GENERAL TERMS AND CONDITIONS OF CLEVERMATCH GMBH
The following General Terms and Conditions of CleverMatch GmbH (hereinafter referred to as “CleverMatch”) shall apply exclusively to the use of the recruiting platform operated by CleverMatch GmbH and the services offered, unless otherwise agreed in writing in individual cases. These apply only to entrepreneurs in the sense of § 14 BGB (hereinafter referred to as “Client”). The Terms and Conditions shall also apply to future similar transactions with the Client, even if an express reference is then no longer made. CleverMatch objects to any terms and conditions of the Principal that deviate from the following terms and conditions. Deviating terms and conditions shall not apply.
Platform, registration, functions
1.1 CleverMatch operates the Recruiting Platform (hereinafter referred to as the “Platform”) which can be accessed on the Internet at the URL www.clevermatch.com. The aim of the Platform is to map the entire recruiting process for Employers and HR service providers, in particular the design and publication of the job advertisement, communication with Users, interviews and evaluation. The features of the platform result from the functions that can be used on the platform at the time the contract is concluded.
1.2 In order to gain access to the Platform, the Client must properly register with CleverMatch. For this purpose, he must truthfully and completely submit the information requested by CleverMatch. CleverMatch reserves the right to demand a written submission of the information and evidence of its correctness. After successful registration the client receives the access data to the platform. The access to the platform is highly personal and the client is allowed to use it exclusively for his own use. Access to the platform and the user profiles that can be viewed there may not be passed on to third parties. CleverMatch reserves the right to block the Client’s access to the Platform in the event of a mere suspicion of a violation of the above provision.
1.3 The client can use the platform to obtain various services for recruiting, such as online assessments, video interviews, recruiting services, etc. The details of these services are described on the platform in the course of the booking process. The details of these services are described on the platform in the course of the booking process. The starting point for the use of the platform is the creation of one or more specific job postings for the search for candidates in the context of which, among other things, the following services can be provided:
1.3.1 Part of the Platform is a database with profiles and CVs of candidates who are open for new positions (“Users”). The Client may search the Platform for suitable candidates listed in the CleverMatch User Pool. For this purpose, the Client can make certain filter settings. The display of Users who match the settings of the Client is anonymized. If the client wishes to contact the user, CleverMatch will contact the user via the platform. If the User agrees to contact CleverMatch, CleverMatch will activate the User profile for the Principal.
With regard to the user database, the following is clarified: The services within the scope of the database are not performed as commissioned processing. CleverMatch merely provides the contents stored by the User and remains the data controller. As far as the client uses this data, he becomes, if necessary, a further responsible person in the sense of data protection law. The information provided by CleverMatch on the professional skills and knowledge of the User is not based on its own investigations, but on information provided by the User and information from third parties. CleverMatch therefore does not guarantee the accuracy and completeness of the information provided. As far as CleverMatch processes customer-specific data of Users, this is done within the scope of a commissioned data processing, which the parties hereby agree upon. In addition to this Agreement, the provisions of the Commissioned Data Processing Agreement as set forth in the Annex to these Terms and Conditions shall then apply. Which processing processes fall within the scope of the commissioned processing shall be determined by the order specifically issued to CleverMatch by the Customer.
1.3.2 The Client may post the job profiles it has designed on the platform. In addition, the Client may book various products that may possibly increase the degree of dissemination of the job advertisement. These include certain services possibly optimizing the findability in search engines or the placement of the job advertisements on third-party portals.
1.3.3 Via the platform, the client can use various tools for interviewing and assessing users. These include questionnaires, chats, video interviews, etc. The platform allows the client to use already prefabricated content as well as to post their own content for the assessment of the user.
1.3.4 Finally, users can be referred via the platform.
1.4 Contracts for the services provided on the platform of CleverMatch shall only be concluded upon confirmation by CleverMatch. Any orders placed by the Customer on the Platform are merely offers to CleverMatch. The acceptance of payments by the Customer does not constitute an acceptance.
1.5 CleverMatch receives as consideration for the respective services provided to the Client the remuneration that was accepted by the Client when booking the service.
2. Obligations of the client
2.1 When using the platform, the Customer shall observe applicable law, in particular all applicable provisions of data protection law and the AGG. In particular, it shall respect the rights of third parties and all provisions of this Agreement. The Principal shall indemnify CleverMatch against all claims of third parties and costs incurred by CleverMatch based on a violation of this provision.
2.2 The Client undertakes in particular not to process personal data of Users, in particular not to pass it on, unless this is necessary for filling a vacancy, and to treat it confidentially. CleverMatch assumes, subject to the express consent of the User, that storage is necessary for a maximum of six months, also taking into account possible defense against AGG claims, so that the Customer undertakes to delete any data of the User stored by itself and received by CleverMatch at the latest after expiry of this period. CleverMatch will automatically block the Client’s access to a User’s data no later than six months after the job profile has been closed.
2.3 The Client undertakes to carry out proper position maintenance in the created project. If a position is successfully filled or otherwise terminated, the project shall be closed on the platform within two months. CleverMatch shall provide access to the User Data for a period of six months after closure of the project.
2.4 The Client guarantees that the content posted by it on the platform does not violate the rights of third parties and is lawful in every respect. The Client indemnifies CleverMatch against all damages and claims of third parties based on a violation of the aforementioned obligation.
3.1 The Client undertakes to pay the prices listed in the course of the booking plus any applicable VAT as consideration for the services booked by it on the Platform. CleverMatch provides various payment options for this purpose.
3.2 The remuneration is due for payment upon booking, unless otherwise stated on the platform.
3.3 The Customer agrees to the transmission of invoices by e-mail. CleverMatch shall send invoices electronically to the e-mail address provided by the Customer. The Customer waives the right to send the invoice by post. The Customer shall ensure that all electronic deliveries of the invoice by e-mail can be duly delivered by CleverMatch to the e-mail address provided by the Customer and shall adapt technical facilities such as filter programs or firewalls accordingly. The Principal has to inform CleverMatch immediately in writing and legally valid about a change of the e-mail address to which the invoice shall be delivered. Invoices sent to the e-mail address last notified by the Principal shall be deemed to have been received by the Principal, if the Principal has not notified CleverMatch of a change of its e-mail address.
4. Running time
4.2 The right to terminate for cause shall remain unaffected.
4.3 In the event of a breach of these Terms and Conditions by the Client and/or in the event of an extraordinary termination for cause by CleverMatch, CleverMatch may close all of the Client’s Projects still open at the time of termination.
5.1 CleverMatch guarantees an implementation of services to be provided via the Internet that complies with the usual technical standards.
5.2 Any warranty claims of the Customer shall become statute-barred after one year, calculated from the date on which the Customer had knowledge of the defect or should have had knowledge without gross negligence.
6.1 CleverMatch shall be liable for damages regardless of the legal reason – in case of intent and gross negligence as well as for damages resulting from injury to life, body or health, if CleverMatch has fraudulently concealed a defect or warranted its absence as well as for claims under the Product Liability Act. Apart from that, CleverMatch is liable in case of simple negligence only for damages resulting from the breach of an essential contractual obligation (obligation, the fulfillment of which enables the proper execution of the contract in the first place and on the compliance with which the contractual partner regularly relies and may rely); in this case, however, the liability is limited to the compensation of the foreseeable, typically occurring damage.
6.2 Due to a breach of duty that does not consist of a defect, the Customer may only rescind or terminate the contract if CleverMatch is responsible for the breach of duty.
6.3 If claims (“Property Right Claim”) are asserted against the Customer by third parties due to the infringement of patents, copyrights, trademarks, business designations or trade secrets by a performance of CleverMatch (“Property Right Infringement”), CleverMatch shall indemnify the Customer against all costs (including reasonable legal defense costs) and claims incurred by it due to final judgments of competent courts or written settlements concluded by CleverMatch, provided, that (i) Client did not cause the infringement, for example in the case of publication of unauthorized content, (ii) Client notifies CleverMatch in writing within no more than five days after the first claim is filed, (iii) CleverMatch retains sole control over the defense of the intellectual property claim, and (ivii) Client provides reasonable assistance and all information to enable CleverMatch to perform its obligations hereunder. The foregoing obligation shall not apply to any action or statement to which CleverMatch has not given its prior written consent and shall not apply to the extent that Principal continues infringing activities after it has been notified of changes that would have prevented infringement. If an infringement of Intellectual Property Rights is determined by a court of competent jurisdiction or deemed possible by CleverMatch, CleverMatch may, at its sole discretion and at its own expense, either (i) replace or modify the Services in such a way that there is no longer an infringement of Intellectual Property Rights, or (ii) procure for Client a right to use the Intellectual Property Rights, or (iii) if measures under (i) or (ii) are not possible or not reasonable, terminate this Agreement extraordinarily with immediate effect.
7.1 CleverMatch undertakes to keep secret all information marked as “confidential” which CleverMatch receives from the Client under this Agreement. This obligation shall be fulfilled by CleverMatch even after the expiry of the term of the Contract.
7.2 It is incumbent upon the Customer to exercise the greatest possible care in the use of IDs, passwords, user names or other security devices provided in connection with the Services and to take any measure that ensures the confidential, secure handling of the data and prevents their disclosure to third parties. The Ordering Party shall be held responsible for the use of its passwords or user names by third parties if it cannot sustainably demonstrate that the access to such data was not caused by itself and that the reasons for this could not be influenced by it. The Principal is obliged to inform CleverMatch immediately about any possible or already known unauthorized use of his access data. In case of violation of one or more of the obligations mentioned in these GTC on the part of the Principal, in particular but not exclusively those listed under this point, CleverMatch is entitled to terminate the Services without further notice and to remove them from the Website, without waiving any payment obligations of the Principal.
8. Final provisions, set-off, place of jurisdiction
8.1 Verbal collateral agreements do not exist at the time of the conclusion of the contract. Deviations from these Terms and Conditions require written confirmation by CleverMatch to be effective. This also applies to the waiver of the written form requirement.
8.2 Should individual provisions of this contract be invalid, the remainder of the contract shall nevertheless remain valid. The parties undertake to replace the invalid provision with a valid provision that comes as close as possible to the invalid provision in economic and legal terms.
8.3 The Customer may only assert a set-off or a right of retention against claims of CleverMatch if the claims are undisputed or legally established claims.
8.4 The contracting parties undertake to treat as confidential and keep secret from third parties any trade and business secrets of which they become aware during the cooperation, in particular the contents and conditions of the contract, as well as business matters marked as confidential, and the data of users. The Client undertakes not to disclose personal data, either generally or to a third party, in writing or verbally.
8.5 The place of jurisdiction for all disputes arising from or in connection with this contractual relationship shall be Frankfurt am Main.
Agreement on the processing of personal data by a processor pursuant to Article 28(3) of the General Data Protection Regulation (GDPR)
This Contractual Processing Agreement (hereinafter: “GCU”) sets out in more detail the obligations of the Parties with regard to data protection in the case of contract processing, as described in more detail in the contract to which this Annex is attached (hereinafter: “the Contract”). The GCU shall apply to all activities related to the Contract and within the scope of which the Contractor as well as employees or other agents of the Contractor process personal data (hereinafter: “Data”) of the Customer as a processor.
1. subject matter and duration of the contract as well as type, scope and purpose of the data processing
1.1 The subject matter of the processing results from the contract.
1.2 In particular, data shall be processed which is related to an application of a User for a position with the Principal and which is collected individually for the Principal and is not processed under the Contractor’s own responsibility. The contract shall determine which data this is in concrete terms.
1.3 The term of the GCU shall be based on the term of the Agreement, unless otherwise stipulated in this GCU. The commissioned processing shall enter into force together with the Agreement. If the Agreement has already entered into force, the commissioned processing shall enter into force on the date of its conclusion.
2. Scope of Application and Responsibility
2.1 The Contractor shall process personal data on behalf of the Client. This includes activities which are specified in the contract and in the service description. Within the scope of this contract, the Customer shall be solely responsible for compliance with the statutory provisions of the data protection laws, in particular for the lawfulness of the transfer of data to the Contractor as well as for the lawfulness of the data processing. It is the “responsible party” within the meaning of Article 4 No. 7 DS-GVO).
2.2 The instructions shall initially be stipulated by the contract and may thereafter be amended, supplemented or replaced by the Principal in writing or in an electronic format (text form, e.g. via e-mail) to the body designated by the Contractor by means of individual instructions (individual instructions). Instructions not provided for in the contract shall be treated as a request for a change in performance. Verbal instructions shall be confirmed immediately in writing or in text form.
3. Obligations of the contractor
3.1 The Contractor may only process data of data subjects within the scope of the order and the instructions of the Customer unless an exceptional case exists within the meaning of Article 28 (3) a) of the GDPR. The Contractor shall inform the Client without undue delay if it is of the opinion that an instruction violates applicable laws. The Contractor may suspend the implementation of the instruction until it has been confirmed or amended by the Client.
3.2 The Contractor shall organize the internal organization within its area of responsibility in such a way that it meets the special requirements of data protection. It shall take technical and organizational measures for the adequate protection of the Customer’s data that meet the requirements of the GDPR, in particular Article 32 GDPR. The Contractor shall take technical and organizational measures to ensure the confidentiality, integrity, availability and resilience of the systems and services in connection with the processing on a permanent basis. The Customer is aware of the Contractor’s technical and organizational measures at the time of conclusion of the contract. Upon request, the Customer shall receive a copy of the list of measures. It is the responsibility of the Customer to ensure that the measures taken guarantee a level of protection appropriate to the risk to the rights and freedoms of natural persons. The Contractor shall be entitled to change the measures provided for as long as the level of protection agreed upon in this GCU is not undercut
3.3 The Contractor shall support the Customer to a reasonable extent and within the scope of its possibilities in fulfilling the requests and claims of data subjects pursuant to Chapter III of the GDPR and in complying with the obligations set forth in Articles 33 to 36 of the GDPR.
3.4 The Contractor warrants that the employees involved in the processing of the Client’s data and other persons working for the Contractor are prohibited from processing the data outside the scope of the instruction. Furthermore, the Contractor warrants that the persons authorized to process the personal data have committed themselves to confidentiality or are subject to an appropriate statutory duty of confidentiality. The confidentiality/confidentiality obligation shall continue to exist even after termination of the order.
3.5 The Contractor shall inform the Client without delay if it becomes aware of any violations of the Client’s personal data protection. The Contractor shall take the necessary measures to secure the data and to mitigate possible adverse consequences for the persons concerned and shall consult with the Client on this without delay.
3.6 The Contractor shall inform the Customer of the contact person for data protection issues arising within the scope of the contract. The Contractor’s data protection officer is Mr. Thorsten Feldmann, JBB Data Consult GmbH, Friedrichstraße 95, 10117 Berlin, telephone: 030 2096 2282, e-mail: [email protected]
3.7 The Contractor warrants that it will comply with its obligations under Article 32 (1) (d) of the GDPR to implement a procedure for the regular review of the effectiveness of the technical and organizational measures to ensure the security of the Processing.
3.8 The Contractor shall correct or delete the contractual data if the Client instructs it to do so and this is covered by the scope of instructions. If a deletion in compliance with data protection or a corresponding restriction of the data processing is not possible, the Contractor shall undertake the destruction of data carriers and other materials in compliance with data protection on the basis of an individual order by the Customer or shall return these data carriers to the Customer, unless otherwise agreed in the contract. In special cases to be determined by the Client, storage or handover shall take place. The remuneration
associated therewith and the protective measures to be fulfilled shall be part of an independent agreement, if applicable, unless they are already regulated in the contract.
3.9 Data, data carriers and all other materials shall be either surrendered or deleted at the request of the Client after the end of the order. In the case of test and reject materials, an individual order is not required. The Customer shall bear the costs of any surrender or deletion deviating from this provision.
3.10. In the event of a claim against the Customer by a data subject with regard to any claims pursuant to Art. 82 of the GDPR, the Contractor undertakes to support the Customer in defending the claim within the scope of its possibilities and against reasonable compensation.
4 Obligations of the Customer
4.1 The Customer shall inform the Contractor immediately and in full if it discovers errors or irregularities in the results of the order with regard to data protection provisions.
4.2 In the event of a claim against the Client by a data subject with regard to any claims pursuant to Art. 82 of the GDPR, Section 3.10 shall apply accordingly.
4.3 The Customer shall inform the Contractor of the contact person for data protection issues arising within the scope of the contract. 5.
5. Inquiries from data subjects
If a data subject approaches the Contractor with requests for correction deletion or information, the Contractor shall refer the data subject to the Client, provided that an assignment to the Client is possible according to the data subject’s information. The Contractor shall forward the request of the data subject to the Client without delay. The Contractor shall support the Client within the scope of its possibilities to respond to the request. The Contractor shall not be liable if the Client fails to respond or if a response is not provided in a manner that complies with data protection law or within the required time frame.
6. Means of proof
6.1 The Contractor shall provide the Customer with evidence of compliance with the obligations set forth in this GCU by suitable means.
6.2 If, in individual cases, inspections by the Purchaser or an inspector appointed by the Purchaser are necessary, they shall be carried out during normal business hours without disrupting operations after notification and taking into account a reasonable lead time. The Contractor may determine that such audits or inspections require, in addition to prior notice and reasonable lead time, the conclusion of a confidentiality agreement with respect to the processed personal data and technical and organizational measures. The Contractor shall have the right to reject such inspectors and auditors who are in competition with it.
If the Contractor decides to engage a competent, independent external inspector or auditor, the Contractor agrees to this engagement on the condition that it receives a copy of the report.
The Contractor shall be entitled to claim remuneration for its assistance to the extent agreed in the Contract. Unless otherwise agreed, the time spent shall not exceed one day per calendar year.
6.3 Should a data protection supervisory authority or any other sovereign supervisory authority of the Customer carry out an inspection, Section 6.2 shall apply accordingly. It shall not be necessary to sign a confidentiality agreement if this supervisory authority is subject to a professional or statutory confidentiality obligation for which a violation is punishable under the German Criminal Code.
7. Subcontractors (other contractors)
7.1 The Principal agrees to the use of subcontractors. The Contractor shall inform the Customer in advance about the use or replacement of subcontractors.
7.2 The Contractor shall enter into contractual agreements with these third parties to the extent necessary to ensure appropriate data protection and information security measures in accordance with Article 28(4) of the GDPR. If the Contractor places orders with subcontractors, it shall be the Contractor’s responsibility to assign its data protection obligations under this Agreement to the subcontractor.
8. Information obligations, written form clause, choice of law
8.1 Should the data of the Customer at the Contractor be endangered by seizure or attachment, by insolvency or composition proceedings or by other events or measures of third parties, the Contractor shall immediately inform the Customer thereof. The Contractor shall immediately inform all persons responsible in this context that the sovereignty and ownership of the data lies exclusively with the Client as the person responsible within the meaning of the General Data Protection Regulation.
8.2 Amendments and supplements to these GTC and all of its components – including any warranties of the Contractor – shall require a written agreement, which may also be in an electronic format (text form), and the express indication that it is an amendment or supplement to these Terms and Conditions. This shall also apply to any waiver of this formal requirement.
8.3 In the event of any contradictions, the provisions of this Annex on data protection shall take precedence over the provisions of the Agreement. Should individual parts of this Annex be invalid, this shall not affect the validity of the rest of the Annex.
8.4 German law shall apply.
9. Liability and compensation
The liability provisions of the contract shall apply unless otherwise expressly agreed.