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Terms & Conditions

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General Terms and Conditions for the use of the FreelancerManager and accompanying services

Recitals

The offer to provide the FreelancerManager and any accompanying services (FM) is intended exclusively for business clients. The contract is concluded with XING SE, Dammtorstrasse 30, 20354 Hamburg, Germany. Additional contact information, commercial registry data, as well as the name of the authorised representative of XING SE can be found under “About this site” on www.xing.com.

  1. Subject matter

    1. The Company (“Customer”) can use the FM to manage, organise and look for self-employed freelancers with the aim of working on projects with them. Among other things, the customer can organise freelancers’ (both XING members and third parties) contact details, skills, fields of activity and availability, and get in touch with freelancers via the FM. The customer can create pools with freelancers for various categories, which enables multiple employees at the company to work together and exchange information with one another. The exact extent to which the FM can be used depends on the specific product description. The Customer shall not be provided with the source code as the FM is a web service that accesses XING SE’s server(s) and/or XING SE’s service provider’s server(s). Certain free or paid accompanying services from XING SE may also form part of the agreement.
    2. Certain restrictions apply when using the FM. Further details are available in the product description.
    3. XING SE makes the content, data and other information provided by the Customer available to third parties as long as it does not violate any legal regulations or these General Terms and Conditions, and as long as it is not improper, offensive to the general public or unacceptable for publication by XING SE for other reasons. XING SE is entitled to remove such content, data or other information without prior notice. Should this occur, the Customer is not entitled to any refund.
    4. XING SE simply offers the Customer a platform to connect the Customer and third parties (XING members and third parties) and for this purpose only provides technical applications that make it possible to establish general contact. XING SE does not guarantee contact between the Customer and XING members or other third parties. XING SE does not participate in the communication between the Customer and third parties in terms of content. XING SE does not participate in any legal agreements that may be made through the FM or XING and is therefore not a contractual partner. The Customer alone is responsible for the execution and fulfilment of any agreements made with third parties. XING SE is not responsible in the event that no contact through the FM or XING is established between the Customer and the third party in connection with such an agreement. XING SE is also not liable for any breaches of duty from the agreements made between the Customer and third parties.
    5. XING SE accepts no responsibility for content, data or other information provided by XING members or other third parties, or for content on linked external websites. In particular, XING SE does not warrant or represent that said data and/or information is true or accurate, or that it fulfils or serves any particular purpose.
  2. Authorisation of users, licences

    1. Full access and use of the FM is only available to employees (“Users”) to which the Customer has granted FM access. To this end, the Customer must book the corresponding number of licences. Users must be authorised by the Customer and registered members on XING. The Customer must be listed as the User’s current company/employer in their XING profile.
    2. If a User cancels its XING membership, or if XING bans it from using the site (especially as a result of the User violating the General Terms and Conditions of its XING membership), this User will no longer be permitted to use its assigned FM licence.
    3. The Customer has the right to revoke a User’s authorisation, or to assign another person as a replacement for the User, especially in the case of Section 2.2. A new User will receive authorisation once the Customer has informed XING SE that the replacement has been assigned to the position, and XING SE has provided its approval. If a User has been replaced by another User, it shall only be possible to replace the newly appointed User after a minimum of thirty (30) days.
    4. The Customer can purchase additional FM licences during an ongoing contractual term. The terms of the additionally booked FM licences shall run pro rata to the base agreement. Fees for purchasing additional XTP licences shall be based on the pricing applicable to the total package at the time of purchase. Licence purchases are subject to a separate agreement.
  3. Content in the FreelancerManager

    1. Some content and information (correspondence, conversations, projects, notes, comments, etc.) are shared, automatically or when initiated by a User, among all current and future Users. Other content and information are not shared between Users.
    2. Content shared in the FM will remain in the Customer’s FM, even if the User deletes or revokes permission to share the content it shared on XING or in the FM.
    3. The appointed administrator of the Company account can permanently view, edit and share all of the information and content that a User enters into the FM with the Company’s other current and future Users in the FM. This applies, in particular, to all conversations and correspondence started in or replied to from the FM, including any and all messages to be sent and received by way of these conversations and correspondence. This also applies if the User loses its access to the FM (e.g. at the Company’s request due to the User leaving the company) or if the User terminates its own access.
    4. Information not shared by the User, not shared automatically, or which cannot be shared, will not be displayed to other Users. Conversations not started, replied to or shared in the FM will not be saved for the administrator or all of the Users in the FM. Instead, they will only be displayed in the inboxes of the Users involved in the given conversation.
  4. Availability

    The Customer acknowledges that it is not technically possible to make the XFM available 100% of the time. However, XING SE endeavours to keep the FM available without interruption to the best of its ability. In particular, maintenance, security and capacity requirements, or events beyond the control of XING SE (such as interruptions to public communication networks, loss of power, etc.) could lead to brief interruptions or to the temporary unavailability of the FM. Any claims against XING SE arising from adverse effects and/or interruptions, irrespective of the legal basis, are excluded to the extent permissible by law.

  5. Feature changes

    XING SE reserves the right to make changes to the services related to the FM, its name and its general design, or to offer alternative services, as long as this is not unreasonable for the Customer. XING SE shall ensure that the Customer always receives the latest version for use. The Customer understands that it is not entitled to claim more functionality than that which has been described.

  6. Use of the FreelancerManager, Privacy

    1. Under the terms of this agreement, only the Customer, staff employed directly by the Customer, or third parties granted separate access to the FM by the Customer, are permitted to use the FM. Unless otherwise agreed upon by contract, the Customer’s affiliates and their employees are not covered by the rights of use granted within the scope of this contract. The Customer may only transfer contractual rights to third parties with prior written consent from XING SE.
    2. The Customer is obliged to observe all applicable laws and all rights of third parties. When adding own or other content to the FM or XING, the Customer must ensure that it does not violate applicable law, the rights of third parties, or in any other way compromise the reputation of the FM or XING SE.
    3. The Customer is obliged, in particular, to observe applicable data protection and privacy law. Unless the affected XING members have granted their consent, and unless permitted by German and European data protection and privacy law, the Customer is prohibited from collecting, processing or using personal data in the FM, and from passing on said data to third parties. To this end, the Customer must ensure that XING is also permitted to process the data subjects’ personal data to the extent the Customer requires this to be able to use the FM. If third parties are involved, the affected XING members and third parties will generally be required to grant their consent, particularly with regard to the Customer collecting and saving the third party’s data in the FM.
    4. The Customer must observe third-party rights, particularly when sharing content and information. It may not, for example, share correspondence that is clearly private without having first obtained consent from the sender.
    5. The Customer is also prohibited from engaging in the following:
      1. Unreasonably harassing XING members or other people (particularly with spam; cf. Section 7 of the German Unfair Competition Act (UWG)),
      2. Using or promoting any commercial practices considered unfair competition, including progressive customer acquisition practices (such as chain distribution systems, multilevel marketing or pyramid sales), or
      3. Carrying out, advertising or promoting structural sales measures (such as multilevel marketing or multilevel network marketing), even if these actions do not specifically constitute a breach of any applicable laws.
    6. The Customer is responsible for any faults on the part of its Users to the same extent that it is responsible for any faults of its own. In particular, the Customer must ensure that FM Users comply with these General Terms and Conditions, the General Terms and Conditions for the use of XING, and observe all applicable laws and rights of third parties, especially those of freelancers managed in the FM. Above all, the Customer must ensure that FM Users do not share correspondence that is clearly private without having first obtained consent from those affected.
    7. XING SE may impose the following sanctions in the event that obligations from this agreement, legal regulations or third-party rights are violated, or if XING SE has any other legitimate interest:
      1. Temporarily or permanently deactivate the Customer’s FM,
      2. Terminate the agreement for using the FM. XING SE reserves the right to impose the sanctions stated above, in particular in the event that the means of payment provided by the Customer is invalid, or the Customer does not meet a payment obligation on time and/or sufficiently.
    8. Complaints by XING members or third parties may lead to temporary deactivation of the Customer’s FM licence.
  7. Other rights and obligations of the Customer

    1. The Customer is obliged to keep login details confidential from unauthorised third parties. In particular, the Company will store usernames and passwords in such a way that it is not possible for unauthorised third parties to gain access to them. The Customer is obliged to inform XING SE without delay should it become aware that a password is known to third parties. The Customer must ensure that its FM licence Users do not disclose their login details to third parties.
    2. The Customer must inform XING SE without delay should there be any important changes in the status of the Company which could be relevant to the contractual relationship.
    3. The Customer may only transfer contractual rights to third parties with prior written consent from XING SE.
  8. Contract term

    1. This agreement is initially effective for the initial minimum usage term booked by the Customer and may include multiple licences. After the initial minimum usage term, the agreement will be renewed for the same length of time if it is not terminated by the deadline by the Customer or by XING SE. If the Company selects a product without a minimum usage term, the agreement will run for an unlimited period of time. Upon renewal of the agreement, any subsequently purchased licences (Section 2.4) will also be automatically renewed along with licences purchased at the time of concluding the agreement.
    2. Either party may terminate the agreement without stating a reason by serving notice up to three months before the end of the initial minimum period of use, or before the end of a renewal term. Agreements for products without a specific initial usage term can by terminated by either party by serving notice up to three months before the end of the month. This does not affect either party’s right to termination for cause.
    3. Following timely termination, the FM and all of the content and information saved there may only continue to be used if a new FM agreement has been concluded and the start date for the new contractual term commences immediately at the end of the previous contractual term.
  9. Fees and billing

    1. Fees for using and working with the FM are set out in the selected offer.
    2. Fees for the entire agreement period are immediately payable in advance at the time the invoice is issued. The payment can be made with any of the various means of payment offered.
    3. Renewals shall be subject to the list price applicable at the time of renewal, less any bulk discount based on the number of licences to to be renewed.
    4. XING SE reserves the right to amend the fee, to be effective as of the following renewal period. XING SE shall notify the Customer of any fee change in the invoice sent to the Customer with regard to the renewal period. In the event of a price increase, the Customer is entitled to submit to XING SE within four (4) weeks of the date of invoice a written declaration of withdrawal from the agreement with retroactive effect from the date of the renewal.
  10. Indemnity

    1. The Customer shall indemnify and exempt XING from all actions, including damage claims, asserted by third parties or state authorities against XING SE which are related to the Customer’s infringement of rights, the Company’s violation of the obligations set out in these General Terms and Conditions, or the Customer’s violation of pertinent data protection regulations.
    2. Furthermore, the Customer shall assume all reasonable costs (including legal-defence costs) that XING SE may incur in the event that a third party initiates or takes legal action (in or out of court) against XING as a result of the Customer's violation of rights, the Customer's violation of the obligations set out in these General Terms and Conditions, or the Customer’s violation of pertinent data protection regulations.
    3. All other rights, including damage claims by XING, are hereby unaffected.
    4. The aforementioned obligations of the Customer shall not apply to the extent the Customer is not responsible for the infringement.
  11. Liability

    1. In the event of intent or gross negligence, the Parties shall be liable without limitation for all damages in connection with rendering the contractual services.
    2. In the event of ordinary negligence, the Parties shall be liable without limitation for damages resulting from injury to life, limb or health.
    3. Furthermore, the Parties shall only be liable if there is a breach of a cardinal obligation under this agreement. The concept of cardinal obligation refers abstractly to such obligations, which, when fulfilled, make it possible for the contract to be properly carried out. The other party to the agreement can rely on the fact that these obligations are complied with. In such cases, liability is limited to typical and foreseeable damages.
    4. If the Parties’ liability is excluded or limited based on the aforementioned provisions, this shall also apply to the Parties’ vicarious agents.
    5. Neither party is liable to the other party for non-compliance with contractual obligations if the non-compliance is due to circumstances beyond the party’s control. This applies in particular to cases of force majeure.
  12. Reimbursement of advance payments

    1. Any FM licences booked but not used during the contractual term do not constitute grounds for reimbursement, a price reduction or extension of access beyond the given contractual term.
    2. The Customer cannot submit a claim for reimbursement of advance payments in the following cases:
      1. If XING SE terminates the agreement for cause
      2. If XING SE imposes one or more of the sanctions in accordance with Section 6.7, or
      3. If the Company terminates the agreement.

    The Customer’s claim for reimbursement of advance payments is not excluded, however, if the cause for termination arises from XING SE’s area of responsibility.

  13. Miscellaneous

    1. XING SE may employ subcontractors. In the event that subcontractors are employed, XING SE remains responsible for fulfilling the obligations taken on by XING SE. XING SE is entitled to transfer rights and obligations to third parties, in whole or in part.
    2. XING SE reserves the right to amend these General Terms and Conditions at any time, without giving reasons, unless an amendment is unreasonable to the Company. XING SE shall give the Customer due notice of any amendments to these General Terms and Conditions. If the Customer does not object to the applicability of the revised General Terms and Conditions within six (6) weeks of receipt of said notice, the amended General Terms and Conditions shall be deemed to be accepted by the Customer. XING SE shall inform the Customer of its right to object and of the relevance of the objection deadline in said notice.
    3. The sole place of jurisdiction and place of performance is Hamburg, Germany.
    4. German law is applicable, excluding international private law and provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
    5. If any provision of this agreement is or becomes invalid and/or unenforceable, the remaining provisions shall continue to be valid and enforceable to the fullest extent permitted by law.