General Terms and Conditions of emplify GmbH
- These General Terms and Conditions („GTC“) apply exclusively. They apply to our Services in the field of job advertisements (media services, multiposting, graphics, text), personnel marketing and employer branding (website creation and maintenance, landing pages, social media graphics and text services, print, online as well as HR services (active sourcing, applicant pre-selection, incoming applications, workshops, personnel services) including related consulting services (jointly referred to as our „Services“), which we, emplify GmbH, Stöckachstraße 11A, 70190 Stuttgart, the contractor, provide for you, the client („Customer“).
- Any contradictory, additional or conflicting terms and conditions of the Customer shall not become part of the contract, unless we have expressly agreed to their validity. Our GTC shall also apply if we render a Service without reservation despite being aware of conflicting or deviating terms and conditions of the Customer.
- Our GTC shall only apply if the Customer is a business (Section 14 BGB (Civil Code)), a legal entity under public law or the holder of special funds under public law.
2 Quotations, Services
- Our quotations are free of charge unless otherwise agreed upon.
- Unless otherwise specified in the quotation, we shall be bound by our quotation for a duration of four weeks.
- We reserve the ownership and/or all (copyright) rights of use to all quotations and cost estimates we have submitted, as well as all illustrations, calculations, brochures, catalogs, models and other documents and aids provided to the Customer. Without our express consent, the Customer is prohibited from making these documents available to third parties, either as such or in terms of their content, disclosing them, using them himself, or letting third parties use them, or having them be used or reproduced.
- The content and scope of the Services to be provided by us as well as the specific description of the Services shall be derived from our quotation or the additional documents referred to therein (specifications, documentation, etc.).
3 Collaboration, Customer’s duty of cooperation
- The parties‘ collaboration is based on trust. Should a contractual party recognize that information and requirements, whether its own or those of the other contractual party, are incorrect, incomplete, ambiguous or unfeasible, it shall notify the other party of this and the relevant foreseeable consequences without delay. The parties shall then endeavor to find a solution that is in line with their interests; where necessary in accordance with the provisions governing modifications to the Services.
- The parties may designate contact persons and their proxies for the respective other party. These appointed persons shall responsibly and expertly manage the fulfillment of contractual obligations for the party who appointed them. If there are any changes to the designated persons, the parties shall notify each other of this without delay. Until receipt of such a notification, the previously designated contact persons and/or their proxies shall remain authorized to issue and receive declarations within the scope of their previous powers of representation.
- The Customer undertakes to provide his cooperation for the fulfillment of the order. In particular, he shall make available to us, in a timely fashion and free of charge, all relevant materials as laid out in Section 5 (1), as well as other documents, data, information, and contacts necessary for the rendering of the Services.
- Additional cooperation obligations to be fulfilled by the Customer are specified in the respective quotation. Unless otherwise agreed upon, the Customer shall provide such cooperation at his own expense.
- The cooperation to be rendered by the Customer represents genuine obligations and not merely duties. We are entitled to bill any additional expenses incurred due to improper or untimely fulfillment of cooperation obligations separately at the hourly rates agreed upon, or in the absence of such an agreement, at our current hourly rates. We reserve the right to assert further claims and/or rights.
- We shall store the Customer’s data in accordance with prevailing regulations governing data protection. The Customer is himself responsible for backing up his data.
4 Project management
- Unless otherwise specified in the quotation, project management and responsibility for the project lie with us.
- The parties shall designate contact persons and their proxies for the respective other party. These appointed persons shall responsibly and expertly manage the fulfillment of contractual obligations for the party who appointed them.
- If there are any changes to the designated persons, the parties shall notify each other of this without delay. Until receipt of such a notification, the previously designated contact persons and/or their proxies shall remain authorized to issue and receive declarations within the scope of their previous powers of representation.
- If we take over project management as laid out in Subsection (1), our contact person shall be the head of the project and accordingly be responsible for all issues arising during the project, as well as for requesting and receiving all information owed by the Customer and other acts of cooperation.
- The contact persons shall exchange information at regular intervals about the progress and obstacles in the execution of the contract so as to be able to intervene in the execution of the contract to provide guidance if necessary.
- Changes to the Services which have been agreed upon shall be documented by the project head and confirmed in writing by the Customer. These changes shall be recorded down in writing in a change log, which shall become part of the contract.
5 Materials provided by the Customer
- If the Customer provides us with videos, music, texts, images, logos, drawings, data, templates, documents, etc. („Materials“), to use in the rendering of our Services, he assures that these Materials are free of defects and do not violate any rights of third parties, relevant laws or regulations or provisions of these GTC.
- Unless otherwise expressly agreed upon, the Customer shall himself be responsible for complying with obligations towards the collecting societies (such as GEMA or VG-Wort), in particular, for any notification obligations, the obtaining of any necessary consent, and the payment of any relevant fees for the Materials.
- In particular, his cooperation obligations also include the timely provision of information, expert staff, means of communication and communication connections, hardware and software, and providing access to premises where necessary.
- The intellectual property rights to the Materials provided by the Customer shall remain with the Customer or his licensors. The Customer hereby grants us (or procures for us through the respective owners of the intellectual property rights) a non-transferable, non-exclusive, worldwide, royalty-free right to use the Materials provided by the Customer for the term of the contract for the purpose of fulfilling our obligations under this contract.
6 Changes requested by the Customer
- Should the Customer desire to change the contractually specified scope of the Services to be rendered by us after concluding the contract, he is to notify us of this change in writing. The subsequent procedure shall be governed by the following provisions.
- We may dispense with the procedure set out in Subsections (3) to (9) and render the Services directly; in particular, this applies to change requests that can be reviewed quickly and whose implementation is not expected to exceed 2 working hours.
- The Customer will be entitled to rescind his change request at any time up till the conclusion of the change procedure, in which case the initiated change procedure shall be terminated.
- We shall review the impact of the requested change, in particular, with regard to remuneration and deadlines. If we recognize that Services currently to be rendered cannot be rendered or can only be executed with a delay as a result of the review, we shall notify the Customer of this and point out to the Customer that the change request can subsequently only be reviewed if the Services in question are initially postponed for an indefinite period. If the Customer consents to this postponement, we shall carry out the review of the change request.
- After reviewing the change request, we shall explain to the Customer the impact of the change request on the agreements made. This explanation will either contain a detailed proposal for the implementation of the change request or information on why it is not possible to implement the change request.
- The parties shall agree on the content of a proposal for the implementation of the change request without delay, and attach the result of a successful decision to the text of the agreement to which the change applies as a supplementary agreement.
- If an agreement cannot be reached or if the change procedure is terminated for some other reason, the original scope of the Services shall remain in force. The same shall apply in the event that the Customer does not consent to a postponement of the Services for the subsequent performance of the review as laid out in Subsection 2.
- The deadlines affected by the change procedure shall be postponed to the extent necessary, taking into account the duration of the review, the time required to coordinate the change proposal and, where applicable, the duration of the change requests to be executed, plus a reasonable lead time. We shall notify the Customer of the new schedule.
- The Customer shall bear the costs incurred due to the change requests. In particular, these include the review of the change request, the compiling of a change proposal, and any downtimes. In the event that the parties have agreed on daily rates, these costs shall be billed according to these rates; otherwise they shall be charged based on the contractor’s usual remuneration.
7 Delivery period
- Delivery periods or delivery dates for our Services are stated in our quotation.
- Unless otherwise agreed upon, our delivery periods and delivery dates shall refer to the point in time at which our Services are rendered to the Customer.
- We shall be entitled to make partial deliveries or render partial services, provided this is reasonable for the Customer.
- We shall notify the Customer of any delays in performance immediately upon becoming aware of them. We shall not be responsible for delays in performance due to force majeure (e.g. strike, lockout, official decrees, general disruptions in telecommunications, ) and circumstances within the Customer’s sphere of influence (e.g. failure to provide cooperation in good time, delays by third parties attributable to the Customer, etc.) and shall be entitled to postpone the rendering of the affected Services for the duration of the hindrance plus a reasonable lead time. We reserve the right to assert further claims or rights, in particular those arising from default of acceptance by the Customer.
- In the event of a delay in performance, the Customer shall be entitled to withdraw from the contract after the fruitless expiry of a reasonable grace period containing a threat of refusal set for us by the Customer after the delay in performance has occurred.
- Claims made by the Customer for damages or reimbursement for futile expenses in the event of a delay in performance for which we are at fault shall only be entertained in accordance with Section 12; such claims shall otherwise be null and void.
8 Approval by the Customer; acceptance of Work; corrections
- Before the publication or reproduction of a media service (job advertisement, poster, flyer, etc.), we shall forward the Service we owe to the Customer for review and approval. The Customer is to approve our Service without delay and in writing. An e-mail satisfies this written form requirement. We are not obliged to perform any other subsequent Services until the Customer has granted such approval.
- In cases where we owe a particular work success („Work“), the Customer is to accept our Service upon being notified of its completion and provided access to it by us. If the Customer is of the opinion that the Work submitted substantially deviates from what was agreed upon in the contract, he shall notify us of his complaints within two weeks of the Work being made available. If the Customer does not lodge any complaints by the aforementioned deadline, acceptance shall be deemed to have been tacitly granted. We shall point out the significance of this action to the Customer in the notice of completion.
- In the case of creative Work, a correction loop is included in the consideration agreed upon, unless otherwise defined in the quotation.
9 Remuneration and payment
- The remuneration is specified in the respective quotation. If no remuneration is specified, our price lists valid at the time the order is placed shall apply.
- Unless otherwise stated in our quotation, the remuneration agreed upon with the Customer shall not include travel expenses and other third-party costs incurred.
- The statutory VAT/sales tax is not included in the price and shall be billed separately in the invoice at the statutory rate applicable on the date of the invoice.
- Unless otherwise agreed upon, the remuneration shall be payable immediately without deduction. The date of receipt by us shall be decisive for the date of payment.
- In the event of default in payment, you shall incur default interest in the amount of 9 (nine) percentage points above the respective base interest rate p.a. Furthermore, we may charge a lump sum of 40 euros. We reserve the right to claim higher interest rates and/or additional damages. The lump sum specified in sentence 2 shall be offset against any damages owed, insofar as such damages result from the costs of legal prosecution. With respect to merchants, our claim to commercial default interest (Section 353 HGB (Commercial Code)) shall remain unaffected.
- We will be entitled to perform or render outstanding Services only against advance payment or the provision of a security if, after the conclusion of the contract, we become aware of circumstances, which are likely to substantially reduce the creditworthiness of the Customer and which jeopardize the payment of our outstanding claims by the Customer within the respective contractual relationship.
10 Rights of use, advertising
(1) We grant the Customer the rights of use to the final versions of our work results created for the Customer, which are necessary for the respective specific purpose of the contract. Unless otherwise agreed upon, only the ordinary right of use shall be transferred. Furthermore, the rights of use are restricted to the territory of the Federal Republic of Germany. The rights of use do not include the right of transfer to third parties. This requires a separate agreement with us.
(2) The aforementioned rights of use to the final versions of our work results shall only be transferred to the Customer upon full payment for our Services. We shall tolerate use by the Customer – subject to revocation – until payment has been made in full. If the Customer is in default of payment, our tolerance of such use shall terminate automatically.
(3) Our drafts and the final versions of our work results may not be modified, nor imitated in whole or in part, without our express consent. We are not obliged to release raw data or raw material („Raw Data“) of data or artwork to the Customer. Should we release Raw Data, the rights of use to them remain with us. Any transfer of Raw Data to third parties, as well as any modification or further processing of the Raw Data, shall require our separate and express written consent.
(4) Addresses and contact persons of ours (in particular: contact persons, e-mail addresses, addresses, telephone and/or fax numbers) which have been provided to the Customer or which the Customer gains knowledge of in the context of our mutual collaboration, shall be used by the Customer exclusively with our express consent, during the period of cooperation and only to the extent necessary for this purpose. They are not to be made accessible to third parties or provided to them in any other way.
(5) We will retain the right to be named as the author on copies.
(6) We will be entitled to name the Customer as a reference on our website or in other media and issue a press release about the contract with the Customer. We shall coordinate the press release with the Customer prior to publication. We are entitled to use our work results for self-promotion.
11 Infringement of property rights
- The Customer shall inform us without delay of any claims asserted by third parties.
- In the event of infringements of property rights, we shall be entitled – without prejudice to any damage claims on the part of the Customer – at our own discretion and expense with respect to the Services concerned, to perform the following:
(a) After prior consultation with the Customer, to make changes to the Services which ensure that an infringement of property rights no longer applies, or
(b) Acquire the necessary rights of use for the Customer.
12 Rights in the event of defects in Work
(1) In cases where we owe a specific work result („Work“), the following provisions of this section shall apply to the rights of the Customer with respect to defects.
(2) We will be entitled to make the rendering of any subsequent performance owed contingent on the Customer having paid the remuneration due. However, the Customer will be entitled to retain a reasonable portion of the remuneration in relation to the defect.
(3) We will not be liable for defects in the following cases:
(a) The Customer has modified the Work we have rendered,
(b) Materials provided by the Customer were defective,
unless this modification or these Materials were inconsequential in causing this defect.
(4) It shall be examined with due diligence, whether a defect in the Work giving rise to subsequent performance exists before asserting claims for subsequent performance. If an alleged defect is not covered under the obligation to provide subsequent performance (pseudo-defect), we may bill the Customer for the Work performed for the verification and rectification of the defect at the respective applicable remuneration rates plus expenses incurred, unless the Customer could not have recognized the pseudo-defect even if he had exercised due diligence.
(5) If supplementary performance is unsuccessful, the Customer shall be entitled to demand rescission or reduction of the purchase price in accordance with statutory provisions, or to remedy the defect on his own. In addition, the provisions of Section 13 shall apply to the Customer’s claims for damages or the reimbursement of futile expenses.
(6) The limitation period for all claims for defects asserted by the Customer shall be one year. This limitation period shall commence upon acceptance by the Customer. In the event of liability for damages due to intent or gross negligence, in the case of fraudulent concealment of the defect, damages resulting from injury to life, limb or health, and in the event of guarantees (Section 639 BGB (Civil Code)), the statutory limitation periods shall apply, as well as to claims under the Product Liability Act.
(7) Subsection (6) shall apply analogously to the limitation period for all other claims asserted by the Customer against us based on a defect in the Services, unless the application of the statutory limitation period would result in a shorter limitation period in that individual case. The limitation period for other claims pursuant to sentence 1 shall, by way of derogation from Subsection 6, commence with the start of the statutory limitation period.
(1) Unless otherwise stipulated in these GTC, including the following provisions, we shall be liable for breaches of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
(2) We shall be liable for damages – regardless of the legal grounds – in the event of intent or gross negligence. In the event of ordinary negligence, we shall only be liable
- a) For damages resulting from injury to life, body or health,
- b) For damages resulting from the breach of an essential contractual obligation (obligations whose fulfillment enables the proper execution of the contract in the first place, and you may regularly rely on and trust in the fact that it shall be fulfilled); in such a case, however, our liability shall be limited to compensation for foreseeable, typically occurring damage.
(3) The limitations on liability specified in subsection (2) shall not apply if we have fraudulently concealed a defect or have provided a guarantee for the quality of the Services. The same applies to claims you assert under the Product Liability Act. (4) The foregoing limitations of liability shall apply mutatis mutandis to the reimbursement of futile expenses for Work (with the exception of reimbursement of expenses in the context of subsequent performance pursuant to Sections 439 (2), 635 (2) BGB (Civil Code)).
(5) We will not be liable for the loss of data insofar as the damage is due to the fact that the Customer has failed to perform data backups and thus ensure that lost data can be restored with a reasonable amount of effort.
- The documents, knowledge and experience provided to the other contractual party are to be used exclusively for the purposes of this contract, and are not to be made available to third parties, unless they are intended to be made available to third parties, or are already known to the third party. Third parties do not include auxiliary persons such as freelancers, subcontractors, etc. who have been involved for the purposes of carrying out the contractual relationship.
- This obligation to maintain confidentiality continues to apply even after the end of the contractual relationship. Auxiliary persons who have been involved shall also be subjected to corresponding confidentiality obligations.
- If a party so requests, the documents it has provided, such as strategy papers, briefing documents, etc., shall be returned to him after termination of the contractual relationship, unless the other contractual party is able to claim a justified interest in retaining these documents.
15 Final provisions
- If the Customer is a business as defined in the Commercial Code (HGB), a legal entity under public law or the holder of special funds under public law, the place of jurisdiction for any disputes arising from the business relationship between us and the Customer shall be our registered office in Stuttgart. We will be also entitled to bring an action at the Customer’s place of business or any other admissible place of jurisdiction.
- The relationship between us and the Customer are exclusively subject to the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) shall not apply.
- Should individual provisions of these GTC be or become invalid, this shall not affect the validity of the remaining provisions.
Last updated on August 25, 2020