General Terms and Conditions
1. General and Scope of Application
1.1 The following General Terms & Conditions (GTC) shall apply to all business relationships between the user and QYRAGY GmbH, Aegidientorplatz 2 A, 30159 Hanover (hereinafter: QYRAGY). The respective version of these GTC valid at the time of the contract conclusion shall prevail. Deviating General Terms & Conditions of the user shall not be recognised.
1.2 Since the offering of QYRAGY shall be exclusively aimed at entrepreneurs, users in the sense of these GTC may exclusively be entrepreneurs.
1.3 Pursuant to section 14 BGB (German Civil Code), entrepreneurs in the sense of the GTC shall mean a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction with QYRAGY, acts in exercise of his or its trade, business or profession. A partnership with legal personality shall be a partnership that has the capacity to acquire rights and to incur liabilities. A customer constituting a special fund under public law shall also be deemed to be an entrepreneur in this sense.
2. Usage Subject
2.1 The service developed by QYRAGY shall be a mobile (app for iOS as well as Android) as well as a web-based job platform (hereinafter: Job Platform) allowing the user to publish assignment offers for freelancers. The use of the Job Platform shall only be destined for users of full age. Principals may place their assignment offers with a corresponding requirement profile as well as purposefully search for and establish contact to suitable freelancers after having entered their requirements as into a database. Freelancers may store their personal qualifications and available time windows or directly respond to corresponding assignment offers of principals. The actual contract conclusion shall be effected as part of individual communications between the principal and the respective freelancer and shall thus not be subject of this usage contract.
2.2 Besides functionalities that are free of charge (for freelancers and principals), QYRAGY shall also offer the principals service packages subject to a charge. A job posting can be booked for a fee by the respective principal, which is automatically terminated after 30 days. Detailed information on the scope of services of the offered packages may be viewed in the app under “Prices” or at www.smartjobr.com/pricing.
QYRAGY reserves the right to any amendment to the scope of services of the Job Platform.
3. User Account
3.1 A free registration as user shall be necessary to be granted access to the services of QYRAGY (user account).
3.2 In order to use the services of QYRAGY, the following requirements are essential: (1) the user is of full age, (2) the user maintains only one user account in the Job Platform and (3) the user has not yet been restricted by QYRAGY in using the services. With registration the user confirms the aforementioned requirements.
3.3 As part of the registration, the user shall first choose his/her status as principal or freelancer and shall enter his/her name and a valid e-mail address. Furthermore, the user shall assign an individual, sufficiently strong and secure password.
3.4 As part of the registration, the user shall acknowledge these GTC, as amended, as binding and shall give his/her consent to the publication of the entered assignment offers or of the entered requirement profile in the mobile app and in the web-based Job Platform of QYRAGY. Furthermore, the user shall consent that QYRAGY may contact the user under the indicated e-mail address and that QYRAGY may forward enquiries of potential contracting partners (freelancers or principals) to the user as part of the app or by e-mail.
3.5 QYRAGY shall grant the user any and all services of the premium account free of charge within a test phase of 14 days from set-up of the user account. After expiry of the test phase, the account shall automatically continue to be kept with the scope of the free basic functionality.
3.6 The user account shall not be transferable to third parties on the part of the user. Any transfer as part of corporate accounts may be effected on the part of QYRAGY upon written request. To that end, the user must address himself/herself to the account management of QYRAGY in writing or in text form (email@example.com).
3.7 If the user’s data indicated as part of the registration change after the registration, the user himself/herself shall be obliged to correct the details in his/her user account without delay. The users must keep the self-chosen or allocated password confidential and carefully protect the access to their member account. Users shall be obliged to inform QYRAGY without delay if there are indications that a member account had been misused by third parties.
3.8 QYRAGY does neither know nor have any possibility to access a user’s password. QYRAGY shall never ask a user for his/her password by e-mail or phone.
4. Notes on the Contract Conclusion of the Usage Contract
4.1 The possibility of using the services offered by QYRAGY shall not constitute an offer, but only an invitation to place an offer. With the user completing the online registration process, i.e. by clicking on the “Register” button and using the activation link in the confirmation e-mail sent by QYRAGY (hereinafter “Registration”), the user shall place an offer for the conclusion of the contract. QYRAGY shall accept said offer of the user by making the corresponding services available. The contract between the user and QYRAGY shall materialise only by such acceptance. QYRAGY shall not be obliged to the contract conclusion. With the user making use of services in return for payment, the user shall accept the relating payment obligation by clicking on the confirmation box offered in this case.
4.2 By implementing the Registration, the user shall assure that he/she is a user entitled to participate as per the clauses 1.2 and 3.2 of these GTC. Furthermore, the user shall be obliged to ensure that the data collected upon Registration and indicated by him/her is true and complete.
4.3 For the case that the user takes action for a legal entity as part of certain applications, the user shall assure that he/she has been empowered to take action in the name of the legal entity. The user shall prove the details assured as per this clause to QYRAGY upon request.
4.4 A contract about additional services subject to a charge in the form of the premium account shall materialise as follows:
After the user has logged into his/her free user account, the user shall switch to the “Prices” menu item. There, the user may choose between different terms of the premium functionality. Subsequently, the user shall be redirected to the Apple App Store or the Google Play Store, depending on the mobile terminal used on the part of the user. To acquire one of the offered premium functionalities, the user must have a corresponding account in the Apple App Store or in the Google Play Store or set up a new account and legitimise with his/her password. The contract conclusion shall thus be effected by using the Apple App Store or the Google Play Store (in-app purchase).
The payment shall be handled using the payment functionalities of the respective store (currently: Apple App Store and Google Play Store).
4.5 A contract about additional services subject to a charge in the form of the corporate account shall materialise exclusively as part of individual communications between the user and QYRAGY. A binding booking of the corporate account as part of the app shall thus not be possible. Billing of the fees of the corporate account shall be effected by invoice. The essential service features shall be those specified in the respective valid service overview, which may be found at www.smartjobr.com.
4.6 The contract text about the additional services in the form of the corporate account shall not be stored by QYRAGY in the Job Platform and may thus not be retrieved by the user via his/her user account.
4.7 QYRAGY reserves the right to amend or terminate any desired part of the services. QYRAGY undertakes no obligation to store or to continue displaying information and contents published by the user.
QYRAGY shall not be a storage service. The user agrees that QYRAGY shall not be obliged to make accessible and to store or retain any copy of contents or information provided by the user or by other persons, unless this is required by an applicable law.
5. Term and Termination
5.1 The free user account may be terminated on the part of the user at any time without stating reasons. Notice of termination may be given by declaration, indicating the member name, to firstname.lastname@example.org or by mail to:
Aegidientorplatz 2 A
Once notice of termination has been given, the user’s user account shall be deleted and the contractual relationship shall be deemed ended. Where statutory retention periods exist, the user data shall be stored up to the expiry of the respective period.
5.2 The right of both parties to terminate for a compelling reason shall remain unaffected by the regulations above.
6. Duties of the User / Granting of Rights
6.1 The user shall bear responsibility for any and all actions performed via his/her user account, unless the user closed the account or reported any case of misuse. QYRAGY shall not be obliged to review the contents of the user for any errors or to verify their legal admissibility. The publication of the user’s contents shall be effected without any case-by-case assessment being performed on the part of QYRAGY.
6.2 In the contractual relationship between the user and QYRAGY, the user shall be the owner of the contents and information transmitted to or published on the Job Platform of QYRAGY by the user and shall grant QYRAGY the following non-exclusive licence:
The world-wide, transferable and sub-licensable right to use, copy, modify, disseminate, publish and process information and contents provided by the user via the Job Platform of QYRAGY without any further consent on the user’s part or any notification and/or compensation payment to the user or to third parties. These rights shall be restricted as follows:
The user may terminate this licence for specific contents by deleting such contents from the Job Platform or closing his/her account while bearing in mind that QYRAGY shall have a reasonable deadline to remove these contents from backup and other systems.
Although QYRAGY might process the contents and make changes to the formatting (e.g. change size, layout or file type or remove meta data), the meaning of the contents shall not be changed.
6.3 The user shall warrant that the contents or assignment offers or requirement profiles placed by him/her for publication (in particular texts, logos, photos) are free from rights of third parties or that a corresponding right of use/exploitation has been granted to the user and that these contents do not violate any applicable law. The user shall also warrant, in particular, that the transmitted contents correspond to the actual circumstances and, furthermore, that the legal stipulations are complied with as well.
With regard to assignment offers, this shall also relate, in particular, to the regulations of the German General Act on Equal Treatment.
6.4 Sending contact messages via the services of QYRAGY shall be exclusively admissible for the initiation of a specific assignment relationship. Any other use, in particular for the purpose of sending advertising, shall not be permitted. Addresses, contact data and e-mail addresses received by the users by using the services of QYRAGY must not be used by them for any purposes other than the communication as part of the use of the Job Platform under the contract. It shall be prohibited, in particular, to resell or to use this data for sending advertising.
In addition, the user undertakes to not utilise the offered services of QYRAGY to send or transmit unlawful material. This shall mean, in particular, salacious formulations and/or sexually explicit material, including corresponding photos. The texts, photographs and profile details used on the part of the member must not violate applicable law. In particular, these must not contain any calumnies, defamations, threats or harassments, any obscenities and any child pornography.
6.5 The user shall consent to the publication of the personal data stored by the user in his/her profile. The user may customise the releases himself/herself by corresponding settings within the user account.
6.6 The user shall assure that he/she will comply with the provisions of the European General Data Protection Regulation and of the respective applicable data protection legislation of the Federal Republic of Germany.
7. Sanctions, Blocking and Termination
a) deleting/blocking of contents and user accounts
b) admonishing registered users
c) limiting/restricting the use of the services of QYRAGY
When choosing a measure, QYRAGY shall take account of the legitimate interests of the user concerned, in particular as to whether there are any indications that the user is not responsible for the violation.
7.2 QYRAGY may definitively exclude a user from using the online service of QYRAGY (definite blocking) if the user
a) indicated incorrect contact data during the Registration,
b) violates legal regulations and/or commits any offence against common decency,
c) causes damage to other users of the services of QYRAGY or to QYRAGY to a considerable extent,
d) is responsible for any other compelling reason.
After a user had been definitely blocked, any entitlement to have the blocked user account restored shall not exist.
Once a user had been blocked, he/she may no longer register once again with any other user account.
The right of both parties to terminate for a compelling reason shall remain unaffected by the regulations above.
8. Liability / Warranty Exclusion / Indemnity
8.1 Liability Exclusion
(i) QYRAGY shall be liable without limitation for any damage from injury to life, body or health that is based on a breach of duty by QYRAGY, a legal representative or vicarious agent of QYRAGY as well as for any damage generated by absence of a quality guaranteed by QYRAGY or in any case of fraudulent behaviour by QYRAGY. Furthermore, QYRAGY shall be liable without limitation for any damage caused by QYRAGY or by one of its legal representatives or vicarious agents by wilful intent or by gross negligence.
(ii) If any violation of essential contractual obligations is caused by slight negligence, the amount of liability of QYRAGY shall be limited to the contract-typical foreseeable damage, except in the cases of clause 8.1(i) or 8.1(iii). Essential contractual obligations shall, in the abstract, be any obligations whose fulfilment is essential for ensuring due and proper implementation of a contract in the first place and on compliance with which the parties to the contract may regularly rely. As for the rest, any liability of QYRAGY shall be excluded.
(iii) The liability under the German Product Liability Act shall remain unaffected.
8.2 Liability on viral incidents
QYRAGY does not undertake responsibility for damage caused without any fault on part of QYRAGY by downloading, installing or using software or the website’s or the App’s contents. QYRAGY does not undertake responsibility for damage or malfunctions caused by viruses or so called worms.
8.3 Warranty Exclusion
To the extent permitted by law, QYRAGY (i) disclaims any kind of implied warranty and assurance and (ii) shall not warrant that the services will work without any interruption or errors and (iii) shall provide the services (including the contents and information) “in the existing condition” and “as available”.
8.4 Users shall be liable, in principle, for any and all activities carried out by using their user account. If the user is not responsible for his/her user account being misused, since any violation of the existing due diligence obligations does not exist, the user shall not be liable. QYRAGY shall not appropriate contents stored by customers and shall not control or update the contents stored by customer, with the result that the customer himself/herself shall take care of updating any and all data and contents.
8.5 The user shall indemnify QYRAGY upon first demand from any and all claims of third parties that are asserted against QYRAGY due to an alleged legal infringement regarding contents culpably made available by the user.
8.6 You use the Internet at your own risk. QYRAGY is not liable for technical malfunctions of the Website or in accessing the internet.
9. Final Provisions / Amendment to the GTC
9.1 QYRAGY reserves the right to amend these GTC. The amended terms shall be sent by e-mail to every member at least six weeks prior to the entry into force of the amendment. If a member objects to the amended provisions of use, the membership shall expire. If the user continues using the services after QYRAGY published or notified the user of the amendments to these terms, the user shall be deemed to have consented to the updated terms.
9.2 German law shall apply as applicable. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be excluded. Place of jurisdiction shall be Hanover.
9.3 To the extent that individual provisions of the GTC above are ineffective in whole or in part, this shall not affect the effectiveness of the contract as well as of the remaining provisions.
9.4 In the event of a discrepancy between the German version and a translation, the German version shall prevail.