END USER LICENSE AGREEMENT28.02.2019
END USER LICENSE AGREEMENT
This End User License Agreement (EULA) is a legally binding agreement that governs your use of the Henkel-branded twago web-based software platform (Henkel FMS) and any related documentation (Documentation). Twago, including Henkel FMS, is owned, operated and maintained by Team2Venture GmbH, Friedrichstraße 224, 10969 Berlin, Germany, a member of the Randstad Group (Licensor). By clicking “Accept” or otherwise proceeding to access Henkel FMS, you agree that your access and use of Henkel FMS will be governed by the terms of this EULA. Licensor reserves the right to modify, to amend or to redraft this EULA at any time in its sole discretion.
Henkel FMS facilitates the matching of clients needing services with contractors who offer services. Licensor does not itself act as an intermediary for any negotiations or agreements between clients and freelancers/contractors. The particular Henkel FMS instance of Twago to which you will have access hereunder relates solely to positions and projects at Henkel AG & Co. KGaA (Henkel). Any engagement by Henkel for your services is the subject of a separate agreement or agreements between Henkel and you (or among Henkel, you and a third party) and will not involve Licensor.
Use of Henkel FMS for Henkel Positions
Henkel has engaged Randstad Sourceright GmbH (RSR) to act as managed service provider (MSP) to coordinate and administer Henkel's use of flexible labour. In connection with these MSP services, MSP will be using a third-party vendor management system (VMS).
Henkel regularly enters open work orders into the VMS (Open Orders). Certain of these Open Orders will then flow from the VMS into the Henkel FMS platform. When you enter Henkel FMS, you will have the opportunity to browse the Open Orders that are made available to you. You will then be able to apply for positions for which you have both interest and the required qualifications. MSP will perform vetting of all applications, and may decide to pass your application along to Henkel.
Contracting and commercial conditions
You will not be charged an entrance fee for the use of the Henkel FMS.
As noted above, if your application is selected by Henkel to fulfil an Open Order, you will not be engaged by Licensor. Rather, in most cases you will be engaged by a third party that is a Henkel-approved supplier within Henkel's flexible labour program, Gulp Consulting Services GmbH (Broker). The commercial terms and conditions of your engagement will be the subject of a separate agreement between you and the Broker.
Note, however, that before such engagement can be finalised certain control measures will be required to ensure that the performance of the work by you as an independent contractor will be completed in a sufficiently independent way. These control measures have been introduced because of the applicable law in Germany with respect to freelancers.
If you are pre-selected by Henkel and pass the required control measures, you will be invited to offer MSP your Freelancer fee (per hour/ lump sum). Based on your offered amount, MSP will agree with you on a final fee that you will be allowed to invoice to the Broker.
Grant of Limited License
Licensor hereby grants you a personal, temporary, revocable, royalty-free, nonexclusive, nonsub- licensable and non-transferable license to use Henkel FMS and the Documentation solely in connection with your potential engagement to fill Henkel's Open Orders, subject to the terms, conditions and restrictions set forth in this EULA. This is a limited license. All other rights and ownership with respect to Henkel FMS (including without limitation copyrights) reside with Licensor.
In order to use Henkel FMS, you must complete the online registration process and use the activation link in the verification e-mail sent to you by Licensor. With your registration, you attest that you are a natural person at least 18 years old and legally competent. You represent and warrant that all of the information you provide in connection with the registration is truthful, accurate and complete.
You will be required to provide a current e-mail address during registration, which also serves the communication between user and Henkel FMS. You acknowledge and agree that all notices from Licensor will be sent to the e-mail address you provide, and that it is your responsibility to monitor such address. In the event of any change to your e-mail address, you agree to update your account information without delay.
Account and User Profile
Upon a successful registration you will be provided with an account, within which you can create your own profile.
You are limited to one account under this EULA. Your account and user profile are protected by a user name and a password (hereinafter referred to as “login information”) which are determined during the registration process. You must keep your login information confidential and you may not share such information with others. You must ensure that your login information is not accessible to third parties. In case of loss of the login information, or in case of suspicion that a third party has knowledge of the information or is making use of your account, you are obliged to inform Licensor about this immediately and to change your login information.
You represent and warrant that all information you provide in connection with your account and your user profile is accurate and complete, and contains no misrepresentations as to your skills, competencies, experience, education or employment history. You agree to keep your user profile up-to-date and promptly correct any information that is or becomes untrue or misleading.
Your account and user profile are personal to you and cannot be transferred to a third party under any circumstances.
Data Within the Platform
Licensor retains ownership of your login information for Henkel FMS. You retain ownership of any data you enter into the platform with respect to your user account and profile (User Data). You hereby grant Licensor a permanent, royalty-free, nonexclusive, sub-licensable and transferable license to use your User Data in connection with the offering of services by Licensor or its affiliates to Henkel. As noted above, you also agree that Licensor may (i) share User Data with Henkel (ii) share User Data with MSP (iii) share User Data with Broker and (iii) export User Data to the VMS.
You are responsible for maintaining your own copies of any User Data. Licensor reserves the right to delete User Data at any time, and makes no warranty or promise as to the retention of User Data for any particular length of time.
You are responsible for all User Data you entered into Henkel FMS. Licensor is authorized to block the access to or delete certain contents at any given time for any reason. This is particularly applicable in case of suspected violation of the EULA, applicable laws or rights of third parties, or if projects are completely finalized. You agree to indemnify and hold harmless Licensor from any claims arising from your User Data, including without limitation claims that your User Data violates applicable law or infringes the rights of third parties.
Use and Protection of Your Data
You can find further Information on Data Protection and your rights under the following Link: freelancer-henkel.talent-pool.com/privacy
Restrictions on Use
Any use, modification, or distribution of Henkel FMS or Documentation outside the scope of the express licenses granted herein is strictly prohibited. You will not, and will not knowingly permit others to: (a) modify Henkel FMS; or (b) decompile, reverse-engineer, disassemble, or otherwise attempt, directly or indirectly, to obtain or create source code for Henkel FMS, (c) introduce viruses, worms, robots, scripts, macros or harmful code of any kind within Henkel FMS, or (d) manipulate, impair and/or excessively strain the operation of the online platform, its underlying technical infrastructure or its functions. You shall not, and shall not knowingly permit others to: (a) lease, license, sublicense, transfer, or assign any of your rights under this EULA; (b) sell, rent, or distribute Henkel FMS, including allowing others to access Henkel FMS using your account; or (c) copy, duplicate, or otherwise reproduce all or any part of Henkel FMS or Documentation. Any breach of the foregoing is a material breach of this EULA that is incapable of cure.
§ 5 Cancellation right of the consumer
Provided the user is a consumer within the meaning of § 13 BGB (German Civil Code), and has provided true information to this effect in accordance with § 1.2. and 1.3. the following right of withdrawal shall apply:
Right of withdrawal
You have the right to withdraw from this contract within 14 days without giving any reason. The period begins after receipt of this instruction in text form, however not before the conclusion of the contract and also not before fulfilment of our information duties according to article 246 § 2 EGBGB in connection with § 1 exp. 1 and 2 of these AGB, as well as our duties according to § 312e exp. 1 sentence 1 BGB in connection with article 246 § 3 EGBGB. To exercise the right of withdrawal, you must inform us
Tel: +49 (0)30 20164034-0
Fax: +49 (0)30 20164034-001
of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post, fax or e-mail). You may use the attached model withdrawal form, but it is not obligatory. To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
Effects of withdrawal
If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.
If you requested to begin the performance of services during the withdrawal period, you shall pay us an amount which is in proportion to what has been provided until you have communicated us your withdrawal from this contract, in comparison with the full coverage of the contract.
Termination of the right to withdraw
The consumer hereby agrees that the provider commences work prior to the 14 day right of withdrawal period, and therefore acknowledges that the right to terminate the agreement is relinquished at the point of purchase.
The right of withdrawal as per the § 312 g II BGB is not applicable to contracts regarding the delivery of made-to-order goods involving personalized production, that are not prefabricated.
- End of statutory information on right of withdrawal -
This EULA may be terminated at any time and for any reason (or for no reason) by you or by Licensor upon written notice (including email). Without limiting the foregoing, Licensor may terminate this EULA at any time upon request of Henkel. Upon any termination, (i) all licenses granted to you under this EULA will immediately terminate; (ii) you shall immediately cease using Henkel FMS and Documentation; and (iii) you must promptly return or destroy all copies of Documentation. The destruction requirement applies to copies in all forms, partial and complete, in all types of media and computer memory, and whether or not modified or merged into other materials. Termination of this EULA will not limit Licensor from pursuing any other remedies that may be available, including injunctive relief.
Limitation of Liability
Licensor shall not under any circumstances be liable for any special or consequential damages (including loss of profits, savings, revenue, or use, damaged or lost files or data, or business interruption) that may arise in connection with this EULA, the use or support of Henkel FMS, or any matter whatsoever, regardless of the cause of action or characterization of the damages, regardless of whether such damages were foreseeable and even if Licensor has been advised of the possibility of such damages.
If legally possible the aggregate liability of Licensor to you arising out of or relating to this EULA and the use or support of Henkel FMS, regardless of the cause of action or characterization of the damages, including without limitation Licensors indemnification obligations hereunder, shall not exceed fifty Euro (€50.00). This does not apply for liability in the event of intent or gross negligence, due to injury to life, body or health, due to guarantee or due to culpable breach of significant contractual obligations (German: Kardinalpflichten).
Neither party will be liable for any damages based on actions or occurrences that occurred more than one year before the other party provides notice of the claim. The foregoing limitations of liability will survive and apply notwithstanding the failure of essential purpose of any remedies specified herein.
Disclaimers of Warranties
You acknowledge that Licensor makes no warranties to you regarding Henkel FMS, except as specifically set forth in the “use and protection of your data” section above.
Licensor takes no responsibility for any failure of use or suitability of Henkel FMS caused by the data you input, or by your failure to enter data properly.
Henkel FMS is provided “as is,” and Licensor makes no any additional warranties, express, implied, arising from course of dealing or usage of trade, or statutory, as to any software or documentation provided hereunder, or any matter whatsoever. The parties disclaim all implied warranties of merchantability, fitness for a particular purpose, satisfactory quality, title, and non- infringement.
Licensor makes no warranty: (i) with respect to Henkel FMSs availability, (ii) that Henkel FMS will meet any requirements not specifically set forth herein, (iii) that the operation of Henkel FMS will be uninterrupted or error-free, or (iv) that all errors will be corrected.
Licensor makes no warranty as to the completeness or correctness of any list or set of Henkel opportunities that you are shown within Henkel FMS. Licensor makes no warranty as to whether you will obtain any customer engagements through use of Henkel FMS, or as to the quality of such engagements. Licensor disclaims any responsibility for acts or omissions of Henkel.
Licensor makes no representations or warranties as to the suitability or financial wherewithal of customer.
No statement by any Licensor employee or agent, orally or in writing, will serve to create any warranty or obligation not set forth herein or to otherwise modify this EULA in any way.
Copyright Infringement - Platform
Licensor shall defend or, at its sole option, settle, at its own expense any suit, action, or proceeding brought in a court of competent jurisdiction against you by a third party to the extent it is based on a claim that Henkel FMS infringes any copyright or trade secret arising under the laws of any jurisdiction (an IP Action), and Licensor shall pay damages finally awarded against you in such IP Action, or those monetary damages agreed to by Licensor and the claimant in a monetary settlement of such IP Action, in either case subject to the limitations on liability stated herein; provided that Licensor will be relieved of the foregoing obligations unless you: (a) give Licensor and Henkel prompt written notice of each such claim; (b) tender to Licensor sole control of the defense or settlement of each such IP Action; and (c) cooperate with Licensor in defending or settling each such IP Action. If Licensor receives notice of an allegation that Henkel FMS infringes or misappropriates a third party's intellectual property rights, or if your use of Henkel FMS is prohibited by permanent injunction of a court of competent jurisdiction as a result of such an infringement or misappropriation, Licensor may, at its sole option and expense: (i) procure the right to continue using Henkel FMS as provided hereunder; (ii) modify Henkel FMS so that it is no longer infringing; (iii) replace Henkel FMS with other software of equal or superior functional capability; or (iv) terminate this EULA.
Use of the Platform
You agree that at all times in using Henkel FMS you will comply with all applicable laws and regulations, especially criminal law, competition law, trademark law, copyright law, personal rights, data protection law and laws concerning the protection of young persons, and you agree not to violate the rights of any third party when using this platform.
You may not use Henkel FMS to send messages with advertising content (especially spam- messages) without the consent of the recipient. In the event that content you post contains hyperlinks to pages of third parties, you shall ensure that you have proper authorisation to use the hyperlinks and that the website to which the link is established.
Henkel FMS is dependent on the fact that solely genuine bids and offers are posted. Therefore you should only apply for or indicate interest in projects and positions for which you have a genuine interest and a good faith belief that your background and experience are appropriate.
You agree to keep strictly confidential, and not to disclose to any third party (other than on a need- to-know basis to a party subject to an obligation to maintain the confidentiality of the information, such as your legal counsel), any confidential or proprietary Henkel or Licensor information to which you are exposed in your use of Henkel FMS (Confidential Information). You further agree to use Confidential Information solely for the purposes described in this EULA. Confidential Information includes, without limitation, any information that is marked as confidential or that could reasonably be expected to be considered confidential, including without limitation information about Open Orders, fees, and login information. Confidential Information hereunder does not include information that you can clearly establish: (i) is in the public domain (unless such information is public as a result of a breach by you), (ii) was disclosed to you by a third party that is not subject to confidentiality obligations or (iii) was known to you prior to your first access to Henkel FMS. If you believe you are required by an applicable law, regulation or court order to disclose Confidential Information, you will first provide notice to Licensor and cooperate with Licensors efforts to limit such disclosure or obtain confidential treatment of such disclosure.
Applicable law and court of jurisdiction
The laws of Germany shall apply to this EULA, without regard to its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this EULA. Any action brought with respect to this EULA may only be brought in a court of competent jurisdiction in Frankfurt (Main), Germany.
Licensor has the right to transfer this EULA, and all of Licensor's rights and obligations included herein, in connection with any sale, transfer or license of Henkel FMS to a third party.