4.5 The Customer undertakes not to copy, modify, adapt, reproduce, translate, distribute, pass on or reconstruct (reverse engineering) any content or other features of the ELEVEL platform (including prices or service descriptions). The Customer is prohibited from any violation or attempted violation of the security of the ELEVEL platform, as well as attempts to investigate, test or test the vulnerability of the system or network or to violate the security or authentication measures
4.6 The Customer agrees to assist in publicizing the services of ELEVEL and to allow the Customer to refer to his organization using the name and logo as a testimonial for the services of ELEVEL in the public relations and marketing activities of ELEVEL until revoked. The Customer shall be entitled to object to the use of the name and logo as testimonial in text form at any time.
§ 5 Award of contract and subject matter of the contract
§ 5.1 An order is placed by signing the offer, as well as the joint work contract.
5.2 Unless otherwise agreed, the agreement between the Customer and ELEVEL is not an exclusive agreement and the Customer is free to also use services of other providers.
5.3 The subject of the order is the marketing of the Branded Webinar and the associated transfer of interested candidates arising from the previously mentioned service.
5.4 If within the provision period according to § 8.5 of these GTC after the provision of an interested candidate (cf. § 5.3 of these GTC) by ELEVEL a verbal or written, direct or indirect contract (e.g. employment contract, contract of employment, freelance contract, corporate participation contract or similar) ("Main Contract") is concluded between the Client and this candidate, the parties agree that this contract has been concluded by the provision of ELEVEL. This shall also apply if the Main Contract is not concluded with the Principal itself, but with a subsidiary or a company affiliated with the Principal (within the meaning of Sections 15 et seq. of the German Stock Corporation Act (AktG)) and if there is an agreement between the decision-makers or authorized representatives of the Principal (e.g., managing director, board of directors, supervisory board, shareholders). Managing Director, Management Board, Supervisory Board, Shareholders) and the decision-makers or authorized representatives of the company/organization concluding the main contract are completely or partially identical and there are no indications that the conclusion of the main contract is in no way connected with the provision by ELEVEL. In these latter cases ELEVEL and the Customer agree that the Customer shall be treated as if he himself were a party to the main contract.
§ 6 Conditions, Commission & Terms of Payment
6.1 The Principal undertakes to pay a commission to ELEVEL as soon as a mediation according to § 7.5 of these GTC exists, which already exists in the verbal commitment of both parties.
6.2 The commission and price quotations are in Euro and plus the applicable VAT.
6.3 All payment liabilities are due for payment immediately without deduction. If the Customer is in default, ELEVEL shall be entitled to interest on arrears in accordance with the statutory provisions.
6.4 If the main contract is effectively terminated by the Principal or by the Candidate after the conclusion of the main contract, but before the start of the activity, then according to § 7.5 no mediation is provided.
6.5 If the main contract is terminated within a certain period of time after the contractually agreed start of the activity due to a reason related to the person or the behavior of the candidate - regardless of who initiates or carries out the termination - the client is entitled to a refund of the commission amount. The period and the amount of the refund can be taken from the respective invoice. The Customer shall lose his right to this refund if he does not inform ELEVEL about the termination within 14 days.
6.6 The amount of the commission after the conclusion of a mediation is based on the currently valid prices. These are to be taken from the offer, as well as the work contract.
6.7 If the basis of the commission depends on the candidate's salary, the commission shall be calculated on the basis of the gross annual target salary, which shall be composed as follows:- annual gross salary (plus Christmas and vacation bonuses in full unless already included in the annual gross salary).
6.8 The Customer agrees that invoices and payment reminders shall be sent electronically via e-mail in PDF format.
6.9 The commission shall be owed by the Customer even if the brokerage is concluded only after the termination of the business relationship between ELEVEL and the Customer, but due to an activity of ELEVEL during the still existing business relationship.
§ 7 Suitability of the Candidate, Candidate Profiles
7.1 ELEVEL may conduct personal or telephone interviews with the Candidates to determine their suitability, if ELEVEL deems this to be correct in the individual case at its own discretion. No liability can be assumed for the accuracy of the information provided by the candidates. This is the sole responsibility of the candidates themselves.
7.2 It is the responsibility of the Client to finally check whether the candidate has the necessary skills and experience for the job and meets the health and character requirements. ELEVEL does not assume any liability for this.
7.3 When providing a foreign candidate who requires a work permit, the activity may only be commenced once the employment office has issued the work permit. The Client shall apply for this permit immediately at its own expense. The Client shall inform ELEVEL in text form immediately, at the latest 14 days after the first knowledge of the lack of work permit, otherwise the agreement shall be deemed to have been reached.
7.4 All information in the candidate profiles originates from the candidates themselves. The candidates alone are liable for the correctness and completeness of this information, in particular references and qualifications. ELEVEL assumes no liability.
7.5 The Client bears sole responsibility for checking the character, professional, academic and other qualifications and will satisfy itself to a sufficient extent of the suitability of a candidate.
§ 8 Liability
8.1 ELEVEL shall be liable for damages of the Customer caused intentionally or by gross negligence, which are the consequence of the non-existence of a guaranteed quality of the object of performance, which are the consequence of culpable injury to health, body or life, or for which liability is provided for under the Product Liability Act, in accordance with the statutory provisions.
8.2 In the event of a merely negligent breach of material contractual obligations (so-called cardinal obligations), liability - insofar as the damage does not concern life, limb or health or a promised guarantee - shall be limited to such damage as may typically and foreseeably be expected to occur in the context of the provision of services such as the respective contractual service. Cardinal obligations are such contractual obligations, the fulfillment of which enables the proper execution of the contract in the first place and on the compliance with which the contractual partner may regularly rely, and the violation of which on the other hand endangers the achievement of the purpose of the contract.
8.3 In all other respects, liability - on whatever legal grounds - of both the Provider and his vicarious agents and assistants is excluded.
8.4 If the Customer commissions ELEVEL with the cancellation towards candidates, the Customer alone shall be responsible for compliance with legal requirements for this cancellation (e.g. with regard to the AGG). The Client shall accordingly check in advance whether and how the rejection can be made and instruct ELEVEL accordingly.
8.5 If the Customer commissions ELEVEL with the pre-selection of candidates, ELEVEL shall carry out this pre-selection to the best of its knowledge and belief on the basis of the criteria of the Customer and the information provided by the candidates. ELEVEL cannot assume any liability for this pre-selection.
§ 9 Duty to provide information, prohibition of solicitation
§ 9.1 The Customer undertakes to inform ELEVEL immediately in text form as soon as circumstances arise which may affect the execution of the webinar or the success of the brokerage activity.
9.2 In particular, the Customer undertakes to inform ELEVEL immediately in text form about the agreement on the conclusion of a main contract and the further details required for the calculation of ELEVEL's commission claim.
9.3 The Principal undertakes not to solicit candidates provided or made known to him/her by ELEVEL for third parties, to recommend them to other companies or platforms or to otherwise ensure or cooperate through his/her conduct that candidates are placed outside the platform of ELEVEL. Should the Candidate no longer be available for placement by ELEVEL as a result of such conduct by the Client, the Parties agree that the Client must allow itself to be treated as if an agreement to conclude the main contract between it and this Candidate had been reached.
9.4 ELEVEL undertakes not to actively approach employees of the Client in order to place them on the platform of ELEVEL. This does not apply to employees of the Client who clearly indicate that they are actively looking for a job or are open to offers or proactively register with ELEVEL. The Client also undertakes not to actively approach ELEVEL employees in order to employ them in its own, an affiliated or a third company.
§ 10 Consequences of failure to provide information and breach of these GTC
10.1 If the Customer does not (sufficiently) fulfill its information obligations to ELEVEL, so that ELEVEL is prevented from checking the performance of its services on the basis of the specific information (e.g. by not (correctly) informing about the agreement on a main contract according to § 5.5 of these GTC) or billing (e.g. by not (correctly) informing about the salary or position of the candidate or similar). ELEVEL is entitled to determine the missing information necessary for the verification of the service provision or the invoicing on the basis of publicly available information. If the salary is the basis of the commission, the average salary in the respective type of employment may then be used as the basis. The salary determined in this way shall be submitted to the Client.
10.2 If an estimation according to § 10.1 of these General Terms and Conditions is not possible, e.g. because the data basis is not sufficient, or if the Customer objects to the salary determined by ELEVEL and if the parties cannot agree on the salary to be determined, the following shall apply: The Customer undertakes to pay a lump sum commission amounting to 10,000 Euros to ELEVEL. ELEVEL is entitled to set the lump sum commission amount lower if required. The Customer is entitled to prove in individual cases that the commission claim for ELEVEL is lower in the concrete case. If this proof is not provided within 14 days after announcement of the lump sum, the lump sum amount is to be paid. If the proof succeeds, the client owes the corresponding lower amount. The assertion of other claims by ELEVEL shall not be limited by this provision.
§ 11 Contact for marketing purposes
11.1 ELEVEL may contact the Customer by e-mail or other provided contact options for marketing purposes until revoked, which must be in text form.
§ 12 Confidentiality vis-à-vis third parties
12.1 The client or the employees who have corresponding access to the candidate profiles are obligated to treat all information received in the course of the placement activity as confidential and not to disclose it to third parties. Third parties in this sense also include affiliated companies within the meaning of §§ 15 et seq. AktG (German Stock Corporation Act) and such companies in which the persons authorized to represent, shareholders or owners are (also partially) identical. Conversely, ELEVEL also undertakes to treat the information provided by the Customer confidentially.
12.2 If the Principal violates this obligation and thereupon the third party concludes a contract with the candidate provided by ELEVEL, the parties agree that the Principal shall be treated as if an agreement for the conclusion of the main contract had been made between him and this candidate. ELEVEL expressly reserves the right to assert claims beyond this.
§ 13 Data Protection
13.1 The Parties undertake to fully comply with all applicable data protection laws, including but not limited to the EU General Data Protection Regulation (EU 2016/679) (hereinafter: "GDPR"). This includes, in particular, compliance with Article 6 of the GDPR for each processing activity, as well as complying with all obligations arising from the GDPR, including the obligation to inform the data subject about the purposes and legal bases of the processing pursuant to Article 12 et seq. of the GDPR. Upon request of either party, the other party shall provide documentation evidencing compliance with the data protection requirements.
13.2 When processing personal data, the parties undertake to use only personnel who are obliged to maintain confidentiality or who are subject to (other) appropriate contractual or statutory confidentiality obligations.
13.3 The parties shall indemnify each other against any liability and third party claims based on data protection, in particular regulatory fines, resulting from the failure of the respective other party to comply with statutory and/or contractual obligations.
13.4 The parties agree that they each act as separate data controllers. Accordingly, the Parties shall be solely liable for their respective data processing activities and for any damage caused by such processing, in particular in breach of the GDPR. Nothing in this Agreement shall be construed to create joint responsibility for the Data Processing and under no circumstances shall either party be jointly and severally liable for the breaches of the other party.
§ 14 Subsequent Amendments to these GTC
14.1 We reserve the right to amend these GTC in the course of the contractual relationship. The Client shall be expressly informed of the amendments in a suitable manner (usually by e-mail) and shall be made aware of the - highlighted - amended passages. We reserve the right to decide how the Client is made aware of the changes.
14.2 If the Client does not indicate in writing within four (4) weeks of being informed of the new version that it does not accept the new version, this shall be deemed tacit consent and the new version shall apply from this point in time.
14.3 In the event of an objection by the Customer within the time limit, we shall be entitled to terminate the contractual relationship at the point in time at which the new version of the GTC enters into force.
§ 15 Term of contract, termination
15.1 The contract between the Customer and ELEVEL is concluded for an indefinite period. It may be terminated by either party at any time with a notice period of 14 days by notifying the other party in text form.
15.2 In the event of termination, ELEVEL shall deactivate or immediately delete the Employer Page of the Customer as well as all content and, if applicable, active job offers of the Customer at that time.
15.3 The right to extraordinary termination remains unaffected.
§ 16 Applicable Law and Jurisdiction
16.1 These GTC shall be governed by the laws of the Federal Republic of Germany, excluding international law, such as the UN Convention on Contracts for the International Sale of Goods (CISG).
16.2 The place of jurisdiction, insofar as the Customer is a merchant, a legal entity under public law or a special fund under public law, shall be Stuttgart. However, in this case ELEVEL shall also be entitled to sue at the Customer's place of business.
§ 17 Assignment, set-off, binding language version
17.1 Rights and obligations under this contract may not be assigned or otherwise transferred by the Customer without ELEVEL's prior consent.
17.2 The Customer may declare the set-off only with such counterclaims which are undisputed or legally binding.
17.3 If these GTC are available in several language versions, only the German language version shall be legally binding.
§ 18 Severability Clause, Place of Performance
18.1 Should any provision of these GTC be invalid or unenforceable, the remaining provisions shall not be affected thereby. The invalid provision shall be replaced by the statutory provision.
18.2 The place of performance shall be Stuttgart.