GTC
General Terms and Conditions
March, 2025
1 Scope of Application, Form
1.1 These General Terms and Conditions (hereinafter referred to as “GTC”) apply to all business relationships between Empion GmbH, Dircksenstraße 47, 10178 Berlin, Germany (hereinafter referred to as “Empion”) and its commercial customers.
1.2 These GTC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and to the extent that Empion has expressly agreed to their applicability in writing or in text form (e.g. letter or email). This requirement of consent shall apply in all cases, in particular also if Empion performs contractual services to the customer without reservation while being aware of the customer’s general terms and conditions.
1.3 These GTC do not apply to applicants who register on Empion’s SaaS recruiting platform; for applicants, only Empion’s Terms of Use shall apply.
2 Conclusion of Contract
A contract with Empion shall only be concluded once the customer has accepted Empion’s offer without reservation or has received a written order confirmation from Empion or Empion has commenced performance. Offers made by Empion are non-binding and may be revoked at any time until written acceptance by the customer. Amendments, ancillary agreements or supplements, as well as any agreements on quality or the assumption of guarantees shall require an express written agreement to be effective.
3 Subject Matter of the Contract, Services
3.1 Empion is a provider of a recruiting SaaS solution for companies and potential employees. Empion additionally offers the possibility to integrate and review further contacts within the product that were not generated via Empion. Furthermore, Empion offers the possibility to certify customers in various areas based on a cultural analysis (hereinafter referred to as the “Service”). Empion provides the Service to the customer as software-as-a-service via the internet. The customer uses the Service via its customer account.
3.2 Empion shall initially set up the Service for the customer as part of an onboarding process. Unless otherwise agreed, this shall be carried out via remote maintenance.
3.3 During the term of the contract, the Service shall include all updates and other version changes of the contractual product in accordance with Section 4.4.
3.4 Where contractually agreed, Empion shall also provide the customer with support for technical issues and the optimal use of the Service.
3.5 Empion reserves the right to continuously further develop the Service and to expand, reasonably adapt or restrict its functional scope.
4 Availability and Maintenance
4.1 The Service shall be available to the customer on average 99% per calendar year (hereinafter referred to as “Availability”). Availability shall not include downtime caused by
4.1.1 announced maintenance work;
4.1.2 unforeseeable urgent maintenance work, e.g. to remedy security vulnerabilities;
4.1.3 force majeure or other events beyond Empion’s control that were unforeseeable and could not be prevented by Empion, in particular war or acts of war, terrorist acts, cyberattacks, strikes, lawful lockouts, severe weather conditions, power outages, traffic disruptions, fire damage, epidemics and pandemics, changes in law and governmental orders, as well as operational disruptions or supply shortages, insofar as these are not attributable to Empion;
4.1.4 third parties who are not vicarious agents of Empion;
4.1.5 the customer, the software or hardware used by the customer, or the customer’s internet connection.
4.2 Availability shall be calculated according to the following formula:
(Maximum availability – downtime) / (maximum availability × 100)
4.3 Empion is entitled to carry out regular maintenance work and will endeavor to keep interruptions to a minimum. Empion shall inform the customer at least one day prior to the commencement of such work. In urgent cases, e.g. to remedy security vulnerabilities, Empion may shorten the notice period or, if unavoidable, commence maintenance work without prior notice. If prior notice is not possible, the customer shall be informed as soon as the circumstances permit.
4.4 Empion is entitled, but not obliged, to perform updates of the Service as part of maintenance work. Empion may adapt and modify the scope of services in line with technological progress, provided that the agreed functionalities are not materially impaired. Empion is not required to ensure downward compatibility with third-party software that does not correspond to the current state of the art and/or interoperability with third-party software. Empion does not provide any warranty or assurance in this respect. Any costs incurred to (re)establish interoperability with third-party software shall be borne by the customer, unless such interoperability has been expressly agreed as a contractual quality. Warranty claims remain unaffected.
4.5 The customer shall report disruptions not caused by maintenance work without undue delay and ensure that the following information is provided:
4.5.1 description, date and time of the incident,
4.5.2 affected functionality,
4.5.3 preliminary priority classification,
4.5.4 measures already taken by the customer to remedy the incident.
4.6 Upon request, the customer shall provide any further assistance and information required to remedy the disruption.
4.7 If the customer has reported a disruption, the following response times shall apply, which Empion may determine at its reasonable discretion (§ 315 BGB):
4.8 If an appropriate workaround is available or provided by Empion, the disruption shall be classified as priority level 4.
4.9 Within the applicable response times, Empion shall commence work to remedy the disruption. Times outside service hours shall not be deemed response times.
4.10 Empion is not obliged to remedy the disruption within the response times but shall endeavor to remedy it within a reasonable period and inform the customer accordingly.
4.11 No maintenance obligations exist with respect to third-party software.
5 Subcontractors
Empion is entitled to engage subcontractors for the performance of the contract.
6 Customer Usage Rights
6.1 Empion grants the customer a worldwide, non-exclusive, non-transferable right, limited to the term of the contract, to use the Service for its own purposes, i.e. by its own employees, in accordance with the contract. Usage is limited to cloud-based access via a web browser.
6.2 The customer shall comply with the agreed license scope. In the event of exceeding this scope, Empion is entitled to charge an additional reasonable fee and reserves the right to assert claims for damages. In the event of a hire occurring after the official end of the contract (up to one year), Empion is entitled to invoice a fee equal to 15% of the gross annual salary.
6.3 The customer acknowledges that all exclusive rights to the Service and all included technologies, materials and documentation are vested in Empion. Nothing in this agreement shall be construed as transferring any rights to the customer beyond those expressly granted. All rights not expressly granted remain reserved to Empion.
6.4 The customer may not use the service for purposes other than those specified in the agreement and must protect the service from unauthorized access by third parties. Without limiting the generality of the foregoing, the customer is specifically prohibited from
(i) using the service or parts thereof for purposes other than those specified in the agreement and in accordance with the terms of the agreement,
(ii) offer the Service or parts thereof to third parties or distribute, sell, resell, lease, rent, lend, or otherwise transfer, sublicense, or assign rights thereto to third parties without the prior written consent of Empion,
(iii) disclose the Service or parts thereof or make it available to third parties or allow persons other than the Customer's employees to use it in any way,
(iv) modify, supplement, alter, or adapt the Service,
(v) reverse engineer, decompile, translate, disassemble, or decompile data formats that are part of the Service, and/or otherwise attempt to obtain the source code or parts thereof (unless permitted under 6.5);
(vi) make copies of the Service or any part thereof;
(vii) use the Service to develop a competing product or service;
(viii) disable, modify, or circumvent any license management system or security mechanism provided with the Service;
(ix) access or use the Service to provide data processing or batch processing services for others, or
(x) remove, alter, or obscure any proprietary or copyright notices, trademarks, or other marks of Empion or third-party rights holders.
(iii) disclose the Service or parts thereof or make it available to third parties or allow persons other than the Customer's employees to use it in any way,
(iv) modify, supplement, alter, or adapt the Service,
(v) reverse engineer, decompile, translate, disassemble, or decompile data formats that are part of the Service, and/or otherwise attempt to obtain the source code or parts thereof (unless permitted under 6.5);
(vi) make copies of the Service or any part thereof;
(vii) use the Service to develop a competing product or service;
(viii) disable, modify, or circumvent any license management system or security mechanism provided with the Service;
(ix) access or use the Service to provide data processing or batch processing services for others, or
(x) remove, alter, or obscure any proprietary or copyright notices, trademarks, or other marks of Empion or third-party rights holders.
6.5 The statutory rights of the Customer pursuant to § 69d (2) and (3) and § 69e German Copyright Act (UrhG) shall remain unaffected; provided, however, that
(i) decompilation pursuant to § 69e German Copyright Act (UrhG) may only be carried out following a prior written request to Empion in which the Customer requests the necessary information and Empion fails to provide such necessary information within two weeks, and
(ii) the parties enter into a reasonable non-disclosure agreement ensuring the protection of the Service and the source code against access by third parties.
7 Customer Content
7.1 Empion enables the customer to process their own data (hereinafter referred to as “customer content”) within the scope of using the service. The customer grants Empion a worldwide, non-exclusive right, limited to the term of the contract, to use the customer content within the scope of the service in order to provide the contractual services. This includes, in particular, the right to reproduce the Customer Content and make it publicly available within the scope of the Service for the users designated by the customer. Empion is entitled to transfer these rights to third parties, in particular to host providers, to the extent necessary for the provision of the Service.
7.2 The Service allows for analyses of the customer’s corporate culture (“Cultural Analysis”). Unless otherwise agreed, Empion may display aggregated results on the customer’s public company profile.
7.3 Empion may use Customer Content and Cultural Analyses for analytics, calibration and benchmarking purposes.
7.4 The customer grants Empion the right to use the customer’s logo and create a public profile for marketing purposes.
7.5 The customer must ensure that the customer content does not violate or infringe any legal provisions and/or third-party rights, in particular the intellectual property rights of third parties, their personal rights, competition law or data protection provisions, or criminal law provisions. If the customer violates these obligations, Empion is entitled to demand that the customer no longer process the infringing content with the service and delete it. If necessary, Empion is entitled to delete the infringing customer content itself without prior notice. Furthermore, the customer shall indemnify Empion against any third-party claims arising from the infringement, reimburse Empion for reasonable legal defense costs, and provide Empion with all information, documents, and statements necessary for the legal defense.
7.6 The customer is responsible for regularly backing up customer content. It is therefore incumbent upon the customer to always keep at least one copy of the relevant data and, separately, a current backup stored and usable on their own systems. This applies regardless of the fact that Empion performs data backups in the course of operating the service. Empion is not responsible for any damage that could have been avoided by the customer regularly backing up all relevant data.
8 Term and Termination
8.1 The term of the contract for the provision of services is 12 months (hereinafter referred to as the “contract term”). The contract term begins on the first day of the month following the month in which the contract was concluded. For clarification: If the contract is concluded within the month of March, the contract term begins on April 1 of the same year. If the contract contains deviating wording, this shall supersede the termination and renewal clauses contained herein.
8.2 The contract may be terminated with three months' notice to the end of the contract term. If the contract is not terminated, it shall be automatically extended by 12 months (hereinafter referred to as the “extension period”). During the extension period, termination is possible with three months' notice to the end of the contract.
8.3 The contract may be terminated by either party without notice for good cause (extraordinary termination). Good cause justifying extraordinary termination by Empion shall be deemed to exist in particular if
8.3.1 the customer culpably breaches an essential contractual obligation incumbent upon them and, despite a warning from Empion, if such a warning is necessary does not cease this breach of duty or does not remedy the breach within a reasonable period set by Empion for this purpose;
8.3.2 the customer's financial circumstances have deteriorated significantly, so that the proper fulfillment of Empion's claims appears to be at risk;
8.3.3 the customer becomes insolvent or there is a threat of insolvency proceedings, dissolution, liquidation or conversion.
8.4 Notices of termination must be in writing to be valid.
9 Remuneration and Payment Terms
9.1 The customer shall pay Empion the remuneration agreed in the contract, consisting of the ongoing usage fee and any additional services accepted. Unless otherwise agreed, additional services ordered by the customer from Empion shall be invoiced in accordance with Empion's price list valid at the time the services are provided.
9.2 The contractually agreed remuneration specified in the contract is based on the selected service packages and extras, as well as on the information provided by the customer to Empion (e.g., number of employees, number of hires, etc.). If, during the setup of the service or during its use, it is determined that the actual data of the company deviates from the information provided by the company, Empion shall be entitled to adjust the price accordingly. Empion's claims for damages based on lost profits due to inaccurate/incorrect information provided by the customer shall remain unaffected by this.
9.3 All prices quoted by Empion are exclusive of statutory sales tax.
9.4 All payments shall be made using the selected payment option.
9.5 If the SEPA direct debit payment option is selected, Empion is obliged to inform the client of the amount and the date of the debit in advance. It is agreed that this advance notification requirement shall be reduced to one working day.
9.6 In order to be able to respond to any price increases, Empion is entitled to increase the contractually agreed usage fee once per contract year by a maximum of 10% each time. Empion also reserves the right to fundamentally adjust the existing pricing model in the future. However, fundamental changes to the pricing model shall only take effect with the consent of the customer.
All prices quoted by Empion are exclusive of statutory sales tax.
10 Data Protection
10.1 Each party is responsible for complying with the applicable data protection regulations.
10.2 Insofar as the customer receives personal data from applicants via the service, Empion and the customer shall process this data jointly. In this respect, the following provisions, which constitute an agreement on joint processing of personal data (Art. 26 GDPR), shall apply:
10.2.1 The following categories of data are regularly subject to joint processing: First name, last name, address, email address, telephone number, information from the resume (religious affiliation, married, single, number of children, children's names, children's birthdays, professional career and degrees as well as their grades), salary expectations, photo (profile picture, passport photos on application documents). The following categories of data subjects are involved: Applicants (users of Empion's services).
10.2.2 The purpose of processing is the proper execution of the contract for the provision of the service and the referral of applicants to the customer as a potential employer. The legal basis is Art. 6 (1) (b) GDPR for the purpose of concluding and executing the contract. The type and scope of data processing is specified in the service description.
10.2.3 The respective processing steps that are subject to joint responsibility and the respective responsibilities are defined as follows:
10.2.4 Each party shall ensure compliance with the statutory provisions, in particular the lawfulness of the data processing operations carried out by it, including within the framework of joint responsibility. The parties shall take all necessary technical and organizational measures to ensure that the rights of the data subjects, in particular pursuant to Articles 12 to 22 GDPR, can be guaranteed at all times within the statutory time limits.
10.2.5 The parties agree to provide the data subject with the information required under Articles 13 and 14 of the GDPR in a concise, transparent, intelligible, and easily accessible form, using clear and plain language, free of charge. Each party is responsible for providing information within its sphere of influence.
10.2.6 The parties undertake to comply with the obligation to provide information in accordance with Art. 15 GDPR. Data subjects may exercise their right to information with both parties. The parties undertake to provide data subjects with the information to which they are entitled in accordance with Art. 15 GDPR upon request. If necessary, the parties shall provide each other with the necessary information from their respective areas of activity.
10.2.7 If a data subject contacts one of the parties in order to exercise their rights as a data subject, in particular to request information or the correction or deletion of their personal data, the parties undertake to forward this request to the other party without delay, irrespective of the obligation to guarantee the rights of the data subject. The latter is obliged to immediately provide the requesting contracting party with the information necessary to provide the information from its sphere of influence.
10.2.8 If personal data is to be deleted, the parties shall inform each other in advance. The other party may object to the deletion for legitimate reasons, for example if it is subject to a legal obligation to retain the data. The data will be deleted as soon as it is no longer necessary for the purpose for which it was collected and any legal obligations to retain it have expired.
10.2.9 The parties shall ensure within their sphere of influence that the technical and organizational measures required under Articles 24, 25, and 32 of the GDPR are implemented and complied with.
10.2.10 Both parties are responsible for the reporting and notification obligations arising from Articles 33 and 34 GDPR vis-à-vis the supervisory authority and the persons affected by a breach of personal data protection within their respective areas of activity. The parties shall immediately inform each other of any reports of personal data breaches to the supervisory authority and shall immediately forward to each other the information necessary to make the report.
10.2.11 Empion is entitled to use subcontractors for data processing within its sphere of activity. In this case, Empion will ensure that an agreement has been concluded in accordance with Art. 28 GDPR. Upon request, Empion will inform the customer about the subcontractors used in each case.
10.3 Empion will use non-personal data or data from which personal references have been removed (anonymization) for analysis, calibration, and benchmarking purposes in order to continuously optimize the service for all customers.
11 Confidentiality
11.1 Within the scope of this agreement, the parties may exchange confidential information of a technical or commercial nature, in particular software, know-how, strategies or business plans, annual reports and business contacts, etc. (hereinafter referred to as “confidential information”). The parties may exchange confidential information verbally, in writing or electronically. The parties undertake to treat all confidential information that becomes known to them in the course of their cooperation as strictly confidential and to treat it in the same way as their own business secrets. Confidential information disclosed by one party may only be used by the other party for the contractual purposes. The parties are entitled to disclose confidential information to employees and subcontractors, provided that they are subject to confidentiality obligations that are essentially equivalent to the obligations set out in this agreement.
11.2 The confidentiality obligation does not apply to information for which it can be proven that
11.2.1 the information was already publicly available or state of the art at the time it was disclosed to third parties, or
11.2.2 the information was already known to the receiving party, or
11.2.3 were developed independently by employees of the receiving party without access to the shared confidential information,
11.2.4 the information was lawfully acquired from third parties,
11.2.5 the party disclosing the information has waived its protection in writing
11.2.6 has obtained the information by means other than through cooperation with the disclosing party, without being subject to any confidentiality obligation
11.2.7 they obtained the information by observing, examining, reverse engineering or testing a product or object that has been made publicly available.
11.3 Each party is entitled to disclose confidential information belonging to another party upon order of a competent court or administrative or other government authority, provided that the receiving party immediately notifies the disclosing party in writing of such an order, if possible prior to disclosure. The confidential information shall, as far as possible, be marked as “confidential” prior to disclosure.
11.4 The parties shall ensure that all subcontractors, affiliates, managers, directors, employees, and temporary workers with whom they share confidential information are bound in writing to confidentiality obligations that are at least as strict as those set forth in this Section 12. To the extent permitted by applicable law, the parties shall ensure that the confidentiality obligations of their officers, directors, and employees shall survive their termination of employment or duties during the term of this framework agreement. The receiving party shall be liable to the disclosing party for any breach of the obligations under this agreement by its officers, directors, and employees. The same shall apply to the officers, directors, and employees of subcontractors and affiliates that a party involves under this framework agreement.
11.5 Further data protection obligations remain unaffected. Empion's right to cite references also remains unaffected.
11.6 This confidentiality obligation shall apply for the term of this agreement and for a further three years. Legal or contractual obligations to delete or return data earlier or to keep data confidential permanently remain unaffected.
12 Warranty
12.1 The warranty shall be governed by the provisions set out below and otherwise by the statutory warranty regulations, with the exception that Empion shall not be liable on a strict liability basis for defects that already existed at the time the Service was made available (§ 536a para. 1 BGB), and that the customer’s right to remedy defects itself is excluded (§ 536a para. 2 BGB).
12.2 Empion’s warranty shall not apply to defects that are attributable to the fact that
12.2.1 the customer or its vicarious agents have used the Service in a manner not in accordance with the contract or otherwise improperly;
12.2.2 the customer has failed to perform required cooperation obligations or has not performed them in due time;
12.2.3 the customer's system environment or hardware is not suitable for using the service.
12.3 In the event of a defect, the customer is entitled to have the defect remedied twice before they can assert further rights. Empion must be given a reasonable period of time to remedy the defect. A reasonable period of time is at least four weeks.
12.4 The customer is obliged to report defects in the Empion service immediately in writing in a manner that enables Empion to reproduce the defect. Empion is not responsible for any damage incurred by the customer as a result of late or incomplete reporting of a defect.
12.5 Empion is not responsible for third-party software. Empion is only responsible for interoperability between the service and third-party software to the extent that the provision of an interface has been agreed in writing and a defect affects the functionality of this interface.
13 Liability of Empion
13.1 If Empion is liable for damages under statutory provisions caused by slight negligence, Empion’s liability shall be limited. In such cases, liability shall exist only in the event of a breach of essential contractual obligations (i.e. obligations whose fulfillment is a prerequisite for the proper performance of the contract and on whose compliance the customer regularly relies and may rely, so-called cardinal obligations). Such liability shall furthermore be limited to the typical damage foreseeable at the time of contract conclusion.
13.2 Regardless of any fault on the part of Empion, any liability for fraudulent concealment of a defect, for the assumption of a guarantee or a procurement risk, shall remain unaffected under the Product Liability Act.
13.3 Insofar as Empion's liability for damages is excluded or limited in accordance with the above provisions, this also extends to the personal liability of its organs, employees and other staff, representatives and vicarious agents and also applies to statutory liability arising from tort.
13.4 The limitations of liability in this section do not apply in cases of intent or injury to life, limb or health.
14 Reference Use
Unless otherwise agreed, Empion shall be entitled to publicly name the customer as a reference customer, in particular to name the customer on websites or in other publications and, in this context, to display protected identifiers of the customer (e.g. trademark logos).
15 Changes to the Terms and Conditions
Empion shall be entitled to amend these GTC at its reasonable discretion (§ 315 BGB), provided that such amendments do not affect the principal contractual obligations of Empion or the customer and are reasonable for the customer. Empion shall notify the customer of such amendments in text form; such notice may also be provided on an invoice. If the customer does not object to the amendments in text form within six weeks, the amended GTC shall become an integral part of the contract. Empion shall expressly inform the customer of the right to object in the amendment notice. If the customer objects to the amendments in whole or in part, Empion shall be entitled to terminate the contract within one month of receipt of the objection, subject to a notice period of three months to the end of a calendar month.
16 Final Provisions
16.1 The exclusive place of jurisdiction for all disputes arising out of or in connection with the contract and the use of the Service shall be Berlin, Federal Republic of Germany.
16.2 These GTC and the contractual relationship between Empion and the customer shall be governed exclusively by the laws of the Federal Republic of Germany, to the exclusion of international uniform law, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG), and to the exclusion of the conflict-of-law rules.
16.3 Should any provision of these GTC be or become wholly or partially invalid, ineffective or unenforceable or should a required provision be missing, the validity and enforceability of the remaining provisions shall not be affected. In place of the invalid, ineffective or unenforceable provision, or to fill the gap, a legally permissible provision shall apply that most closely reflects the intent of the parties or what they would have agreed in accordance with the purpose of these GTC had they been aware of the invalidity or gap. The parties expressly agree that this severability clause shall not merely result in a reversal of the burden of proof and that § 139 BGB is excluded in its entirety. In the event of any conflict between the contract and these GTC, the provisions of the contract shall prevail.