Terms of Service
IMPORTANT NOTE: This is an English translation of our Terms of Service for Germany. For all legal intents and purposes, the official Terms of Service in German will hold. Click here to view the official Terms of Service for Germany in German.
Last edited: March 24th, 2019
These Terms of Service (this “Agreement” or this “Service Contract”) are made and entered into by and between Ace Capital UG, a company organized and existing in Germany, with offices located at Karl-Liebknecht-Str. 33, 10178 Berlin (hereinafter “Acework”, “we,” “us,” or “our” or “the services”), and the company or organization (the “Employer”).
If you are accepting these Terms of Service on behalf of, or for the benefit of, your Employer, then you are agreeing to these Terms of Service on behalf of yourself and your Employer, and you represent and warrant that you are at least 18 years old or older and you have the authority to bind your Employer to the terms and conditions set forth in these Terms of Service. If you do not have such authority, or if you do not agree to any of the terms in these Terms of Service, then you are not permitted to use the Services and you should stop using the Services and the Site immediately.
These Terms of Service may be updated by us from time to time with or without notice to you, and so you should review this page periodically. When material changes are made to these Tems of Service, we will update the “Last Updated” date at the top of this document, and notify you that material changes have been made. Your continued use of the Site and/or Services constitutes your acceptance of such change(s). YOU AGREE TO REGULARLY CHECK THE SITE TO VIEW THE THEN-CURRENT TERMS OF SERVICE.
1. Engagement of Services
Subject to the terms of this Agreement, Acework will submit qualified candidate profiles for the Employer’s review and potential hire (the “Services”). In connection with the services the Employer may be allowed to use our website (www.acework.io) that allows the Employer to connect directly with individuals seeking employment opportunities (each, a “Candidate”). We serve as intermediary between Candidates and Employers. Acework is not involved in any contract of employment and is not bound by any contractual agreement arising between Candidates and Employers, whether or not acework receives some form of remuneration in connection with the transaction.
If a Candidate identified through our Services accepts a Job Offer from the Employer within twelve (12) months of the date on which the Employer first viewed the Candidate through the Services, regardless of whether the Candidate accepted an Interview Request, the Employer will be charged a success fee (the “Success Fee”) which a percentage of the candidate’s annual gross salary, as outlined in our fee structure and to be paid within fifteen (15) days of the Candidate’s start date. This will be in addition to all state and local sales, use, excise, value-added, privilege and/or similar taxes applicable to the Success Fee. We may use a third party payment vendor (“Third-Party Payment Vendor”) to process your payment of the fees described.
You agree to pay all applicable fees that are set forth in our pricing structure. You also agree that any assignee or successor of your contractual obligations by virtue of a sale, exit or change of control transaction will also be obligated to pay any success fees for Candidates that you discover through acework.
If we determine that an Employer has circumvented our Site and/or Services after discovering a Candidate through our Site or Service and subsequently hired that Candidate within twelve (12) months of the date on which the Employer first viewed the Candidate through the Services, we will promptly notify such Employer of such circumvention and provide Employer with thirty (30) days to provide us with reasonable documentation identifying that such Employer was involved in an Active Recruiting Process with such Candidate prior to contacting such Candidate through our Site or Service. In the event Employer is unable to provide us with such documentation, we will invoice Employer for, and the Employer will pay, a Success Fee equal to 25% of the first year base salary of the prospective employee Candidate or first year contractor Candidate compensation, as applicable and acework may, in its sole discretion, terminate the Employer’s account.
No Fees shall be due to acework where an Employer can prove that a Candidate and the Employer were engaged in an Active Recruiting Process prior to the Employer viewing the Candidate through the Services. Acework reserves the right to request any documentation to evidence that the Candidate was known to the Employer.
The Employer agrees that the previous posting of a Candidate’s resume, the appearance of a Candidate’s name, persona, image or personal history, on the Internet or in a non active status in a corporate database doesn’t constitute a meaningful relationship with the candidate or preclude the obligation of the fee agreement.
This clause shall not apply where the Employer initiates the engagement through the Service. However, the final determination as to whether a Success Fee is owed by the Employer for an accepted Job Offer will be at the sole discretion of acework.
Refund of the upfront Fee shall be granted in the event that:
- 1. Employer hires a Candidate and terminates the Candidate’s employment based on unsatisfactory performance within ninety (90) days of the Candidate’s start date;
- 2. A Candidate voluntarily terminates his or her employment within ninety (90) days of its start date; or
- 3. A Candidate does not start employment because either the Employer or the Candidate elects not to begin the employment relationship contemplated in the Job Offer.
Upon written receipt and confirmation of such information described in (1) – (3) above, acework will fully refund to the Employer the Success Fee related to the terminating Candidate.
4. Active Recruiting Process
You hereby agree that:
– No Active Recruiting Process (as defined below) has been in place between you and any Candidate for ninety (90) days prior to the date on which you first interact with such Candidate through our Services. For the purposes of these Terms of Service, “Active Recruiting Process” means a continuous direct, back and forth communication between an Employer and a Candidate in an active recruiting or hiring context where a decision to put a Candidate on hold or a decision to reject such Candidate has not been made.
– You will initiate any initial interaction with any Candidate exclusively through the Services. Further communication may take place outside of our Services only after you send out the Interview Request and such Interview Request is accepted by the Candidate.
– You will promptly inform us if your Job Offer is accepted by a Candidate and also provide us with the signed Job Offer or the details of the engagement including but not limited to the scope of the role, remuneration and other conditions of employment.
– You will promptly notify us if the Candidate’s employment does not commence or is terminated within ninety (90) days from the start date that you agree to with the Candidate.
– You will use any content including but not limited to, resume / CV and job preferences submitted by the Candidate (collectively, the “Candidate Content”) in accordance with Section 7 of these Terms of Service (Data Security Obligations).
– You will not disclose the names and identities of any Candidates listed in any Showcase outside of your recruiting or hiring department.
– You will take appropriate physical, technical and administrative measures to protect Candidate Content from loss, misuse, unauthorized access, disclosure, alteration or destruction.
– You will not attempt to circumvent our Services by independently attempting to communicate and hire any of the Candidates through alternative means after discovering such Candidates through our Services.
5. Use of Personal Data
6. Employer Content
As noted above, the Services provide Employers the ability to post and upload content including but not limited to, job description, and selection criteria (collectively, the “Employer Content”). You expressly acknowledge and agree that once you submit your Employer Content through the Services, it will be accessible by Candidates, and that there is no confidentiality or privacy with respect to such Employer Content, including, without limitation, any personally identifying information that you may make available through the Services. You, and not acework, are entirely responsible for all your employer content that you upload, post, e-mail, or otherwise transmit via the services.
Except for the license provided in this Section, you retain all copyrights and other intellectual property rights in and to your own Employer Content. You do, however, hereby grant acework a non-exclusive, royalty-free, sublicensable, transferable, perpetual license to modify, compile, combine with other content, copy, record, synchronize, transmit, translate, format, distribute, publicly display, publicly perform, and otherwise use or exploit your Employer Content as reasonably necessary to provide the Services to you under this Agreement.
If you submit Employer Content to us, each such submission constitutes a representation and warranty to acework that you own or otherwise have the valid right, by contract or otherwise, to grant to acework the rights and licenses described in these Terms of Service, deliver to acework the Employer Content and acework may use the Employer Content as permitted herein without violating any applicable law, rule or regulation or infringing or misappropriating any intellectual property or moral rights of any person, and that such Employer Content does not contain any defamatory or obscene material or content that violates our Community Guidelines.
7. Data Security Obligations
– Maintain, monitor and enforce a comprehensive written data security program and only Process (as defined below) Candidate Content in compliance with these Terms of Service and all applicable laws, regulations, government standards, industry standards, and best practices pertaining to privacy, data Processing, data protection, data security, encryption, and confidentiality (collectively, “Applicable Processing Laws”). As used in these Terms of Service, “Process” means to obtain, have access to, organize, copy, alter, use, disclose, store, erase, destroy or any other form of processing.
– You will maintain, monitor and enforce a data loss prevention automated program designed to detect and block data transfers of Candidate Content, if such transfers do not comply with this these Terms of Service.
– You will use your data security program to maintain, monitor and enforce reasonable organizational, administrative, technical and physical safeguards to protect the security, integrity, confidentiality and availability of Candidate Content, including to protect against: (a) any and all anticipated threats or hazards, and (b) any and all accidental, unauthorized or unlawful Processing, loss, or other compromise of Candidate Content (each, a “Security Incident”). You will promptly remediate all Security Incidents. You agree to provide prompt notice to acework in the event of a Security Incident.
– You will provide acework with prompt written notice of any material modification to the process, method or means by which Candidate Content is processed (including any geographic change).
– Except as expressly permitted in this Agreement, you will not remove or transfer any of the Candidate Content outside of the Site and/or Services.
Termination of the Service. The Employer has the right to terminate the use of the Service, upon  days written notice to acework to the end of the month. In the event of termination of the Services as described above, acework shall be entitled to compensation as follows:
a. All payments due and owing under this Agreement at the time of acework’s receipt of the written notice of termination for already hired Candidates
b. For all future hires of matched candidates not yet, or already in the Employer’s application process.
Termination of the Services shall not affect either party’s obligations in connection with any other ongoing Services and the rights and obligations of all non-terminating parties to the Agreement shall remain in full force and effect.
Failure by either party to comply in any material respect with any of its obligations in this Agreement shall entitle the other party to give notice to the party in default requiring it to cure such default. If such default is not cured within  days after receipt of such notice, the notifying party shall be entitled to terminate this Agreement by giving notice of such termination to take effect immediately. The right of either party to terminate this Service Contract, as herein provided, shall not be affected in any way by its waiver of, or failure to take action with respect to, any previous default.
9. Changes to the Service
We may, without prior notice, make changes, correction or improvements to the Services; stop providing the Services or features of the Services, to you or to users generally; or create usage limits for the Services. We may permanently or temporarily terminate or suspend your access to the Services, if in our sole determination you violate any provision of this Agreement. Upon termination, you continue to be bound by this Agreement.
10. Warranties and Remedies
None of acework, its affiliates, subsidiaries, or any of its or their officers, directors, employees or agents (collectively the “acework parties”), endorse any candidate, employer, any candidate content or any content made available by any employer through the services.
You acknowledge that the Services merely assist Employers in identifying candidates that they are looking to hire. None of the acework parties is a party to, or has any responsibility or liability with respect to, any transaction, communication or interaction between candidates and employers or for any results caused by using the services, including without limitation, any personal injury or property damage.
The Services and the Site are provided on an “as is” and “as available” basis. Use of the Services, the Site and the acework content is at your own risk. To the maximum extent permitted by applicable law, the Services, the Site and the acework content is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from acework or through the services will create any warranty not expressly stated herein. Without limiting the foregoing, none of the acework parties warrant that the acework content is accurate, reliable or correct; that the site or services will meet your requirements; that the site or services will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the site or services are free of viruses or other harmful components.
Any acework content downloaded or otherwise obtained through the use of the Site and/or Service is downloaded at your own risk and you will be solely responsible for any damage to your computer system or mobile device or loss of data that results from such download or your use of the Site or the Services.
The law in certain jurisdictions does not allow the exclusion and limitations of certain implied warranties, so the above exclusions may not apply to you. This Agreement give you specific legal rights, and you may also have other rights, which vary according to jurisdiction. The disclaimers and exclusions under this Agreement will not apply to the extent prohibited by applicable law.
11. Limitation of Liability
To the maximum extent permitted by law, in no event shall any of the acework parties be liable for any special, indirect, punitive, exemplary, or consequential damages, including without limitation, damages for lost profits, revenues, goodwill, use, data or other intangible losses, arising out of or relating to this Agreement, even if such acework party has been advised of the possibility of such damages in advance. Under no circumstances will acework be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the services or your employer account or the information contained therein.
In no event shall the total cumulative liability of the acework parties for any and all direct damages arising out of or relating to these terms of service, exceed, the total fees received by acework from the employer in the twelve (12) months immediately preceding the date of which such claim arises.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. This Agreement give you specific legal rights, and you may also have other rights, which vary according to jurisdiction. The disclaimers, exclusions, and limitations of liability under these terms of service will not apply to the extent prohibited by applicable law.
You agree that you will not bring any claim under these terms of service more than eighteen (18) months after the cause of action arises.
12. Force Majeure
Neither party shall be liable for failure to perform, nor be deemed to be in default, under this Agreement for any delay or failure in performance resulting from causes beyond its reasonable control, including but not limited to failure of performance by the other party, acts of state or governmental authorities, acts of terrorism, natural catastrophe, fire, storm, flood, earthquake, riot, insurrection, civil disturbance, sabotage, embargo, blockade, acts of war, or power failure.
13. General Terms
a. This Service Contract shall be deemed to have been made, executed and delivered in Berlin, Germany and shall be construed in accordance with the laws of Germany.
b. Severability and Assignment. The invalidity or unenforceability, in whole or in part, of any provision in this Agreement shall not affect in any way the remainder of the provisions herein. This Agreement may not be assigned by the Employer without acework’s consent.
c. Entire Agreement. This Agreement, together with any other materials referenced in or expressly made a part of the Agreement, constitutes the final and entire Agreement between acework and the Employer and supersedes all prior and contemporary agreements, oral or written.
14. Additional Provisions for Residents of the United States
If the user is a resident of the United States of America, the agreements between this user and Ace Capital UG shall be subject to the Law of the Federal Republic of Germany, with the exception of subject matter concerning federal copyright laws. In cases concerning copyright, the Laws of the United States of America shall apply.