I. General Provisions
These General Terms and Conditions of Business, as amended at the time of entering into a contract, govern the use of and orders for any and all services offered via www.firstbird.com / www.1brd.com (the “Website”) in connection with our Firstbird Recommendation Platform (the “Platform” or “Firstbird”) as agreed 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 “Principals” or “Customers”). Diverging terms and conditions of the Principal will not be recognised unless their application is expressly confirmed by Firstbird GmbH in writing.
Our range of services is strictly addressed to enterprises. For the purpose of these General Terms and Conditions of Business (i) a “consumer” is defined as any natural person entering into a legal transaction for a purpose primarily outside the scope of an economic activity and (ii) an “entrepreneur” is defined as any natural or legal person or partnership with legal capacity entering into a legal transaction within the scope of an economic activity (trade, business, craft, liberal profession). We do not enter into contracts with consumers.
The Principal shall be deemed represented by the person opening a business account on www.firstbird.com / www.1brd.com (hereinafter the “Administrator”). The Administrator shall at the same time act as a contact person for Firstbird GmbH in managing the contract.
2. Later Amendments of these General Terms and Conditions of Business
Firstbird GmbH is entitled to adjust and complement these General Terms and Conditions of Business governing existing business relations to the extent that this is required due to changes in legislation or due to court rulings, or if other circumstances arise as would cause a more than insignificant imbalance in contractual relations. Such later amendments of these General Terms and Conditions of Business will take effect if the Principal does not object thereto within six (6) weeks from notification of the change. Firstbird GmbH will expressly indicate to the Principal at the beginning of such period for objection that tacit consent results in the acceptance of the contractual change and will give the Principal an opportunity for an express declaration of intent during such period. If the Principal objects within the deadline, both Firstbird GmbH and the Principal shall be entitled to immediate termination of the contractual relationship.
II. Conclusion of Contract and Subject Matter of Contract
1. Conclusion of Contract
By registering a business account via www.firstbird.com / www.1brd.com (“Customer Account”), Principal accepts these General Terms and Conditions of Business and sends an offer to enter into a contract for the use of the services provided on the platform free of charge (‘FirstbirdFree’). Firstbird GmbH accepts this offer to enter into a contract by activating the Customer Account.
2. Subject Matter of Contract
The subject matter of this contract is the provision of access to the platform offering free and chargeable services for a defined term, as described below and in Section III. In more detail (however, Firstbird GmbH reserves the right to turn content currently offered free of charge into a chargeable services in the future).
Upon registration, the Principal will choose a so-called Firstbird domain (for example: ‘[Name of Principal].1brd.com‘). Firstbird GmbH reserves the right to block certain domain names and/or change them (on reasonable grounds).
In principle, the use of the platform is free of charge. Firstbird GmbH will offer the Principal various service packages: a package of free services (“FirstbirdFree”) and a range of chargeable packages. For an overview of packages and up-to-date descriptions thereof, please visit: https://www.firstbird.com/pricing (“Chargeable Services” or “Chargeable Packages”). The use of such Chargeable Services shall also be governed by these General Terms and Conditions of Business. Prior to entering into a contract for Chargeable Services, Firstbird GmbH will inform the Principal about the content of each Chargeable Service, prices and payment terms. By clicking on the button “Neuen Account erstellen” (“Open new account”) the Principal declares that it wishes to enter into a contract for the Chargeable Services selected. The contractual relationship is closed when the respective Chargeable Service is activated and the Principal will receive confirmation thereof (“Confirmation of Order”) from Firstbird GmbH by e-mail.
Principal shall keep the password for access to the private area strictly confidential and shall refrain from disclosing it to third parties. Principal will take appropriate and reasonable precautions to prevent third parties from becoming cognisant to its password. Customer Accounts cannot be transferred to other users/customers or other third parties.
III. Services and Performance
1. Description of Services
During the term of the contract, Firstbird will offer the Customer a technical solution enabling Customer to access the platform described here online (the “Service“) and to use the platform functionalities under these General Terms and Conditions of Business and as described on the website.
Firstbird GmbH shall be entitled to change or update the Service (including the infrastructure, security features, technical configurations, applications etc.) during the term of the contract, i.a. to keep abreast of technologies, industrial practices and user behaviour. Such changes made by the Provider will not lead to a significant restriction of capability or availability of the Services provided.
Firstbird GmbH is offering Customers a web-based platform through which they can find suitable job candidates based on recommendations (hereinafter referred to as “Candidates”). In this context, Firstbird GmbH will merely make available the platform for the administration of the recommendation programme. Firstbird GmbH expressly declares
that it will neither look for suitable candidates on behalf of the Principal nor guarantee that the Principal will indeed find a suitable job candidate for its enterprise.
b.Administration Through its platform, Firstbird GmbH is facilitating the administration of job advertisements, recommendations and candidates.
Recruiters may use the platform of Firstbird GmbH to invite so-called “Talent Scouts” (employees of the Principal or selected third parties) to recommend candidates qualified for advertised job vacancies in the Principal’s enterprise. For this purpose, recruiters send invitations to join the platform to the Talent Scouts; these may then open their own accounts, including access data. The activities of Talent Scouts (recommendation of a suitable candidate, publication of job vacancies by e-mail or in social networks such as Facebook, Xing or LinkedIn) earn them bonuses in the form of points and badges which are visible to them in their private areas. Moreover, the Principal may pay them a monetary bonus if candidates they recommended are hired. Firstbird GmbH expressly declares that the payment of a monetary bonus will be at the sole discretion of the Principal. Firstbird GmbH does not become a party to any agreement between the Principal and the Talent Scouts. Furthermore, it is within the responsibility of the Principal to adhere to legislation in respect of social security contributions and taxes when paying out monetary bonuses.
d.Candidates Candidates may answer the Principal’s job advertisements by applying via the Firstbird GmbH platform. This requires the candidate to have been informed of the job vacancy by a Talent Scout (e.g. via publication of the job vacancy in a social network).
e.Chargeable Platform Services/Content
Apart from free platform services (FirstbirdFree), Firstbird GmbH is also offering the Principal various chargeable packages which will only be activated after placement of an order and receipt of payment. The content of chargeable services, prices and payment terms are listed in a separate section on the platform. For a general overview with up-to-date descriptions of the packages, please visit: www.firstbird.com/pricing/. Firstbird users may activate new functions and capabilities by upgrading the account to a chargeable version.
It is at the discretion of Firstbird GmbH to turn free content into a chargeable service at any time.
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 GmbH will not assume any liability in cases of delay in the performance of services due to force majeure and extraordinary and unforeseeable events which cannot be avoided
by Firstbird GmbH even with the utmost care and diligence (including, without being limited to, strikes, orders by authorities or courts or cases where Firstbird GmbH is not correctly or properly supplied in spite of an adequate cover transaction). The Principal is authorising Firstbird GmbH to postpone performance of the service for such time as the obstacle to performance continues to exist.
IV. Principal’s Responsibilities/Obligations
Principal shall fulfil the obligations incumbent upon it for the provision of services and management of the contract.
1. Content of Information, Job Advertisements, Profile Design and other Obligations
Principal undertakes to upload truthful content and legitimate job advertisements exclusively, and to compile the information about the job vacancy transmitted to Firstbird GmbH carefully and properly, and to deactivate or update, as the case may be, any content which is no longer current. Customer shall be exclusively responsible for the content and correctness of data and pictures transmitted.
Moreover, Principal’s obligations shall include, without being limited to:
the obligation to make timely payment of the agreed fees. Firstbird GmbH shall be refunded by Principal any and all costs incurred for any direct debit which is not honoured or returned;
the obligation to protect the user and access authorisations assigned to Principal or its users (in particular passwords) as well as of identification and authentication backups from third-party access and not to disclose these to unauthorised users;
the obligation to ensure that any and all industrial property right and copyright rules are observed (e.g. when third-party texts and data are uploaded to Provider’s server);
the obligation to obtain the consent of those concerned if the Principal collects, processes or uses personal data while using the platform and there is no statutory basis approving such collection, processing or use;
the obligation to refrain from the following unless authorised to do so: retrieving, or having retrieved by third parties, information or data, or interfering with programmes run by the Provider, or having third parties interfere with such programmes, or accessing data networks of the Provider;
the Principal is prohibited to save content the provision, publication and use of which infringes legislation in force at the time or agreements with third parties. In particular, Principal undertakes not to transmit any data or pictures the content of which infringe the rights of third parties (e.g. personality rights, name rights, trademark rights, copyrights etc.) or violate legislation.
Firstbird GmbH will not verify data uploaded to the platform, nor will it run data quality, data compatibility and data accuracy checks. In the event that the Principal overwrites or deletes data, Firstbird GmbH will not be obliged to recover such data (if this is at all technically feasible).
2. No Misuse
The Principal undertakes only to use the services provided by Firstbird GmbH to the extent that this is lawful and permissible under these General Terms and Conditions of Business. Misuse will lead to the revocation of the right of use granted by registration. In the event that Firstbird GmbH becomes aware of misuse, it may deactivate the Principal’s Customer Account and terminate the Contract without notice. Previously paid fees, if any, will not be refunded in such case.
Misuse shall include, without being limited to, unlawful use, such as copyright infringements. Moreover, misuse shall be deemed to include the provision, dissemination or other exploitation of illegally acquired data as well as the dissemination or provision of data for unlawful purposes. In particular, misuse of the Services provided by Firstbird GmbH shall be deemed to include:
sending and storing insulting, obscene, threatening or offending content or content which infringes third-party rights in any other way,
sending and storing viruses, worms, trojans as well as harmful computer codes, files, scripts, agents or programmes,
uploading programmes suited for disrupting, impairing or obstruct the operations of Firstbird GmbH,
attempting to gain unauthorised access to a Firstbird GmbH Service or the platform or individual modules, systems or applications or to grant third parties such access.
The Principal undertakes to hold Firstbird GmbH harmless and indemnified of all claims by third parties, including reasonable or statutorily determined costs of defending its rights if such claims are based on Principal’s use of the platform and its content in breach of the contract or in a manner that constitutes platform misuse and/or unlawful platform use, or if this happened with Principal’s condonement or if such claims pertain to disputes under data protection, copyright or other legislation linked with platform use. If the Principal identifies or ought to identify such a breach or the risk of such a breach, it shall be obliged to inform Firstbird GmbH without delay. The Principal will support Firstbird GmbH in defending itself against such claims, such support including, without being limited to, the provision of any and all information required for such defence. The Principal is obliged to compensate Firstbird GmbH for any damage or loss caused by the successful enforcement of such claims by third parties.
V. Security and Availability
To the extent that is economically reasonable, Firstbird GmbH will use state-of-the-art security technology (e.g. encryption and password protection) when making the platform available.
For chargeable services/packages, the Parties agree on an annual average of 97% platform availability during the business hours of customer support (working days between 09:00 and
16:00 CET). If maintenance work is done during customer support hours and such maintenance work is announced in due time, maintenance shall be deemed available during these hours for the purpose of calculating availability time.
VI. Right to Platform Use and Requirements of Contractual Use
The Principal will be given the non-exclusive right to access the platform via telecommunications for Principal’s own internal business use; such use shall be in a proper manner and in conformity with the contract, and such right shall be granted for the term of the contract; Principal shall not be entitled to grant sub-licenses to such right of use, and Principal shall use the functionalities offered on the platform via a browser in accordance with the contract. Customer will not be granted any further rights, including rights to the software applications linked with the platform or to the operating software.
The Principal shall not be entitled to use the platform beyond the scope of contractual use. Without written approval, Principal shall in particular not be entitled to permit independent platform use to third parties, including its affiliates, external service providers, cooperation partners or subcontractors. Moreover, Principal shall in particular not be allowed to reproduce, sell or loan the platform for a defined term; this shall include a prohibition to let or lease out their platform.
If the use of the platform in conformity with the contract is impaired by third-party property rights without any fault of Firstbird GmbH, Firstbird GmbH shall be entitled to refuse the provision of the services concerned. Firstbird GmbH will inform the Principal thereof without delay and facilitate access to Principal’s data in an appropriate manner. In such case, Principal will not be obliged to continue making payments. Other entitlements or rights of Principal shall remain unaffected.
VII. Term of the Contract
If the Principal does not select a minimum contract term when entering into the contract or does not delete its Account, the contract shall be for an unlimited term but may be terminated at any time by either party as per the end of a month subject to a period of notice of three (3) months. If the Principal is not using any chargeable Services/packages, Firstbird GmbH shall be entitled to discontinue providing the Service or to terminate the contract with the Principal at any time without notice.
In the event of a minimum defined term, the contract shall be extended by the same term if it is not terminated in writing by the Principal or Firstbird GmbH in a timely manner as per the end of a month subject to a period of notice of three (3) months.
The Principal shall at all times be entitled to delete its Account. If no chargeable Services were used, deletion shall be considered equivalent to termination of the contract. Upon deletion of an Account, any job advertisements as may still be active will be deactivated and related data will be permanently erased after a period of 30 days.
The statutory right to termination without notice for cause shall be unaffected by this clause. One cause entitling Firstbird GmbH to terminate the contract without notice is misuse as defined in Clause 4 of this contract.
VIII. Payment Terms (for Chargeable Services Only)
Apart from the Terms and Conditions of Payment published on the website, the following shall apply to chargeable Services:
Any and all prices stated are net prices subject to statutory value-added tax at the applicable rate.
2. Usage Fee
The Principal shall be obliged to pay a usage fee to Firstbird GmbH for selected chargeable packages. Such fee may be charged monthly or annually. The amount payable is subject to the price list of Firstbird GmbH applicable at the time of the order (see https://www.firstbird.com/pricing).
3. Usage Fee Adjustment
Firstbird GmbH shall be entitled to adjust the usage fee and/or the price list relating thereto in the event that the contract term is extended. Firstbird GmbH will give the Principal three (3) months’ advance notice of any usage fee adjustments.
4. Payment Modes
The chargeable ‘Basic’ and ‘Standard’ packages can only be paid for directly via the Administrator Account by credit card. After payment has been made, the chargeable package ordered will be activated. After payment, Principal shall receive an invoice or order confirmation to the e-mail communicated. Further payment modes are available for the ‘Enterprise’ package.
5. Account Suspension in Case of Default
In the event that Principal is in delay with payments, Firstbird GmbH shall be entitled to suspend Prinipal’s access and all user accounts on the platform of Firstbird GmbH until all outstanding payments have been made. The Principal shall not be entitled to any setoff unless related claims were confirmed by court and are final and unappealable, or if related claims were recognised by Firstbird GmbH in writing.
Firstbird GmbH warrants (in respect of chargeable Services only) that the quality of the Services is essentially as agreed upon but not that (i) the Services are rendered free from error or distuption and that (ii) the Services function in combination with any and all content, applications or systems of Customer or with any other hardware and software or systems or data. Moreover, Customer acknowledges that Firstbird GmbH does not control online data transmission and that the Services could be subject to restrictions, delays and other problems with Firstbird GmbH not being responsible for delays or other damage or loss caused by such problems. Firstbird GmbH is not responsible for errors arising from content or applications of the Customer or third parties.
Customer shall inform Firstbird GmbH of any Service breakdown without delay, and no later than after two (2) weeks via customer support. Fault reports sent through this channel shall contain any and all relevant information for Firstbird GmbH to reproduce and eventually remove the essential fault.
In the event that Customer has used chargeable Services of the platform and that the breakdown was reported properly and proof thereof was furnished, Firstbird GmbH shall provide to the Customer, at the latter’s discretion, a new, fault-free version if this is reasonable for the Customer, or to remove the fault otherwise. If such troubleshooting fails finally after a reasonable period of grace has been set by the Customer, Customer may opt to reduce consideration or terminate the Service. If Customer did not use any chargeable Services, no such rights exist.
In the event that Customer uses chargeable Services within the meaning of Clause III.1.e, Firstbird GmbH will only assume any liability for damage or loss demonstrably caused by itself or one of its legal representatives or vicarious agents with premeditation or gross negligence.
In the event that Customer uses content for free (“FirstbirdFree”) Firstbird GmbH will only assume liability for damage demonstrably caused by itself or one of its legal representatives or vicarious agents with premeditation or severe gross negligence.
In any event, Firstbird GmbH will only assume liability in an amount that is equivalent to the foreseeable damage or loss typical for the type of contract; any damages or other claims whatsoever asserted against Firstbird GmbH shall be limited to the amount invoiced or, for lack thereof, to the usage fee for the term of the contract (in the event of contracts for an unlimited period, this shall be defined as a cumulative annual usage fee). The abstract definition of the term “essential contractual obligations” relates to obligations the fulfilment of which make the proper performance of a contract possible at all and the parties to the contract can rely on as a rule. Any liability beyond this is excluded.
Liability for indirect damage, such as lost profits, expenses arising from a disruption of business operations, data loss or third-party claims, incidental damage or consequential damage caused by a defect will also be excluded.
Claims for damages will become statute-barred as stipulated by law, and no later than one year after the damage or loss and the party causing the damage have become known.
XI. Data Protection
The Principal shall be responsible for reviewing and adhering to the data protection legislation applicable to the collection, processing and use of its data in the framework of the Services, and to safeguard the rights of those concerned to information, correction, blocking or deletion. The parties will enter into a separate contract data processing agreement in respect of data use.
XII. Final Provisions
Contracts shall be governed by the laws of the Republic of Austria to the exclusion of the United Nations Convention on the International Sale of Goods. The courts in Vienna (Austria)
shall have exclusive jurisdiction in any and all disputes arising from and in connection with such contracts.
Amendments and additions to contracts shall be done in writing to be valid. This shall also apply to amendments to this paragraph.
The Principal will not be entitled to assign contracts or rights and obligations under contracts, including the use of the Services wholly or partly to third parties without the prior written consent of Firstbird GmbH.
In the event that a provision of a contract is or becomes ineffective or unenforceable, or in the event of lacunae in a contract, the effectiveness and enforceability of the remainder of the contract shall be unaffected. The lacuna or ineffective or unenforceable provision shall be replaced by a provision which is as close as possible to the intended and economic purpose which the parties aim at.