§ 1 General Regulations
(1) The company opexxia GmbH (Petunienweg 2a, 81377 Munich, Court of Jurisdiction Munich, HRB 228956, hereinafter referred to as “Platform Operator”), represented by Dörte Kaschdailis and Silvia Erika Sommer-Tsimpoulis, offers freelancers, merchants within the meaning of the German Commercial Code, and legal entities under public law (hereinafter referred to as “Users”) the opportunity of using a business-to-business trading Platform with an online Marketplace that it operates on a permanent basis (hereinafter referred to as “Marketplace” or “Platform”) in accordance with the provisions of these Terms of Use.
(2) These Terms of Use conclusively contain the applicable terms and conditions between the Platform Operator and the User for the services offered by the Platform Operator within the scope of this service agreement. Any provisions deviating from these Terms of Use shall only apply if confirmed in writing by the Platform Operator. With approval according to § 3, the User accepts these Terms of Use as authoritative.
(3) The User shall be notified of any amendments to these Terms of Use in writing or by e-mail. If the User does not object to such amendments within six weeks after receipt of the notification, the amendments shall be considered agreed. The User shall be informed separately of the right to object and the legal consequences of silence in the event of an amendment to the Terms of Use.
§ 2 Services of the Platform Operator
(1) The Marketplace is a Platform for companies seeking personnel as well as for personnel placement companies looking to place staff. The Marketplace has an integrated, automated messaging system to simplify communication between companies seeking personnel and companies placing personnel, as well as extensive functionality for managing and monitoring all current business transactions.
(2) The services provided by the Platform Operator include:
a. Providing the Marketplace to the User after approving the User’s access in accordance with § 3;
b. Enabling negotiations and contract conclusions on the Marketplace through the request for personnel that was initiated by the company seeking personnel;
c. Creating information and communication opportunities among the Users or contracting parties;
d. Consulting and providing support services for Users according to a separate agreement with the Platform Operator.
(3) A separate assignment agreement shall be entered between the Platform Operator and the recruiting company at the same time as these Terms of Use.
(4) The Platform Operator is to provide an annual average availability of 98.5% for the Marketplace for the agreed services. This includes necessary maintenance work. Interruptions may not persist for longer than 48 hours.
§ 3 Admission and access to the Marketplace
(1) The prerequisite for use of the Marketplace is authorization by the Platform Operator. The Marketplace is only available to freelancers, merchants within the meaning of the HGB, and legal entities under public law. A claim to authorization or use of the Marketplace does not exist.
(2) The User must provide company data, invoice data and a contact person in the application for authorization. Acceptance of the authorization application is given in an e-mail confirmation to that effect.
§ 4 Rights and duties of the company seeking personnel
(1) Authorization represents a service contract for an indefinite period of time between the Platform Operator and the company seeking personnel in accordance with these Terms of Use. The company seeking personnel shall pay for use of the Platform.
(2) The remuneration claim of the Platform Operator pursuant to § 4 (1) amounts to 25% of the net commission for the personnel placement by the company seeking personnel itself, plus value added tax, at the applicable tax rate.
(3) The condition for the accrual of payments pursuant to § 4 (2) for use of the Platform is the signing of an employment contract by both the company seeking personnel and the employee sourced on the Platform by the company providing personnel for the specific personnel application. This mutual contract must be signed by both parties within 12 months after the planned date of commencement of work or, if this has not been agreed at the time the candidate is proposed by the recruiting company, then at the time of that proposal of the specific candidate for any job by the recruiting company, at the recruiting company or an affiliated company of the recruiting company, pursuant to Section 15 of the German Stock Corporation Act (“commission-triggering condition”). It is clarified that the job applied for does not have to correspond to the concrete personnel application. Rather, it may also be another job with the company seeking personnel or an affiliated company of the company seeking personnel pursuant to Section 15 AktG.
(4) The company seeking personnel is obliged to inform the Platform Operator that a contract has been concluded between the company seeking personnel and an employee placed via the Platform. The recruiting company shall communicate this by changing the status of the candidate accordingly to “hired”.
(5) In addition to the amount of the triggered commission, the Platform Operator shall invoice the recruiting company for the Platform usage fee in the amount of 25% of the net commission advertised by the recruiting company, within 14 days after the signing of the employment contract pursuant to § 4 (3), plus VAT, at the applicable tax rate, and thus the commission-triggering condition. In addition, the company seeking personnel acknowledges that the recruiting company has assigned its claim to commission to the Platform Operator and that the Platform Operator will also claim the commission of the recruiting company within 14 days after signing the employment contract.
(6) If the placed employee does not take up the job of his/her own volition after signing the employment contract, the Platform Operator shall reimburse the company seeking personnel for all fees and commissions charged for this placement as long as the placed employee does not take up any job in the company seeking personnel or in an affiliated company of the company seeking personnel pursuant to Section 15 of the German Stock Corporation Act (AktG) within 12 months of the planned date of commencement of work.
(7) It is noted that no repayment claim arises on the part of the company seeking personnel against the Platform Operator in the amount of the paid Platform User fee in the amount of 25% of the net commission advertised by the company seeking personnel, and the placement commission in cases other than § 4 (6), in particular not if the employee does not take up his/her job for a reason for which he/she is not responsible, in particular for reasons for which the company seeking personnel is responsible, terminates his/her employment during the probationary period or is terminated, or the employment relationship ends for other reasons.
§ 5 Rights and obligations of the recruiting company
(1) The recruiting company concludes an assignment agreement with the Platform Operator regarding its claims arising from the placement of an employee with the company seeking personnel. The claim for commission by the recruiting company arises with the condition triggering the commission pursuant to § 4 (3), taking into account the claim for repayment pursuant to § 4 (6) and the fact that the recruiting company was the first to propose the placed candidate to the company seeking personnel via the Platform – the time stamp of the proposal on the Platform is decisive here. The principle of “first come, first served” therefore applies. The respective rights and obligations between the recruiting company and the Platform Operator are regulated separately in an agreement on assignment.
(2) The recruiting company is obligated to inform the Platform Operator that a contract has been concluded between the company seeking personnel and an employee placed via the Platform. The recruiting firm shall inform the candidate of this by changing the candidate’s status accordingly to “hired”.
§ 6 General rights and obligations
(1) The User agrees to the storage of billing data for the purposes of evidence and/or within the scope of the statutory retention obligations.
(2) The User is responsible for ensuring that the information provided by him to the Platform Operator and other Users is true and complete, in particular in the context of his application for admission pursuant to § 3. He undertakes to notify the Platform Operator immediately of any future changes to the information provided.
(3) The Platform Operator is entitled to withdraw a User’s authorization or to block access to the Marketplace if there is sufficient suspicion that the User has violated these Terms of Use. The User can avoid these measures if he eliminates the suspicion by presenting suitable evidence at his own expense.
(4) All logins are individualized and may only be used by the respective authorized User. The User is obliged to keep the login and password secret and to protect them from unauthorized access by third parties. The User is also responsible for keeping employee logins secret and will instruct employees accordingly. In case of suspicion of misuse by a third party, the User shall inform the Platform Operator without delay. As soon as the Platform Operator becomes aware of the unauthorized use, the Platform Operator will block access to the unauthorized User. The Platform Operator reserves the right to change the login and password of a User; in such a case, the Platform Operator will inform the User immediately.
§7 Contractual penalty
The Platform Operator relies on the fact that the recruitment company and the company seeking personnel are informed of the conclusion of an employment contract in accordance with § 4 (4) and § 5 (2). It is a serious breach of contract if this fact is not communicated to the Platform Operator within five working days after the signing of the employment contract between the company seeking personnel, or an affiliated company of the company seeking personnel pursuant to § 15 of the German Stock Corporation Act (AktG), and the employee placed via the Platform. A breach of contract pursuant to § 7 sentences 1 and 2 entitles the Platform Operator to claim a contractual penalty in the amount of 125% of the placement commission advertised by the company seeking personnel from the company seeking and/or placing personnel.
§ 8 Conclusion of contracts on the Marketplace
(1) Companies seeking personnel have the opportunity to open personnel applications on the Platform and to invite companies recruiting personnel to propose candidates. Personnel applications can only be published on the Platform by companies seeking personnel and do not contain a legally binding offer within the meaning of § 145 BGB (German Civil Code); instead, they only represent an invitation to submit offers (“invitatio ad offerendum”).
(2) Recruiting companies have the opportunity to select personnel applications on the Platform according to individual criteria and to submit binding offers for their application on the Platform by proposing a candidate. An offer from a recruiting company is a binding and irrevocable declaration to conclude the personnel application advertised by the recruiting company.
(3) A company seeking personnel is free to choose whether and which of the received offers and proposals it wishes to accept. Unless otherwise agreed between the company seeking personnel and the recruiting company, a contract shall be concluded if a company seeking personnel, or an affiliated company of the company seeking personnel pursuant to Section 15 of the German Stock Corporation Act (AktG), enters into an employment relationship (in writing or verbally) with a candidate proposed by the recruiting company within 12 months of the candidate’s concrete proposal.
(4) Actions using the respective login of a User are generally attributable to the User. Users are responsible for all declarations of intent made on the Platform. For declarations made by third parties under the User’s member account, they are liable to a foreseeable extent according to the principles of a contract with protective effect for third parties.
(5) The Platform Operator reserves the right to change or expand the content and structure of the Platform as well as the associated User interfaces if this does not, or does not significantly, impair the purpose of the contract concluded with the User. The Platform Operator will inform the Users of the Marketplace accordingly about the changes.
§ 9 User obligations
(1) Personnel requests may not be opened if
a) the information provided is so incomplete that the request and the amount of the commission are not sufficiently specified;
b) the opening or execution of the personnel request would violate legal regulations, official orders or common morality according to the legal system applicable for the intended contract. In particular, no applications may be submitted whose offer or sale violates the rights of third parties; the same applies to personnel applications in connection with pornographic articles or articles harmful to minors, with weapons, drugs, propaganda material of anti-constitutional organizations and parties, etc. The Platform Operator is entitled to make such applications. The Platform Operator is entitled to immediately remove such a personnel application from the Marketplace.
(2) With authorization according to § 3, the User guarantees the Platform Operator and all other Users that the User will comply with the data protection requirements governing data transmitted by him/her and indemnifies the Platform Operator from any claims, including claims under public law. In particular, the User must inform the persons acting on his behalf on the Platform (in particular employees) about the data processing procedures required in this context by the Platform Operator in accordance with the Platform Operator’s data protection declaration, and obtain the consent of these acting persons, if necessary, before their personal data is entered into the Platform in the context of setting up employee logins, or before it is entered in any other way.
(3) The Users, in particular the recruiting company, are aware that any kind of publication of the personnel application by the recruiting company outside the Platform is strictly prohibited.
§ 10 Processing contracts concluded on the Marketplace
(1) Contracts concluded on the Marketplace are processed solely by the respective User. The Platform Operator assumes neither a guarantee for the fulfillment of the contracts concluded on the Marketplace between the Users nor liability for material or legal defects of the traded services. The Platform Operator is under no obligation to ensure the fulfillment of the contracts concluded between the Users.
(2) The Platform Operator cannot guarantee the true identity and the power of disposal of the Users. In case of doubt, both contracting parties are obliged to inform themselves in an appropriate manner about the true identity as well as the power of disposal of the other contracting party.
§ 11 Liability of the Platform Operator
(1) The Platform Operator shall be liable without limitation for intent and gross negligence, but for slight negligence only in the event of a breach of material contractual obligations. Liability in the event of a breach of such a material contractual obligation shall be limited to the damage typical for the contract, the occurrence of which the Platform Operator had to expect at the time of conclusion of the contract based on the circumstances known at that time.
(2) The Platform Operator shall not be liable for disruptions in the network for which the Platform Operator is not responsible.
(3) The Platform Operator shall only be liable for the loss of data in accordance with the above paragraphs if such loss could not have been avoided by reasonable data backup measures on the part of the User.
(4) The liability does not extend to impairments of the contractual use of the services provided by the Platform Operator in the Marketplace caused by improper or incorrect use by the User.
(5) The above limitations of liability shall also apply mutatis mutandis in favor of the Platform Operator’s vicarious agents.
(6) Insofar as the Marketplace offers the possibility of forwarding to databases, websites, services, etc. of third parties, e.g. by setting links or hyperlinks, the Platform Operator shall neither be liable for the accessibility, existence or security of these databases or services, nor for their content. In particular, the Platform Operator is not liable for their legality, accuracy of content, completeness, timeliness, etc.
§12 External content
(1) Users are prohibited from placing content (e.g. through links or frames) on the Marketplace that violates legal regulations, official orders or morality. Furthermore, they are prohibited from posting content that violates rights, in particular copyrights or trademark rights of third parties.
(2) The Platform Operator does not adopt third-party content as his own under any circumstances. The User guarantees the Platform Operator and the other Users of the Platform that the services offered by him do not violate any copyrights, trademarks, patents, or other industrial property rights or trade secrets.
(3) The Platform Operator reserves the right to block third-party content if it is punishable under applicable laws or is recognizably used for the preparation of punishable acts.
(4) The User shall indemnify the Platform Operator against all claims asserted by third parties against the Platform Operator due to the infringement of their rights or due to legal violations based on the offers and/or contents posted by the User, provided that the User is responsible for these. In this regard, the User shall also assume the costs of the legal defense of the Platform Operator, including all court and attorney fees.
§ 13 Other obligations of the User
(1) The User is obliged to
a. to set up and maintain the necessary data security precautions during the entire term of the contract. This essentially refers to the careful and conscientious handling of logins and passwords;
b. to comply (in particular the recruiting company) with the data protection regulations regarding the candidate’s data, to inform the candidate about the offer to the recruiting company and to keep the candidate informed;
c. to notify the Platform Operator immediately of any technical changes occurring in its area if they are likely to impair the provision of services or the security of the Platform Operator’s Marketplace;
d. to cooperate in the clarification of attacks by third parties on the Marketplace, insofar as this cooperation by the User is required;
e. to conduct business on the Marketplace exclusively within the scope of commercial business operations for commercial purposes;
f. to maintain (in particular the recruiting company) the strictest secrecy about the contents and information of the personnel requests;
g. to maintain (in particular the company seeking personnel) the strictest secrecy about the candidate data;
h. to maintain the strictest secrecy about the contents of the commission agreement, in particular the amount of the advertised commission.
(2) The User undertakes to refrain from all actions that endanger or disrupt the functioning of the Marketplace and not to access data to which he is not entitled. Furthermore, he must ensure that the information and other posted data transmitted by him to the Marketplace are not afflicted with viruses, worms or Trojan horses. The User undertakes to compensate the Platform Operator for all damages resulting from the User’s failure to comply with these obligations and, in addition, to indemnify the Platform Operator against all claims of third parties, including attorney’s fees and court costs that such third parties assert against the Platform Operator due to the User’s failure to comply with these obligations.
§ 14 Data processing and compliance with confidentiality by the Platform Operator; protection of secrets
(1) The servers of the Platform are secured according to the state of the art, in particular by firewalls. However, the User is aware that there is a risk for all participants that transmitted data can be read in the transmission path. This applies not only to the exchange of information via e-mail leaving the system, but also to the integrated messaging system and all other transmissions of data. The confidentiality of data transmitted in the course of using the Marketplace can therefore not be guaranteed.
(2) The User agrees that the Platform Operator may store information and non-personal data about the course of personnel searches as well as the behavior of companies seeking personnel or recruiting companies during the execution of these transactions in anonymised form and use it exclusively in this anonymised form for marketing purposes, e.g. for the creation of statistics and presentations.
(3) The Platform Operator is entitled to process and store non-personal data received from the User in connection with the business relationship during the term of this contract. Specifically, the User agrees that the Platform Operator:
a. will store and process the information on company data and invoice data provided by the User in the context of the application for admission, as well as corresponding updates communicated by the User;
b. will store the data independently entered into the Marketplace by the User in connection with the company presentation requested by the User in the trading area under administration, and make it available for retrieval by other registered and non-registered Users in the public and closed areas of the Marketplace;
c. will store non-personal data on the content of the transactions and forward it to other Users and – if the User concerned so wishes by selecting a public transaction – make it available for retrieval in the public area of the Marketplace for other registered and non-registered Users.
(4) Furthermore, the Platform Operator will treat all User data marked as confidential by the User as confidential and will only use it in accordance with these Terms of Use. The Platform Operator reserves the right to deviate from this if the Platform Operator has to disclose data of the User due to legal or official orders.
(5) With regard to personal data, reference is made to the Platform Operator’s privacy policy under Privacy Policy.
(6) Within the scope of application of § 1 GeschGehG (German Law on the Protection of Trade Secrets), the Platform Operator may only obtain, use or disclose business secrets of the User within the meaning of § 2 No. 1 GeschGehG in accordance with the provisions of § 3, § 4, § 5 GeschGehG.
§ 15 Assignment and compensation
(1) A partial or complete transfer of the User’s rights from the contract with the Platform Operator to third parties is excluded.
(2) The User is only entitled to compensation vis-à-vis the Platform Operator with undisputed or legally binding counterclaims.
§ 16 Contractual period
(1) The contract underlying these Terms of Use is concluded for an indefinite period. It shall commence upon admission by the Platform Operator pursuant to § 3.
(2) The contract may be terminated by either party with three months’ notice to the end of the month.
(3) Each party shall have the right to terminate the Agreement for good cause without notice. Important reasons for the Platform Operator include, in particular:
a. the violation of a User against the provisions of these Terms of Use, which is not remedied even after setting a deadline;
b. the violation of the obligation to notify the company seeking and placing personnel of the conclusion of an employment contract in accordance with § 4 (4) and § 5 (2);
c. the criminal act of a User or the attempt to commit such an act, e.g. fraud;
d. the delay by more than six weeks of the company seeking personnel with the payment obligation according to the payment to be made by the company seeking personnel pursuant to § 4 (5)
e. continuous operational disruptions due to force majeure beyond the control of the Platform Operator, e.g. natural disasters, fire, breakdown of networks through no fault of the Platform Operator;
f. publication of a personnel application by the recruiting company outside the Platform in accordance with § 9 para. 3.
(4) Any termination must be made in writing. Terminations by e-mail shall comply with the written form requirement.
§ 17 Final provisions
(1) The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The place of jurisdiction for all legal disputes is Munich. The Platform Operator is also entitled to sue at the User’s general place of jurisdiction.
(2) Should individual provisions of these Terms of Use be or become invalid and/or contradict the statutory provisions, this shall not affect the validity of the remaining provisions of the Terms of Use. The ineffective provision shall be replaced by mutual agreement between the contracting parties with a provision that comes as close as possible to the economic purpose of the ineffective provision in a legally effective manner. The above provision shall apply mutatis mutandis in the event of loopholes.
State: 15.11.2020