General Terms and Conditions for Employers on WeAreDevelopers Talent Solutions
Terms of Services
Status: April 2019
1. Application of these Terms
1.1. WeAreDevelopers Talent Solutions is a service by WeAreDevelopers GmbH with its seat in Vienna, registered with the commercial register of the Commercial Court in Vienna under FN 468210 w (hereinafter “WeAreDevelopers” or “we” “our”, “us”). WeAreDevelopers Talent Solutions is a service for employers (“Employer” or “you”) looking for job applicants (“Developers” or “Candidates”) in the tech industry on the basis of these Terms.
1.2. WeAreDevelopers expressly rejects any deviating general terms and conditions of the Employer. Any deviations from these Terms, additional agreements or any possible contradictory terms and conditions of the Employer shall only be valid if they have been confirmed in writing by WeAreDevelopers.
1.3. The provisions of these Terms may be amended by WeAreDevelopers without notice at any time, whereby any such amendments shall be published on the Website and (at most) by sending the text of the amendment to the email address provided by the Employer at least 30 days before any such amendments enter into force. If the Employer does not object to any such amendments within 30 days after receipt of the aforementioned announcement in writing by e-mail to [email protected]
, any such amendments shall be deemed accepted by the Employer. In the case of the Employer’s timely objection to any such amendments, the contractual relationship between the Employer and WeAreDevelopers shall be continued subject to the Terms as in force prior to the announced amendments.
2. The Service
2.1. WeAreDevelopers Talent Solutions is a service that connects Employers with Developers worldwide (the "Service").
2.2. The Service allows you to create a company profile (“Profile”), which shall include basic information such as the name of the company and contact details as well as information about your company and the offerings you provide for Developers
2.3. According to your Service Agreement you can define a number of Streams or Job Offers with your requirements and you will receive profiles of Candidates who match one of your Streams or Job Offers and have shown interest. You are free to contact some or all of these Candidates and start a conversation with them.
3.1. In order to use the Services of WeAreDevelopers as an Employer you must register
3.1.1. either by signing a Service Agreement with WeAreDevelopers or
3.1.2. creating a Profile on our website as an Employer and getting approved by a WeAreDevelopers representative.
3.2. You will receive a confirmation for joining the Services of WeAreDevelopers via email to the email address you provided to WeAreDevelopers upon registration. WeAreDevelopers may change the method of registration at its own discretion.
3.3. You must be aged 18 or over. Each Employer may only have one Profile.
3.5. You will be able to edit your Profile information at any point, adding, changing or removing any information.
3.6. By registering to the Service with a third-party account or populating your Profile by importing such information from your social network account, you hereby grant WeAreDevelopers permission to access and use your information through that service, as permitted by that third party service, and to store your log-in credentials for that service.
3.7. You must provide accurate and complete information during the registration process and you agree to not misrepresent your identity.
3.8. You are responsible for maintaining the confidentiality of your account, Profile, and passwords, as applicable. You may not share your password or other account access information with any other party, temporarily or permanently, and you shall be responsible for all uses of your Website registration and password, whether or not authorized by you. In addition, you agree to notify us immediately if you notice or suspect unauthorised access.
3.9. WeAreDevelopers will review the information that you provide during the registration process. WeAreDevelopers may also review any other information about you that is publicly available.
3.10. WeAreDevelopers reserves the right, in its sole direction, to accept or reject your registration to use the Website and Services without giving reasons. You can start using the Website and Services after we have accepted and activated your registration.
4.1. Depending on your Service Agreement WeAreDevelopers will charge fees for the use of the Service. The applicable fees for the Service are defined in detail in the Service Agreement.
4.2.1. The Employer shall pay a success fee for each hire (“Placement”) generated through the Service.
4.2.2. A Placement is defined as any form of employment, temporary employment, contracting or other use of a Candidate by the Employer.
4.2.3. The amount of the Success Fee is defined in the Service Agreement.
4.2.4. The Success Fee is based on the gross annual target salary. The gross annual target salary includes the gross base salary, potential and guaranteed bonus payments, commissions and all other compensation the Candidate receives or could potentially receive during the first year of their placement.
4.2.5. The Employer must inform WeAreDevelopers within 3 working days if a Candidate has been hired or otherwise contracted. The Employer shall provide WeAreDevelopers with a copy of the original employment contract. WeAreDevelopers may contact the Employer to request status updates about the ongoing recruiting process. Not disclosing a Placement will result in a contractual penalty that should not be less than five times the financial loss caused through this action with a minimum fee of 30,000 EUR.
4.2.6. The Success Fee applies to Placements within 24 months after the Candidate has been presented to the Employer. This clause is not affected by the termination of the Service Agreement.
4.2.7. If (a) an Employer or a Candidate terminates the contract within 90 days after the effective start of the employment contract, or (b) the signed Candidate does not start the employment because Employer or Candidate elect not to begin the employment relationship (each, a “Termination Event”) WeAreDevelopers provides a refund of the Success-Fee. If (a) the Termination Event is prior to the effective start date or within the first 30 days after the effective start date the refund is 100% of the Success-Fee, if (b) the termination is within 30-90 days after the effective start date the refund is 50% of already paid Success-Fee. The refund only applies if the Employer has notified WeAreDevelopers in writing within 5 working days of the termination of the Candidate including the reason of termination. No refund shall apply if the reason for termination is because of a modification of the Candidates position or function within the Employers Company or the result of a restructuring.
4.2.8. In case the Employer can prove that they entered into a business relationship with the Candidate for hiring purposes before the Introduction of the Candidate through the Service the Success Fee shall not apply.
4.2.9. The Success Fee shall not apply if the Employer can prove within 5 days after the introduction of the Candidate that the Employer had a prior business relationship for hiring purposes with the Candidate.
4.2.10. The Employer may be exempted from paying the Success Fee by providing proof that the Candidate has already been in an active hiring process before the Candidate was introduced by WeAreDevelopers. The Employer has to dispute the Success Fee within 5 working days after the Candidate has been introduced by WeAreDevelopers, otherwise the Success Fee shall apply in its full amount.
4.3.1 The Employer shall pay a recurring fee for each Stream as stated in the Service Agreement.
4.4. Other Fees
4.4.1 Depending on the Service Agreement the Employer may be charged additional fees for the use of the Service.
5. Terms of Payment
5.1. All invoices shall be due and payable within 7 days.
5.2. Success-Fees will be invoiced within 7 days after WeAreDevelopers receives the confirmation of a Placement.
5.3. Stream-Fees are recurring and will be invoiced up-front at the beginning of each period.
5.4. All other fees will be invoiced as stated in the Service Agreement.
5.5. If the Employer is in default of payment, we shall be entitled to demand payment of interest in the amount of 9.2% p.a. above the latest base interest rate set by the European Central Bank as of the due date.
5.6. Furthermore, in case of default of payment by the Employer, any dunning charges or collecting fees, which are necessary for an appropriate legal prosecution, shall be borne by the Employer. The assertion of other claims or rights remain unaffected.
5.7. In case of default of payment by the Employer, WeAreDevelopers shall be entitled to charge all Services, whether fully or partially performed. Moreover, WeAreDevelopers shall not be obliged to provide further Services until the outstanding amount is paid.
6. Employer’s Obligations
6.1. You may not, whether by yourself or anyone on your behalf, unless otherwise explicitly permitted under these Terms:
6.1.1. use the Website, the Service, the Content, the Profiles or the Developers information for any illegal, immoral, unlawful and/or unauthorized purposes;
6.1.2. use the Website, the Service or the Content for non-internal purposes without WeAreDevelopers’ express prior written consent;
6.1.3. interfere with or violate other Developer’s or Employer’s rights to privacy and other rights, or harvest or collect personally identifiable information about Developers or Employers without their express consent, whether manually or with the use of any robot, spider, crawler, any search or retrieval application, or use other manual or automatic device, process or method to access the Website and/or the Service and retrieve, index and/or data-mine information;
6.1.4. interfere with or disrupt the operation of the Website or the servers or networks that host the Website, or disobey any laws, regulations, requirements, procedures, or policies of such servers or networks;
6.1.5. falsely state or otherwise misrepresent your affiliation with any person or entity, or express or imply that WeAreDevelopers endorses you, your site, your business or any statement you make, or present false or inaccurate information about the Service;
6.1.6. take any action that imposes, or may impose, an unreasonable or disproportionately large load on our infrastructure;
6.1.7. bypass any measures we may use to prevent or restrict access to the Website or the Service, including attempting to probe, scan or test the vulnerability of a system or network or breach security or authentication measures without proper authorization;
6.1.8. copy, modify, alter, adapt, replicate, make available, translate, port, reverse engineer, decompile, or disassemble any portion of the Content made accessible by WeAreDevelopers on or through the Service, including but not limited to the anonymous profiles of Developers, or publicly display, reproduce, create derivative works from, perform, distribute, or otherwise use such content, other than as permitted under these Terms;
6.1.9. copy, distribute, display, execute publicly, make available to the public, reduce to human readable form, decompile, disassemble, adapt, sublicense, make any commercial use, sell, rent, transfer, lend, process, compile, reverse engineer, combine with other software, translate, modify or create derivative works of any material that is subject to WeAreDevelopers’ proprietary rights, including WeAreDevelopers’ Intellectual Property, in any way or by any means, unless expressly permitted in the Terms and/or under any applicable laws which expressly permit such actions;
6.1.10. make any use of the content on any other site or networked computer environment for any purpose without WeAreDevelopers’ prior written consent;
6.1.11. create a browser or border environment around WeAreDevelopers content (no frames or inline linking is allowed);
6.1.12. sell, license, or exploit for any commercial purposes any use of or access to the Website, the Service or the Content;
6.1.13. frame or mirror any part of the Website without WeAreDevelopers’ prior express written authorization;
6.1.14. create a database by systematically downloading and storing all or any of the content from the Website;
6.1.15. transmit or otherwise make available in connection with the website or the Service any virus, worm, Trojan Horse, time bomb, web bug, spyware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component;
6.1.16. upload a profile on behalf of another party;
6.1.17. submit incomplete, false or inaccurate biographical information or information which is not your own;
6.1.18. use the Website and Services for any purpose for which they were not intended; and/or
6.1.19. infringe and or violate any of the Terms, the applicable laws and guidelines/policies/rules of WeAreDevelopers.
6.2. A breach by the Employer against the above listed obligations entitles us to delete the account and the profile of the Employer.
6.3. The Employer will indemnify WeAreDevelopers and hold it harmless in all respects in connection with his/her usage of the Website and Service.
7. Intellectual Property Rights
7.1. The Website, the Service, the Content (other than the Employer and Developers information or the Profiles), the WeAreDevelopers’ proprietary assets and any and all intellectual property rights pertaining thereto, including, but not limited to, inventions, patents and patent applications, trademarks and trademark applications, trade names, domain names, service marks, copyrightable materials, and trade secrets, whether or not registered or capable of being registered (hereinafter the, “Intellectual Property”), are owned by and/or licensed to WeAreDevelopers and are protected by applicable copyright and other intellectual property laws and international conventions and treaties. All rights not expressly granted to you hereunder are reserved by WeAreDevelopers and its licensors.
7.2. The Terms do not convey to you an interest in or to WeAreDevelopers Intellectual Property but only a limited revocable right of use in accordance with the Terms. Nothing in the Terms constitutes a waiver of the WeAreDevelopers’ Intellectual Property under any law.
7.3. To the extent you provide any feedback, comments or suggestions to WeAreDevelopers (“Feedback”), WeAreDevelopers shall have an exclusive, royalty-free, fully paid up, worldwide, perpetual and irrevocable license to incorporate the Feedback into any WeAreDevelopers current or future products, technologies or services and use the same for any purpose, all without further compensation to you and without your approval. You agree that all such feedback shall be deemed non-confidential. Further, you warrant that your feedback is not subject to any license terms that would purport to require WeAreDevelopers to comply with any additional obligations with respect to any WeAreDevelopers current or future products, technologies or services that incorporate any feedback.
7.4. WeAreDevelopers reserves the right to use the content provided by you through the Service, website and/or any other medium currently invented or invented in the future for marketing purposes. This includes usage of the content on the website, within the Service and in marketing campaigns (e.g. to promote the Employers job offers publicly). WeAreDevelopers are not required to host, display, or distribute any of the content and WeAreDevelopers may refuse to accept or transmit the content, and may remove or delete all or any portion or the content from the website at any time. You waive and agree to never assert any copyrights in and to all of the materials licensed in this section.
7.5. By submitting any content to WeAreDevelopers, you hereby represent and warrant that you own all rights to the content or alternatively, that you have the right to give WeAreDevelopers the license described above. You represent and warrant that the content provided by you does not infringe on the intellectual property rights, privacy rights, publicity rights or other legal rights of any third party.
8. Links to Third Party Sites
9.1. To use the website or the Services you must be over the age of eighteen (18).
9.2. We reserve the right to request proof of age at any stage so that we can verify that minors under the age of eighteen (18) are not using the Service. In the event that it comes to our knowledge that a person under the age of eighteen (18) is using the Service, we will prohibit and block such person from accessing the Service and will make all efforts to promptly delete any personal information with regard to such person.
10. Changes to the Website and / or the Service
10.1. WeAreDevelopers reserves the right to modify, correct, amend, enhance, improve, make any other changes to, or discontinue, temporarily or permanently this Website or the Service or any part thereof, including but not limited to the Content, without notice, at any time. In addition, you hereby acknowledge that the Content provided under this Website or the Service may be changed, extended in terms of content and form or removed at any time without any notice to you. WeAreDevelopers shall not be liable to you or to any third party for any modification, suspension, or discontinuance of this website, the Service or the content included therein.
12. Warranty and Limitation of Liability
12.1. WeAreDevelopers does not assume any warranty that the Employers expectations of the Services offered are met. We merely provide Services that can result in communication between Employers and Candidates.
12.2. WeAreDevelopers does not warrant that a certain number of Candidate profiles will match with a job offering of the Employer.
12.3. In the event that the contract should be terminated by the Employer or by WeAreDevelopers for good cause, no refund – be it in part or in full – will be given for any fees paid in advance.
12.4. WeAreDevelopers does not warrant that an employment contract will be concluded between the Employer and the Candidate through the usage of the Services.
12.5. Usage of the Website and the Services is solely at the Employer’s own peril and risk.
12.6. WeAreDevelopers shall be liable to Employers if damage is caused by willful misconduct or gross negligence. The liability for slight negligence of WeAreDevelopers, except for personal injuries, shall be excluded.
12.7. WeAreDevelopers shall not be liable for any indirect and consequential damages, in particular, but without limitation to, lost profits and third party claims arising out of or in connection with the Website or the Services.
12.8. WeAreDevelopers does not act as an agent for the Candidate or the Employer. Any agreements created between an Employer and a Candidate are not binding on us. We are not liable for, or obligated to enforce, any agreements between an Employer and a Candidate. You will not consider WeAreDevelopers, nor will WeAreDevelopers be construed as, a party to such transactions whether or not WeAreDevelopers receives some form of remuneration in connection with the transaction, and WeAreDevelopers will not be liable for any costs or damages arising out of or related to such transaction.
12.9. You acknowledge that according to the state of technology there is no process to guarantee error-free execution of software. Therefore, we may not assume any liability for a continuous, error-free operation and a permanent usage of the Website or the Service.
12.10. We are not responsible and have no liability for any links, information or services provided by any person or entity other than WeAreDevelopers including, without limitation, any technical failures or the lack of availability of any features and services available within the Website or the Service which are not under WeAreDevelopers control. The Employer is responsible for critically checking links, information or services from third parties and appraising it under his/her own responsibility
12.11. No liability shall be assumed for correctness and completeness of any information on the Website. WeAreDevelopers takes no responsibility and assumes no liability for any information / content that is posted, stored, uploaded, or transmitted via the website or the Service by Candidates, Employers or third parties, or for any loss or damages that may occur because of such information / content including, but not limited to defamation, slander, libel, falsehoods, obscenity, or profanity.
12.12. WeAreDevelopers shall not be liable for any kind of abuse of data or information by either Candidates, Employers or third parties.
12.13. Further, WeAreDevelopers shall not assume any liability for system failures, disturbances, data loss and viruses resulting from external attacks or any other reason.
12.14. The Employer shall be obligated to indemnify and hold WeAreDevelopers harmless against any third party claims resulting from the use of the Website by the Employer.
13.1. Neither Party will use, copy, adapt, alter or part with possession of any information of the other which is disclosed or otherwise comes into its possession under or in relation to this Agreement and which is of a confidential nature. This obligation will not apply to information which the recipient can prove was in its possession at the date it was received or obtained or which the recipient obtains from some other person with good legal title to it or which is in or comes into the public domain otherwise than through the default or negligence of the recipient or which is independently developed by or for the recipient.
13.2. The terms of these clauses shall apply indefinitely notwithstanding the termination of this Agreement.
14. Applicable Law and Place of Jurisdiction
14.1. All legal disputes which may arise out of or in connection with these terms and/or the legal relationship between WeAreDevelopers and the Employer shall be governed by and construed under the laws of Austria without giving effect to its conflict of law rules and UN Sales Convention.
14.2. WeAreDevelopers and the Employer agree that the competent court in Vienna shall have jurisdiction to hear and determine any suit action or proceedings and to settle and for such purposes, irrevocably submit to the jurisdiction of such courts.
15. Final Provisions
15.1. Should any provision of these terms (or any part thereof) be invalid, the validity of the other provisions shall not be affected. The invalid or ineffective provision shall be deemed to be replaced by such valid and effective provision that most closely corresponds to the economic purpose of the invalid or ineffective provision.
15.2. Any changes, amendments and side agreements to these terms are only valid if they are made in writing. This shall also apply to any agreed waiver of the written form requirement.