Talentese Terms of Service

 

Last Updated on: 15.06.2021

 

Welcome to Talentese GmbH, the online culture assessment hiring software solution for companies that truly want to understand their internal company culture and then hire Talents who truly fit with this culture.

 

These Terms of Service will inform you on:

• • • The Website’s rendered services
    • Basic Usage Guidelines and expected User Conduct of both Talents and Recruiters
    • Reserved Rights in cases of beaches to these Terms of Service 

Talentese, an online recruitment platform provided via www.talentese.com (hereinafter referred to as “Website”, “Service”, “We”, “Us”, “Our”, where appropriate) is owned and operated by Talentese GmbH, based in Berlin, Germany, having its principal place of business at Kurfürstendamm, 179, 10707, Berlin, Germany, register number HRB 189031 .  You can find our full contact details in the “Contact” section of our Website. 

We reserve the right to change the content of these Terms of Service from time to time. Our service acts as a facilitator, and all commercial or contractual terms made between users on our service shall not be materially affected by these changes. 

By using Talentese, you hereby agree that you will maintain any and all eligibility criteria when using our rendered Services, in both capacities: as a Talent and a Company. Please get acquainted with all rights and obligations arising from this document prior to using the Service. 

These Terms of Service will be divided into two Chapters: one for Talents; and another for Companies. Please follow the expected user conduct on whichever Terms may be applicable to you. 

 

Definitions contained in the Terms of Service (unless indicated otherwise) include the following: 

i. “Terms of Service”, or “Agreement” for the purposes of Chapter I of these Terms of Service refers to the terms and conditions applicable to Talents and Talent Profiles using the Talentese Service. For the purposes of Chapter II of these Terms of Service refers to the terms and conditions applicable to Companies and Company Profiles using the Talentese Service. 

ii. “Service” for the purposes of these Terms of Service refers to Talentese, an incorporated company under applicable German Law. The Details of Talentese are exhibited in the beginning of our Terms of Service. 

iii. “Talent”, “You” or “Your” (where appropriate) for the purposes of Chapter I of these Terms of Service refers to a specific User having access to a Talent Account, contingent on the criteria as set forth in Chapter I of these Terms of Service. 

iv. “Company”, “You” or “Your” (where appropriate) for the purposes of Chapter II of these Terms of Service refers to a specific service User, having access to a Company Account, contingent on the criteria as set forth in Chapter II of these Terms of Service. 

v. “Specific Agreement”, “SA”, “Agreement” (where appropriate) mean a set of Terms that may further govern the relationship between the Company and Talentese. Provided that this agreement has not been entered into, these Terms of Service will govern the relationship between Company and Talentese exclusively. 

vi. “Recruitment” for the purposes of these Terms of Service, means any form of employment (whether permanent or temporary, under an independent contractor agreement, service agreement, retainer or other type of assignment of tasks for which compensation is due to the Talent against a conducted scope of work (under any applicable law whatsoever) by the Company or an undertaking, which is affiliated with the Company (in the sense of Sec. 15ff of the German Stock Company Act). 

vii. Operations with Recruitment, for the purposes of these Terms of Service may mean “Termination of Recruitment”, “Extension of Recruitment”, “Modification of Recruitment” or “Renewal of Recruitment” and are defined in section 25 of these terms of Service. 

viii. “Gross Annual Salary” for the Purposes of these Terms of Service means the Salary, inclusive of any additions or bonuses provided by the Company to the Talent. 

ix. “Hiring Fee” means a fee agreed to by the Company with Talentese, in regards to certain payment obligations from using Talentese. 

 

I. TALENTS  

1. SCOPE

i. Our Website renders all services in connection to these Terms of Service. Within its operational possibility, Talentese allows for the participation of Talents in the Service. 

ii. The Section I in these Terms of Service referring to Talents shall solely govern the relationship between Talentese and the Talents. Talentese dismisses and objects to any attached terms provided by the Talents, and shall accept them only with previous written consent. 

iii. While rendering the services, Talentese may use third party websites, services or platforms (hereinafter referred to as: “Third Party Services”) for the purposes of improving user experience. These Third Party Services are not provided by Talentese. We do not assume responsibility for any Third Party Services, as they may potentially be subject to their providers’ own Terms and Conditions. Any issues in connection to Third Party Services are not affected by these Terms of Service governing the relationship between Talentese and you as a Talent Account using our services. 

iv. For the duration of the Term of our Agreement with you, you are expected to abide by the Eligibility Criteria, as exhibited below. For the purposes of rendering our services to you, rules of user conduct are expected to be followed. Certain breaches to these rules may constitute a material breach of this Agreement. 

v. Our recruitment functions may not be available in cases in which you do not agree to the terms and conditions that are applicable to you. This Agreement regulates your rights and obligations arising out of your usage of the Talentese Service. In cases of objections to current Terms of Service, a previous version shall be applicable until Termination of your Agreement with us. 

vi. These Terms of Service contain a binding Jurisdiction and Governing Law Clause. 

 

2. ELIGIBILITY CRITERIA

i. Talentese shall render services pursuant to these Terms of Service only to Talents that fulfil the Recruitment criteria as exhibited in Section 6 of these Terms of Service. 

ii. The Talent hereby agrees and warrants that she/he is of legal age and full legal capacity to enter into this Agreement. 

iii. The Talent hereby further agrees and warrants that she/he shall notify the Service of any changes or (temporary or permanent) loss of legal capacity to enter into this Agreement, without undue delay. 

 

3. ENROLLMENT OF TALENTS

i. Enrollment with Talentese is subject to acceptance of these Terms of Service and establishing a Talent Account with Talentese. 

ii. Enrollment is contingent on the sign up process for a Talent Account. The sign-up process will require certain personal information about the prospective Talent. In order to sign up, information must be filled in a manner that does not exclude any relevant information. The information provided must be correct and up-to-date. Your submission of information constitutes a binding offer to enter into an Agreement with Talentese for the purposes of rendering our Services to you. 

iii. Acceptance of the Talent to the Service shall constitute our obligation to provide to the Talent access to the Talent Account and its specific functionalities enabled on our Website. 

iv. We reserve the right, but not the obligation to verify the accuracy of the information maintained in your Talent Profile. We may, in sole discretion, contact you with a request for further information regarding your Application, without exclusion to proof of residence, personal identification or other valid documentation. The further use of the Talent Account may be contingent on providing and verification of these documents by Us, at our sole discretion. 

v. Your Talent Account may be available to users having access to Talentese via the world wide web. Talent hereby agrees that changes to the scope of displaying of your provided data (without limitation to: compulsory or non-compulsory data available on your Talent Account or any data pursuant to Section 9.viii of these Terms of Service that you have authorized use of) on the Website may be subject to change from time to time, and that this data shall be available on the Service for the Company Profiles. Section 9.viii shall apply to these changes. 

vi. The creation of the Talent Profile does not constitute consideration or a promise of employment or recruitment of any applicant, until our Agreement specifying certain obligations of Talents in regards to enrollment is presented. 

 

4. USER CONDUCT

i. When using and handling the Talent Account, you agree to abide by the general User Conduct as defined in this Section. Please note that this is not the definitive list of expected User Conduct, as certain obligations may be further listed in these Terms of Service or the Agreement specifying certain obligations of Talents in regards to enrollment. 

ii. As a user of a Talent Account, you shall abstain from:

1. Copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”;

2. Using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Talentese servers than a human can reasonably produce in the same period of time by using a conventional web browser (except that Talentese grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from our websites for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials);

3. Transmitting spam, chain letters, or other unsolicited email;

4. Attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service;

5. Taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure;

6. Uploading invalid data, viruses, worms, or other software agents through the Service;

7. Collecting or harvesting any personally identifiable information, including account names, from the Service;

8. Using the Service for any commercial solicitation purposes;

9. Impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity;

10. Interfering with the proper working of the Service;

11. Accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or

12. Bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein;

13. Contacting or trying to contact a prospective employer directly without the knowledge or reasonable notice to Talentese. 

 

5. USE OF SERVICES

i. We render our services in order to connect Talents and Companies. We conduct this process in the following manner: we acquire, Talents based on the enrollment process and eligibility criteria as described in Section 2 and 3 of this Agreement. The Companies are provided with a separate Company Profile. Talents are suggested to individual Company Profiles based on an automated algorithm on our Website, namely by matching the Talent’s field of work, salary expectations, or other factors indicative under our algorithm. 

ii. Generally, we do not provide non-automated suggestions of Talents when they are displayed on our Website. The Companies may choose to connect to a specific Talent, and connect via the user-specific section available to the Companies. If the Company wishes to retain the Talent in question, the Company shall be connected to the specified Talent. Provided that the Company and Talent follow through making mutual contact (made by the Company towards you as a prospective employee), the two parties will be considered as “Connected”. 

iii. We may, from time to time, based on our available data, or request of the Company, suggest a specific Talent to a Company or vice versa. 

iv. Once “Connected”, the Talent and Company shall, for the Purposes of specific obligations arising for the specific Company shall be considered “Connected” for the duration of 12 consecutive months. The Talent and Company are also considered “Connected” in cases in which they have contacted each other on the service by any of the aforementioned means. 

v. We do not, under any circumstance, assume a warranty, or guarantee or undertake in another way that the Talent shall find appropriate or expected work positions on Talentese. 

 

6. SPECIFIC OBLIGATIONS

i. The Talent shall submit and maintain up to date any information provided in the Talent Account. Provided that any of the information has materially changed, the Talent shall, without undue delay, correct and keep up to date any of the compulsory information of her/his respective Talent Account. The Talent shall, at all times, keep the Service up to date on fulfillment of the Eligibility Criteria. In case of loss of capacity to enter or perform the obligations under these Terms of Service, the Talent shall inform us without undue delay. The Talent Account will be suspended for the duration of the material lack of the required Eligibility Criteria. 

ii. The compulsory Information required maintaining the Talent Account may change from time to time. We will not share or transmit any of the information unless such a transmission has been approved by all concerned parties. We may require certain further information from the Talent within our rights under applicable law and these Terms of Service. 

iii. The Talent shall keep its reference e-mail address updated at all times, in order to be able to receive any communication from Talentese in relation to her/his performance of obligations under these Terms of Service. The Talent shall avoid any nuisances in appropriate receipt of e-mail communication, without limitation to the configuration of the Talent’s “spam” filter. In cases in which the Talent has opted out of commercial communication, communication in regards to performance of obligations under this Section shall be exempt from this opt out. 

iv. The Talent is obliged to, without undue delay; communicate to the Service any new contact made from an interested Company outside of the Talentese platform. 

v. The Talent is obliged to keep and maintain any access data in order to be able to access her/his Talent Account. This access data is for single use only and shall be kept by the Talent in strict confidence. If the Talent believes that her/his access data has been compromised, she/he shall contact the Service without undue delay. A process of account recovery may require further information from the individual required to recover the Talent Account. Recovery in cases in which further information on the Service’s behalf is required is contingent on the provision of such information. In cases in which Talentese believes that the security and/or integrity of the Talent Account has been compromised, Talentese may take any necessary security and organizational measures deemed necessary to mitigate any damage to the Talent Account or the Talent’s personal information. Such shall be notified to the Talent within 72 days of the reasonable suspicion of such breach. In cases of breaches that have been conducted and deleted, the Talent cannot claim to have her/his initial access data restored. 

vi. In cases of breaches of the Talent Account by a third party by fault of the Talent, the Talent shall be solely liable for any and all actions conducted on the Talent Account, and damages incurred thereof. In cases in which the Talent has been at fault for compromising the Talent Account, such access shall be considered, for all intents and purposes, an access to the Talent Account by the Talent. 

vii. Talentese is a provider and facilitator between two parties with prospects of them engaging in mutual business together in any form as deemed fit between the parties. The Talent shall, however, be bound by these Terms of Service at all times, provided that an active “Connection” has been made and sustained between the Parties throughout the rendered services of Talentese. Any obstruction or misinformation regarding the cooperation between the Parties by fault of the Talent shall be considered a material breach of these Terms of Service. 

viii. Talentese, as a provider and facilitator between two Parties with prospects of them engaging in mutual business together, is not responsible for providing and/or assisting with obtainment of any work or other permits applicable for the scope of services offered by the Talent on the Service. Talentese does not deduct any taxation obligations on behalf of the Talent. Talentese does not provide or assist any permits or other relevant documentation that may be necessary in order for a specific Talent to be employed by the Company. 

 

7. RECRUITMENTS

i. The Use of Talentese for Talents is free of charges. 

ii. In cases of any hiring, recruitment or employment by a prospective Company has occurred, the Talent shall, without undue delay, inform the Service, in writing. The Service may contact the Talent to request status updates about ongoing negotiations between the contractual Parties. The Talent shall disclose any requested information on the state of negotiations in reduced forms not breaching any confidentiality promises between the Parties. For the purposes of the Terms of Service, a “Recruitment” may mean any form of employment (whether permanent or temporary, under an independent contractor agreement, service agreement, retainer or other type of assignment of tasks for which compensation is due to the Talent for a conducted scope of work, under any applicable law) by the Company or an undertaking, which is affiliated with the Company (in the sense of Sec. 15ff of the German Stock Company Act). 

iii. The Talent hereby agrees that all contract details may be freely shared by the employer with Talentese, and releases the employer from any obligation of confidentiality regarding the relevant contract details. 

iv. The Talent shall present an executed agreement to the Service in cases when a material proof of conclusion of the agreement is required by the Service. 

 

8. PAYMENT RIGHTS AND OBLIGATIONS

i. Payment of Talents shall be subject to the contingencies as entered into with the employing Company. Talentese does not stipulate any express or implied terms in the contractual freedom of the two parties. 

ii. Talents shall maintain any and all payment obligations to appropriate state authorities in regards to any taxation, permit, medical or dental insurance obligations. Talentese does not provide any taxation, medical, dental or social insurance benefits to the Talents. 

iii. Talents may be required to provide proof of conclusion of the Agreement in cases of a new Recruitment, upon prior notice by Talentese. Failure to provide such proof shall be considered a material breach of this Agreement’s provisions. 

 

9. SERVICE AVAILABILITY. UPDATES. THIRD PARTIES

i. Talentese may be updated from time to time, in order to achieve a better user experience. Talentese grants the Talent right to access to the Service in its available form or versions. Changes and advancements in our used technology for providing our services may cause change to your personal system or compatibility requirements. 

ii. Talentese reserves the right to include and/or remove certain services from the Website or change them. The Talent hereby understands and accepts these changes made to the Website or scope of rendered services. 

iii. Excluded from warranty are such errors that occur through external influences, such as (without limitation) operating errors by the Talent, Vis Major or any external modifications not carried out by Talentese. 

iv. Talentese undertakes to assure an availability of the service of over 95% (ninety-five percent) as a yearly average. Periods in which the Service shall be unable to operate because of technical or other problems outside Talentese reasonable scope of control (such as fault of a third party or Vis Major) and periods that include routine maintenance of the Service are excluded from the yearly average availability period. 

v. We may restrict access to the Service in the interest of the security or integrity of our Website and rendered services. In cases of data breaches, we may further restrict access to the Service in the interest of the security or integrity of the User Profiles and protection of Personal Data. 

vi. We may restrict access of the Talent to the Service in cases in which a minor breach of the Usage Guidelines has occurred. The Service reserves full discretion to determine whether a breach is deemed minor or otherwise, on a case-by-case basis. 

vii. WE DO NOT ASSUME ANY GUARANTEE IN A LEGAL SENSE AS LONG AS NOT EXPRESSLY PROVIDED FOR IN THESE TERMS OF SERVICE IN REGARDS TO SYSTEM AVAILABILITY AND UPDATES. 

viii. Talentese may gather data from third-party services and data sources, without exclusion to third-party Websites. These Sources are used and utilized at the sole discretion of the Service, and the Service reserves the right to discontinue or change using such sources at any given time. The Service does not assume any liability from the data and/or content from such sources and services. Users have the sole responsibility of obtaining any consensus or authorization, if any is needed, for the usage of this Service or processing of the available data. The Service takes no responsibility for any information processing made on its behalf, as Users warrant that they have obtained all authorizations and/or consensus from the data sources for further usage of the provided data. This Service may contain ads and promotions from third parties. Your business dealings, correspondence or other contact made throughout these ads and promotions falls outside the Service’s scope of control, and, as such, the Service disclaims all liability arising from these dealings, contacts or correspondence. 

 

10. LIMITATION OF WARRANTY

i. Talentese website, content and services are all provided “as is”. Talentese does not unilaterally provide any express or implied terms, representations, warranties or conditions. 

ii. WE DO NOT ASSUME ANY GUARANTEE IN A LEGAL SENSE AS LONG AS NOT EXPRESSLY PROVIDED FOR IN THESE TERMS OF SERVICE. 

iii. Talentese, its employees, offices, agents or other representatives are further not liable, to the maximum extent permitted by law for any: direct, indirect, special or consequential loss; business or private losses, including: income, savings, or profit loss, loss of contract, loss of goodwill or representations loss, warranty loss, data corruption, personal loss. The aforementioned limitations are voided in the exclusive case that Talentese has willingly voided its limitation of liability in a specific set of terms and/or contract. Limitations apply in the case that Talentese had been advised of the potential loss. 

iv. Talentese does not take any responsibility for the unreasonable behavior of visitors and/or third parties. Furthermore, Talentese does not take any responsibility for publishing any content, which is not in any way meant to constitute and/or provide any type of professional advice. Talentese is further not responsible in any way, to no extent in the unlikely case of severe host and/or server failure or breach, or any other vis major, which is not in scope of Talentese ability to control. 

v. This disclaimer cannot and will not exclude any warranty or liability implied by German governing law, will not exclude and/or limit any warranty or liability which is illegal or unlawful to limit or exclude in compliance with German governing law. You hereby understand this liability limitation statement, and are fully compliant with it in its entirety. 

 

11. INDEMNIFICATION

i. You hereby agree to indemnify and hold Talentese, its owner company, representatives and partners harmless from and against any loss, cost, damage and expense, including but not limited to: attorneys’ fees and court costs, arising directly or indirectly from your use of the Talentese website, software or services and/or your breach of any representation, warranty or restriction explicitly or implicitly contained or derived from any relevant legal theory arising from this agreement, its amending appendixes or other legally-bidding agreements. 

ii. You hereby agree and find reasonable to withhold from any group action in front of any court and explicitly agree that all and any disputes or controversies will be handled on a case-by-case basis, thus withholding of any class action or similar lawsuits or other litigation proceedings against the service. 

iii. If any litigation is to occur, you hereby expressly agree that your action shall not surpass the amount of One Hundred Euro (EUR 100,00), or the expenses made whilst using the service, based on whichever is greater. 

iv. The user shall waive all rights arising from disputing any limitations set forth in this agreement to the greatest extent as permitted by applicable law. 

v. Talents agree to defend, indemnify, and hold harmless our website, its employees, directors, officers, agents, and their successors and assigns from and against any and all claims, liabilities, damages, losses, costs, and expenses, including attorney’s fees, caused by or arising out of claims based upon your actions or inactions, which may result in any loss or liability to our website or any third party including but not limited to breach of any warranties, representations or undertakings, or in relation to the non-fulfillment of any of your obligations under this Agreement or arising out of your violation of any applicable laws and regulations including but not limited to Intellectual Property Rights, payment of statutory dues and taxes, claim of libel, defamation, violation of rights of privacy or publicity, loss of service by other Users, and infringement of intellectual property or other rights. This clause shall survive the expiry or termination of this Agreement. 

 

12. CONTENT POLICY

i. In certain aspects of the Website functionality, you may have the possibility to include text and/or multimedia files in the form of user submissions, comments, posts, ratings etc. For the purposes of this subsection, these will be treated as “User Submissions”. User submissions are a type of content added by Users on the Website, as opposed to the content that is created and/or displayed by Talentese or any other authorized contributor. Upon sharing your User submission in any of the aforementioned ways, you retain all your ownership and proprietary rights to the content shared to the Website, but grant us a universal, perpetual, transferrable, commercial, irrevocable and royalty-free license to use, copy, reproduce, process, adapt, modify, create derivative works from, publish, transmit, display, and distribute such content in all media and distribution methods now known or hereafter devised. Upon sharing your user submissions to parts of the Website that are publicly available, you recognize and agree that such content will be visible to the World Wide Web or every user that may be browsing the Talentese Website with an internet connection. We reserve the right, but not the obligation to use any discretional rights as seen fit in regards to your user submission, provided that such submissions have been a material breach to this Agreement’s provisions, or are contrary to the set Usage Guidelines or for no apparent reason at all, with or without a prior notice. The Service reserves the right to exercise further preventive or other discretional rights, provided that you are a repeated offender, or that your user submission has greatly violated the Usage Guidelines, this Agreement’s goal or a broadly-recognized code of conduct on the Internet. 

ii. Our Service’s website further contains content posted, created by or licensed by Talentese or its licensors. We retain all rights, title and interest to any content which may be deemed as “Our Content”, as described above, namely to any copyrights, trademarks, trade names, trade dress, logos, patents, know-how, trade secrets, instructions, and all other proprietary information. Subject to these Terms of Service, Talentese further grants you a personal, non-transferrable, non-exclusive, limited, revocable and non-commercial license to access and view the content on the Talentese Website. Subject to these Terms of Service and Usage Guidelines, you agree to refrain from any usage of our content, if not explicitly agreed otherwise with the Service, in writing. 

iii. Talentese, its logo, any products, services, names or slogans contained within the Service, corporate correspondence or any other space distinguishing the Service are registered trademarks of Talentese, and may not be copied, used or imitated, in whole or partially, without express written consent of the trademark or other intellectual property or copyright holder. Other trademarks, company names, logos or other intellectual property rights appearing on the service are the property of their respective owners or holders. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise, does not constitute or imply endorsement, sponsorship, or recommendation thereof by us, or vice versa. The Service, its affiliates, suppliers, licensors and licensees own all right, title and interest, without exclusion to intellectual property rights appearing on the Service, corporate correspondence or any other space distinguishing the Service or its affiliates, suppliers, licensors and licensees. Except for those rights expressly granted within these Terms of Service, no other rights are granted to Users. All copying, usage, distribution or further use of copyrights or other intellectual property rights on behalf of the Service are subject to previous consent. Usage of these materials, symbols, logos and slogans must be with a previous written notice by the holder of such rights. 

iv. We adhere to the DMCA standards of takedown notices, provided that such are addressed to us by an alleged aggrieved party. 

 

13. TERM

i. The Agreement shall commence on the date and time in which the Talent Account has been generated, and shall continue for an indefinite term until its Termination as provided in Section 14. 

 

14. TERMINATION

i. Each Party to this Agreement has the right to terminate this Agreement with an advance notice of 5 (five) business days, unless otherwise agreed, in writing. Sections 8, 10, 11 and 12 shall survive the Termination of this Agreement. 

ii. Nothing in these Terms of Service limits the right of any party to terminate this Agreement for cause at any time. 

iii. Termination of Agreement has to be in written form. A written from, for the purposes of termination, is also maintained by e-mail. A standard termination notice (without cause) shall have an applicable five (five) business day notice period. 

iv. Provided that any action of the Talent is, or is considered a material breach of the Provisions of this Agreement, Talentese has the right to terminate this Agreement immediately, without a notice period. 

v. Provided that any action of the Talent in breach of the Usage Guidelines is considered a gross breach of the Provisions of this Agreement, Talentese has the right to terminate this Agreement immediately, without a notice period. The Service reserves full discretion to determine whether a breach is deemed a material breach of this Agreement’s provisions, on a case-by-case basis. 

 

15. PERSONAL DATA PROTECTION

i. Talentese uses the Talent’s data in accordance to these Terms of Service and the Privacy Policy. 

ii. You can find our Privacy Policy here https://www.talentese.com/privacy 

iii. The Talent hereby understands that the performance of this Agreement includes making certain Personal Data available to the World Wide Web through the Talentese Website. This is done for the sole purpose of maintaining a published profile available to be accessed by Companies acting in capacity of prospective employers of the Talent. 

iv. The Talent agrees to be contacted directly by Talentese by the provided contact information (including, without limitation to: phone number, social media channels or messaging services provided in the Talent Account). Talentese may contact the Talent in instances as prescribed in these Terms of Service. For all intents and purposes, this correspondence shall not constitute “marketing communication”. 

v. The Talent understands that, in cases in which the Talent has opted out of commercial communication for the purposes of marketing, Talentese may further contact the Talent in instances as prescribed in these Terms of Service. For all intents and purposes, this correspondence shall not constitute “marketing communication”. 

 

16. CONTINUITY OF TERMS OF SERVICE

i. These Terms of Service govern every registration and login to Talentese made by the Talent. 

ii. These Terms of Service may be subject to change or amendments from time to time, for any future obligation, provided that the change of the Terms of Service should prove necessary (namely in cases in which the Terms ought to reflect new legislation or applicable case law), and the provided Talent is not disadvantaged by these Terms contrary to bona fide. 

iii. The Talent shall be notified of changes of the Terms of Service in a form of the Service’s choosing. The Service may notify the Talent on the Website or via e-mail. 

iv. The Talent has the right to dispute changes to the Terms of Service within 6 weeks of the receipt of the notification of change (or the possibility of taking notice thereof). 

v. The changes to the Terms of Service become binding in cases which:

1. The Talent does not dispute the changes within the designated time period mentioned above, or

2. The Talent continues to use the Service after the designated time period mentioned above.

vi. Provided that a dispute has been raised by the Talent, each party has the right to terminate this Agreement at any time in accordance to Section 14. Until the Termination of the Agreement, the previous Terms in effect shall be applicable to both parties. 

 

17. GOVERNING LAW

i. This Agreement shall be subjected to and governed by the laws of Germany. If the Talent is an EU resident, the Talent shall not be deprived of protection offered by binding consumer protection law of his country of residence. 

 

18. JURISDICTION

ii. In the event that the Talent wishes to seek legal action, a suit must be filed exclusively before a German court. If the Talent is an EU resident, and the status of a consumer pursuant to EU law is to apply to the Talent, the Talent shall not be deprived of the alternative forum of the place of his residence under the Brussels Ia regulation. 

 

19. MISCALLENOUS

i. This Agreement represents the full agreement between Talentese and the Talent in matters regulated by the subject matter hereof, and shall supersede all previous written or oral promises and obligations made between the Parties. Both Parties agree that they had the chance to get acquainted with these Terms of Service and the subject matter that it regulates. 

ii. No waiver is to be unilaterally issued without a written form by either Party in matters relating to this Agreement. 

iii. The Talent hereby agrees that the rights and obligations under this Agreement are personal in nature. Therefore, none of the rights or obligations under this Agreement may be assigned or ceded to a third Party by the Talent. 

iv. Talentese reserves the right to assign or cede the rights and obligations under this agreement in cases of a corporate merger, acquisition or sale of all or substantially all of Talentese assets. 

v. The Service’s failure to act in a particular circumstance does not waive the ability to act in respect to the specific circumstance or circumstances similar to it. If any provision of these Terms is rendered invalid by statutory provisions, interpretation of law or its application, rendered unenforceable, it shall not affect the remainder of these terms. The remaining terms shall stay in full force and effect. 

vi. Each party to this Agreement is in the capacity of an independent contractor in relation to the other party in respect to all matters regulated in these Terms of Service. Nothing in this Agreement establishes a partnership, joint venture, association, or employment relationship between the Parties, nor a consideration of such. 

vii. Section headings are for informative purposes only, and do not produce legal effect. 

viii. The decisive language version of these Terms of Service is the English language version. 

ix. Any Agreement entered into with a prospective employer Company shall be at your sole risk and expense. We do not provide any contingencies or stipulations, express or implied warranties in regards to the agreement you enter into with a prospective employer. 

x. Talentese does not, in any capacity, negotiate for or on behalf of any party to your individual agreement with a prospective employer Company, and solely acts as a communication facilitator, for which the Service retains a service fee from the parties under these Terms and Conditions or the Agreements further regulating this subject matter that the parties have consented to. 

xi. You hereby warrant that you are of legal age and full legal capacity to enter into this Agreement. 

xii. Your continuous usage of Talentese and your binding application indicates your consent to be bound by the terms and conditions as set forth herein for the purposes of using a Talent Account. 

 

 

II. COMPANIES 

20. SCOPE

i. Our Website renders all services in connection to these Terms of Service. Within its operational possibility, Talentese allows for the participation of Companies in the Service. 

ii. Talentese dismisses and objects to any attached terms provided by the Companies, and shall accept them only with consent, in writing. 

iii. While rendering the services, Talentese may use third party websites, services or platforms (hereinafter referred to as: “Third Party Services”) for the purposes of improving user experience. These Third Party Services are not provided by Talentese. We do not assume responsibility for any Third Party Services, as they may potentially be subject to their providers’ own Terms and Conditions. Any issues in connection to Third Party Services are not affected by these Terms of Service governing the relationship between Talentese and you as a Company Account using our services. 

iv. For the purposes of rendering our services to you, rules of user conduct on the Service is expected to be followed. 

v. For the purposes of your recruitment as a Company, a separate Agreement may be applicable for you, subject to your consent. Our recruitment functions may not be available in cases in which the Agreement has not been consented to. The Agreement shall further regulate the rights and obligations arising out of the conduct expected and the obligations as exhibited in these Terms of Service. In cases of any disputes that may eventually arise between the Terms of Service and our Agreement with you, the Agreement will have precedence. 

 

21. USER CONDUCT

i. Talentese provides the service only for use in accordance to these Terms of Service. Automatic sign-up is not permitted. Automatic login is prohibited. Only official clients and apps or websites of Talentese may be used to connect to the Talentese Service. 

ii. When using and handling the Company Account, you agree to abide by the general User Conduct as defined in this Section. Please note that this is not the definitive list of expected User Conduct, as certain obligations may be further listed in these Terms of Service or the Agreement specifying certain obligations of Talents in regards to enrollment. 

iii. As a user of a Company Account, you shall abstain from:

1. Copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”;

2. Using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Talentese servers than a human can reasonably produce in the same period of time by using a conventional web browser (except that Talentese grants the operators of public search engines revocable permission to use spiders to copy publically available materials from our websites for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials);

3. Transmitting spam, chain letters, or other unsolicited email;

4. Attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service;

5. Taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure;

6. Uploading invalid data, viruses, worms, or other software agents through the Service;

7. Collecting or harvesting any personally identifiable information, including account names, from the Service;

8. Using the Service for any commercial solicitation purposes;

9. Impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity;

10. Interfering with the proper working of the Service;

11. Accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or

12. Bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein;

13. Contacting or trying to contact a Talent directly without the knowledge or reasonable notice to Talentese. 

 

22. USE OF SERVICES

i. We render our services in order to connect Talents and Companies. We conduct this process in the following manner: we acquire Talents, which are special Users of our Services. You are provided with a separate special Company Profile, having some functionality based on your status as a potentially hiring company on the Talentese Website. Talents are listed based on an automated algorithm on our Website, by using specific functions for searching a Company from a specific field. We do not provide manual suggestions of Talents when they are displayed on our Website. A Company may choose to connect to a specific Talent, and connect via the interview section available to them. If the Company wishes to retain the Talent in question, the Company shall be connected to the specified Talent. We may, from time to time, based on our available data, or request of the Company, suggest a specific Talent to a Company or vice versa. The Company shall be considered as “Connected” to the Company in these cases. Further material obligations superseding these Terms of Service may apply in cases of an executed Specific Agreement (“SA”) with the Company. 

ii. Talentese does not, under any circumstance, assume a warranty, or guarantee or undertake in another way that the Company will find a Talent to connect based on their search criteria. 

 

23. SPECIFIC USER OBLIGATIONS

i. The Company shall submit and maintain up to date any information provided to Talentese from the moment of account creation. Provided that any of the information has materially changed, the Company shall, without undue delay, correct and keep up to date any of the compulsory information of her/his respective Company Account. 

ii. The compulsory Information required for maintenance of the Company Account may change from time to time. We will not share or transmit any of the information unless such a transmission has been approved by all concerned parties. We may require certain further information from the Company within our rights under applicable law and these Terms of Service, or the SA (if applicable). 

iii. The Company shall keep its reference e-mail address updated at all times, in order to be able to receive any communication from Talentese in relation to its performance of obligations under these Terms of Service and/or any Agreement possibly entered into with Talentese. The Company shall avoid any nuisances in appropriate receipt of e-mail communication, without limitation to the configuration of the Company’s “spam” filter. In cases in which the Company has opted out of commercial communication, communication in regards to performance of obligations under this Section shall be exempt from this opt out. 

iv. The Company is obliged to, without undue delay; communicate to the Service any new contact made from an interested Company outside of the Talentese platform. 

v. The Company is obliged to keep and maintain any access data in order to be able to access her/his Company Account. This access data is for single use only and shall be kept by the Company in strict confidence. If the Company believes that her/his access data has been compromised, she/he shall contact the Service without undue delay. A process of account recovery may require further information from the individual required to recover the Company Account. Recovery in cases in which further information on the Service’s behalf is required is contingent on the provision of such information. In cases in which Talentese believes that the security and/or integrity of the Company Account has been compromised, Talentese may take any necessary security and organizational measures deemed necessary to mitigate any damage to the Company Account or the Company’s personal information. Such shall be notified to the Company within 72 days of the reasonable suspicion of such breach. In cases of breaches that have been conducted and deleted, the Company cannot claim to have her/his initial access data restored. 

vi. In cases of breaches of the Company Account by a third party by fault of the Company, the Company shall be solely liable for any and all actions conducted on the Company Account, and damages incurred thereof. In cases in which the Company has been at fault for compromising the Company Account, such access shall be considered, for all intents and purposes, an access to the Company Account by the Company. 

 

24. SERVICE-RELATED RIGHTS AND OBLIGATIONS

i. Talentese is a provider and facilitator between two parties with prospects of them engaging in mutual business together in any form as deemed fit between the parties. The Company shall, however, be bound by these Terms of Service, or the SA (if applicable) with Talentese at all times, provided that an active “connection” has been made and sustained between the Parties throughout the rendered services of Talentese. Any obstruction or misinformation regarding the cooperation between the Parties by fault of the Company shall be considered a material breach of these Terms of Service and/or the SA (if applicable). 

ii. Talentese relies to find suitable Talents based on search criteria that are provided by the Company. When possible, Companies will endeavor to provide:

1. Specifications of the type of work that the Talent will be required to do;

2. Required experience, training, qualifications, licenses or other authorizations that the Company considers necessary, required by a professional association, federal, state or local laws at the place of work or otherwise

3. Specifications on the location, proposed start date, duration of the Recruitment

4. Specifications or margins on the Gross Annual Salary for the applicable recruitment

iii. Talentese does not provide, or assist with providing any specific local, state or federal authorizations or permits that the Talent should acquire in order to be legally employed by the Company. 

iv. Talentese shall display and suggest Talents to Companies based on an honest endeavor to assess the suitability of the Talents to the Company. Talentese shall use the best recruitment practices and best reasonable extent to assess suitability of individual displayed Talents. Without prejudice to the aforementioned, the Companies are advised to use their business and managerial judgment or conduct a process of vetting or interviewing an individual Talent. Talentese does not: (a) validate any skillset, competence, capability, credibility, motivations, or productivity of specific Talents; (b) Provide any vetting or checks in regards to specifics mentioned in point (a), or; (c) Assess any specific local, state or federal legal or other authorizations or permits based on the Recruitment Specifications that are required or desired from the specific Talent. 

v. Talentese does not offer any explicit or implied terms or warranties in any regards to the Talents available on the Talentese Website and expressly disclaims liability for any issues that may arise from, or are connected to (a) adequacy of chosen Talent for the specific Recruitment made by the Company; (b) any loss or damage caused by the Talent prior to, during or after Recruitment, Re-Recruitment, Modification or Extension of Recruitment or Termination of Recruitment. 

vi. The Services rendered by Talentese to the Companies are subject to payment, as regulated in these Terms of Service, or any specific rules applicable to the individual Company in the SA (if applicable). If an SA has been agreed to between the Parties, its subject matter shall supersede these Terms of Service. Any references in the SA incorporating these Terms of Service by means of reference shall be considered a material part of the SA. 

vii. The Company accepts that the services rendered by Talentese to the Company are of value, and that compensation for the rendered services shall be due in regards to any Recruitment, as defined in these Terms of Service or the SA (if applicable). 

viii. Talentese objects and does not accept any additional terms to be incorporated in terms of the compensation fees and due dates, except when previously expressly agreed to, in writing. 

 

25. RECRUITMENTS AND CONNECTIONS

i. Relevant Definitions. For the purposes of the Terms of Service, a (an):

1. “Recruitment” may mean any form of employment (whether permanent or temporary, under an independent contractor agreement, service agreement, retainer or other type of assignment of tasks for which compensation is due to the Talent against a conducted scope of work (under any applicable law whatsoever) by the Company or an undertaking, which is affiliated with the Company (in the sense of Sec. 15ff of the German Stock Company Act);

2. “Re-Recruitment” may mean any form of re-employment (whether permanent or temporary, under an independent contractor agreement, service agreement, retainer or other type of assignment of tasks for which compensation is due to the Talent against a conducted scope of work (under any applicable law whatsoever) by the Company or an undertaking, which is affiliated with the Company (in the sense of Sec. 15ff of the German Stock Company Act).

3. “Extension” or “Modification” or Recruitment may mean a change of the Term of Recruitment, change to the substantive obligations under the agreement between company and Talent or a change of payment obligations for the conducted scope of work by the Talent. By Company, we also mean an undertaking affiliated with the Company (in the sense of Sec. 15ff of the German Stock Company Act).

4. “Termination” of Recruitment may mean a dissolution or termination of the Recruitment agreement between the Company and the Talent. By Company, we also mean an undertaking affiliated with the Company (in the sense of Sec. 15ff of the German Stock Company Act).

ii. The Talent and Company are further considered “Connected” in cases in which they have contacted each other on the service by any means as described in section 25. Once “Connected”, the Company and Company shall, for the Purposes of the SA (if applicable) and these Terms of Service, be considered “Connected” for the duration of 12 consecutive months. A Talent is considered to be “Connected” via the Talentese service in cases when: (a) Talentese has contacted, approached and procured the Talent prior to any contact made with the Company by means of writing, verbally or electronically (via e-mail, telephone, SMS, social media platforms etc., or; (b) Talent has created a Talent Account on the Talentese or has submitted an application with Talentese prior to any contact with the Company for a duration of six (6) months prior to creation of Talent Account or application with Talentese, or; the Talent confirms, in writing, that the prospective Recruitment has been offered exclusively on the Talentese platform. 

iii. The Company shall inform Talentese in writing (with e-mail being considered sufficient) without undue delay, but no later than the number of days as specified in section 27.iv. in case of a “Connected” Talent is, or has been Recruited by the Company in the sense of Section 27.i. This notification shall include a copy of the original employment contract that will include the employment start date, the date of execution of the Agreement and information about the Salary of the Talent as specified in herein. 

iv. The Service may contact the Company to request status updates about ongoing negotiations between the contractual Parties. 

v. If a selected Talent is recruited pursuant to section 27.i, during a period of an active “Connection”, Talentese shall receive a Hiring Fee as specified in these Terms of Service, or the SA (if applicable). Calculation of the Hiring Fee shall be based on the Talent’s Gross Annual Salary. Further payment obligations shall be introduced in Sections 27 and 28 of these Terms of Service. The Company shall ensure to inform Talentese about the Salary no later than the day of disclosure of the Recruitment as specified in section 27.iv. 

vi. The Company shall present the executed agreement between the Company and the Talent to Talentese as a material proof of the conclusion of the agreement, as well as for any instances under these Terms of Service that are connected to an invoicing process. Company authorizes Talentese to calculate applicable payment obligations based on the substantive choice made by the Company in the SA (if applicable). Provided that no SA has been entered into by the Company, rules in Section 27.vi shall apply. 

vii. The Company shall disclose any requested information on the state of negotiations in reduced forms not breaching any confidentiality promises between the Parties. 

viii. The Company hereby agrees that all contract details may be freely shared by the Talent with Talentese, and releases the Talent from any obligation of confidentiality regarding the relevant contract details. 

 

26. FEES AND INVOICING

i. Companies are subject to a monthly fee for using the Talentese Tool. By purchasing a monthly subscription, companies agree to an initial and recurring monthly subscription fee at the then-current monthly subscription rate, and accept responsibility for all recurring charges until they cancel the subscription.

1. The monthly fee will be specified in the SA established between Talentese and the Company. 

2. The billing cycle starting date will be the one specified in the SA between Talentese and the Company. 

3. The monthly fee will vary depending on the company size at the moment of contracting the services of Talentese and will be updated accordingly as the company increases or decreases its size.

4. Companies may cancel the monthly subscription at any time, subject to our cancellation policy. Companies may cancel their account at any time, with a notice period of 1 month. If they cancel  in the middle of a billing period, they will be charged the proportional part of that period.

ii. On top of the monthly fee pursuant to section 26.i of these Terms of Service, recruitment pursuant to section 25 of these Terms of Service is subject to a contractual Hiring Fee.

1. The Hiring Fee will be calculated as a percent (%) of the Gross Annual Salary of the “Connected” Talent, as a commission fee. This fee does not include statutory VAT, which will be applied to the Hiring Fee. This fee will vary depending on the level of service provided by Talentese to the company during the Hiring process of the Talent. 

2. Companies are offered three different options when hiring with Talentese. i) Talents are pre-selected by  the Talentese tool ii) additionally, Talents are interviewed by Talentese Experts, iii) additionally, the Talents are provided to companies from the Talentese database of Talents. 

3. The Hiring Fee will vary according to the option selected by the company and it will be indicated in the SA established between the Company and Talentese.

iii. For the purposes of calculation of the Hiring Fee, a Gross Annual Salary shall include: (a) the gross base salary of fees; (b) bonuses, commissions, allowances, inducement payments, shift allowances, location weighing and call out-allowances; (c) all other compensation received or anticipated by the Talent in order to cover work-related expenditures (without limitation, to: visa application, work-related travel, relocation compensation of any kind); (d) any equity or share options (expressed in monetary value from the nearest company market value evaluation), and; (e) any compensation option that may be considered as a reward for the scope of work performed by the Talent under the Recruitment and is considered practice in the relevant field of business. 

iv. The Hiring Fee 

1. Shall be applicable for any form of Recruitment as defined in Section 25.i.1. or any form of Re-Recruitment as defined in Section 25.i.2.; 

2. Is payable within thirty (30) days upon issue of invoice, and; 

3. Shall include statutory VAT at applicable rate(s) at the date of issue of the invoice. 

v. In cases in which a Hiring Fee is applicable (Recruitment of “connected” Talents pursuant to these Terms of Service), Companies are: 

1. Obliged to notification pursuant to Section 25.iii, no later than five (5) days as of the day of acceptance of Recruitment offer by the Talent; Alternatively, if a Talent considered “Connected” has been Recruited prior to our “introduction” on Talentese, you shall notify us of this prior contact with the Talent within four (4) weeks of our “introduction”; Further be obliged to balance the Hiring Fee if the Talent is considered “connected” pursuant to Section 25.ii 

2. Obliged to notification pursuant to Section 25.iii, no later than five (5) days as of the day of Re-Recruitment within twelve (12) months after Termination of Recruitment; Further be obliged to balance an adequate (unbalanced) proportion of the initial Hiring Fee in cases of entitlement to Hiring Fee due to Re-Recruitment of Talents pursuant to this section, against an invoice. Invoicing rules and payment dues shall apply according to this Section. 

3. Obliged to balance the Hiring Fee if the Talent has approached Talentese but Talentese has not brokered the Recruitment, except where you will meet the notification obligation under subsection 1 of section 7.iii of these Terms, or in cases in which you can produce substantial proof of a contact, introduction or referral prior to Recruitment brokered by Talentese. 

vi. If the Recruitment is to last for less than a calendar year from the day of recruitment (twelve consecutive months), the Hiring Free shall be calculated on a pro-rate basis. Subsequent Recruitments, Re-Recruitments or Renewal of Recruitment, Prolongations or similar changes to the Term of the Recruitment agreement Companies have entered into shall be added to the pro-rata calculation until the level equal to the annual Hiring Fee is reached. Provided that the annual Hiring Fee has been exceeded, a pro-rata basis based on the Hiring Fee options shall apply for a proportional time of the Term extension. 

vii. Talentese encourages agreeing on the Hiring Fee option(s) prior to recruitment. Provided such choice is not made, section 26. vii. shall apply. 

vii. The Company will be required about the chosen Hiring Fee option pursuant to section 26.i. at the latest in the time of Recruitment. Provided that the Company does not make a material choice between the Hiring Free option(s) pursuant to section 26.i. within reasonable time as of receipt of the request, the right of choice of the Hiring Fee option shall be transferred to Talentese. For the purposes of this Section, the “reasonable time” is defined as five (5) business days as of the day of receipt of request by Talentese. Talentese encourages the Company to make the substantive choice within this time, and shall not accept any objections, unless stated otherwise, in writing. The Company agrees to abide by payment obligations as notified in the absence of choice within reasonable time. 

viii. Provided that the Company is in default in regards to payment obligations, such payment shall be charged with interest according to directive 2011/7 (EU) on invoiced amounts that remain delayed or unpaid beyond their due date. In addition, the Company shall balance an Administrative Penalty fee amounting no less than forty euros (40€), per each case of default on payment obligations, in respect of Talentese relief from additional charges incurred by Talentese when collection of due payment owed is due. Any subsequent balancing of defaulted payment obligations by the Company will have third-party debt collection fees added to the total fee under this section. In such occurrence, the Company shall be obliged to balance the third-party debt collector on the defaulted outstanding debt, statutory interest, Administrative Penalty Fee and the third-party debt collection fee(fee derived from the outstanding debt and interest, which should not exceed 20% of the outstanding debt) to the third-party debt collector. 

 

27. PAYMENT OBLIGATIONS AND REFUNDS.

i. Payment obligations in relations to Option 1 of the Hiring Fee is governed by the following specific provisions: 

1. No applicable Hiring Fee shall be billed to the Company in cases of non-commencement, withdrawal from Recruitment Agreement by the Talent or no-show by the Talent being grounds for termination of the negotiations leading to the Recruitment; 

2. Provided that Termination of the Recruitment has occurred within the first ninety (90) days of the effective date of Recruitment, Talentese shall propose Talents to replace the Recruited Talent at no additional Hiring Fee applicable for the Replacement. For this provision to be applicable, Company has to materially prove to Talentese the grounds for Termination of the Recruited Talent within ten (10) days of Termination of Recruitment. 

ii. Payment obligations in relations to Option 2 of the Hiring fee is governed by the following specific provisions: 

1. Provided that Termination of the Recruitment has occurred between the Recruitment effective date and eighteen (18) consecutive months thereafter, your monthly payment shall be stopped. 

2. The last calendar month of Recruitment shall be the last monthly payment, for which payment is due to Talentese. 

iii. For the purposes of this Section, the date of Recruitment Termination shall be the date, in which the Talent has, or would have, ceased working under mandatory provisions of the law regulating the Recruitment Agreement, whichever is later. 

 

28. RESTRICTIVE COVENANT – NON-CIRCUMVENT

i. The Company agrees to withhold fully from entering into a contractual relationship with or from a Talent either directly or indirectly through third parties, especially recruiters regarding the Recruitment of the Talent in question. 

ii. Any and all direct or indirect business relations between the Company and Talent or third-party Recruiters must involve Talentese as an intermediary, or require the prior written consent by Talentese. 

iii. During the Term of the Agreement, the Company will not induce, or assist in the inducement of, any employee of Talentese or any of its agents or affiliates to leave their employment with Talentese or any of its agents or affiliates. This shall apply to the fullest extent permissible under Sec. 75 of the German Commercial Code. 

iv. A breach of this Section may result in a Contractual Penalty determined by the Service’s discretion. This Contractual Penalty shall not be less than 500% of the financial loss caused by a material breach of Sections 28 of these Terms of Service In no case shall the Contractual penalty be less than 25000,00 EUR. An obligation to reimburse damages is not precluded by virtue of applying a Contractual Penalty in the case of a material breach of Section 28 of these Terms of Service. 

v. The obligation of non-circumvention described herein does not apply in cases in which the Company can reasonably prove that the business relationship between the Talent and the Company has existed prior to the parties being considered “connected” through the Service. 

vi. The Contractual Penalty may be subject to review by a competent court having jurisdiction in this matter. The Company accepts full responsibility for following the commitment made under this section. 

 

29. SERVICE AVAILABILITY. UPDATES. THIRD PARTIES

i. Talentese may be updated from time to time, in order to achieve a better user experience. Talentese grants the Company right to access to the Service in its available form or versions. Changes and advancements in our used technology for providing our services may cause change to your personal system or compatibility requirements. 

ii. Talentese reserves the right to include and/or remove certain services from the Website or change them. The Company hereby understands and accepts these changes made to the Website or scope of rendered services. 

iii. Excluded from warranty are such errors that occur through external influences, such as (without limitation) operating errors by the Company, Vis Major or any external modifications not carried out by Talentese. 

iv. Talentese undertakes to assure an availability of the service of over 95% (ninety-five percent) as a yearly average. Periods in which the Service shall be unable to operate because of technical or other problems outside Talentese reasonable scope of control (such as fault of a third party or Vis Major) and periods that include routine maintenance of the Service are excluded from the yearly average availability period. 

v. We may restrict access to the Service in the interest of the security or integrity of our Website and rendered services. In cases of data breaches, we may further restrict access to the Service in the interest of the security or integrity of the User Profiles and protection of Personal Data. 

vi. We may restrict access of the Company to the Service in cases in which a minor breach of the Usage Guidelines has occurred. The Service reserves full discretion to determine whether a breach is deemed minor or otherwise, on a case-by-case basis. 

vii. WE DO NOT ASSUME ANY GUARANTEE IN A LEGAL SENSE AS LONG AS NOT EXPRESSLY PROVIDED FOR IN THESE TERMS OF SERVICE IN REGARDS TO SYSTEM AVAILABILITY AND UPDATES. 

viii. Talentese may gather data from third-party services and data sources, without exclusion to third-party Websites. These Sources are used and utilized at the sole discretion of the Service, and the Service reserves the right to discontinue or change using such sources at any given time. The Service does not assume any liability from the data and/or content from such sources and services. Users have the sole responsibility of obtaining any consensus or authorization, if any is needed, for the usage of this Service or processing of the available data. The Service takes no responsibility for any information processing made on its behalf, as Users warrant that they have obtained all authorizations and/or consensus from the data sources for further usage of the provided data. This Service may contain ads and promotions from third parties. Your business dealings, correspondence or other contact made throughout these ads and promotions falls outside the Service’s scope of control, and, as such, the Service disclaims all liability arising from these dealings, contacts or correspondence. 

 

30. LIMITATION OF WARRANTY

i. Talentese website, content and services are all provided “as is”. Talentese does not unilaterally provide any express or implied terms, representations, warranties or conditions. 

ii. WE DO NOT ASSUME ANY GUARANTEE IN A LEGAL SENSE AS LONG AS NOT EXPRESSLY PROVIDED FOR IN THESE TERMS OF SERVICE. 

iii. Talentese, its employees, offices, agents or other representatives are further not liable, to the maximum extent permitted by law for any: direct, indirect, special or consequential loss; business or private losses, including: income, savings, or profit loss, loss of contract, loss of goodwill or representations loss, warranty loss, data corruption, personal loss. The aforementioned limitations are voided in the exclusive case that Talentese has willingly voided its limitation of liability in a specific set of terms and/or contract. Limitations apply in the case that Talentese had been advised of the potential loss. 

iv. Talentese does not take any responsibility for the unreasonable behavior of visitors and/or third parties. Furthermore, Talentese does not take any responsibility for publishing any content, which is not in any way meant to constitute and/or provide any type of professional advice. Talentese is further not responsible in any way, to no extent in the unlikely case of severe host and/or server failure or breach, or any other vis major, which is not in scope of Talentese ability to control. 

v. This disclaimer cannot and will not exclude any warranty or liability implied by German governing law, will not exclude and/or limit any warranty or liability which is illegal or unlawful to limit or exclude in compliance with German governing law. You hereby understand this liability limitation statement, and are fully compliant with it in its entirety. 

 

31. INDEMNIFICATION

i. You hereby agree to indemnify and hold Talentese, its owner company, representatives and partners harmless from and against any loss, cost, damage and expense, including but not limited to: attorneys’ fees and court costs, arising directly or indirectly from your use of the Talentese website, software or services and/or your breach of any representation, warranty or restriction explicitly or implicitly contained or derived from any relevant legal theory arising from this agreement, its amending appendixes or other legally-bidding agreements. 

ii. You hereby agree and find reasonable to withhold from any group action in front of any court and explicitly agree that all and any disputes or controversies will be handled on a case-by-case basis, thus withholding of any class action or similar lawsuits or other litigation proceedings against the service. 

iii. If any litigation is to occur, you hereby expressly agree that your action shall not surpass the amount of One hundred Euro (100,00 €), or the expenses made whilst using the service, based on whichever is greater. 

iv. The user shall waive all rights arising from disputing any limitations set forth in this agreement to the greatest extent as permitted by applicable law. 

v. Talents agree to defend, indemnify, and hold harmless our website, its employees, directors, officers, agents, and their successors and assigns from and against any and all claims, liabilities, damages, losses, costs, and expenses, including attorney’s fees, caused by or arising out of claims based upon your actions or inactions, which may result in any loss or liability to our website or any third party including but not limited to breach of any warranties, representations or undertakings, or in relation to the non-fulfillment of any of your obligations under these Terms of Service, or arising out of your violation of any applicable laws and regulations including but not limited to Intellectual Property Rights, payment of statutory dues and taxes, claim of libel, defamation, violation of rights of privacy or publicity, loss of service by other Users, and infringement of intellectual property or other rights. This clause shall survive the termination of this Agreement. 

 

32. CONTENT POLICY

i. In certain aspects of the Website functionality, you may have the possibility to include text and/or multimedia files in the form of user submissions, comments, posts, ratings etc. For the purposes of this subsection, these will be treated as “User Submissions”. User submissions are a type of content added by Users on the Website, as opposed to the content that is created and/or displayed by Talentese or any other authorized contributor. Upon sharing your User submission in any of the aforementioned ways, you retain all your ownership and proprietary rights to the content shared to the Website, but grant us a universal, perpetual, transferrable, commercial, irrevocable and royalty-free license to use, copy, reproduce, process, adapt, modify, create derivative works from, publish, transmit, display, and distribute such content in all media and distribution methods now known or hereafter devised. Upon sharing your user submissions to parts of the Website that are publicly available, you recognize and agree that such content will be visible to the World Wide Web or every user that may be browsing the Talentese Website with an internet connection. We reserve the right, but not the obligation to use any discretional rights as seen fit in regards to your user submission, provided that such submissions have been a material breach to this Agreement’s provisions, or are contrary to the set Usage Guidelines or for no apparent reason at all, with or without a prior notice. The Service reserves the right to exercise further preventive or other discretional rights, provided that you are a repeated offender, or that your user submission has greatly violated the Usage Guidelines, this Agreement’s goal or a broadly-recognized code of conduct on the Internet. 

ii. Our Service’s website further contains content posted, created by or licensed by Talentese or its licensors. We retain all rights, title and interest to any content which may be deemed as “Our Content”, as described above, namely to any copyrights, trademarks, trade names, trade dress, logos, patents, know-how, trade secrets, instructions, and all other proprietary information. Subject to these Terms of Service, Talentese further grants you a personal, non-transferrable, non-exclusive, limited, revocable and non-commercial license to access and view the content on the Talentese Website. Subject to these Terms of Service and Usage Guidelines, you agree to refrain from any usage of our content, if not explicitly agreed otherwise with the Service, in writing. 

iii. Talentese, its logo, any products, services, names or slogans contained within the Service, corporate correspondence or any other space distinguishing the Service are registered trademarks of Talentese, and may not be copied, used or imitated, in whole or partially, without express written consent of the trademark or other intellectual property or copyright holder. Other trademarks, company names, logos or other intellectual property rights appearing on the service are the property of their respective owners or holders. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise, does not constitute or imply endorsement, sponsorship, or recommendation thereof by us, or vice versa. The Service, its affiliates, suppliers, licensors and licensees own all right, title and interest, without exclusion to intellectual property rights appearing on the Service, corporate correspondence or any other space distinguishing the Service or its affiliates, suppliers, licensors and licensees. Except for those rights expressly granted within these Terms of Service, no other rights are granted to Users. All copying, usage, distribution or further use of copyrights or other intellectual property rights on behalf of the Service are subject to previous consent. Usage of these materials, symbols, logos and slogans must be with a previous written notice by the holder of such rights. 

iv. We adhere to the DMCA standards of takedown notices, provided that such are addressed to us by an alleged aggrieved party. 

 

33. TERM

i. The Agreement shall commence on the date of the approval of the Application by the Company, and shall continue for an indefinite term until its Termination as provided in Section 35. 

 

34. TERMINATION

i. Each Party to this Agreement has the right to terminate this Agreement with an advance notice of 20 (twenty) day notice, unless otherwise agreed, in writing. Section 8 shall survive the Termination of this Agreement. 

ii. Nothing in these Terms of Service limits the right of any party to terminate this Agreement for cause at any time. 

iii. Termination of Agreement has to be in written form. A written from, for the purposes of termination, is also maintained by e-mail. A standard termination notice (without cause) shall have an applicable five (five) business day notice period. 

iv. Provided that any action of the Company is, or is considered a material breach of the Provisions of this Agreement, Talentese has the right to terminate this Agreement immediately, without a notice period. 

v. Provided that any action of the Company in breach of the Usage Guidelines is considered a gross breach of the Provisions of this Agreement, Talentese has the right to terminate this Agreement immediately, without a notice period. The Service reserves full discretion to determine whether a breach is deemed a material breach of this Agreement’s provisions, on a case-by-case basis. 

 

35. PERSONAL DATA PROTECTION

i. Talentese uses the Company’s data in accordance to these Terms of Service, the SA (if applicable) and the Privacy Policy. In cases of any material incoherence between the Terms of Service with the Privacy Policy, or the SA (if executed) with the Privacy Policy, the Privacy Policy shall apply. 

ii. You can find our Privacy Policy here https://www.talentese.com/privacy 

iii. The Company hereby understands that the performance of these Terms of Service and the SA (if applicable) includes making certain Personal Data available to the World Wide Web through the Talentese Website. Processing of this data is for the sole purpose of maintaining a published profile available to be accessed by Talents as prospective employees. 

iv. Talentese may further contact the Company in instances as prescribed in these Terms of Service and the SA (if applicable) in cases in which the Company has opted out of commercial communication. For all intents and purposes, this correspondence shall do not constitute “marketing communication”. 

 

36. CONTINUITY OF TERMS OF SERVICE

i. These Terms of Service govern every registration and login to Talentese made by the Company. 

ii. These Terms of Service may be subject to change or amendments from time to time, for any future obligation, provided that the change of the Terms of Service should prove necessary (namely in cases in which the Terms ought to reflect new legislation or applicable case law), and the provided Company is not disadvantaged by these Terms contrary to bona fide. 

iii. The Company shall be notified of changes of the Terms of Service in a form of the Service’s choosing. The Service may notify the Company on the Website or via e-mail. 

iv. The Company has the right to dispute changes to the Terms of Service within 6 weeks of the receipt of the notification of change (or the possibility of taking notice thereof). 

v. The changes to the Terms of Service become binding in cases which: 

1. The Company does not dispute the changes within the designated time period mentioned above, or 

2. The Company continues to use the Service after the designated time period mentioned above. 

vi. Provided that a dispute has been raised by the Company, each party has the right to terminate this Agreement at any time in accordance to Section 13. Until the Termination of the Agreement, the previous Terms in effect shall be applicable to both parties. 

 

37. GOVERNING LAW

i. This Agreement shall be subjected to and governed by the laws of Germany. 

 

38. JURISDICTION

i. In the event that the Company wishes to seek legal action, a suit must be filed exclusively before a German court having jurisdiction in the primary place of business of Talentese. 

 

39. MISCALLENOUS

i. This Agreement represents the full agreement between Talentese and the Company in matters regulated by the subject matter hereof, and shall supersede all previous written or oral promises and obligations made between the Parties. Both Parties agree that they had the chance to get acquainted with these Terms of Service and the subject matter that it regulates. 

ii. In cases of material incoherence in regulated subject matter between these Terms of Service and the Specific Agreement, the Specific Agreement shall have precedence. Any references to these Terms of Service by the Service Agreement shall mean incorporation of these Terms in the Specific Agreement. 

iii. No waiver is to be unilaterally issued without a written form by either Party in matters relating to this Agreement. 

iv. The Company hereby agrees that the rights or obligations under this Agreement may be assigned or ceded to a third Party by the Company. Talentese reserves the right to assign or cede the rights and obligations under this agreement in cases of a corporate merger, acquisition or sale of all or substantially all of Talentese assets. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto. 

v. The Service’s failure to act in a particular circumstance does not waive the ability to act in respect to the specific circumstance or circumstances similar to it. If any provision of these Terms is rendered invalid by statutory provisions, interpretation of law or its application, rendered unenforceable, it shall not affect the remainder of these terms. The remaining terms shall stay in full force and effect. 

vi. Each party to this Agreement is in the capacity of an independent contractor in relation to the other party in respect to all matters regulated in these Terms of Service. Nothing in this Agreement establishes a partnership, joint venture, association, or a similar relationship between the Parties, nor a consideration of such. 

vii. Section headings are for informative purposes only, and do not produce legal effect. 

viii. The decisive language version of these Terms of Service is the English language version. 

ix. Any Agreement entered into with recruited Talent shall be at the Company’s sole risk and expense. We do not provide any contingencies or stipulations in regards to the agreement you enter into with a prospective employee. 

x. Talentese does not, in any capacity, negotiate for or on behalf of any party to your individual agreement with a specific Talent, and solely acts as a communication facilitator, for which the Service retains a service fee from the Company under these Terms and Conditions or the Specific Agreement, provided that the Company has entered into the Specific Agreement. 

xi. Your continuous usage of the Talentese service constitutes your acceptance of these Terms of Service in full. Talentese objects to any attached Terms by the Company materially changing the effects of these Terms of Service. Your Recruitment of Talents via Talentese (as described herein) shall constitute our right to receive payment (as described herein). Your submission of an executed Specific Agreement (by written or electronic signature), acknowledges: (a) reading and understanding these Terms of Service; (b) reading and understanding the Specific Agreement and (c) agreement to be bound by the Specific Agreement and these Terms of Service. You acknowledge and accept that obligations not covered by the Specific Agreement shall further be governed by these Terms of Service. If the Company does not find any section of these Terms of Service to be reasonable, the Company may terminate this Agreement in accordance to Section 35.