General Terms and Conditions for the Web Application Kienbaum Compensation Portal
§ 1 Object of Contract
- The following General Terms & Conditions govern the general legal framework applicable to the use of the Kienbaum Compensation Portal web application (hereinafter referred to as “Compensation Portal”) and forms an element of every user contract between Kienbaum Consultants International GmbH (hereinafter referred to as “Kienbaum” or “provider”) as the web application provider and the client respectively the user (hereinafter referred to as “client”).
- By registering for the Compensation Portal, the client accepts these General Terms & Conditions and affirms that he/she is authorized to transfer data for the purposes outlined in this document.
- Any conditions imposed by the client which deviate from the conditions stipulated in this document do not apply.
- The provision of service is made strictly in accordance with the following conditions.
§ 2 Scope of Services
- Kienbaum provides a web application intended for the execution of queries from a database of compensation information for functions ranging from those of simple operative nature to top management in the Internet.
- Strictly companies may be clients. Private individuals are excluded from the use of the Compensation Portal.
- The specific scope of services of the web application will be recorded in writing within the framework of an individual contractual provision with the help of a registration form.
- It is clearly declared, that results arising out of use of the Compensation Portal do not form a consultant’s analysis or opinion.
- Kienbaum reserves the right to modify or expand the web application to the extent that this serves to improve the web application and/or if technical developments make this possible and/or necessary. Furthermore, Kienbaum reserves the right to further develop, change, or remove functions of the web application in terms of content and/or functionality, or to develop fundamentally new technical versions of the entire web application (version change). These actions may affect the appearance of the web application. The client is obliged to use the current version of the web application. In the case of a version change, Kienbaum will notify the client and provide the relevant information, including a schedule for the version change, on the corresponding web pages. Kienbaum is not obliged to maintain or update outdated versions. The actions stated in this clause 5. do not constitute a change of contract and do not entitle the client to an extraordinary cancellation of the contract.
§ 3 Compensation Portal Access and the Client's Related Obligations
- Utilising chosen login details, client access is by means of password protected electronic data transmission. Should a number of individuals within a single organisation have access to the Compensation Portal, each user is issued with his/her own login details and is responsible for setting his/her own password.
- The client is obligated to inform Kienbaum in a timely manner of any changes regarding the main account.
- The main account is obligated to keep the data of the sub-accounts up to date and to delete the access of sub-accounts that are no longer supposed to have access to the content of the web application.
- Registration for a Compensation Portal trial is free of obligation and without charge. The trial subscription is limited to a period of 4 weeks, permits the client to access only a strictly limited number of positions and may only be used once.
- Contract between the client and Kienbaum only becomes valid once full access to purchased modules is granted.
- Kienbaum depicts central positions in organisations, however does not guarantee the availability of such positions in the market or corresponding compensation data.
§ 4 Commencement, Term and Termination of Contracts
- The Kienbaum Compensation Portal website, content contained within and the trial subscription offered, constitute an invitation to bargain (“invitatio ad offerendum”). With the registration with Kienbaum whilst accepting the General Terms & Conditions, the client hereby submits an offer of contract formation. Kienbaum accepts this offer in the form of an order confirmation via e-mail and activation of the client’s access to the Compensation Portal web application.
- Registration takes place via a specifically designed registration form. The client is obligated to provide all data required for registration completely and truthfully. In the event of subsequent changes, the client is obligated to update the data automatically or by notifying Kienbaum.
- The use of the Compensation Portal also requires the completion of a contract for order processing between Kienbaum and the client, since Kienbaum usually processes personal data on behalf of the client within the service to be provided.
- The regular access to the products purchased in the web application will be activated after the client has registered, a legally binding contract for order processing has been concluded and Kienbaum has received payment of the contractually agreed remuneration.
- Kienbaum however reserves the right to base unrestricted access to the Compensation Portal on the positive assessment of the client.
- Access is valid for the term of the subscription. Dates of commencement and expiry are stipulated in the written confirmation of contract conditions.
- Online subscriptions are subject to a minimum term of 1 year.
- Ordinary cancellation of contract is excluded during the contract term. If the subscription is not cancelled at least three months before the end of the subscription period, it is automatically renewed for a further year in each case, unless a different term or cancellation period is expressly stated in the registration form. The termination is only effective if it is made in writing or text form.)
- Kienbaum is entitled to execute an extraordinary cancellation of contract if the client contravenes their contractual obligations, in particular the misuse of the Compensation Portal, the provision of false information or the breach of obligations as stipulated in § 5.
- Should the client prompt the extraordinary cancellation of contract by Kienbaum, the fee paid for use of the Compensation Portal will not be reimbursed. Further claims for damages entitled to Kienbaum remain unaffected.
§ 5 Client Rights and Obligations
- The client is obligated not to misuse access to the Compensation Portal web application and refrain from any unlawful conduct.
- If the client becomes aware of misuse/loss of access details, he/she must inform Kienbaum without hesitation. In the case of misuse, Kienbaum is entitled to block client access to the Compensation Portal. The client is liable for any misuse to which they are attributable.
- The client is furthermore obligated not to violate the integrity of reports, analyses and documents accessed by means of electronic data transmission. Aforementioned reports, analyses and documents are strictly for internal use only.
- The client is responsible for the acquisition and establishment of technology required for access to and transmission of data to/from the Compensation Portal.
- Any violation of the aforementioned obligations will render the client liable, as stipulated in § 10.
§ 6 Compensation/Payment Terms
- The client is obligated to pay Kienbaum the appropriate fee for services engaged, as per the current subscription price list. The fixed subscription price agreed between the client and Kienbaum and recorded in the registration form applies.
- The subscription fee is to be paid in advance for the entire contractually agreed minimum contract period. For contract extensions after the minimum contract period has expired, the respective extension period must also be paid in advance. After conclusion of the contract, the client will receive an invoice showing the minimum subscription period. Payment is made by bank transfer. Invoices of the provider are due immediately and without deduction after receipt by the client.
- Should a delay in payment occur, Kienbaum is entitled to charge default interest at 9% p.a. higher than the base interest rate as given by the European Central Bank.
§ 7 Web Application Scope of Services
- The Kienbaum Compensation Portal web application is principally available 24 hours a day, 7 days a week.
- The following scenarios are considered exceptions to the previous term (1.):
a) Periods of unavailability caused by the client’s temporary failure to meet technical requirements necessary for access to the Compensation Portal web application. E.g. client hardware failure;b) Periods of unavailability caused by data network failures or issues for which Internet service providers are responsible for;
c) Periods of unavailability caused by force majeure events, particularly strikes, electricity failures, etc., which are beyond Kienbaum’s control;
d) Periods of unavailability caused by maintenance work carried out by the provider.
§ 8 Provider Rights
- The client acknowledges that the Compensation Portal web application draws upon a database (as defined in §§ 4 (2), 87a (1) in German Copyright Act (UrhG)). Related computer programs are protected as defined by §§ 69a et seq. in the German Copyright Act.
- Kienbaum is also entitled to the rights of all other elements belonging to the Compensation Portal web application, particularly the usage and neighbouring rights of content and documents contained.
- Brands, company logos, other devices or trademarks, copyright notices as well as other features designed to identify the Compensation Portal web application may not be removed or modified.
§ 9 Confidentiality, Data Usage and Data Protection
- Personal data is collected and processed during registration and use of the portal. Kienbaum collects and processes personal data on behalf of it clients. For this purpose, Kienbaum concludes separate contracts with its clients for order processing. Further information on this subject can be found at: email@example.com
- Kienbaum is obligated to handle all data submitted by participants with strict confidence and use such data solely for the purpose of anonymous statistical analysis. The anonymity of data is preserved at all times.
- Data submitted by clients may, inter alia, be used and presented in an aggregated and anonymised form for the purposes of standardised and customer- specific analyses.
- Kienbaum reserves the right to use data submitted by clients in the context of studies and analyses – also in the context of studies conducted by companies belonging to the global Kienbaum group – in aggregated and anonymised form.
- The contractual parties are furthermore obligated to handle information shared in the performance of the contract in a confidential manner.
- The client is obligated to observe all applicable data protection laws and obligations.
§ 10 Liability for Defects, Guarantees and Warranties
- A defect of quality exists when the Kienbaum Compensation Portal web application does not exhibit the technical properties as described in § 2, therefore impairing or nullifying the contractual suitability of use. Negligible restrictions shall not be taken into consideration.
- The client must inform Kienbaum of failures, defects or damages which may occur without hesitation.
- The client is liable for the supply of false salary and other data, furthermore for failing to update and verify any data.
- Kienbaum will rectify failures after receiving a written and comprehensible failure report from a client within a reasonable timeframe.
- The client’s right of termination due to a failure to provide services according to § 543 (2) Number 1 of the German Civil Code (BGB) first comes into effect if defects are not rectified within a reasonable timeframe or attempts to rectify defects are deemed to have failed.
§ 11 Limitation of Liability
- The provider is liable without limitation for damages including the loss of life, personal injury or damage to health which arise from intent or negligence on part of the provider or a legal representative or agent, as well as for damages which occur under the area of protection covered by guarantees or warrants issued by the provider.
- The provider’s liability is limited to the compensation of foreseeable damages typical of the contract arising from the slightly negligent breach of contractual obligations by the provider or a legal representative or agent.
- The provider’s liability without fault for damages existing prior to formation of contract is excluded according to § 536a (1), Subparagraph 1 of the German Civil Code (BGB).
- The provider is not liable for false salary figures erroneously or deliberately submitted by clients or third parties.
- The provider is moreover not liable for the rights of third parties which may be violated by the client’s submission of data.
- The provider does not assume any liability for the misuse of salary information by third parties or clients.
- The provider is not liable for Compensation Portal service disruptions which it did not cause.
§ 12 Offset/Retention Rights
§ 13 Reference
§ 14 General Terms
- Any legal dispute in or out of context of this contract are exclusively governed by German law to the exclusion of legislation referring to other legal systems. The UN Convention on Contracts for the International Sale of Goods do not apply.
- Kienbaum Consultants International GmbH is the operator of the web application and their office in Köln is the place of fulfillment.
- The place of jurisdiction for all legal disputes arising from this contract and its implementation is Köln.
- Kienbaum is entitled to unilaterally modify these GTC – insofar as they have been introduced into the contractual relationship with the customer – even within the existing contractual relationship. Kienbaum shall inform the customer of any such modification by notifying the contents of the modified provisions. The amendment shall become an integral part of the contract if the customer does not object to Kienbaum’s inclusion in the contractual relationship in writing or text form within six weeks after receipt of the notification of amendment. Otherwise, the contract shall be continued under the previous conditions.
- Additions, amendments or supplements to these conditions require written form in order to be effective; this is also applicable for the suspension of the requirement for written form.
- Should any terms contained within this contract be or become invalid, the validity of all other contractual agreements shall remain. In this case, the contractual partners are obliged to replace invalid terms with those matching the intent and effectiveness of the original term as best possible. The same applies for any contractual gaps.
Status of the general terms and conditions: April 2020