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Terms and Conditions

April, 2024
1 Scope, form 1.1 These general terms and conditions (hereinafter "Terms and Conditions") apply to all business relationships between Empion GmbH, Dircksenstraße 47, 10178 Berlin (hereinafter "Empion") and its commercial customers. 1.2 These Terms and Conditions apply exclusively. Deviating, conflicting, or supplementary general terms and conditions of the customer shall only become part of the contract if Empion has expressly agreed to their validity in written or text form (e.g., letter or email). This requirement of consent applies in any case, especially if Empion provides the contractual services to the customer without reservation, knowing the general terms and conditions of the customer. 1.3 These Terms and Conditions do not apply to applicants who register on Empion's SaaS recruiting platform; applicants are subject exclusively to Empion's terms of use. 2 Conclusion of contract A contract with Empion shall only come into effect when the customer unconditionally accepts Empion's offer, or when the customer receives a written order confirmation from Empion, or when Empion commences the provision of services. Offers from Empion are non-binding and can be revoked at any time until the written acceptance by the client. Changes, side agreements, or additions as well as any agreements on quality or the assumption of guarantees require an explicit agreement in writing to be effective. 3 Subject matter of the contract, services 3.1 Empion provides a recruiting Software-as-a-Service (SaaS) solution for companies and potential employees (hereinafter "Service"). Empion makes the Service available for customer use via the Internet as Software-as-a-Service. The customer utilizes the Service through their customer account. 3.2 Empion initially sets up the Service for the customer as part of an onboarding process. Unless otherwise agreed, this is done through remote maintenance. 3.3 The Service also includes, during the term of the contract, all updates and other version changes within the product covered by the contract, subject to the provisions of clause 4.4. 3.4 Empion also provides the customer, to the extent agreed in the contract, with support for technical issues and optimal use of the Service. 3.5 Empion reserves the right to continuously develop the Service and expand or adjust its scope of functions to an appropriate extent. 4 Availability and maintenance 4.1 The Service shall be available to the customer on average 99% of the calendar year (hereinafter "Availability Time"). Excluded from the Availability Time are outages caused by: 4.1.1 Scheduled maintenance 4.1.2 Unforeseeable urgent maintenance work, e.g., to address security vulnerabilities; 4.1.3 Force majeure or other events beyond Empion's control that were unforeseeable and could not be prevented by Empion, including war or acts of war, terrorist acts, cyber attacks, strikes, lawful lockouts, extreme weather conditions, power outages, transportation interruptions, fire damage, epidemics and pandemics, legal changes and regulatory orders, as well as operational disruptions or supply difficulties, to the extent not caused by Empion; 4.1.4 Third parties who are not agents of Empion; 4.1.5 The customer or the software or hardware used by them, or the internet connection. 4.2 The availability is calculated according to the following formula: (Maximum availability - Downtime) / (Maximum availability × 100) 4.3 Empion is entitled to perform regular maintenance work but will try to keep interruptions to a minimum. Empion shall inform the customer at least one day before the commencement of the work. In urgent cases, such as to address security vulnerabilities, Empion may shorten the notice period or, if not otherwise possible, commence maintenance work without prior notice. If prior notice is not possible, the customer shall be informed after the commencement of the work as soon as the situation permits. 4.4 Empion is entitled, but not obligated, to perform updates to the Service as part of maintenance work. Empion is entitled to adapt and change the scope of services of the Service in line with technological progress, provided that the agreed functionalities are not significantly impaired. Empion is not obliged to ensure backward compatibility with third-party software that does not correspond to the current state, and/or interoperability with third-party software. Empion does not provide any guarantee or other form of assurance for this. The customer bears any costs incurred to restore the interoperability of the Empion Service with third-party software. A different arrangement applies only if this interoperability has been expressly agreed upon as a quality feature in the contract. Warranty claims remain unaffected. 4.5 The customer shall report malfunctions not caused by maintenance work promptly and ensure that the following information is provided: 4.5.1 Description, date, and time of the incident, 4.5.2 Affected functionality, 4.5.3 Preliminary classification of priority, 4.5.4 Measures already taken by the customer to resolve the issue. 4.6 Upon request, the customer shall provide any further assistance and information necessary to resolve the malfunction. 4.7 Upon reporting a malfunction, the following response times shall apply, which Empion may determine in accordance with reasonable discretion (§ 315 German Civil Code): 4.8 If a reasonable workaround is available or provided by Empion, or any other provisional troubleshooting measures are provided by Empion, the malfunction shall be considered as falling under priority level 4. 4.9 Within the applicable response times, Empion will commence rectifying the malfunction. Times outside of the service hours shall not be considered as response times. 4.10 Empion is not obligated to rectify the malfunction within the response times but must endeavor to rectify it within a reasonable time and inform the customer accordingly within a reasonable period. 4.11 No maintenance obligations exist with regard to third-party software. 5 Subcontractor Empion shall be entitled to use subcontractors for the fulfilment of the contract . 6 Usage Rights 6.1 Empion grants the customer a worldwide, non-exclusive, non-transferable right limited to the term of the contract to use the Service for its own purposes, through its own employees, in accordance with the contract and as intended. The right of use is limited to the use of the Service via cloud-based web browsers. 6.2 The customer must adhere to the agreed license scope. If the customer exceeds this scope, Empion is entitled to demand an additional reasonable fee. In addition, Empion reserves the right to assert claims for damages in this case. Any additional fees paid shall be credited towards the claims for damages asserted. 6.3 The customer acknowledges that Empion holds exclusive rights to the Service and all technologies contained therein, as well as the documentation provided. No provision of this agreement shall be construed as transferring any rights to the Service or parts thereof to the customer. All rights to the Service not expressly granted to the customer in this agreement remain reserved by Empion. 6.4 The customer may not use the Service for purposes other than those specified in the agreement and must protect the Service from unauthorized access by third parties. Without limiting the generality of the foregoing, the customer is specifically prohibited from (i) using the Service or parts thereof for purposes other than the specified and contractual use, (ii) offering or distributing the Service or parts thereof to third parties without prior written consent from Empion, including offering, selling, reselling, leasing, renting, lending, or otherwise transferring, sublicensing, or assigning rights thereto, (iii) disclosing or making the Service or parts thereof available to third parties or allowing any use by persons other than the customer's employees in any way, (iv) modifying, supplementing, altering, or adapting the Service, (v) reverse engineering, decompiling, translating, disassembling, or attempting to obtain the source code or parts thereof of the Service (unless permitted under 6.5); (vi) making copies of the Service or parts thereof, (vii) using the Service to develop a competing product or service, (viii) disabling, modifying, or circumventing any license management system or security mechanism provided with the Service, (ix) accessing or using the Service to provide data processing or batch processing services for others, or (x) removing, altering, or concealing ownership or copyright notices, trademarks, or other marks of Empion or third-party rights holders. 6.5 The customer's statutory rights under § 69d (2) and (3) and § 69e of the Copyright Act remain unaffected, with the proviso that (i) decompilation under §69e of the Copyright Act may only be carried out after prior written request to Empion, in which the customer requests the necessary information and Empion fails to provide the necessary information within two weeks, and (ii) the parties conclude a reasonable confidentiality agreement ensuring the protection of the Service and the source code from third-party access. 7 Customer content 7.1 Empion enables the customer to process their own data (hereinafter "Customer Content") as part of using the Service. The customer grants Empion a worldwide, non-exclusive, limited right for the duration of the contract to use the Customer Content within the scope of the Service to provide the contractual services. This includes, in particular, the right to reproduce the Customer Content and to make it publicly accessible within the Service for the users intended by the customer. Empion is entitled to transfer these rights to third parties, to the extent necessary for the provision of the Service, especially to host providers. 7.2 Through the Service, it is possible to create analyses of the general corporate culture of the customer and its employees ("Culture Analysis"). Unless expressly agreed otherwise, Empion may present the summarized results of the Culture Analysis on a public company profile of the customer. 7.3 The customer grants Empion the right to use the Customer Content and the Culture Analysis in accordance with section 11.4 of this section for analysis, calibration, and benchmarking purposes in order to continuously optimize the Service for all customers. 7.4 The customer grants Empion the right to include the customer's logo on Empion's website for advertising purposes and to create a public profile within the Service for the customer. 7.5 The customer must ensure that the Customer Content does not violate or infringe any legal provisions and/or rights of third parties, in particular the intellectual property rights of third parties, their personality rights, competition law or data protection regulations, as well as criminal provisions. If the customer breaches these obligations, Empion is entitled to demand that the customer no longer processes and deletes the infringing content with the Service. If necessary, Empion is entitled to delete the infringing Customer Content without prior notice. Furthermore, the customer shall indemnify Empion from any claims by third parties resulting from the breach, reimburse Empion for reasonable defense costs, and provide Empion with all necessary information, documents, and statements for the defense. 7.6 The customer is responsible for regularly backing up the Customer Content. Therefore, the customer must always keep at least one copy of the relevant data set and, separately, a current backup stored and usable on their own systems. This applies regardless of the fact that Empion carries out data backups as part of the operation of the Service. Empion is not responsible for damages that could have been avoided by the customer regularly backing up all relevant data. 8 Duration, termination of the contract 8.1 The duration of the contract for the provision of services is 12 months (hereinafter "Contract Term"). The Contract Term begins on the 1st day of the month following the month in which the contract was concluded. For clarification: If the contract is concluded within the month of March, the Contract Term begins on April 1st of the same year. If the contract contains divergent formulations, these supersede the termination and renewal clauses herein. 8.2 The contract may be terminated with a notice period of three months prior to the end of the Contract Term. If the contract is not terminated, it shall automatically renew for successive periods of 12 months (hereinafter "Renewal Period"). Within the Renewal Period, termination is possible with a notice period of 3 months to the end of the month. 8.3 The contract may be terminated by either party without notice for good cause (extraordinary termination). Good cause justifying extraordinary termination by Empion shall include, in particular: 8.3.1 The customer culpably breaches a material contractual obligation and fails to remedy this breach despite a warning from Empion, to the extent such a warning is required, or fails to restore the non-conforming condition within a reasonable period set by Empion for this purpose; 8.3.2 The financial circumstances of the customer have substantially deteriorated, so that the proper fulfillment of Empion's claims appears to be endangered; 8.3.3 The customer becomes insolvent or the initiation of insolvency proceedings, dissolution, liquidation, or conversion is imminent. 8.4 Termination declarations shall be in writing to be effective. 9 Compensation and Payment Terms 9.1 The customer shall pay Empion the agreed-upon compensation as specified in the contract, consisting of the ongoing usage fee and any additional accepted services. Additional services requested by the customer from Empion shall, unless otherwise agreed, be invoiced based on Empion's current price list at the time of service provision. 9.2 The contractually agreed-upon compensation, as specified in the contract, is determined, in addition to selected service packages and extras, based on the information provided by the customer to Empion (e.g., number of employees, number of hires, etc.). If it is determined during the setup of the service or during its use that the actual data of the company differs from the information provided by the company, Empion is entitled to adjust the price accordingly. Empion's claims for damages based on the demand for lost profit due to incorrect/false information provided by the customer shall remain unaffected by this provision. 9.3 All prices specified by Empion are exclusive of statutory value-added tax. 9.4 All payments shall be made using the chosen payment option. 9.5 If the SEPA direct debit option is chosen, Empion is obligated to inform the customer of the amount and debit date in advance. It is agreed that this obligation to provide advance information shall be shortened to one working day. 9.6 In order to respond to any price increases, Empion is entitled to increase the contractually agreed usage fee by a maximum of 10% once per contract year. Furthermore, Empion reserves the right to fundamentally adjust the existing pricing model in the future. However, fundamental changes to the pricing model shall only take effect with the customer's consent. 10 Data protection 10.1 Each party is responsible for compliance with applicable data protection regulations. 10.2 To the extent that the customer obtains personal data of applicants through the Service, Empion and the customer process these data jointly. The following provisions apply, which constitute an agreement on joint processing of personal data (Art. 26 GDPR): 10.2.1 The following categories of data are regularly subject to joint processing: first name, last name, address, email address, phone number, information from the resume (religious affiliation, marital status, number of children, children's names, children's birthdays, professional career and qualifications as well as their grades), salary expectations, photo (profile picture, passport photos on application documents). The categories of data subjects involved are: applicants (users of Empion's services). 10.2.2 The purpose of the processing is to properly execute the contract for the provision of the Service and to facilitate the placement of applicants with the customer as a potential employer. The legal basis is Art. 6(1)(b) GDPR for the purpose of contract initiation and performance. The nature and scope of data processing are determined by the service description of the services. 10.2.3 The respective processing steps subject to joint responsibility and the respective responsibilities are determined as follows: 10.2.4 Each party ensures compliance with legal regulations, particularly the legality of data processing conducted by them within the framework of joint responsibility. The parties take all necessary technical and organizational measures to ensure that the rights of the data subjects, particularly as outlined in Articles 12 to 22 of the GDPR, can be guaranteed at all times within the legal deadlines. 10.2.5 The parties agree to provide the data subjects with the information required under Articles 13 and 14 of the GDPR in a precise, transparent, understandable, and easily accessible form, in clear and simple language, free of charge. Each party is responsible for providing information within its scope of activity. 10.2.6 The parties undertake to comply with the obligation to provide information according to Article 15 of the GDPR. Data subjects may exercise their right to information with both parties. The parties commit to providing data subjects with the information to which they are entitled under Article 15 of the GDPR upon request. The parties will mutually provide the necessary information from their respective scopes of activity as needed. 10.2.7 If a data subject contacts one of the parties to exercise their data subject rights, particularly regarding information or correction and deletion of their personal data, the parties undertake to immediately forward this request to the other party, independently of the obligation to ensure data subject rights. The receiving party is obliged to promptly provide the requesting contracting party with the necessary information from its scope of activity to provide the information requested. 10.2.8 Prior to the deletion of personal data, the parties will inform each other. The other party may object to the deletion for legitimate reasons, such as if there is a legal retention obligation. The data will be deleted as soon as they are no longer necessary for the purpose of their collection and any legal retention obligations have expired. 10.2.9 Within their respective scopes of activity, the parties ensure that the necessary technical and organizational measures according to Articles 24, 25, and 32 of the GDPR are implemented and complied with. 10.2.10 Both parties are responsible for the reporting and notification obligations arising from Articles 33 and 34 of the GDPR to the supervisory authority and the data subjects affected by a breach of personal data protection within their respective scopes of activity. The parties will promptly inform each other of any reports of breaches of personal data protection to the supervisory authority and promptly provide each other with the information necessary to make the report. 10.2.11 Empion is authorized to use subcontractors for data processing within its scope of activity. In this case, Empion will ensure that an agreement in accordance with Article 28 of the GDPR has been concluded. Upon request, Empion will inform the customer about the subcontractors used. 10.3 Empion will use non-personal data or data from which personal references have been removed (anonymization) for analysis, calibration, and benchmarking purposes to continuously optimize the service for all customers. 11 Confidentiality 11.1 Within the scope of this agreement, it may be necessary for the parties to exchange confidential information of a technical or business nature, including software, know-how, strategies, or business plans, business reports, and business contacts, etc. (hereinafter "confidential information"). The parties may exchange confidential information orally, in writing, or electronically. The parties undertake to treat as strictly confidential and to equate with their own trade secrets all confidential information that becomes known to them in the course of cooperation. Confidential information disclosed by one party may only be used by the other party for contractual purposes. The parties are entitled to disclose confidential information to employees and subcontractors to the extent that they are subject to confidentiality obligations that are essentially equivalent to the obligations regulated in this agreement. 11.2 The confidentiality obligation does not apply to information for which it can be proven that: 11.2.1 The information was already publicly available or state of the art at the time of disclosure to third parties, or 11.2.2 The information was already known to the receiving party, or 11.2.3 Was independently developed by employees of the receiving party without access to the jointly used confidential information, 11.2.4 The information was lawfully acquired from third parties, 11.2.5 The disclosing party has waived its protection in writing, 11.2.6 The information was obtained through means other than through cooperation with the disclosing party without being subject to a confidentiality obligation, 11.2.7 The information was obtained by observing, examining, reverse engineering, or testing a product or object that was made publicly available. 11.3 Each party is entitled to disclose confidential information to another party on the order of a competent court or administrative or other government authority, provided that the receiving party immediately notifies the disclosing party in writing - and if possible before disclosure - of such an order. The confidential information is to be marked as "confidential" as far as possible before disclosure. 11.4 The parties ensure that all subcontractors, affiliated companies, managers, directors, employees, and temporary employees with whom they share confidential information are bound by confidentiality obligations in writing that are at least as strict as those mentioned in this section. To the extent permitted by applicable law, the parties ensure that the confidentiality obligations of their executives, directors, and employees continue to exist even if they are dismissed from their employment or duties during the term of this framework agreement. The receiving contracting party is liable to the disclosing contracting party for any breach by its executives, directors, and employees of the obligations under this agreement. The same applies to the executives, directors, and employees of subcontractors and affiliated companies that a party includes in this framework agreement. 11.5 Further data protection obligations remain unaffected. Likewise, Empion's right to reference remains unaffected. 11.6 This confidentiality obligation applies for the duration of this agreement and for an additional three years. Legal or contractual obligations to delete or return data earlier or to permanently keep data confidential remain unaffected. 12 Warranty 12.1 The warranty is governed by the following provisions and otherwise by the statutory warranty regulations, with the exception that Empion is not liable regardless of fault for damages that existed upon provision of the service (§ 536a para.1 BGB) and the customer's right to remedy defects is excluded (§ 536a para. 2 BGB). 12.2 Empion's warranty shall not apply to defects resulting from 12.2.1 The customer or its vicarious agents not using the service in accordance with the contract or otherwise improperly, 12.2.2 The customer not performing or not performing in a timely manner acts of cooperation, 12.2.3 The customer's system environment or hardware not being suitable for using the service. 12.3 In the event of a defect, the customer is entitled to remedy the defect twice before it can assert further rights. Empion must be given a reasonable period to remedy the defect on each occasion. A reasonable period shall be at least four weeks. 12.4 The customer is obliged to report defects in the service to Empion immediately in writing, in a manner that enables Empion to reproduce the defect. Empion is not responsible for any damage incurred by the customer because it reported a defect late or incompletely. 12.5 Empion is not responsible for third-party software. Empion is only responsible for the interoperability between the service and third-party software to the extent that the provision of an interface has been expressly agreed in writing and a defect affects the functionalities of this interface. 13 Liability of Empion 13.1 If Empion is liable for damages caused by slight negligence in accordance with statutory provisions, Empion's liability is limited: In this case, liability exists only in the event of a breach of material contractual obligations (these are obligations whose fulfillment enables the proper performance of the contract in the first place and on whose compliance the customer regularly relies and may rely; so-called cardinal obligations). This liability is also limited to the foreseeable typical damage at the time of conclusion of the contract. 13.2 Regardless of any fault on the part of Empion, liability for fraudulent concealment of a defect, assumption of a guarantee, or procurement risk, as well as under the Product Liability Act, remains unaffected. 13.3 Insofar as Empion's liability for damages is excluded or limited in accordance with the foregoing provisions, this also applies to the personal liability of its organs, employees, and other staff, representatives, and vicarious agents and also applies to statutory liability for tort. 13.4 The limitations of liability in this clause do not apply in cases of intent and the violation of life, body, or health. 14 Reference Unless otherwise agreed, Empion is entitled to publicly name the customer as a reference customer, in particular to name the customer on websites or in other publications by name and to depict protected signs of the customer (e.g., brand logo) in this context. 15 Changes to the T&Cs Empion is entitled to amend these terms and conditions at its reasonable discretion (§ 315 BGB), provided that the amendments do not affect the main contractual obligations of Empion or the customer and are reasonable for the customer. Empion will inform the customer in writing of any changes. The notice may be included in the invoice. If the customer does not object to the changes in writing within six weeks, the terms and conditions will become part of the contract in the new version. Empion will inform about the right to object in the notification of the changes. If the customer partially or completely objects to the changes, Empion has the right to terminate the contract within one month after receipt of the objection with a notice period of three months to the end of the month. 16 Final provisions 16.1 Exclusive place of jurisdiction for all disputes arising out of or in connection with the contract and the use of the service is Berlin, Federal Republic of Germany. 16.2 These terms and conditions and the contractual relationship between Empion and the customer are governed exclusively by the law of the Federal Republic of Germany, excluding international uniform law, in particular the UN Sales Convention, and excluding international private law. 16.3 If any provision in these terms and conditions is or becomes wholly or partially invalid, ineffective, or unenforceable, or if any provision that is necessary is not included, the validity and enforceability of all other provisions of these terms and conditions will not be affected. In place of the invalid, ineffective, or unenforceable provision or to fill the gap in the regulation, a legally permissible provision shall apply that comes as close as possible to what the parties intended or would have agreed according to the meaning and purpose of these terms and conditions if they had recognized the invalidity or the gap in the regulation. It is the express intention of the parties that this severability clause does not result in a mere reversal of the burden of proof, but that § 139 BGB as a whole is waived. In the event of contradictions between the contract and these terms and conditions, the provisions of the contract shall prevail.