Terms and Conditions
Table of Contents
I. General information
These General Terms and Conditions apply to all of our services offered via 2019.firstbird.com /www.1brd.com (“Website”) in connection with our Firstbird recommendation platform (“Platform” or “Firstbird”) between Firstbird GmbH, Hietzinger Hauptstrasse 34, 1130 Vienna, Austria, represented by its managing directors Arnim Wahls, Daniel Winter and Matthias Wolf and our customers (hereinafter referred to as “Customer” or “Client”) in the currently valid version. Deviating conditions of the Customer will not be recognized unless Firstbird GmbH expressly agrees to their validity in writing.
Our service offer is directed solely at companies. For the purposes of these General Terms and Conditions, (i) a “Consumer” is any natural person who enters into a legal transaction for purposes that are predominantly neither commercial nor their independent professional activity and (ii) an “Entrepreneur” is any natural or legal person or a partnership with legal capacity who, when entering into a legal transaction, acts in the exercise of their commercial or independent professional activity. No contracts are concluded with consumers or users.
2. Later Amendments of these General Terms and Conditions of Business
Firstbird GmbH is entitled to adapt and amend these General Terms and Conditions at any time.
Firstbird will inform existing customers about a substantial or not only insignificant change of the Terms and Conditions in time. Substantial or not only insignificant changes are those that involve a change in the factual or legal situation. This change becomes effective if the Customer does not object within six (6) weeks after notification of the change. Firstbird explicitly points out to the Customer that his silence is an acceptance of the contractual amendment. If the Customer objects within the deadline, Firstbird has the possibility to terminate the contractual relationship extraordinarily.
II. Conclusion of Contract and Subject Matter of Contract
1. Conclusion of Contract
By using the software, the customer accepts these general terms and conditions.
2. Subject Matter of Contract
The subject of the contract is the temporary provision of the platform offered here. When registering, the client decides on a so-called Firstbird domain (example: ‘[name client].1brd.com’). Firstbird GmbH reserves the right to block and/or (if reasonable grounds exist) change certain domains.
III. Services and Performance
1. Description of Services
Firstbird grants the Customer during the term of this Agreement the technical possibility to access the platform offered here as an online solution (“Service”) and to use the functionalities of the platform in accordance with these General Terms and Conditions and as described on the Website.
Firstbird is entitled to change or update the Service (including infrastructure, security, technical configurations, application functions, etc.) during the term of this Agreement, also to take into account changes in technology, industry practices and usage patterns. Such changes made by Firstbird will not, however, result in a material limitation of the performance or availability of the Service provided.
Firstbird offers customers a web-based platform through which they can reach suitable candidates (hereinafter referred to as “Candidate”) based on recommendations. Firstbird only provides the platform for the administration of the recommendation program. Firstbird expressly points out that it neither searches for suitable candidates for the Customer nor guarantees that the Customer will actually find a suitable candidate for his company.
Firstbird enables the administration of job ads, recommendations and candidates via the platform.
c. Talent Scouts
Using the Firstbird platform, recruiters can invite so-called “Talent Scouts” (employees of the Customer or selected external persons) to recommend qualified candidates for advertised positions of the Customer. For this purpose the talent scouts receive an invitation to the platform from the Recruiter and can set up their account including access data themselves. For their actions (recommendation of a suitable candidate, publication of the advertised positions via e-mail or in social networks such as Facebook, XING or LinkedIn), Talent Scouts receive rewards in the form of e.g. points or badges, which they can view in their personal area. In addition, financial bonuses can be paid by the Customer if the candidates they recommend are hired.
Firstbird explicitly points out that the payment of a financial reward is the sole responsibility of the Advertiser. Firstbird will not become a party to any agreement between the Client and the Talent Scouts. In addition, it is solely incumbent on the Customer to observe the legal regulations regarding social security and tax law when making the payment.
Candidates have the possibility to apply for the job advertisements of the Customer via the platform of Firstbird GmbH. This requires that the candidate has been informed about the job advertisement by a Talent Scout (e.g. by publishing the advertised position in a social network).
2. Outsourcing to Third Parties/Subcontractors
Firstbird GmbH shall be entitled to outsource the performance of the contract or part thereof (e.g. platform hosting) to third parties/subcontractors.
3. Delayed Performance/Availability
Firstbird is not responsible for delays in performance due to force majeure and due to extraordinary and unforeseeable events, which cannot be prevented even by Firstbird’s utmost diligence (this includes in particular strikes, official or judicial orders and cases of incorrect or improper self-supply despite a covering transaction). They entitle Firstbird GmbH to postpone the service by the duration of the hindering event.
IV. Customer’s Responsibilities/Obligations
The customer shall fulfil the obligations he has for the provision and processing of services under this contract.
1. Content of Information, Job Advertisements, Profile Design and other Obligations
Customer undertakes to place only truthful content and serious job advertisements and to carefully and properly compile the information about the offer transmitted to Firstbird and to immediately deactivate or update the offer if the content is no longer current. The Customer is solely responsible for the content and accuracy of the data and images provided.
Moreover, Principal’s obligations shall include, without being limited to:
- to pay the agreed fees in due time. For each direct debit not redeemed or returned, the Customer shall reimburse Firstbird GmbH for the costs incurred to the extent that the Customer is responsible for the cost-incurring event;
- protect the user and access authorizations (especially passwords) assigned to him or the Users as well as identification and authentication safeguards against access by third parties and not pass them on to unauthorized users;
- to ensure that (e.g. when transferring texts and data of third parties to servers of providers) all industrial property rights and copyrights are observed;
- to obtain the required consent of the respective person concerned, insofar as he/she collects, processes or uses personal data in the context of using the platform and no legal permission is granted;
- to refrain from attempting, either himself or through unauthorized third parties, to access information or data without authorization or to interfere or allow to interfere with programs operated by the provider or to penetrate the provider’s data networks without authorization;
The customer is prohibited from storing content whose provision, publication and use violates applicable law or agreements with third parties. In particular, he undertakes not to transmit any data or images whose contents violate third-party rights (e.g. personal rights, rights to a name, trademark rights, copyrights, etc.) or infringe existing laws.
Firstbird does not verify the data entered on the platform, in particular with regard to data quality, data compatibility and data accuracy. If the Customer overwrites or deletes data, Firstbird is, as far as technically possible at all, not obliged to restore this data.
2. No Misuse
The Customer undertakes to use the services offered by Firstbird only to the extent permitted by law and these regulations. An abusive use leads to the exclusion of the right of use granted by the registration. Firstbird may deactivate the customer account of the respective customer after becoming aware of an abusive use and terminate the contract extraordinarily. Any fees already paid will not be refunded in this case.
An abusive use is in particular with illegal uses, such as copyright violations. In addition, misuse includes the provision, distribution or other use of illegally acquired data and the distribution or provision of data for illegal purposes. In particular, the following uses of the platform are abusive:
- Sending spam,
- Sending and storing infringing, obscene, threatening, insulting or otherwise violating the rights of third parties,
- Sending and storing viruses, worms, Trojans and harmful computer codes, files, scripts, agents or programs,
- Uploading of programs that are suitable to disturb, impair or prevent the operation of Firstbird GmbH,
- Attempt to obtain unauthorized access to the Firstbird GmbH service or platform or to individual modules, systems or applications or to grant such access to third parties.
The Customer undertakes to indemnify Firstbird from all claims of third parties including reasonable and/or legally determined costs for legal prosecution, which are based on a non-contractual, abusive and/or illegal use of the platform and its contents by the Customer or which are based on the Customer’s approval or which arise in particular from data protection, copyright or other legal disputes which are connected with the use of the platform.
If the customer recognizes or must recognize that such a violation is imminent, the obligation to inform Firstbird immediately exists. The Customer supports Firstbird in the defence of these claims, in particular by providing all information necessary for the defence. The Customer is obliged to compensate Firstbird for the damage caused by the successful enforcement of such claims by third parties.
Firstbird uses state-of-the-art security technologies (e.g. encryption and password protection) to an economically reasonable extent when providing the platform.
VI. Right to Platform Use and Requirements of Contractual Use
The customer shall be granted the non-exclusive, non-sublicensable right, limited in time to the term of this agreement, to access the platform by means of telecommunication for his own internal business purposes within the scope of the contractual and proper use and to use the functionalities offered on the platform by means of a browser in accordance with these conditions. The Customer shall not be granted any further rights, in particular to the Platform, the associated software application or the operating software.
The customer is not entitled to use the platform beyond the use permitted under this agreement. Without written consent, the customer is in particular not entitled to allow third parties, including his affiliated companies, external service providers, cooperation partners or subcontractors, to use the platform independently. In particular, the customer is also not permitted to reproduce, sell or give away the platform or parts thereof for a limited period of time, and in particular not to rent or lend it out.
If the contractual use of the platform is impaired by third party property rights through no fault of Firstbird, Firstbird is entitled to refuse the services affected by this. Firstbird will immediately inform the Customer of this and enable him to access his data in a suitable way. In this case, the Customer is not obliged to make further payments. Other claims or rights of the Customer remain unaffected.
VII. Term of Use
The term of use is determined by the main contract. The statutory right to extraordinary termination for good cause remains unaffected by the term and period of notice agreed in the main contract. An important reason, which entitles Firstbird to terminate the contract, exists in particular in the case of an abusive use according to Section 2 of these contract conditions.
VIII. Payment Terms
All prices and terms of payment are agreed by the parties in the main contract.
Firstbird warrants that the Service will be substantially as agreed, but not (i) the error-free or uninterrupted performance of the Service, or (ii) the functioning of the Service in combination with any content, applications or systems of the Customer or with any other hardware and software or with systems or data. Furthermore, the Customer acknowledges that Firstbird does not control the online data transfer and that the Service may be subject to limitations, delays and other problems and that Firstbird is not responsible for delays or other damages resulting from such problems. Firstbird is not responsible for errors resulting from the content or applications of the Customer or third parties.
Firstbird is only liable to the Customer for damages which can be proven to have been caused by Firstbird or a legal representative or vicarious agent intentionally or through gross negligence.
In any case Firstbird is liable for the amount limited to the contract-typical foreseeable damage, whereby any compensation or other claim against Firstbird is limited to the invoice value or in its absence to the user fee for the contract period. Essential contractual obligations are abstractly such obligations, the fulfillment of which makes the proper execution of a contract possible in the first place and on the compliance of which the contracting parties may regularly rely. Any further liability is excluded.
Also excluded is liability for indirect damages, such as lost profits, costs associated with an interruption of operations, loss of data or claims by third parties, for incidental damages or for consequential damages. Claims for damages become statute-barred according to the statutory provisions, but at the latest one year after the damage and the damaging party have become known.
XI. Data Protection
The customer is responsible for checking and complying with the data protection regulations which apply to the collection, processing and use of his data, in particular the data of his employees, within the framework of the service, and for safeguarding the rights of the persons concerned to information, correction, blocking and deletion. For the processing of data for the Customer by Firstbird, the parties conclude a separate Data Processing Agreement.
XII. Final Provisions
These Terms and Conditions are subject to the laws of the Republic of Austria, excluding the conflict of laws provisions and the UN Sales Convention.
Exclusive place of jurisdiction for disputes arising from and in connection with this contract is Vienna (Austria).