Join AG, Eichenstrasse 2, 8808 Pfäffikon, CH ("Provider") provides a web-based platform as a headhunter marketplace at http://join.com/headhunter ("Platform"). The essence of the platform is to offer registered users ("Users") the opportunity to advertise individual search assignments for vacant positions - in particular for employees and freelancers/contractors - via the platform and to offer a commission for the successful placement of a candidate. By registering for the platform, the user agrees to the validity of the following GTC:
1. General provisions
1.1 These GTC apply to all services offered by the Provider via the Platform to entrepreneurs within the meaning of § 14 BGB. The current version of the GTC can be accessed at any time via the following link https://join.com/terms-corporate.
1.2 These GTC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the users shall only become part of the contract if and insofar as the provider has expressly agreed to their validity.
1.3 Interested users can apply for admission to the platform and must provide the required information completely and accurately. The provider will check the information thus submitted and decide at its own discretion whether to grant the user access to the platform. There is expressly no entitlement to admission to the platform.
1.4 The provider expressly reserves the right to make changes to these GTC. Amendments to these GTC shall become effective if the user does not object to the amendments in text form within one month of receipt of a notification of amendment and the provider has informed the user in the notification of amendment of the right to object and the period of time applicable for this. If the user objects to the amendment in text form, the previous GTC shall continue to apply. In this case, the user is entitled to terminate the contract within two weeks after receipt of the objection. Excluded from this reservation of right to amendment are such amendments that relate to an obligation of one of the parties, the fulfilment of which makes the use of the platform possible in the first place and on the compliance with which the respective other party regularly relies or may rely ("material contractual obligation").
2. Subject of performance
2.1 The main service obligation of the provider towards the user is the provision of the platform. By concluding search orders pursuant to para. 3 individual contracts are concluded between the user and the provider, to which the terms and conditions agreed in each case apply.
2.2 The provider is merely a technical service provider. The content posted by third parties via the platform is merely stored by the provider. The provider has no knowledge of the content; a selection of the content set for the user or any other control of this content by the provider does not take place.
2.3 The content provided to the user by way of an individual search request, in particular CVs, references, cover letters, etc., are not checked by the provider prior to their transmission. Such a check is not owed by the provider. The provider does not owe a guarantee for their correctness and/or completeness. The user is responsible for ensuring that these documents and contents are checked for plausibility, completeness and correctness.
2.4 The Provider shall provide the platform as it was available at the time of the User's visit or registration in accordance with section 1 and the service description applicable at that time ("as is"). Apart from that, the user has no claim to a specific design or equipment of the platform. The provider reserves the right to change the platform in whole or in part or to discontinue it permanently or temporarily at its own reasonable discretion (§ 315 BGB), taking into account the interests of the user, provided that this does not impair material contractual obligations of the provider arising from the membership and this is reasonable for the user; the procedure pursuant to para. 1.3 shall apply accordingly.
2.5 The provider shall provide the platform with an overall availability of 95% on an annual average. The availability is calculated minus the time periods attributable to necessary maintenance times. The platform is not available during maintenance work.
2.6 The provider merely provides the technical platform for the content posted by the users or third parties. The content posted by third parties is third-party content for the provider. If, in exceptional cases, the provider provides its own content, this is expressly identified as such.
2.7 Via links, users can reach external websites that are not operated by the provider. Such links are either clearly marked by the provider (e.g. as advertisements) or are recognisable by a change in the address line of the browser used by the user. The provider is not responsible for the content of these external websites; para. 9 remains unaffected.
3. Creation and execution of search requests
3.1 Via the platform, users can commission the provider with specific search requests for their own vacant positions, which creates an individual contractual relationship in each case. For this purpose, the user can individualise the search requirements according to his own ideas. To this end, he/she must in particular individualise the requirements for the position to be filled and determine the desired placement fee for a successful conclusion. After clicking on the "Unlock" button, the contract details entered in this way are displayed again in an overview together with the applicable taxes. With a further click on the "Accept offer" button, an effective contract on a search order is concluded between the provider and the user. The order details are sent to the user again by e-mail.
3.2 The Provider shall execute the search assignments at its own discretion in each case. This does not constitute an obligation to place or provide a certain number of candidates or a certain quality of candidates or to successfully place persons. The provision of the candidates as well as their information and documents shall take place exclusively via the platform.
3.3 The provider is entitled to carry out search orders himself or have them carried out by professionally qualified third parties, whereby discretion and confidentiality are to be maintained at all times.
3.4 Individual services provided by providers via the platform may be subject to a charge in the future. The user will be informed of this at the latest before the first use of a chargeable service. Before using a chargeable service for the first time, the user must confirm that he/she has been informed about the chargeable nature of the service and the amount of the costs and that he/she agrees to the chargeable use of the service.
4. Agency fee and Invoicing
4.1 The use of the platform is - unless otherwise agreed - free of charge.
4.2 If an individual search request pursuant to para. 3 is agreed, the user shall owe the placement fee specified in the search order in the event of a successful placement. A successful placement is deemed to exist in the event of the conclusion of a contractual relationship between the user and the person placed, irrespective of whether this is a permanent position or a contract relationship. This also applies if the conclusion of the contract only comes about after the end of this platform contract but due to the activity of the provider, for example even if the person referred is initially rejected but later employed or commissioned. A successful placement does not exist if the user can prove that the person placed was already known to the user prior to the provider's placement activity and was in contact with the specific position.
4.3 A successful mediation shall also be deemed to have taken place if the user makes use of the services of professionally qualified third parties or subcontractors outside the platform, which he has commissioned by way of section 3.3. 3.3 through the use of the platform. Thus, a claim to an agency fee of the provider arises if a contract is concluded within 12 months after termination of the platform contract according to section 4.2. 4.2 is brokered to the user by such a third party or subcontractor. The amount of the brokerage fee in these cases shall be determined in accordance with Section 612 (2) of the German Civil Code (BGB).
4.4 In the event of the failure referred to in para. 5.6 as well as in those cases in which the bidder could terminate a search assignment for good cause, the bidder may demand reimbursement of its expenses in accordance with the provisions. These include, in particular, the costs of personnel employed and/or subcontractors as well as other specific resources expended for the search assignment. The expenses do not include the provider's general business expenses. In any case, the reimbursement of expenses shall be limited to a maximum of 60% of the commission lost by the provider.
4.5 The Provider shall duly invoice the User for the placement fee or reimbursement of expenses and send this by e-mail. The invoice is due for payment within 30 days.
4.6 For the fulfilment of the payment obligation, Supplier offers payment on account as a means of payment.
4.7 Unless otherwise agreed between the parties, the following refund or reduction provisions shall apply:
If the person placed demonstrably does not enter into the employment or contract relationship at all and there is no cooperation between the parties placed, the provider's claim to the placement fee shall lapse completely.
If the contract with the mediated person is demonstrably terminated in within a short period after the agreed start of the contract and no contractual relationship is continued, these include non-commencement where the Candidate does not begin their role with the Contracting Party, voluntary resignation where the Candidate chooses to leave their position on their own within the defined time frame, and involuntary termination where the Candidate is dismissed or their contract is terminated by the Contracting Party within the set time frame, except in instances of gross misconduct, violation of company policies, or other substantial reasons that justify immediate dismissal. It is important to note that situations involving mass layoffs, force majeure circumstances, or excess labor within the Contracting Party's organization do not qualify for the refund as per the terms mentioned above, the mediation fee shall be reduced as follows:
|Contractual duration||Fee reduction|
|1 week||80 %|
|2 weeks||70 %|
|3 weeks||60 %|
|4 weeks||50 %|
|5 weeks||40 %|
|6 weeks||30 %|
|7 weeks||20 %|
If the termination takes place after the eighth week of the agreed start of the contract - e.g. even within the probationary period - the agency fee is fully earned by the provider and will not be reduced and/or refunded.
4.8 The user must notify the provider of the claim for reimbursement with all relevant evidence within 6 months of the claim arising. The provider will carefully check the claim and - if justified - initiate the reimbursement.
5. Contents and duties of users
5.1 The user is entitled and obliged to use the platform exclusively for his own purposes. Any further commercial or business use is only permitted with the consent of the provider.
5.2 The user is obliged to support the provider's placement efforts, in particular by providing and making available all information and documents available to him/her that support the placement. The user authorises the provider to use this information and documents, including vis-à-vis potential candidates.
5.3 In the case of a search order, the user shall inform the provider without delay of all relevant circumstances and developments occurring after conclusion of the contract, in particular with regard to the initiation, placement or application process, in particular of any other filling of the vacant position or abandonment of the search project.
5.4 If, in the context of a search request, the provider refers a candidate who was already known to the user, the user must notify the provider of this immediately, either by e-mail message or via the "mark as hired" button. A candidate is deemed to be already known if he/she has already sent an application to the user for the specific position of the search request or has been proposed for this position by a third party. In case of doubt, the existence of these prerequisites must be presented and proven by the user. If the proof is not provided, the candidate shall be deemed to have been suggested by the provider with the consequence that the agreed remuneration shall be due for this.
5.5 The user is obliged to notify the provider immediately of the conclusion of a contract or a successful brokerage and to provide him with a complete copy of the contract upon first request and to provide other information required for the assertion of the brokerage commission. In all other respects, the provisions of §§ 259, 260 BGB shall apply.
5.6 The user is obliged to prevent or report any attempt to circumvent the provider or the platform. The following provisions apply in particular:
To inform the provider immediately by e-mail if one of the subcontractors used by the provider to carry out a search order undertakes to contact the user directly, i.e. outside the platform.
For a period of 12 months after termination of the platform contract, the user is prohibited from directly or indirectly contacting a third party or subcontractor employed by the provider within the scope of a search order for the user.
6. Reimbursement of expenses and contractual penalty
6.1 If the Provider's opportunity to earn the brokerage commission is thwarted as a result of the User's conduct in breach of contract and culpable conduct, the User shall pay compensation for expenses in accordance with the provisions of these GTC. This does not exclude compensation for further damage.;
6.2 For each case of a violation of the prohibition of circumvention according to para. 5.6 the user shall pay a contractual penalty. This shall not apply if the user is not responsible for the infringement. The specific amount of the contractual penalty shall always be determined by the provider taking into account the particular circumstances of the individual case and the purpose of the contractual penalty. In particular, the severity, extent and degree of the breach of contract committed, its dangerousness for the provider as well as the fault of the user shall be taken into account. Upon request, the user may have the amount of the contractual penalty assessed reviewed by the competent court.
6.3 The provider reserves the right to assert further claims, such as for damages or injunctive relief.
7.1 The parties are obliged to maintain confidentiality with regard to individual search assignments. In particular, the parties are obliged (1) not to make the confidential information of the other party available to any third party - directly or indirectly, in writing, orally or in any other way, (2) to use it exclusively for the execution or implementation of this search order or services agreed hereunder and (3) to take all necessary measures to prevent third parties from gaining knowledge of and using the confidential information and to oblige their own employees, subagents and contractors accordingly.
7.2 The user is entitled to use all information of a candidate provided to him/her by way of a search request exclusively for the respective application procedure and to treat it otherwise as strictly confidential.
7.3 The provider is entitled to pass on the information provided by the user in the course of the contractual relationship as well as the information required for the execution of the search request to third parties in accordance with section 3.3. 3.3. Furthermore, the provider is entitled to assign the claim to the brokerage fee to third parties and to transmit the information required for the enforcement of the claim to the assignee.
8. Term and termination
8.1 The platform contract can be terminated by either party at any time. The termination is then executed after 7 days. Within this period, the user can revoke the termination.
8.2 If the platform contract is terminated - regardless of the reason - the content posted by the user shall be automatically deactivated when the termination takes effect. At the same time, all individual search orders existing at that time shall be terminated. In the event of the termination of search orders, the Provider's claims to remuneration and information shall remain unaffected, in particular the provisions on a successful mediation pursuant to section 4.2. 4.2 as well as the claims to information pursuant to para. 5.5 and 4.3.
8.3 The right to extraordinary termination of the platform contract or the individual search orders for good cause remains unaffected. For the provider, good cause shall be deemed to exist in particular if the user has seriously or, despite a warning from the provider, continuously and culpably violated these GTC. For the provider, an important reason exists in particular if
The user violates the prohibition of circumvention as set out in para. 5.6 or
The provisions on confidentiality pursuant to para. 7 violates
Good cause shall not be deemed to exist if the user is not at fault for the violation. § Section 314 BGB remains unaffected.
9.1 Unless otherwise stipulated in these GTC, the provider shall be liable within the scope of the use of the platform and in the execution of search orders in accordance with the following provisions.
9.2 The provider is liable without limitation for damages caused by the provider or its legal representatives, executives, simple vicarious agents or commissioned third parties intentionally or through gross negligence.
9.3 The provider is not liable in cases of slightly negligent breach of only insignificant contractual obligations. In all other respects, the liability of the provider for damages caused by slight negligence is limited to those damages that must typically be expected to occur within the scope of the respective contractual relationship (contract-typical foreseeable damages). This also applies to slightly negligent breaches of duty by the provider's legal representatives, executive employees or simple vicarious agents as well as third parties commissioned by the provider.
9.4 The above limitation of liability does not apply in the case of fraudulent intent, in the case of bodily injury or personal damage, for the breach of guarantees and for claims arising from product liability.
9.5 The availability of the platform pursuant to section 2.5 may be temporarily restricted in whole or in part due to technical disruptions for which the Provider is not responsible or for reasons of force majeure (power supply and/or Internet failure, fire, explosion, earthquake, storm, flood, industrial action for which the Provider is not responsible), as well as due to the performance of maintenance work to maintain and improve the operability and functionality of the platform. The Provider shall be liable for the consequences of limited availability exclusively within the scope of the availability promised to the User in the service description and only in accordance with section 9.1. 9.1.
10. Final provisions
10.1 The law of Switzerland applies to the exclusion of the UN Convention on Contracts for the International Sale of Goods and the conflict of laws; Art. 3 EGBGB remains unaffected. If the user has his habitual residence in another country within the EU/EEA at the time of the establishment of the membership, the application of mandatory legal provisions of this country remains unaffected by the choice of law made in these GTC.
10.2 No verbal subsidiary agreements have been made. Amendments and supplements to these GTC as well as all declarations of the parties relating to membership must be made in text form (§ 126b BGB). This also applies to the waiver of the formal requirement.
10.3 The place of jurisdiction for all disputes arising from the contractual relationship is the registered office of the supplier.