General Terms and Conditions for providing the ReferralManager (“GTC”)
The offer to provide the ReferralManager and any accompanying services is intended exclusively for business clients.
The contract is concluded with New Work SE, Dammtorstrasse 30, 20354 Hamburg, Germany. Additional contact information, commercial registry data, as well as the name of the authorised representative of New Work SE can be found under “About this site” on www.xing.com.
1. Subject matter
- The Customer can operate an employee referral scheme via the ReferralManager. To this end, employees and vacancies can be created and/or imported. Employees can then notify contacts of said vacancies and share them on various social networks. The exact extent to which the ReferralManager can be used depends on the specific product description. The Customer shall not be provided with the source code as the ReferralManager is a web service that accesses New Work SE’s server(s) and/or New Work SE’s service provider’s server(s). Certain free or paid accompanying services from New Work SE may also form part of the agreement.
- New Work 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 New Work SE for other reasons. New Work 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.
- New Work SE simply offers the Customer a platform to connect the Customer and third parties (XING members and other third parties) and for this purpose only provides technical applications that make it possible to establish general contact. New Work SE does not guarantee contact between the Customer and XING members or other third parties. New Work SE does not participate in the communication between the Customer and third parties in terms of content. New Work SE does not participate in any legal agreements that may be made through the XING ReferralManager 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. New Work SE is not responsible in the event that no contact through the XING ReferralManager or XING is established between the Company and the third party in connection with such an agreement. New Work SE is also not liable for any breaches of duty from the agreements made between the Customer and third parties.
- New Work 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, New Work 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.
- In cases where fulfilment of contract by New Work SE is contingent upon the service rendering by third parties, or in cases where the Customer books add-on third-party services in addition to the XING ReferralManager (e.g. use of an ATS provider's XML feed to link Customer job ads), New Work SE shall not assume any liability for non-performance, accuracy and functionality of such third-party services. In this regard, New Work SE is relieved of its duty to perform, and the Customer shall hold XING harmless against all rights and claims that arise due to the fact that third parties fail to or incorrectly fulfil their duty to perform vis-à-vis New Work SE. The same applies mutatis mutandis if third parties violate pertinent data protection regulations when performing services.
- If third parties change, discontinue or otherwise cease to render services, or if third parties replace external services or experience service disruptions, this shall not have any influence on the contractual relationship in place between New Work SE and the Customer.
2. Functionality or general design changes
New Work SE reserves the right to make changes to the services related to the ReferralManager and its general design, or to offer alternative services, as long as this is not unreasonable for the Customer. New Work 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.
3. Authorisation of recruiters
- Access to and use of the ReferralManager may only be performed by administrators and recruiters authorised to do so by the Customer who must be XING members. Administrators and recruiters must be authorised by the Customer and be registered members on XING. The Customer must be listed as the administrator’s or recruiter’s current employer in their XING profile.
- If an administrator or recruiter cancels its XING membership, or if XING bans it from using the site (especially as a result of the administrator or recruiter violating the general terms and conditions of its XING membership), this administrator or recruiter will no longer be permitted to use the ReferralManager.
- The Customer has the right to revoke an administrator’s or recruiter’s authorisation, or to assign another person as a replacement for the administrator or recruiter. A new administrator will receive authorisation once the Customer has informed New Work SE that the replacement has been assigned to the position, and New Work SE has provided its approval. The administrator shall authorise recruiters. The administrator may grant Customer employees with recruiter access rights of its own accord. If a recruiter has been replaced by another recruiter, it shall only be possible to replace the newly appointed recruiter after a minimum of thirty (30) days.
4. Contract term
This agreement is initially effective for the initial contract period selected by the Customer. Thereafter, if it is not terminated by the deadline by the Customer or by New Work SE, the agreement will be renewed for the same length of time at the list price applicable at the time of renewal. If the Customer selects a product without a specific initial contract period, the agreement will run for an unlimited period of time.
Either party may terminate the agreement without stating a reason by serving notice up to three (3) months before the end of the initial contract period or the end of a renewal period. Agreements for products without a specific initial contract period 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.
Terminations must be submitted in writing (e-mail, fax or letter sent by registered post).
5. Use of the ReferralManager
- Under the terms of this agreement, only the Customer and staff employed directly by the Customer are permitted to use the ReferralManager. 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 New Work SE.
- The Customer is obliged to observe all applicable laws and all rights of third parties. When adding own or other content to the ReferralManager, the Customer must ensure that it does not violate currently applicable law or the rights of third parties, or in any other way compromise the reputation of the ReferralManager or New Work SE. The Customer is also specifically prohibited from engaging in the following:
- Unreasonably harassing XING members or other people (particularly with spam) (cf. § 7 of the German Unfair Competition Act, the UWG),
- Using or promoting any commercial practices considered unfair competition, including progressive customer acquisition practices (such as chain distribution systems, multilevel selling or pyramid sales), or
- Carrying out, advertising or promoting structural distribution measures (such as multi-level marketing or multi-level network marketing), even if these actions do not specifically constitute a breach of any applicable laws.
- The Customer is responsible for any faults on the part of its administrators or recruiters to the same extent that it is responsible for any faults of its own. In particular, the Customer must ensure that the administrators and recruiters comply with this agreement, the general terms and conditions for using XING, and observe all applicable laws and rights of third parties when using the ReferralManager.
- New Work SE may impose the following sanctions in the event that obligations from the agreement between the Customer and New Work SE, legal regulations or third party rights are violated, or if New Work SE has any other legitimate interest:
- Temporarily or permanently deactivate the Customer’s ReferralManager, and/or
- Terminate the agreement for using the ReferralManager.
This shall not affect New Work SE’s other rights.
- New Work 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 fulfil a payment obligation on time and/or sufficiently.
- Complaints from XING members could lead to the temporary deactivation of the Customer’s ReferralManager.
- The Customer is solely responsible for ensuring that the hyperlinks it includes do not lead to third-party content that violates currently applicable law.
6. Other Obligations of the Customer
- The Customer is obliged to keep access data confidential from unauthorised third parties. In particular, the Customer will store user names 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 New Work SE without delay should it become aware that a password is known to third parties. The Customer must ensure that its administrators and recruiters do not disclose their login details to third parties.
- The Customer must inform New Work SE without delay should there be any important changes in the status of the Customer which could be relevant to the contractual relationship.
The Customer acknowledges that it is not technically possible to make the ReferralManager available 100% of the time. However, New Work SE endeavours to keep the ReferralManager available without interruption, to the best of its ability. In particular, maintenance, security and capacity requirements, or events beyond the control of New Work SE (such as interruptions to public communication networks, loss of power, etc.) could lead to brief interruptions or to the temporary unavailability of the ReferralManager. Any claims against New Work SE arising from adverse effects and/or interruptions, irrespective of the legal basis, are excluded to the extent permissible by law.
8. Fees and Billing
- Fees for the entire subscription or renewal 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.
- New Work SE reserves the right to change the fee, to be effective as of the following period of renewal. New Work SE shall notify the Customer of any fee change in the invoice sent to the Customer with regard to the period of renewal. In the event of a price increase, the Customer is entitled to submit to New Work 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.
- The Customer shall indemnify and exempt XING from all actions, including damage claims, asserted by third parties or state authorities against New Work SE which are related to the Customer’s infringement of rights, the Customer’s violation of contractually imposed obligations, or the Customer’s violation of pertinent data protection regulations.
- Furthermore, the Customer assumes all reasonable costs (including legal-defence costs) that New Work 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 contractually imposed obligations, or the Customer’s violation of pertinent data protection regulations.
- All other rights, including damage claims by XING, are hereby unaffected.
- The aforementioned obligations of the Customer shall not apply to the extent the Customer is not responsible for the infringement.
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.
In the event of ordinary negligence, the Parties shall be liable without limitation for damages resulting from injury to life, limb or health.
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 on the fact that these obligations are complied with. In such cases, liability is limited to typical and foreseeable damages.
If the Parties’ liability is excluded or limited based on the aforementioned provisions, this shall also apply to the Parties’ vicarious agents.
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.
11. Reimbursement of advance payments
The Customer cannot make a claim for reimbursement of advance payments in the following cases:
- If New Work SE terminates the agreement with cause,
- If New Work SE imposes one or more of the sanctions in accordance with § 5.4, or
- If the Customer terminates the agreement, the Customer’s claim for reimbursement of advance payments is not excluded if the cause for termination arises from New Work SE’s area of responsibility.
12. Final provisions
- New Work SE may employ subcontractors. In the event that subcontractors are employed, New Work SE remains responsible for fulfilling the obligations taken on by New Work SE. New Work SE is entitled to transfer rights and obligations to third parties, in whole or in part.
- New Work 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. New Work SE shall give the Company due notice of any amendments of these general terms and conditions. If the Company does not object to the applicability of the revised general terms and conditions within six (6) weeks after receipt of said notice, the amended general terms and conditions shall be deemed to be accepted by the Company. New Work SE shall inform the Company of its right to object and of the relevance of the objection deadline in said notice.
- The exclusive place of jurisdiction and place of performance is Hamburg.
- German law is applicable, excluding international private law and provisions of the United Nations Convention on Contracts for the International Sale of Goods.
- 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.