JobTender and JobTender24 are a tendering and recruitment service located in Duesseldorf, Germany, belonging to JobTender24 GmbH (hereinafter designated “Operator”), and/or represented by Licensees in one or more countries on behalf of JobTender24 GmbH. Companies are given the opportunity to access an extensive headhunter network via JobTender’s organized and standardized system, in order to recruit specialists and executive staff.
The registered users of the platform are hereinafter designated ‘users’. The latter maintain a user account that includes their information.
Scope of validity
1. JobTender’s General Terms and Conditions of Business (hereinafter referred to as “JT T&Cs”) refer to all services between the Operator, having its registered office in Düsseldorf, Germany, and any user of the Internet platform provided by the Operator on the website www.placement24.com or www.jobtender24.com, as well as other top-level domains under the name of “Placement24” or “JobTender” or “JobTender24” (hereinafter referred to as “JobTender”). Users may either be a company that has registered for JobTender with the intention of setting on staff or placing them or awarding a search project to one or more headhunters, or a headhunter/recruitment consultant/recruiter/any other agent (above and hereinafter uniformly called “headhunters”), who is registered to place qualified candidates with companies or other headhunters or handle search projects on behalf of companies. The term “candidates” within the meaning of these JT T&Cs shall mean any individuals or service providers (incl. freelancers, interim staff, commercial agents, etc.) who are proposed by a headhunter and appointed or commissioned by a company.
2. The JT T&Cs shall apply exclusively, even if the use of or access to the site occurs from outside the Federal Republic of Germany. Any terms and conditions of business of the user which are in conflict with these JT T&Cs shall not be binding upon the Operator, even if the user has declared them applicable and the Operator has not expressly opposed their content. Any general terms and conditions of business of the respective user which are in conflict with or different from the JT T&Cs are contested. They shall only become a contractual component if the Operator has expressly consented to their validity. The respective applicable JT T&Cs shall apply to any tender or participation in a tender. Any subsidiary agreements or any amendments or additions to the agreement and the JT T&Cs shall only be valid if they have been confirmed by the Operator in writing.
II. Tender variants, remuneration, procedure
1. Tender variants:
Essentially two types of tender are on offer: JobTender Classic (hereinafter referred to as “JTClassic”) and JobTender Premium (hereinafter referred to as “JTPremium”).
With JTClassic, the company issues an invitation to bid for a vacancy via JobTender, and is proposed candidates by the participating headhunters, who submit bids. In that regard, the company can choose how high the agency commission should be, how many headhunters may bid, and how many candidates may be proposed. Any briefing of the participating headhunters which may be necessary, as well as the selecting of candidates and the conducting of the job interviews is handled by the company itself.
With JTPremium, the company issues an invitation to bid for a vacancy via JobTender. Before the invitation to bid (job advertisement) goes live, the operator advises the company in regard to the content of the job advertisement, the amount of the salary and the commission offered. Moreover, the operator selects one or more suitable headhunters who may participate in the invitation to bid and propose candidates. The operator takes on the task of briefing the headhunters, gives headhunters the go-ahead, and co-ordinates the procedures.
With all invitations to bid it is a prerequisite that no other headhunters are simultaneously commissioned by the company for the position advertised, other than through JobTender, for two months, and that, ideally, no job advertisements are placed in job portals (except for internal company job advertisements) (“exclusivity”). Should this prerequisite not be fulfilled, the operator reserves the right not to publish the invitation to bid, as the parallel searches may be damaging to the success of JobTender and the participating headhunters.
In the event that no candidate proposals, or only dissatisfactory candidate proposals, are received from the headhunter within a period of 14 days of the publication of a job tender, the operator shall be free to undertake additional measures intended to successfully structure the job tender. This includes e.g. changing an open job tender into a closed or exclusive job tender restricted to selected headhunters or generating suitable candidates by other means.
The operator reserves the right to offer further variants of invitations to bid and general agreements with deviating conditions and procedures. Mixed forms of individual variants of bidding procedures are also conceivable. The operator’s service is only available to registered and accredited companies and headhunters, who have registered via the platform and agreed to the respective JT T&Cs of a given job advertisement.
It is to be understood that the candidates proposed by the headhunters are only proposals and should not receive the status of an applicant applying for a job directly with a company as this could be linked with certain rights and obligations, as far as legally permissible.
Should a job tender take place and travel and other expenses not be compensated, then the company needs to confirm this in writing and must inform the Headhunter as well as the applicant in a briefing previous to the actual meeting (pertains only to Premium Tender). If the Headhunter or the company offers to compensate possible expenses, then these are only valid at that time and cannot be claimed in the future and are valid only by prior written agreement.
2. Performance-related remuneration:
Unless anything to the contrary is stated in the invitation to bid, candidates are placed with companies based on performance-related remuneration. The latter is due for payment if a service agreement or any other type of agreement between a company (or a parent company, sister company or subsidiary of the company or any other shareholding) and the candidate placed has been signed. Should any further remuneration be due, the latter will be announced in the respective invitation to bid prior to taking part in the latter.A further prerequisite for performance-related remuneration being due is that the setting on of a candidate or any other type of commissioning of a candidate or award of a project occurs within 12 months of commencement of the invitation to bid, and a candidate has been proposed by a participating headhunter via JobTender for either the originally intended position or any other position or function. The same shall apply in the case of a candidate or project being placed or procured in any other way, if the headhunter has taken part in a JobTender of the company.
The operator may make using the free option to post invitations to bid at JTClassic dependent upon certain terms, such as a minimum salary or a maximum advertisement period.
The terms and conditions specified in the relevant invitation to bid shall apply in addition to JT T&Cs. Should the latter conflict, in individual positions, with the JT T&Cs, the terms specified in the invitation to bid shall apply to such positions.
In the case of JTPremium, a service fee is to be paid for the special services provided by the Operator.
In the case of new customers, extensive volumes of job advertisements or foreign customers, the operator may require a security payment up to the amount of the performance-related commission as at the commencement of the invitations to bid. Should an invitation to bid end without success, the security payment will be reimbursed without delay. In the event of success, the security payment will be offset against the actual performance-related commission.
3. Procedure for companies:
Upon registering on the operator’s platform, the company may publish search orders. Besides the details on the candidates sought (position, salary, qualifications, etc.) the company may also decide on the type of invitation to bid and the commission.
JobTender shall pass on the job advertisements to the selected subscribing, eligible headhunters with a maximum of three business days of their being placed and vetted, as long as drawing up any individual mailing list does not take up more time.
Based on the candidates proposed or processing proposals made in response to the job advertisement, the company shall select those candidates or headhunters whom it would like to shortlist. The company shall immediately check the candidates’ suitability, and notify the candidates of the status of the selection procedure via JobTender, if possible, within 48 hours on business days.
The operator reserves the right to examine job advertisements and refuse to publish them if, for example, there is any infringement of the General Equal Treatment Act (AGG) or any other discrimination, or the terms offered are not in line with the operator’s expectations or the seriousness of the job advertisement is questioned.
4. Procedure for headhunters:
Headhunters need to have a valid and active account with the operator with a complete profile, and their profiles need to have been activated by the operator. For headhunters only having a basic status with the operator, the options to use the account and other terms shall in some cases be limited.
In the case of JTClassic, headhunters will apply to participate, designating their specialties and the reason for participation. Should they be approved for participation, they will receive additional information about the tender and the relevant company by direct or indirect means. Under certain preconditions, headhunters will also be permitted to participate directly without prior application. Their own candidates may then be proposed. The headhunter is obliged to discuss the position in question with the possible candidate in advance as well as to inform the candidate of his intention to propose them for the job opportunity. He or she may only propose candidates if he or she has been granted authorisation by the candidate to do so.
Headhunters may communicate with the company directly, as long as the company agrees.
In the case of JTPremium job advertisements, only one headhunter or a few may be contacted for a particular project. The latter will then have the exclusive opportunity to look for candidates and propose them for a fixed period of time.
The profiles of headhunters who wish to be taken into consideration within the scope of such JTPremium projects need to have been checked and accepted by the operator in advance, and have an in-depth specialisation profile, as well as fulfil further terms. They will receive a special seal of approval, which will be shown on the headhunter’s profile and may also be published on their own website. A fee applies for this.
Any headhunter who attempts to circumvent or manipulate the JobTender platform, by, for example, contacting companies placing job advertisements directly, with the aim of proposing candidates for the position concerned without using JobTender, will be damaging the operator and the other participants, and shall – notwithstanding any actual damage – be required to make immediate payment of liquidated damages in the amount of EUR 25,000.00. A written confirmation by the company placing the job advertisement shall suffice in order to ascertain circumvention of the platform. Furthermore, such headhunters may permanently be barred from using JobTender. Participating headhunters hereby declare their express agreement with the latter.
5. Obligation to update the status:
Both types of users – companies and headhunters – undertake to exclusively carry out any individual procedures involved via the platform, and adjust the necessary status details there as soon as possible in the case of changes, unless anything to the contrary has been agreed with the operator in writing. Once a contract has been concluded, the latter needs to be notified at the latest within two business days of using the respective JobTender feature.
III. Procedure in the event of success
1. Notification by the company in the case of success:
The company shall notify the operator of the title of the position, the nature of the employment, the date of signature of the agreement, the gross target annual salary, comprising all fixed and variable components, as well as any bonuses, and the exact commencement of the work or the award of the project for which a job post was created, and the project volume to one or more headhunters.
Should no fixed salary (e.g. in the case of commercial agents or freelancers) or a fixed salary that is over 25% less than the original target salary specified in the job advertisement have been agreed with the candidate, the original target salary mentioned in the job advertisement less 25% shall be deemed a basis for the performance-related commission to be paid. Should making a bonus payment in fact have been planned, but not yet have been established upon the contract being concluded, a flat-rate bonus of 25% will be agreed on top of the fixed salary, as a basis for calculation. Such calculation rules shall apply in so far as nothing to the contrary has mutually been agreed between the company, the headhunter and the operator within the scope of JTPremium.
Based on these details, taking into consideration the amount or percentage of the commission chosen by the company in advance (in the case of “JTClassic”) or the commission agreed, if applicable, with the company and the headhunter (in the case of “JTPremium”), the performance-related bonus shall be calculated. The latter shall also apply if the candidate has signed up to take a job other than the one advertised, or a different project has been awarded to a headhunter – in each case within twelve months.
Should a position advertised be awarded to several individuals, or should a project be awarded to several headhunters, the commission shall be due each time the position is awarded or every time that a project is arranged. The same shall apply if one or more candidates from the tender procedure in question are placed for a different position.
The performance-related bonus shall be deemed to have been earned upon the contract being signed. In such a case, the operator shall send the invoice pursuant to Clause III No. 1 to the company posting the invitation to bid.
Upon the candidate commencing duties the headhunter shall invoice its agency activity, by the agreed commission being charged – less a processing fee to which the operator is entitled, the amount of which shall depend upon the headhunter’s customer status with the operator and which has been established when the respective job was advertised.
The headhunter’s invoice shall be due for payment within 30 days, as long as the company’s payment has been made to the operator by that time and no warranty case has occurred.
If there are over two months between concluding the contract with the candidate and the candidate commencing duties and at least the second placement of this headhunter via JobTender within three months is concerned, the operator shall, upon being invoiced by the headhunter, pay 50% of the amount to which the headhunter is entitled upon the candidate commencing duties for this placement in advance. In the event of sustainably successful co-operation, further payment agreements between the operator and a headhunter shall also be possible.
A fundamental prerequisite for any payments falling due shall, firstly, be complete payment of the company’s invoice to the operator, i.e. should the company (for instance, for reasons of insolvency) fail to pay, the headhunter shall not have any separate claim to its agency commission vis-à-vis the operator. Should payment fail to be made, because the company, for any reason, does not deem the headhunter’s work successful placing, the headhunter shall likewise not have a directclaim vis-à-vis the operator. The operator does, however, assign its rights arising from the agency business to the headhunter, so that the headhunter can pursue such rights judicially in its own name. The operator’s claim to the handling fee shall also continue to exist in such a case.
The operator’s invoice shall be issued – for the net amount plus the statutory VAT – directly after becoming aware of the aforementioned, and shall be due for payment within 7 calendar days. The Operator shall be entitled to demand arrears interest at the statutory rate. The operator may assign its invoices to service providers (e.g. by way of factoring, etc.).
Should the invoice be paid by direct debit and the headhunter be resident in a country covered by the SEPA agreement, the direct debit shall be issued as a SEPA Business to Business Direct Debit Mandate. The debit entry shall be made 10 days after the invoice date. The deadline for pre-notification shall be curtailed to 5 days. The purchaser warrants that it will ensure that it has adequate funds in the account. Any expenses arising based on the direct debit not being honoured or due to a chargeback of the direct debit shall be borne by the purchaser, unless the failure for the direct debit to be honoured or the chargeback has been caused by the operator.
IV. Pay-back warranty
1. Guaranteed amount and warranty case:
The operator shall, in a warranty case, reimburse the company the commission (warranty sum), with the amount of the reimbursement and the duration for which it is guaranteed depending upon the amount or percentage of commission selected or the payback warranty when the order is placed.
A warranty case shall exist if the employee placed fails to take up the position, voluntarily and on his or her own initiative, or terminates the position himself or herself. It shall be incumbent upon the company to bear the burden of proof, and, in addition the latter shall notify the warranty case via JobTender.
Within the scope of JTPremium, the company and the successful headhunter shall be at liberty to enter into any warranty agreements going beyond the latter, outside the scope of and independently from JobTender.
The operator and the headhunter are to be notified of the latter via JobTender within two business days of the relevant event occurring. Upon request, evidence is to be presented, such as a letter from the candidate giving notice of termination. No late notifications shall be accepted.
2. Second proposal option of the headhunter:
In the warranty case, the headhunter shall have the option of presenting a further suitable candidate within 60 days. Should the latter be accepted by the company, no warranty sum shall be due. The warranty regarding the first candidate shall lapse, and the company shall instead receive a warranty with the same content for the new candidate.
The headhunter shall be required to exercise the option of proposing a second candidate within three business days of the warranty case being notified via JobTender.
3. Payment of the guaranteed amount:
Should the headhunter not make use of its second proposal option, or should it not be able to successfully place any alternative candidates within 60 days, the operator shall pay the company the guaranteed amount within 30 days of the warranty case occurring, or – if making use of the second proposal option – within 14 days of expiry of the option as a “reimbursement”.
The headhunter shall, in turn, reimburse the operator 100% of the payment already made for this placement within 7 days. Should the headhunter not pay in good time, the statutory amount of arrears interest shall be payable upon the expiry of 7 days.
The operator’s repayment obligation shall be dependent upon the previous pro rata reimbursement of the headhunter. Should the headhunter not deem the warranty case to have occurred, and, on these grounds, not pay, the operator shall be exempted from the repayment obligation vis-à-vis the company in the amount of the corresponding share. The operator shall, however, assign its rights to the company, so that the company can assert them against the headhunter judicially, in its own name. The operator shall prior to that act as a mediator between the company and the headhunter, and the payment obligation shall be suspended for the duration of up to 60 days, unless clarification/an agreement could be brought about earlier than that.
4. Securing the guaranteed amount:
The operator and the respective successful headhunter mutually undertake to keep the commission received in a sub-account until the expiry of the warranty period, in order to be able to comply with any obligation to make reimbursement.
V. Rights and obligations of the users
1. Authorisations required:
All users warrant that they have obtained the authorisations or have the memberships necessary for their activity and the use of the platform, and comply with all necessary requirements. The users of companies and headhunters confirm that they are authorised to use JobTender within their respective company, and that they accept the terms and conditions on behalf of the entire company. The operator shall be exempted from any damage which results from an infringement of these rules, including the infringement of any company-specific regulations, country-specific rights, licences and any other provisions.
All headhunters from Switzerland represent that they hold a necessary authorisation under Article 2 et seqq. of the Swiss Job Placement Act granted by the cantonal job centre, and, if necessary, SECO in Berne.
The same shall apply to headhunters from other countries in which special authorisations are necessary for placing candidates.
2. Entering data:
All users warrant that the data entered on the operator’s site shall be in line with all the statutory and legal provisions of the country in which the user or recipient is resident or domiciled. The data may in particular not infringe any copyrights, data privacy rights or personal rights. In regard to any data posted on the site, the corresponding consents of the individuals concerned must have been obtained. The users shall bear sole responsibility concerning press releases and under competition law and any other type of responsibility for the data provided by them, and warrant that they possess all necessary rights for the latter.
All users undertake to check any personal data placed on the operator’s site in regard to the truthfulness and completeness of it. When using JobTender, only hardware and software corresponding to the usual safety standards may be used. The data and information exchanged via the platform may exclusively be used for the purpose of awarding a position advertised which is processed via JobTender. All data is to be treated confidentially and may only be made accessible to authorised parties. The publication of files or information on or linking to other platforms for the former, or also the automatic scanning of them, is prohibited. Any abuse will be penalised by the operator.
3. Non-solicitation agreement:
A company, within the framework of a Premium Tender, can request a written non-solicitation agreement for its employees from a headhunter for a specific time period. In this case, the interested headhunters will be informed.
Should any damages arise as a result of an infraction of the non-solicitation agreement, then the candidate bares no liability, however, the candidate needs to provide the company with any relevant information pertaining to the implementation of its claims.
In addition, participating headhunters and companies of JobTender shall essentially not be permitted to entice employees of the operator away for a period of 12 months. In case of infringement, a flat-rate contractual penalty of EUR 15,000.00 shall be deemed to have been agreed, in regard to which the operator expressly reserves the right to assert any further damages.
4. Account deactivation:
User accounts may be deactivated at any time. All users are obliged to observe the contractual rights and obligations under these JTClassic Terms and Conditions of Business, to include after the potential deactivation of a JobTender user account. User data and JobTenders will remain stored in the system for documentation purposes after deactivation of a user account as well. All users hereby explicitly agree to these terms and conditions.
5. Damages based on employment of a candidate:
The company shall exempt the operator, as well as the headhunters, from any damages which may arise in connection with the employment of a candidate. It moreover warrants that it has obtained the authorisations necessary for setting on candidates. Otherwise the company shall be obliged to pay damages to both the operator and the headhunter concerned.
6. Existing contracts, being aware of a candidate:
The company shall be obliged, when placing the job advertisement, to notify the operator if it has already collaborated with headhunters in regard to awarding the position in question or a job advertisement has been placed. The headhunter shall be obliged, following an announcement by the company, to check and notify the operator immediately whether, and in what form, an agreement already exists with the company or contractual work is in process concerning this job advertisement. The operator may, upon checking and assessing such information, refrain from applying the handling fee. Otherwise, the mandate shall be deemed to have been arranged through the operator.
Should a candidate or headhunter be proposed to the company who has already introduced itself there, by a different route, within the past 12 months, the company – who shall, to that extent, be required to provide evidence – is to report the latter in writing within two business days after inspecting the documents, and prove it. Otherwise the candidate or the headhunter shall be deemed to have been proposed, and, if applicable, placed, via the operator. Should an applicant be proposed by several headhunters, only the headhunter who proposed the applicant first shall have a claim.
The company shall not be permitted to specify contact data or the company name in the general advertisement fields in its job advertisement published on JobTender. Solely the corresponding mandatory fields on the platform are to be used for this purpose.
7. Attempts to circumvent the platform:
Companies and headhunters shall be obliged to notify the operator of any attempts to circumvent the platform by the headhunter or company and relevant constituent elements without delay.
An attempt to circumvent the platform shall, for example, but not conclusively exist if a company attempts to obtain candidates from a participating headhunter without involving JobTender. An attempt to circumvent the platform shall likewise not conclusively exist if a headhunter attempts, upon participating in an invitation to bid, to place the candidate with the company without involving JobTender.
The headhunter shall, in particular, not be permitted to use the details published on the platform prior to the company name being made known to identify the company for the purposes of directly taking up contact with the company. It shall likewise not be permitted to pass on any information about a job advertisement to colleagues or any other third parties. Such unauthorised use of data shall substantiate claims for compensation for damage on the part of the operator.
The headhunter shall not be permitted, for a duration of six months, to directly collaborate with a company whose contact details it has received via JobTender, without the involvement of JobTender. The latter shall not apply to any verifiable contract which has existed with the company when using JobTender. The headhunter shall, moreover, be prohibited from publishing a job advertisement from JobTender outside the platform, in any form.
In case of infringement, flat-rate liquidated damages of EUR 30,000.00 per case of circumvention shall be deemed to have been agreed, in regard to which the operator expressly reserves the right to assert any further damages.
VI. Rights, obligations and indications of the Operator
1. Vetting users and tenders:
JobTender is a closed market place, and exclusively reserved for headhunters and companies. The operator shall verify the fulfilment of these prerequisites based on the website and any other evidence in so far as the latter is possible based on information available on the Internet. Any user who has obtained access by fraudulently using false data shall, notwithstanding any actual damages, be required to pay liquidated damages in the amount of EUR 10,000.00. The operator may block or delete user accounts which have not been used during the past 12 months. The operator may, moreover, terminate job advertisements that are older than six months. In addition, the operator reserves the right to delete data violating common decency, infringing the interests of the operator and/or applicable law. The operator may, in addition, exclude individual headhunters and/or companies from using JobTender without giving reasons.
The platform is essentially available for 24/7 use. However, we reserve the right to disconnect the platform for maintenance work. The user shall have no claim to use the platform or individual features of it continuously. Consequently, any claim for compensation for damage due to it not being possible to use the site is excluded. Users of JobTender shall exempt the operator from any damage which they cause to other users or third parties by infringing their rights or any other infringements of rights. The operator shall also not accept any liability for losses arising from the use of JobTender. This disclaimer shall also extend to any agents and other vicarious assistants of the operator. It shall not apply in cases of intent and gross negligence.
VII. Place of jurisdiction, applicable law
1. In regard to any concerns in connection with the use of the JobTender platform of the operator, exclusively German law shall be applicable.
2. Should the contractual partner be a merchant or a legal person, the place of jurisdiction shall be Düsseldorf. Notwithstanding this agreement conferring jurisdiction, the Operator shall also be entitled to sue the user at any other statutory place of jurisdiction.
In regard to any new mandates that have been issued after amending the GTUJT, the new GTUJT shall apply.
VIII. Technologies and analyses
1. The Operator utilises technologies and procedures as per the state of the art, to protect its users’ data in the best way possible. All participants undertake to handle any information and data exchanged via the platform with strict confidentiality, in particular in the case of information on individuals and job advertisements.
2. The operator may use user and usage data for the purpose of monitoring, evaluating and drawing up statistics, and also publish statistical data, rankings and assessments of users. The operator may cite the name of the companies posting the invitation to bid and bidding, or cite successful placings as a reference. Name references of candidates successfully placed may essentially only be published with the latter’s consent.
3. In regard to the gathering of user or usage data (e.g. also page tracking), the operator may also use the services of third party suppliers.
IX. Severability Clause
If a provision of the AGJT is not valid or is unenforceable, at present or in the future, then the other terms of the AGJT are still valid. These terms are not valid in the event of an omission of an individual term of agreement whereby the contracting party is put at an unreasonable disadvantage and as a result cannot be reasonably expected to continue the business relationship.