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General terms and conditions for using onlyfy Employer Branding Profiles and accompanying services

 

Recitals

The offer to use onlyfy Employer Branding Profiles on kununu and XING (hereafter ‘Company Profiles’) as well as accompanying services is intended exclusively for business clients.

The Customer enters the agreement with New Work SE, Am Strandkai 1, 20457 Hamburg, Germany. Additional contact information, commercial registry data, as well as the name of the authorised representative of New Work SE can be found on the ‘About this Site’ page.

 

1. Subject matter

  1. In their basic form, Company Profiles are descriptions of companies. XING allows Customers to claim, create, use and edit Company Profiles. The exact extent to which they may use the profile and any fees for creating, claiming and/or using Company Profiles depend on the specific product description applicable at the time of conclusion of the contract. Certain free or paid accompanying services from New Work SE may also form part of the contract.
  2. The Company Profile can be used to present the Customer and the products and services it offers. It is expressly prohibited for Company Profiles to be used for multi-level marketing purposes.
  3. 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.
  4. 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 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 XING is established between the Customer 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.
  5. New Work SE accepts no responsibility for content, data or other information provided by XING members, or for content on linked external websites. In particular, New Work SE does not warrant that any such content is true, that it fulfils any particular purpose or that it could be used for any specific purpose.

 

2. Authorisation of editors

  1. The Customer’s editors are responsible for creating, claiming, editing and using Company Profiles on XING. Upon receipt of order, personal access details for the Company Profile will be sent to the Customer. The Customer is responsible for adding content to its Company Profile.
  2. Upon commencement of contract, the Company Profile can be activated for processing on kununu.com with a separate account and then published. The Customer can start adding content on xing.com from the contract commencement date and then publish it.
  3. Editors must be authorised by the Customer and be registered members on XING. The Customer must be listed as the editor’s current employer in their XING profile. In the case of Customers consisting of a single person, the editor must be this person.
  4. If an editor cancels their XING membership, or if XING bans them from using the site (especially as a result of the administrator violating the general terms and conditions of their XING membership), this editor will no longer be permitted to edit or use the Company Profile on XING.
  5. The Customer has the right to revoke an editor’s authorisation, or to assign another person as a replacement for the administrator; particularly in the case addressed in § 2.4. The replacement 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.
  6. If internal processes at New Work SE lead to a delay in implementing a Company Profile, the contract period will commence upon approval by the Customer. Any deviation from the actual service commencement date must be agreed separately by both contractual parties.

 

3. Availability

The Customer acknowledges that it is not technically possible to make XING, kununu and Company Profiles available 100% of the time. However, New Work SE endeavours to keep XING, kununu and Company Profiles 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 in public communication networks, loss of power, etc.) could lead to brief interruptions or to the temporary unavailability of XING, kununu or Company Profiles. 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.

 

4. Changes to services

New Work SE reserves the right to make changes to the services related to XING, kununu and Company Profiles and their general design, or to offer alternative services, as long as this is not unreasonable for the Customer.

 

5. Use of Company Profiles and accompanying services

  1. The Customer is obliged to observe all applicable laws and all rights of third parties. When adding their own or other content to XING, 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 XING, kununu or New Work SE. The Customer is also specifically prohibited from engaging in the following:
    • Unreasonably harassing others (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, multi-level 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.
  2. The content of the Company Profile must be related to the Customer. The following are prohibited:
    • Exaggerated use of capitalisation or punctuation
    • Inadequate content
    • URLs that lead to external websites that are not related to the Company
  3. The Customer is responsible for any faults on the part of its editors to the same extent that it is responsible for any faults of its own. In particular, the Customer must ensure that the editors comply with this contract, the general terms and conditions for using XING, and observe all applicable laws and rights of third parties when editing and using the Company Profile.
  4. New Work SE may impose the following sanctions in the event that obligations from this agreement, legal regulations or third-party rights are violated, or if New Work SE has any other legitimate interest:
    • Delete content that the Customer has published in its Company Profile,
    • Temporarily or permanently deactivate the Company Profile
    • Terminate the agreement for using the Company Profile
    • New Work SE reserves the right to impose the sanctions listed under § 5.4, 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.
  5. Complaints from XING members could lead to the temporary deactivation of the Company Profile.
  6. The Customer is solely responsible for ensuring that the hyperlinks it includes do not lead to third party content that violates currently applicable law.
  7. In the event that New Work SE offers the Customer the option to include its own name in its Company Profile URL (‘vanity URL’), the following terms apply:
    • The Customer is permitted to use its own name only in the vanity URL. The use of any other terms, in particular names, brands or other trademarks pertaining to other companies is prohibited.
    • If the vanity URL violates this provision, any statutory regulations or third-party rights, New Work SE may reset the vanity URL to its original state. New Work SE also reserves the right to reset the URL to its original state if the vanity URL contains a generic term such as ‘apps’ or ‘community’ and New Work SE would like to use this term in its own URL.
  8. The Customer agrees that any existing contract with New Work SE pertaining to the use of a XING Company Profile only, i.e. without a kununu Company Profile, is mutually terminated with effect from commencement of this contract and a pro rata credit note will be issued.

 

6. Other rights and obligations of the Company

  1. 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.
  2. 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.
  3. The Customer may only transfer contractual rights to third parties with prior written consent from New Work SE.
  4. On its websites, particularly on www.kununu.com, New Work SE offers employees the opportunity to review past and present employers according to a set of criteria, to review the corporate culture, and to submit salary details. The Customer explicitly acknowledges that no influence can be exerted whatsoever in terms of its employer rating, culture ratings, or salary details when posting ads or booking Company Profile on New Work SE websites, in particularly on  www.kununu.com. Should the Customer exert any form of pressure to change this information on XING or kununu, New Work SE reserves the right to extraordinary termination of contract. Entitlements to claim reimbursement of the contract sum are expressly excluded.

 

7. Rights to content

  1. By allowing New Work SE to include its content, the Customer grants New Work SE the right to all types of use for this content that are related to the publication of the information on XING and kununu.
  2. New Work SE is entitled, at its own discretion, to display job ads assigned to the employer’s corporate identity in the Jobs category of the Company Profile. This right also applies to job ads the Principal has booked with New Work SE, and to job ads from other sources.

 

8. Contract term

  1. This contract is initially effective for the minimum period of use selected by the Company. Thereafter, if it is not terminated by the deadline by the Customer or by New Work SE, the contract will be renewed for the same length of time at the list price applicable at the time of renewal. If the Company selects a product without a minimum period of use, the contract will run for an unlimited period of time.
  2. The Customer can extend its Company Profile during the contract term. The terms of additionally booked extensions are calculated pro rata to the original contract. Extension fees will be based on the price tier applicable at the time of purchase. Extensions require their own contract. If the original contract is renewed, the renewal automatically applies to the extension and is based on the contract term booked in the original contract. The fee for renewals is the list price, less any agreed discounts.
  3. Either party may terminate the agreement without stating a reason by serving notice up to three months before the end of the minimum period of use or the end of a renewal period. Agreements for products without a minimum period of use can by terminated by either party by serving notice up to three months in advance. The right of either party to terminate the agreement for cause remains unaffected.
  4. If the agreement is terminated, the Company Profile will return to the status of a free basic profile. In particular, all content for which a paid Company Profile is required for it to be displayed on XING and kununu will be removed.
  5. Terminations must be submitted in writing (e-mail, fax or letter sent by registered post).

 

9. Fees and billing

  1. Fees for the entire subscription period are immediately payable at the time the invoice is issued. The payment can be made with any of the various means of payment offered.
  2. 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 4 weeks of the date of invoice a written declaration of withdrawal from the agreement with retroactive effect from the date of the renewal. In this instance, the contractual relationship ends on the end date of the final contract period.

 

10. Data protection

  1. The Customer is obliged to comply with currently applicable data protection laws.
  2. The Customer is prohibited from collecting, processing, using or forwarding personal data about XING members to third parties without permission in the form of valid approval from the XING member concerned, or if prohibited by German or European data protection laws.

 

11. Indemnity

  1. The Customer shall indemnify and exempt XING from all actions, including damage claims, asserted by third parties or state authorities against XING which are related to the Customer’s infringement of rights, the Customer’s violation of obligations imposed on the Customer by this agreement, or the Customer’s violation of pertinent data protection regulations.
  2. Furthermore, the Customer assumes all reasonable costs (including legal-defence costs) that XING 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 imposed by this agreement, 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.

 

12. Liability

  1. Claims for damages against the other contractual party (including the vicarious agents of the contractual party) that are attributable to ordinary negligence, shall exist only if XING breaches a basic/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 contractual party can rely on the fact that these obligations are complied with. Claims for damages in this case are limited to typical and foreseeable damages.
  2. This shall not affect personal injury and property damage claims based on the German Product Liability Act.
  3. 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.

 

13. 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,
  • If the Company Profile cannot be accessed because the editor has terminated their XING membership in accordance with § 2.4 or has been excluded from using XING.
  • 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.

 

14. Other provisions

  1. 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 in full or in part to third parties.
  2. 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 Customer. XING shall give the Customer due notice of any amendments of 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 after receipt of said notice, the amended general terms and conditions shall be deemed to be accepted by the Customer. New Work SE shall inform the Customer of its right to object and of the relevance of the objection deadline in said notice.
  3. The exclusive place of jurisdiction and place of performance is Hamburg.
  4. German law is applicable, excluding international private law and provisions of the United Nations Convention on Contracts for the International Sale of Goods.
  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.