General Terms and Conditions for XING Job Ads - Offline customers

 

Preamble

The provisions of these General Terms and Conditions for XING Job Ads - Offline customers (“GTC”) supplement existing agreements between New Work SE and the Partner regarding the use of XING Job Ads.

 

1. Subject of the Agreement

  1. The Partner may, in accordance with the agreement with New Work SE and these GTC, publish job ads and, if included in the plan, company videos on XING Jobs and manage them within the XING JobManager while they are published.
  2. New Work SE makes content, data and/or information provided by the Partner available to third parties only if this content, data and/or information does not breach applicable laws or these GTC, and only if this content is not abusive or offensive, and only if publishing such content is not unacceptable to New Work SE for other reasons. New Work SE is permitted to remove such content, data and/or information without prior warning. Such removal does not constitute grounds for reimbursement to the Partner.
  3. New Work SE merely provides the Partner with a platform on which the Partner may establish contact with third parties (XING members and others), and only provides such technical applications as allow users to contact each other. New Work SE does not guarantee that contact between the Partner and XING members or other third parties will occur. As regards content, New Work SE does not take part in any communication between the Partner and third parties. If users enter into agreements with one another on XING web pages, New Work SE is not involved in said agreements and shall not be a contracting party to these agreements. The Partner is solely responsible for the execution and fulfilment of agreements made with third parties. New Work SE shall not be held liable if the Partner is unable to contact third parties via XING regarding such agreements. Furthermore, XING shall not be liable for breaches of duty in relation to agreements between the Partner and third parties.
  4. New Work SE does not make any warranties or representations regarding any data and/or information provided or made available by any XING member, nor does New Work SE assume responsibility for the content of externally linked 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.

   

2. Publication of Offers

  1. A maximum period will be set in which posted ads remain online. After this maximum period has expired, the Partner shall deactivate the posting or the posting will be deactivated by New Work SE. Deactivation means that the posting will not be visible to third parties. A complete access to the entire feature set or to the XING JobManager cannot be guaranteed once the last published job ad has been deactivated.
  2. Job ads posted in XING Jobs can be accessed by XING members as well as non-members.
  3. At XING's discretion, job ads can also be posted by other domains and mobile apps operated by New Work SE and its subsidiaries as well as by the domains and mobile apps of contractually affiliated third parties. The appearance of job ads may differ depending on the broadcast medium.

   

3. Authorisation of Posters

  1. Posters have to be authorised by means of a power of attorney and appointment of the individual by the Partner issued to New Work SE, and acceptance of this person by New Work SE. A Poster cannot be assigned to more than one company group.
  2. Before posting a job ad for the first time on XING Jobs, a Poster must, upon prior agreement of New Work SE and the Partner, either complete the entire XING Job Ads registration process, in particular agreeing to adhere to the General Terms and Conditions for posting on XING Jobs, or New Work SE will open a XING Job Ads account for the Poster.
  3. In the event that a Poster fails to fulfill the criteria listed in § 3.2, or no longer fulfils said criteria, or in the event that a Poster is barred from XING or XING Job Ads (particularly if the Poster is barred for violating one of the GTC regulating XING Membership or the GTC regulating XING Job Ads usage), said Poster will no longer be able to publish job ads on XING Jobs. If a Poster is barred from XING or XING Jobs, all job postings by this individual will be deactivated.
  4. If the events indicated in § 3.3 occur, the Partner will have the opportunity to appoint another individual to replace the barred Poster. The authorisation of this replacement shall occur as per § 3.1.
  5. The Partner has the right to replace Posters. Replacing Posters requires an authorisation as described in § 3.1.
  6. A Poster with access to the XING JobManager who has been assigned by the Partner has the right to view, edit, and share with other current or future users of the Partner's XING JobManager all settings and all job ads purchased or edited by another Poster. Once the last published job ad maintained in the XING JobManager has been deactivated, any settings or data saved by the Partner or his Poster may be deleted.

   

4. Integration of Company Videos

  1. Integration of company videos into XING Job Ads is implemented with a link to a video hosted on either YouTube or Vimeo. The link is provided by the Poster.
  2. In the event that the Partner provides video material for publication, this video material shall be provided according to the technical specifications of New Work SE. The technical quality of the files is in the sole responsibility of the Partner.
  3. New Work SE is not obligated to examine the video material prior to publication. New Work SE reserves the right to refuse video material provided by the Partner by reason of origin, content, technical quality or any other materially justifiable reason, particularly in the event that the content of the video material violates the interests of New Work SE.
  4. In the event that the Partner embeds video content in XING job ad products not authorised for video content, either by using his own technical capabilities or those of a third party, XING has the right to either deactivate this job ad or charge the remaining amount of the price for a XING job ad product that authorises embedded video content. The Partner does not have the right to use the deactivation of the job ad for refund claims.

   

5. Availability

The Partner recognises that 100% availability of XING Jobs is technically not feasible. Nevertheless, New Work SE shall undertake all reasonable efforts to ensure the maximum possible availability of XING Jobs. In particular, maintenance work, security updates, capacity issues and events outside of the sphere of control New Work SE (such as disturbances to public communication networks, power outages, etc.) can lead to temporary disturbances or the short-term unavailability of XING Jobs. All claims against New Work SE, which are based on impairments and/or interruptions on whatsoever legal grounds, are excluded to the extent permitted by law.

   

6. Modifications to XING Job Ads

New Work SE reserves the right to modify the scope of services of XING Job Ads and its design, or to offer differing services, provided such a modification is not unacceptable to the Partner.

   

7. XING Job Ads usage

  1. Partner shall only publish one position/job per job ad.
  2. It is prohibited to interrupt the period in which the job ad is online. In the event of an interruption and continuation of a job ad, a new job ad will be billed. Likewise, a new job ad will be billed in the event that the Partner changes the description of the job/position.
  3. The Partner commits to comply with all applicable laws and observe all rights of third parties. Content posted on XING by the Partner, both that of the Partner and that of others, shall not violate applicable law, infringe on the rights of third parties, or damage the reputation of XING or New Work SE in any manner. Furthermore, the Partner is specifically not permitted to
    • unreasonably harass XING members or other individuals (particularly with spam) (cf. § 7 of the German Unfair Competition Act),
    • use or promote any commercial practices considered unfair competition, including progressive customer acquisition practices (such as chain distribution systems, multilevel selling or pyramid sales), or
    • perform, advertise or promote any form of structural distribution measures (such as multi-level marketing or multi-level network marketing).
  4. The Partner shall be liable for fault of a Poster to the same extent as fault of his own. In particular, the Partner shall assure that when using XING Job Ads, Posters adhere with the General Terms and Conditions for use of XING Job Ads, the General Terms and Conditions for XING, the editorial guidelines for posting job ads on XING Jobs, and all applicable laws and rights of third parties.
  5. New Work SE may impose the following sanctions in the event of a violation of duties contained within this contract, legal provisions, rights of third parties or applicable editorial guidelines in their latest version for posting ads on XING Jobs, or in the event that New Work SE has another justified interest:
    • Deletion of content posted by the Partner in XING Job Ads,
    • Temporary or permanent deactivation of one or several ads and/or videos published by the Partner, or
    • Suspension of the Partner’s access to XING Job Ads.
  6. New Work SE reserves the right to deactivate ads and/or videos which are not in accordance with the corresponding XING Job Ads category. Furthermore, complaints by XING members can lead to temporary deactivation of job ads and/or videos.

 

8. Other Rights and Obligations of the Partner

  1. The Partner is obliged to keep access information secure and confidential from unauthorised persons. In particular, the Partner agrees to keep usernames and passwords secure, ensuring that this data cannot be accessed by unauthorised individuals. The Partner agrees to inform New Work SE immediately in the event that the Partner learns that an unauthorised individual has gained access to a password.
  2. The Partner agrees to inform New Work SE immediately upon the occurrence of crucial changes to the status of the Partner which could be relevant to the contractual relationship.
  3. Upon the termination of the contract, the Partner agrees to return to New Work SE all documents, data and other information provided by New Work SE during the course of the contract, or to delete or destroy irretrievably such data and/or information. If requested by New Work SE, the Partner agrees to confirm in writing the fulfilment of the obligations contained in § 8.3. The Partner has no right of retention pertaining to documents, data and other information to be returned, destroyed or deleted in compliance with § 8.3.
  4. The Partner is permitted to transfer rights contained within the contract to third parties only with prior written consent of New Work SE.

   

9. Rights to Content

In posting job ads on XING Jobs, the Partner grants New Work SE right of use for the job ads and/or videos for all usage types in connection with publishing the job ads and/or videos on XING Jobs.

   

10. Data Protection

  1. The Partner agrees to comply with applicable data protection laws.
  2. Unless permitted by German or European data protection laws, or by a valid consent from the relevant member, the Partner is prohibited from collecting, processing, using, or transferring personal information of XING members.
  3. New Work SE does not make any warranty that the Partner will be able to or will be permitted to process or use personal data of XING members for a specific purpose.

 

11. Indemnity

  1. The Partner shall indemnify New Work SE from all rights and claims from third parties or governmental agencies vis-à-vis New Work SE arising from a legal breach by the Partner, failure of the Partner to fulfil obligations set out in these GTC, or a breach in applicable data protection regulations by the Partner. Furthermore, the Partner assumes responsibility for all costs within reason (including attorney costs) of New Work SE arising from legal measures (either judicial or extrajudicial) asserted against New Work SE by third parties due to a breach of law, of these GTC or of relevant data protection laws by the Partner.
  2. All further rights and claims for damage by New Work SE remain unaffected.
  3. The preceding obligations of the Partner do not apply in the event that the Partner is not responsible for the particular breach of law.

   

12. Non-disclosure

  1. The contractual partners agree not to disclose any confidential information made known to them in the course of the cooperation set out in this contract, nor to reveal the details of this contract, including fees and conditions. The partners agree not to pass such information along to others, to use it in any way, or to inform third parties of such information.
  2. “Confidential information” refers to all information which
    • is confidential by its nature (business or trade secrets),
    • is marked as “confidential" and/or as “Property of…/Belongs to…”, or
    • in the case of orally communicated information, which is indicated by the person providing the information to be of confidential nature or as proprietary, or which is indicated to be of such nature in writing within ten (10) days of being communicated.
  3. Each contractual partner agrees to only pass along confidential information to those employees who are required to have possession of such information to fulfil the contract, and guarantees that at the time such information is passed on, these employees have agreed not to disclose the information as per the conditions of these GTC. Furthermore, the contractual partners are obligated to ensure that all natural and legal persons employed to execute this contract have been bound to non-disclosure in accordance with the conditions of these GTC.
  4. Unless otherwise stipulated in writing, all confidential information is at the sole power of disposal of the disclosing party, and may only be used by the receiving party for purposes intended by the disclosing party, and not for any purpose that might have a negative impact on the disclosing party, or which would create competition for the disclosing party. All confidential information, including all copies of this information and all documents, reports, working documents or other objects which contain confidential information, must be returned to the disclosing party or destroyed when requested by the disclosing party or when the contract expires. The receiving party will confirm in writing that he has fulfilled this obligation.
  5. The preceding non-disclosure obligations do not apply to confidential information,
    • which the receiving party can demonstrate it knew of at the time such information was transferred, or
    • which was made public through no fault of the receiving party, or
    • which was received from a third party without any duty to maintain secrecy and under no violation of this § 10, or
    • which has been developed independently by the receiving party, or
    • which the receiving party is required by law to make public. The precondition for the above is that the receiving party informs the disclosing party immediately of said event so that the disclosing party may take appropriate legal or other protective measures. The receiving party shall only reveal such parts of confidential information required by legal decision. He shall make every effort to avoid revealing confidential information, making use of legal or other measures.
  6. The termination of this contract does not terminate the non-disclosure obligations of the receiving party, however. These non-disclosure obligations remain in effect for three (3) years after the contract terminates.

 

13. Liability

  1. Claims of damage resulting from slight negligence against one of the contractual parties by the other (including vicarious agents of the contractual party) apply only if a key contractual obligation/cardinal obligation has been breached. Cardinal obligations are such obligations, which, when fulfilled, make it possible for the contract to be properly carried out. The user can rely on the fact that a cardinal obligation is complied with. In this case, claims for damages are limited to typical and foreseeable damages.
  2. As far as contract law permits compensation of financial losses independent of fault, such claims only apply if the applicable contractual party is at fault.
  3. Claims arising from bodily damage or property damage as per product liability law remain unaffected.
  4. Neither contracting party is liable to the other party for the non-compliance of contractual duties, if non-compliance is due to circumstances beyond the party’s control. This shall apply particularly to the cases of force majeure.

   

14. Rights of third parties

  1. The Partner guarantees that all content and/or data and information provided by the Partner to New Work SE and/or on the Internet (hereinafter referred to as “Content“) such as text, pictures, graphics, music and video sequences, drawings, database content and structures as well as personal data are free from rights of third parties, which impair the contractual use of this Content as a whole or in part by New Work SE. The Partner also guarantees that the Partner is entitled to use the Content for the performance of this agreement, in particular to present this Content on the Internet. Integration of the Content is effected exclusively at the Partner’s own risk.
  2. The Partner shall indemnify New Work SE for all rights and claims of third parties brought forward in connection with the execution of the present agreement as a result of rights of third parties having been violated by the Content, and the Partner assumes, in the internal relationship, sole liability and shall pay all necessary and useful expenses as well as other costs for the judicial or extra-judicial defence against such claims (including attorney costs), except where the Partner is not responsible for such a violation of rights. When defending against such claims, New Work SE will comply solely with reasonable instructions of the Partner, provided the Partner has declared in writing to New Work SE to pay the costs and under the condition that the Partner’s instructions are reasonable.
  3. If the Content of the Partner injures the rights of third parties, the Partner shall, at the discretion of New Work SE, either acquire the rights for New Work SE to use the Content at full cost to the Partner, or re-design the Content to be free of protective rights' claims.
  4. The Partner shall assume sole responsibility that hyperlinks inserted by the Partner do not link to Content by third parties which violate applicable law.

 

15. Proprietary rights and rights of use

  1. All intellectual property rights (in particular patents, trademarks, business names, utility models and copyrights, hereinafter referred to as “property rights”) that are created at the Partner through activities of the Partner in carrying out this agreement, shall remain the property of the Partner. This does not include such property rights relating to the Internet sites of New Work SE, XING or XING Jobs within its structure. These property rights shall be vested in New Work SE when created.
  2. The Partner owns and retains all rights, property and claims on the works, information, and images which the Partner made available to New Work SE (hereinafter referred to as “Partner Works”). Each use of the Partner Works by New Work SE shall occur only for the purpose of fulfilling the contractual duties of New Work SE, and beyond that aim does not constitute additional rights for New Work SE.
  3. New Work SE owns and retains all rights, property and claims to New Work SE, to XING, to XING Jobs, and all works, information, reports and images contained herein (hereinafter referred to as “New Work SE Works”), with the exception of the Partner Works. The rights of the Partner to and concerning New Work SE Works are strictly limited to rights explicitly granted in the contract.
  4. Salary details for job ads supplied by the Partner are aggregated in the New Work SE salary details database and may be used in aggregated form to display salary details in other job ads. Aggregated salary details cannot be traced back to the Partner who provided them.

 

16. Reimbursement of fees paid in advance

In the following cases, the Partner shall not be entitled to claim reimbursement of any advance payments:

  • New Work SE cancels the contract for important cause,
  • New Work SE imposes one or more sanctions as per § 7.5 and § 7.6,
  • As per § 3.3, no ads can be published in XING Jobs, or already published ads have been deactivated, or
  • The Partner cancels the contract; however, the Partner's right to claim reimbursement of any advance payments shall not be excluded in this case if the Partner has terminated the agreement for a good cause attributable to New Work SE.

 

17. Written form, miscellaneous

  1. New Work SE is permitted to appoint subcontractors. In the event that it employs subcontractors, New Work SE retains responsibility for fulfilling all duties assumed by New Work SE. New Work SE is permitted to transfer rights and duties in part or in whole to third parties.
  2. All changes and amendments of this contract must be made in writing.
  3. The place of jurisdiction shall be Hamburg, Germany.
  4. The agreement shall be subject to German law, the conflict-of-laws provisions and the UN Sales Convention being excluded.
  5. If individual provisions of this agreement are or become invalid, the validity of the remaining provisions shall not be affected.