softgarden Terms of Service

softgarden e-recruiting GmbH, Tauentzienstraße 14, 10789 Berlin, Germany (“softgarden”) offers its customers (“Company”) a range of services related to the electronic management and processing of advertising as well as the creation, communication and placement of job advertisements on the internet. The e-recruiting system “softgarden”, which Softgarden operates under the domain https://app.softgarden.io/en (hereinafter “platform”), allows companies to place job advertisements and to receive and manage applications. Softgarden also uses the platform to arrange the placement of job advertisements with third-party providers. The following terms and conditions apply to the use of the platform and to the placement of job advertisements with third-party providers:

1. Scope of application

1.1. The contractual relationship between the Company and Softgarden is governed solely by these terms and conditions.

1.3. The subject matter of the agreement is the provision of a platform for the purpose of recruiting new employees. Companies can use the platform to create job advertisements, operate their own job portal and manage applications (see paragraph 2). Via the platform, softgarden also offers the Company the option of publishing job advertisements on the platforms of third-party providers (paragraph 3).

2. Using the platform

2.1. In order to use the platform, the Company must register on the platform and create a corporate account (hereinafter referred to as an “account”). The account may only be opened by an authorised agent or authorised representative of the Company. The required data must be entered accurately and kept updated without delay to ensure a smooth user experience. Upon registration, softgarden will send the Company confirmation of the Company’s registration via email to the address entered during the registration process, together with these terms and conditions. The confirmation email also signifies the acceptance of the Company’s offer to enter into a license agreement and a license agreement is thereby concluded. No entitlement to the execution of a license agreement exists.

2.2. The Company itself is responsible for maintaining the secrecy of the registration data. The Company shall keep its user name and password confidential and not share them and shall furthermore not tolerate or enable any unauthorized or third-party access. The Company shall take the necessary measures to guarantee confidentially and shall inform Softgarden at the email address security@softgarden.de of any misuse or loss of these details or of any suspicion that confidentiality has been breached.

2.3. The individual acting on behalf of the Company must hold proof of authorization from the Company. softgarden may request this proof at any time at its own discretion. In the event that the individual acting on behalf of the Company does not supply proof of their authorization to create an account and to place job advertisements on the platform within a period of one (1) week following receipt of a request for such proof, softgarden may terminate the account at any time.

2.4. Companies can use the platform to create job advertisements and display them on a job portal made available to them by the platform. Applicants can use this job portal to find out about advertised positions and apply for these positions with the Company using an online application form. The Company can use the platform to manage incoming applications (e.g. interim reply, interview invitation, making an offer, hire).

2.5. The Company must use the platform in compliance with any applicable laws and regulations when creating job advertisements and content in the job portal. In particular, the Company must not publish or disseminate any data or content, such as text, images, graphics or hyperlinks, that contravenes legal provisions or violates copyright, industrial property rights or other third-party rights. The Company is liable for the data and content that it provides. softgarden will not check the data or job advertisements to ensure correctness, freedom from viruses or processability in terms of virus technology.

2.6. The Company has the option of designing its own profile, for example by displaying a company logo and incorporating a background image. The Company is obliged to ensure that it has the appropriate authorisation to publicly display any logo or background image used. The Company must ensure that its logo, background image or other files that are downloaded on the platform do not contravene legal provisions, common decency and/or third-party rights.

2.7. No files featuring violent, pornographic, discriminatory, offensive, libellous or otherwise illegal content or representations may be uploaded or publicly displayed. Furthermore, the Company must not upload image files featuring company or brand logos or any other corporate symbol belonging to another company, including fragments of such symbols or logos. This restriction shall not apply if the Company owns the rights to the logos, publicity photos or other content, or has been given the rights to use them by the copyright holder.

2.8. Images of people (e.g. employees) may only be published on the platform with consent from the relevant persons.

2.9. Softgarden is authorised to remove logos, images and files without prior notice provided there is evidence that the publication of this material on the platform contravenes these terms and conditions, legal provisions, common decency and/or such publication violates third-party rights.

2.10. The platform is available 24 hours a day, 365 days a year with an average monthly availability (SLA) of 99.8% (system runtime). In the event that maintenance is required and the platform is therefore not available, softgarden will notify the Company via email in good time. Periods of unavailability of the platform due to maintenance do not count against the SLAs. Softgarden is not responsible for unavailability caused by lack of Internet/network connection or any other technical flaws (e.g. force majeure) beyond its scope of liability that lead to the platform not being available on the Internet.

3. Communication of job advertisements to third-party providers

3.1. The Company can use the platform to instruct softgarden to communicate job descriptions to third-party providers of job portals/job boards (“third-party providers”). softgarden offers this service under the heading “Shop” on the platform. In return for separate remuneration, softgarden will publish individual job advertisements or multiple job advertisements with a number of different third-party providers within a package (“advertisement package”) for a specified period of time (“publication period”).

3.2. The agreement regarding the publication of individual job advertisements or an advertisement package will be made available via the Shop on the platform and will be based on the terms and conditions specified there. softgarden undertakes, upon conclusion of said agreement, to design one or more of the job advertisements adapted in line with the portal of the relevant third-party provider and to publish these job advertisements on the relevant portal of the third-party provider within the period of validity (see paragraph 3.3) at a time specified by the Company. A detailed description of the service to be rendered can be obtained from the relevant offer on the platform.

3.3. Following conclusion of the agreement, the Company shall be entitled to determine the time at which individual job advertisements are published. The time of publication of the relevant job advertisement must be within the period of validity (“period of validity”) determined in the offer from softgarden. Once the period of validity has expired, the Company shall no longer be able to demand design and publication services in respect of the posted job advertisements. During the period of validity, softgarden shall assume the economic risk associated with any price changes made by third-party providers. As the assumption of this economic risk by softgarden is included in the remuneration to be paid, no reimbursements will be made after the period of validity has expired for payments made for unpublished job advertisements.

3.4. When designing the job advertisements, softgarden shall endeavourer to apply the specifications of the Company in the best way possible. Where job advertisements are ordered over the telephone, softgarden shall submit the created job advertisement to the Company for approval prior to placing the job advertisement on the platform of the third-party provider. The Company shall then communicate its approval to softgarden or notify the latter of any desired changes to the design of the job advertisement within ten (10) working days. Once this deadline has passed, the creation of the job advertisement shall be deemed to have been approved.

3.5. In the event that the Company requests changes to a job advertisement after the job advertisement has already been approved and during the publication period, softgarden shall only implement said changes if this is technically possible, approval is given by third-party providers and such changes to content would be reasonable. In such cases, the Company shall be liable for any additional costs that the third-party provider charges for the changes. softgarden will not implement changes to a job advertisement in this context where the changes requested by the Company include significant changes to the relevant job description. In such cases, the Company must request that a new job advertisement be published.

4. Feedback, softgarden Certificate

4.1. The Company may conclude a special agreement with softgarden governing the “Feedback” function. The Company can use the “Feedback” function to provide applicants with the opportunity to evaluate the application process and the Company. During the application process and after being hired applicants receive an email providing access to an evaluation form. The applicants can use the form to provide feedback on various aspects of the application process as well as the Company and to submit comments regarding this. All feedback will be displayed to the Company within the Company’s account on the platform, under the “Feedback” heading. The Company is not authorised to artificially improve the feedback, for example by only surveying selected applicants or by creating fake applicants.

4.2. The Company shall be entitled to the option of utilising the “softgarden Certificate”, subject to payment of separate remuneration. With the “softgarden Certificate”, the results of the evaluations are placed on the platform and, at the request of the Company, also on the platforms of third-party providers. The “softgarden Certificate” is provided for the period of one year and can also be extended by a further year. During the period of validity of the “softgarden Certificate”, it will not be possible to deactivate the “softgarden Certificate” page on the platform.

4.3. The Company shall also be entitled to take advantage of the “Certificate Widget” option, subject to payment of separate remuneration. The “Certificate Widget” is an image file containing a Softgarden logo and the overall result from the feedback/evaluations for the Company. During the period of validity of the “Softgarden Certificate”, the Company will be granted the right to advertise on the Internet using this “Certificate Widget”. The Company is not permitted to make alterations, either in terms of graphics or content, to the “Certificate Widget” supplied by Softgarden, and is expressly prohibited from falsifying the evaluation result.

4.4. The applicants must not use the comments function to publish content of a discriminatory, offensive, defamatory or vulgar nature and must not mention the names of any persons (for example, of individuals who participated in the application process on the Company’s pages). Softgarden undertakes to check comments from applicants prior to publication to ensure that this provision is upheld and where necessary make sections of the comments illegible. Should any of the published comments contravene the rights of the Company or the rights of third parties, the Company shall be entitled to report such comments to Softgarden. Softgarden shall then inspect the affected comments again and delete content that infringes on rights.

4.5. With the exception of the cases outlined under paragraph 4.4, the Company shall not be entitled to delete or change individual evaluations or individual comments.

5. Support

5.1. Softgarden will respond to telephone queries from the Company regarding the platform on telephone number +49 (0)30 884 940 510 (land-line rate) on weekdays between 9.00 a.m. and 6.00 p.m. (Central European Time).

5.2. The Company can also submit questions and error messages to the platform as a ticket at https://softgarden.zendesk.com/hc/en-us/requests/new. All tickets will be processed and responded to within 24 hours on weekdays.

6. Granting of rights

The Company grants Softgarden the non-exclusive, spatially unlimited right to use the Company’s logo, trademarks, publicity photos and all the content of the Company placed on the platform exclusively for the duration of the agreement and for the purposes of the agreement. The Company also grants Softgarden the right to change logos and to use them in an altered format, for example to enlarge them, reduce them in size and/or change colour logos into black and white logos, in order to display the logos on the job portal or in job advertisements. Softgarden is expressly authorized to store the content in its own databases, to disseminate the content, to publish the content and make it available in the public domain and to grant or transfer these usage rights to third-party providers within the context of publishing content with third-party providers. During the period of time that the Company is using the platform, Softgarden shall be authorized to reference the Company on its advertising materials (websites, exhibition appearances, flyers or the like) as one of its customers. Softgarden shall, however, take into consideration any objections from the Company.

7. Payment

7.1. Using the platform

7.1.1. The use of the platform is subject to fees as outlined at https://softgarden.com/en/pricing/. The Company can test the platform for 14 days free of charge (“test period”) and without limitations. Once the Company has submitted the relevant registration form, an email will be sent to the email address specified. The test period begins once the account has been activated by clicking on the link in this email and the password has been set.

7.1.2. The cost of using the platform is billed based on the subscription selected. The billing period begins on the day on which the account changes into a fee-based account following the test period and it ends one month or one year following this, depending on the period of validity selected. The contract term is automatically extended by the currently valid period of validity, unless termination has taken place in accordance with section 9.1.2. The charges are payable at the start of each billing period in advance. The invoice will be sent via email to the email address entered during the registration process.

7.2. Communication of job advertisements to third-party providers

7.2.1. The prices that are listed in the description of the offer in the online shop (https://app.softgarden.io/just-hire/shop) shall apply with respect to the communication of job advertisements to third-party providers.

7.2.2. Payment of the total price listed in the offer shall be due immediately upon conclusion of the agreement.

7.3. Should the Company fail to make the payment within 14 days from the date that payment becomes due, the Company will be deemed to have fallen into arrears without the need for additional notification. Softgarden charges interest on arrears of 9 percent above the relevant base rate in accordance with section 288 paragraph 2 BGB, but at least 9% p.a. If the Company does not meet its payment obligations in a timely manner or if the Company does not complete payments or repayments owing. Softgarden is furthermore authorised – without prejudice to any other claims – to cease providing the services until the sum owed has been paid.

7.4. All prices stated are net prices.

8. Liability

8.1. Claims for compensation on the part of the Company are excluded from this agreement. Exceptions to this exclusion of liability are claims for compensation on the part of the Company for loss of life, bodily injuries, damage to health, the violation of essential contractual obligations (cardinal obligations) or damages resulting from a deliberate or grossly negligent breach of duty on the part of Softgarden, its legal representatives or agents. Cardinal obligations within the meaning of this agreement are the obligations that ensure the proper execution of the agreement and the fulfilment of its purpose and the observance of which the users can therefore regularly rely upon.

8.2. In case of breach of fundamental contractual obligations, Softgarden is only liable for contract-typical, foreseeable damage caused by simple negligence, except claims made by users for compensation resulting from loss of life, bodily injury or damage to health.

8.3. Claims arising from the German Law on Product Liability (Produkthaftungsgesetz) shall be unaffected by this limitation of liability.

8.4. The regulations outlined in paragraphs 8.1 and 8.2 also apply to legal representatives and agents of Softgarden if the claims are made directly against them.

8.5. The Company indemnifies Softgarden against all claims, including claims for damages and for reimbursement of expenses, that may be brought against Softgarden by other users of the platform or other third parties, including public authorities, due to an infringement of their rights owing to content placed on the platform by the Company. The Company shall assume all reasonable costs, including any reasonable costs incurred for legal defence, that Softgarden incurs due to an infringement of the rights of third parties by the Company. All further rights and claims for damages from Softgarden shall remain unaffected.

8.6. If the Company adds personal data of an applicant manually to the system, they are obligated to ensure that the candidate agreed to the Privacy Policy.

9. Duration of the agreement and termination

9.1. Using the platform

9.1.1. The agreement is concluded for the duration of the billing period. Upon expiry of the billing period, the agreement shall be extended by the same period again, unless it is terminated by either party in accordance with the following provisions.

9.1.2. The contract may be terminated in writing by either party (section 126 b BGB) at any time during the contract term with a notice period of a) three (3) months for a yearly billing period and b) fourteen (14) days for a monthly billing period. The right to termination on serious grounds (section 314 BGB) and in accordance with section 313 BGB shall remain unaffected.

9.1.3. In case of cancellation, all active job advertisements will be deactivated, applications removed and the job portal will be closed.

9.1.4. In the event of termination, Softgarden must release the applicant’s data in electronic form. There is no right of retention on the part of the Company.

9.2. Communication of job advertisements to third-party providers

9.2.1. Any agreement concluded between the Company and Softgarden regarding the communication of job advertisements to third-party providers shall automatically cease to be valid with the expiry of the period of validity named in the offer.

9.2.2. Ordinary notice of termination of the agreement is excluded.

9.3. The right to terminate the agreement on serious grounds remains unaffected. The following in particular are included as serious grounds:
– An infringement by the Company against the obligations in accordance with paragraphs 2.1, 2.5, 2.6, 2.7 and 2.8 and
– the manipulation of evaluations by the Company, for example through the submission of an application originating from the Company itself by the Company or by order of the Company.

10. Final provisions

10.1. These terms and conditions are governed by the law of the Federal Republic of Germany.

10.2. The place of jurisdiction for all legal disputes related to this agreement is Berlin.

10.3. Softgarden holds the right to modify and adapt these terms and conditions during the duration of the agreement with future effect. Softgarden will notify the Company of any changes to these terms and conditions prior to their planned introduction in text format, outlining any new regulations and their effective date. Softgarden will allow the Company a reasonable period of time, equating to at least six weeks, to declare whether they agree to the amended terms of use for the continued use of the services. If the Company does not declare its position within the given time period, which begins on receipt of the notification in text format, the new regulations will be regarded by Softgarden as agreed upon. Softgarden will advise the Company at the start of the given time period of its right of objection, the objection period and the implications of not responding. This amendment mechanism does not apply to changes to major contractual obligations between the parties.

10.4. Should individual provisions of these general terms and conditions be ineffective or become so, the effectiveness of all other provisions shall remain unaffected. In lieu of the invalid provisions, such provisions shall be established that most closely reflect the intended commercial purpose of the agreement as a whole, taking into consideration the interests of both parties.