General Terms and Conditions of Use for kununu engage
Last updated: 6 March 2018
kununu engage is a platform used to rate employee satisfaction. Companies (hereafter “Customers”) can use kununu engage to gather feedback about the satisfaction of their employees (hereafter “Users”), while Users can access and use the services provided.
The offer to use kununu engage and its ancillary services (hereafter “kununu engage”) is aimed at Customers who agree to these terms. In the event that Users act on behalf of a legal person or conclude an agreement in the name of a company, the Company will be deemed a Customer as per the agreement. Users warrant that they are authorized to act in the name of the legal person or company and that they are authorized to conclude this agreement. Upon request, the User shall submit proof of the points set out in this section to XING SE.
The contract is concluded with XING SE, Dammtorstrasse 30, 20354 Hamburg, Germany. Additional contact information, commercial registry data, as well as the name of the authorized representative of XING SE can be found under “About this site” on www.xing.com.
A. General Terms and Conditions
1. Subject Matter
1.1 By providing kununu engage, XING SE offers Customers the option to gather information and data from employees (hereafter Users) in a structured way using surveys and polls, comments, feedback and suggestions for improvement (hereafter Customer Data), and to analyze the data thus generated. The exact extent of use and any fees to be paid depend on the product description.
1.2 By providing kununu engage, XING SE merely offers Customers a platform and does not assume any responsibility for the Customer Data that Users provide. In particular, XING SE does not warrant or represent that Customer Data is true or accurate, or that it fulfils or serves any particular purpose.
1.3 The Customer acknowledges and agrees that XING SE accepts no responsibility for the Customer Data provided, and that XING SE does not check or guarantee the accuracy or quality of Customer Data. The Customer is solely responsible for the accuracy and usefulness of Customer Data received as a result of using kununu engage. The Customer is solely responsible for decisions taken on the basis of using the kununu engage services, and therefore bears the resulting consequences. The Customer is prohibited from assigning anonymously created Customer Data to individual Users.
If a User agrees to these GTC in the name of a company, the User warrants and represents that it is authorized to agree to these GTC in the name of the company and that it is authorized to bind the company to these GTC.
3. Opening and management of corporate accounts by administrators
3.1 Registration with an e-mail address and password is required to be able to use kununu engage and to create a corporate account. Corporate accounts on kununu engage are created, edited and used by a so-called Administrator who must be authorized by the Customer. Customers can appoint one or more Administrators. The Customer has the right to revoke an Administrator’s authorization, or to appoint another person as a replacement for the Administrator.
3.2 The Administrator is obliged to keep its password secret. For security reasons and to prevent misuse, the Administrator is recommended to change its password at regular intervals. The Administrator is solely responsible for safeguarding and storing its account login details (username and password). Upon registration, the Administrator agrees that it is solely responsible for all activity conducted by way of the corporate account.
The Customer acknowledges and agrees that it is technically impossible to achieve 100% availability of kununu engage. XING SE shall nonetheless endeavor to keep kununu engage available without interruption. Events related to maintenance, security or capacity requirements, and/or events beyond XING SE’s control (e.g. disruptions in public communication networks, power failures) may result in brief malfunctions of or temporary interruptions to kununu engage. Any claims against XING SE arising from adverse effects and/or interruptions, irrespective of the legal basis, are excluded to the extent permissible by law.
5. Functionality changes
XING SE reserves the right to make changes to the services related to kununu engage and its general design, or to offer alternative services, as long as this is not unreasonable for the Customer.
6. Data protection
6.1 Within the scope of its responsibilities, the Customer is obliged to comply with currently applicable data protection laws.
6.2 XING SE processes personal data in order to meet its contractual duties arising in connection with the contractual relationship pertaining to kununu engage. kununu engage is a XING SE service. Data is processed for the purpose of rendering the kununu engage service and for XING SE’s own purposes. No commissioned data processing takes place as a result of using kununu engage. In particular, the Customer does not have the right to make decisions or to issue instructions regarding the means with which the service is rendered.
7. Contractual term
7.1 This agreement is initially effective for the minimum period of use selected by the Customer. Thereafter, if it is not terminated by the deadline by the Customer or by XING SE, the agreement will be renewed for the selected period, up to 12 months at a time. Either party may terminate this agreement without stating a reason with a notice period of two (2) weeks from the end of the minimum period of use, or from the end of the length of a renewal period.
7.2 In the event of termination of this agreement, the Customer is still able to collect data about Users via kununu engage, but the evaluation and analysis features will be limited or deactivated in full.
8. Fees and billing
8.1 Unless the Customer and XING SE agree to alternative payment terms in writing, fees shall be based on the number of licenses and the license terms selected by the Customer on the website.
8.2 Fees for the entire contractual term are immediately payable at the time the invoice is issued. Payment can be made with any of the various means of payment offered.
8.3 XING SE reserves the right to change the fee, to be effective as of the following period of renewal. XING SE shall notify the Customer of any fee change in the invoice sent to the Customer with regard to the period of renewal. In the event of a price increase, the Customer is entitled to submit to XING SE within four (4) weeks of the date of invoice a written declaration of withdrawal from the agreement with retroactive effect from the date of the renewal.
8.4 If the Customer registers for a free kununu engage trial, XING SE will provide the Customer with the offered product features free of charge until (i) the end of the offered free trial period applicable to the Customer; (ii) the start date of a purchased license period booked by the Customer; (iii) termination of the free trial period by XING SE at its own discretion and without stating reasons.
9. Termination of agreement, sanctions, reimbursement of advance payments
9.1 Even if separate terms and conditions regarding term and cancellation are in place, both parties are entitled to immediate extraordinary termination for good cause at any time. Extraordinary termination for good cause is defined as an event which makes it unacceptable for the terminating party to continue the agreement to the end of the termination period, taking into account all circumstances of the individual case and weighing the interests of both parties. A good cause for XING SE includes any the following events:
- Breaking the law when using kununu engage;
- If the Customer breaches a contractual obligation;
- If the Customer promotes any communities or associations (or any of their methods or activities) which are under surveillance by authorities responsible for public safety or the protection of minors;
- If the Customer causes harm to any other user(s).
9.2 In the event of a good cause in accordance with section 9.1 and notwithstanding XING’s right to terminate the agreement in accordance with section 9.1, XING is entitled to:
- Delete the contents posted by the Customer or its Users;
- Block access to the kununu engage service or to individual applications; or
- Issue a warning.
9.3 The Customer shall not be entitled to claim reimbursement of any advance payments unless the Customer has terminated the agreement for a good cause attributable to XING SE. In the following cases, the Customer shall not be entitled to claim reimbursement of any advance payments:
- If XING SE has terminated the contract for good cause; or
- If XING SE has blocked the Customer’s access in accordance with section 9.2.
9.4 If booked licenses are not used during the contractual term, there shall be no entitlement to reimbursement, a price reduction, or to an extension of the license period beyond the agreed contractual term.
10.1 The Customer shall indemnify and exempt XING SE from all actions, including damage claims, asserted by third parties or state authorities against XING SE which are related to the Customer’s infringement of rights, the Customer’s violation of obligations imposed on the Customer by this agreement, or the Customer’s violation of pertinent data protection regulations.
10.2 Furthermore, the Customer assumes all reasonable costs (including legal-defense costs) that XING SE may incur in the event that a third party initiates or takes legal action (in or out of court) against XING SE as a result of the Customer’s violation of rights, the Customer’s violation of the obligations imposed by this agreement, or the Customer’s violation of pertinent data protection regulations.
10.3 All other rights, including damage claims by XING SE, are hereby unaffected.
10.4 The aforementioned obligations of the Customer shall not apply to the extent the Customer is not responsible for the infringement.
11.1 In the event of intent or gross negligence, the parties shall be liable without limitation for all damages caused in connection with rendering the contractual services.
11.2 In the event of ordinary negligence, the parties shall be liable without limitation for damages resulting from injury to life, limb or health.
11.3 Furthermore, the parties shall only be liable if a basic/cardinal obligation under this agreement is breached. Cardinal contractual duties are an abstract description of those obligations whose fulfilment is indispensable for the proper implementation of an agreement and on whose fulfilment the contracting parties can usually rely. In such cases liability is limited to replacement of typical and foreseeable damages.
11.4 If the parties’ liability is excluded or limited due to the above provisions, this shall also apply to the parties’ vicarious agents.
11.5 Neither party is liable to the other party for non-compliance with contractual obligations if the non-compliance is due to circumstances beyond the party’s control. This applies in particular to cases of force majeure.
12. Final provisions
12.1 XING SE is permitted to commission sub-contractors. In the event that sub-contractors are employed, XING SE remains responsible for fulfilling the obligations taken on by XING SE. XING SE is permitted to transfer rights and duties to third parties, in whole or in part.
12.2 XING SE reserves the right to amend these GTC at any time, without giving reasons, unless an amendment is unreasonable to the Customer. XING SE shall give the Customer due notice of any amendments of these GTC. If the Customer does not object to the applicability of the revised GTC within six (6) weeks after receipt of said notice, the amended GTC shall be deemed to be accepted by the Customer. XING SE shall inform the Customer of its right to object and of the relevance of the objection deadline in said notice.
12.3 The exclusive place of jurisdiction and place of performance is Hamburg, Germany.
12.4 These GTC and the contractual relationship shall be governed by German law, excluding international private law and the provisions of the United Nations Convention on Contracts for the International Sale of Goods that have been adopted by German law.
1. Obligations of the User and provisions for using kununu engage
1.1 User anonymity is an essential prerequisite for secure and productive use of the kununu engage platform. For this reason, Users are prohibited from assigning anonymously created Customer Data to individual Users. The User is responsible for ensuring that the generated Customer Data does not break the law or breach these GTC, is not abusive, immoral or deemed as being unreasonable for publication on kununu engage for other reasons. Users are also prohibited from providing or serving content which
- violates or could impair individual third-party rights, and/or
- is deemed as being insulting, defamatory or detrimental to business, and/or
- is deemed as being pornographic, violence-glorifying, abusive, immoral, racist and/or xenophobic, and/or
- breaks laws pertaining to the protection of minors.
1.2 The User acknowledges that kununu engage does not check and is not responsible for the provided content.
2. Other rights and obligations of the User
2.1 The User is obliged to keep access data confidential from unauthorized third parties. In particular, the User will store usernames and passwords in such a way that it is not possible for unauthorized third parties to gain access to them. The User is obliged to inform XING SE without delay should it become aware that a password is known to third parties.
2.2 The User must inform XING SE without delay should there be any important changes in the status of the User which could be relevant to the contractual relationship.
3. Rights to content
3.1 The User warrants that it holds all of the requisite rights to the supplied Customer Data. By posting and publishing Customer Data, the User grants XING SE an unlimited, irrevocable and free of charge right to use, process, copy, disseminate, convey, export and display Customer Data, but only to the extent permitted by law, in particular
- to be able to provide the kununu engage services,
- to be able to provide security, support and technical services,
- to use aggregated data for marketing and benchmarking purposes, or
- for other purposes for which the Customer has provided its explicit consent.
3.2 This also includes the right to use the received anonymized Customer Data along with any and all copies thereof, irrespective of whether the Customer or the User continues to use the kununu engage services. XING SE has the right to delete any and all copies of the Customer Data.