Special Terms and Conditions for the “GULP Direkt” Service
Sec. 1 Scope, Precedence
(1) The business relationship between GULP Information Services GmbH based in Landsberger Straße 187, 80687 München, Germany, (hereinafter “GULP”) and the legal entity who is authorized to use the “GULP Direkt” service (hereinafter the “User”) shall be governed by the following Special Terms and Conditions as valid at the time when the contract is concluded.
(2) In addition to these Special Terms and Conditions, the General Terms and Conditions of GULP available under https://www.gulp.de/agb/allgemeine-geschaeftsbedingungen-feb-2012 (german) shall apply.
(3) In the case of conflict between these Special Terms and Conditions and the General Terms and Conditions, the Special Terms and Conditions shall prevail. The Special Terms and Conditions shall be subordinate to other agreements, unless the other agreement expressly declares that the Special Terms and Conditions take precedence.
(4) Deviating terms of the User shall not apply, unless GULP expressly agrees to their application in writing.
Sec. 2 Authorized Users
(1) Only legal entities with headquarters in Germany or Austria shall be permitted to use the “GULP Direkt” service. Legal entities who are in any way active in the field of personnel recruitment or project procurement services shall not be permitted to use the “GULP Direkt” service.
(2) Furthermore, GULP reserves the right to reject the conclusion of a contract even if the requirements as set out in Sec. 2(1), sentence 1, are met.
Sec. 3 Conclusion of a Contract
(1) The presentation and advertisement of the “GULP Direkt” service does not constitute a binding offer to conclude a contract.
(2) The User performs an initial self-registration process, with the registration for the “GULP Direkt” service being carried out by the user, after the self-registration on the website of GULP, passing through a registration process completed with the user sending the registration form by clicking on the “Register” button. By clicking on the said button, the user, through its authorized represents, submits a legally binding offer to conclude the contract for the use of the “GULP Direkt” service subject to these Special Terms and Conditions, in particular subject to the compensation arrangement as provided in Sec. 5 in the case of hiring a specialist.
(3) GULP confirms to the User the receipt of the registration form immediately by email. Such an email does not constitute a binding confirmation of the registration, unless such email contains both the confirmation of the receipt of the registration form and the confirmation of the registration.
(4) A contract subject to the Special Terms and Conditions shall be concluded only through the confirmation of the registration by GULP, which is generally sent by a separate email (order confirmation). In this email or in a separate email, the wording of the contract (consisting of the Special Terms and Conditions, the General Terms and Conditions and the confirmation of the registration) is sent to the User (confirmation of the contract). As a rule, the confirmation of the registration is given on weekdays (from Monday to Friday) within 24 hours after the registration form has been submitted. In the event that GULP refrains from concluding a contract, the User is also notified thereof within the above period.
(5) The contract shall be set down in the German language.
Sec. 4 Scope of the “GULP Direkt” Service
(1) Keyword search
The User has the option to use a keyword search to find specialists via the “Search” menu. To contact a specialist, a Project Tender must be created.
(2) Project Tender
(a) Creation of a Project Tender
The User has the option to create and tender a Project with several keywords (required skills – must-have skills and nice-to-have skills) (“Project Tender”). An automatic matching-algorithm is used to present to the User specialists for the Project described. A Project Tender is permitted for a maximum duration of 45 days (see Sec. 6(4)).
(b) Publication of a Project Tender
The User can publish the Project Tender on the website of “GULP Direkt” in the Projects section. Specialists may apply for a tendered Project and make their profiles accessible to the User. The User has the option to call up the profile of the specialist and to communicate to the specialist that the User is interested in hiring the specialist for a project. The specialist can then contact the User and discuss the further details of the assignment. In the case of an assignment, a contract is concluded directly between the User and the specialist. GULP is not be a party to this contract.
(c) Duration of the Project Tender Publication
The publication of the Project Tender on “GULP Direkt” is terminated after 20 applications received from specialists or after 14 days, depending on which event occurs first. The User has the option to re-publish the Project Tender (for the maximum duration of a tender see Sec. 4(2a) and Sec. 6(4)).
Sec. 5 Remuneration
(1) For each case in which a specialist contacted via the “GULP Direkt” service is hired by the User (“Project”) and for the entire duration of the respective Project, the user shall owe to GULP a commission for each hour worked by the specialist. In the case of fixed-price projects, the user shall pay GULP a commission in the amount of a percentage of the agreed fixed-price remuneration of the specialist. The commissions to be paid by the user are shown at https://www.gulp.de/unternehmen/freelancer-finden/pricing-conditions. A commission shall not be owed for a Project with a hired specialist where the User can provide evidence of having been in contact with this specialist with regard to the respective project already before contacting such specialist through GULP (= project-specific prior knowledge). The User shall notify GULP of such a project-specific prior knowledge within seven working days upon becoming aware of the identity of the contacted specialist and together with such notification furnish proof of the project-specific prior knowledge in a verifiable form. The User undertakes to authorize and bind the specialist to confirm, upon request of GULP, the circumstances indicating a project-specific prior knowledge and to countersign the written notification of the project-specific prior knowledge as presented by the User. The proof of the project-specific prior knowledge can no longer be furnished after the expiry of this deadline.
(2) A commission for a new Project with a hired specialist contacted through the “GULP Direkt” service shall not be owed by the User, if this Project was preceded by a period of at least twelve months during which no Projects were carried out between the User and such specialist.
(3) If the specialist identified through the “GULP Direkt” service is not hired, no commission shall be owed. However, if the User hires this specialist or refers this specialist to a third party to perform direct or indirect services within the period of twelve months after the User has acquired the details of this specialist by way of contact or by GULP’s designation, GULP shall be entitled to a commission for each hour worked by the Specialist for the entire duration of the respective project or, in the case of fixed-price projects, in the amount of a percentage share of the agreed fixed-price remuneration of the Specialist as shown at https://www.gulp.de/unternehmen/freelancer-finden/pricing-conditions. Sec. 5(2) applies analogously to subsequent new projects.
(4) If within the period in which GULP is entitled to any commission the specialist is employed on a regular basis by the User or is employed on a regular basis by a third party to whom the specialist has been referred, the user shall pay GULP a compensation fee, which shall not be less than a minimum amount. The amount of the compensation sum or the minimum amount which may not be fallen short of are shown at https://www.gulp.de/unternehmen/freelancer-finden/pricing-conditions. Two thirds of the commission or the minimum amount shall be due upon conclusion of the contract with the specialist, and the remaining one third shall be due three months after the commencement of work by the specialist, where the employment with the User or the third party still exists at that time. The obligation to pay the commission under Sec. 5(1) shall end at the latest on the day of the commencement of work by the specialist.
(5) The provisions pursuant to Sec. 5(1) to (4) apply analogously, if the specialist is hired by or placed with third parties at the instigation of the User. Third parties shall in particular include all subsidiaries and affiliates as well as branch offices of the User.
Sec. 6 Obligations of the User
(1) The User undertakes to report to GULP each assignment within the period subject to commission no later than 14 days after hiring the specialist by setting the status “Assigned” for the relevant specialist in the User’s account in “GULP Direkt” and to send to GULP the data of the assignment via the form provided in the User’s account in “GULP Direkt”.
(2) The User undertakes to draw up a statement of the hours worked by the specialist for each month lapsed and to send this statement to GULP without being asked by the 15th day of the following month. If the User fails to comply with the obligation pursuant to Sec. 6(2), sentence 1, despite a remainder from GULP specifying a time limit of 14 days, GULP shall be entitled to make the monthly commission settlement on the basis of 200 hours per specialist.
(3) Changes to the project terms during an ongoing Project, the hourly rate, the utilization of the specialist, the fixed price for a Project and/or in relation to the amount of the target gross annual salary in the event of a regular employment shall be notified to GULP within 14 days after taking effect or becoming known through the User’s “GULP Direkt” account.
(4) The User undertakes to close the Project Tender no later than 45 days of drawing up the Project Tender, irrespective of whether the User was able to find and hire a suitable specialist for the Project. If the User has not yet found a suitable specialist for the Project within the period of 45 days, the User notifies GULP thereof. After closing the Project Tender, the User shall receive a list of all specialists whose contact details were provided to the User in connection with such Project Tender and shall be requested to provide information on any hiring of these specialists. The User undertakes to provide this information truthfully and completely.
(5) After the expiry of about twelve months after contact details of specialists were provided or after the end of the Project, depending on which date occurs first, GULP hall sends to the User a list of all specialists whose contact details were provided via “GULP Direkt” or whose Project ended, and shall request the User to provide information on any (further) hiring of these specialists (inquiry). The User undertakes to respond to this inquiry truthfully and completely.
(6) The User shall at all times provide the following information, upon request of GULP:
- Beginning and end of the specialist’s deployment
- Hourly rate of the deployed specialist or agreed fixed price for a fixed-price project
- Number of hours worked by the deployed specialist
- Reply to all project-related inquiries in relation to the specialists contacted by the User
(7) GULP reserves the right to verify the correctness of the information provided under Sec. 6(6) by directly obtaining information from the specialists. The User hereby releases the specialists from any agreed obligations of confidentiality to the extent necessary.
(8) Except for the information marked in the GULP Direkt account as “Master Data”, the User must not enter any contact details or other information about itself or third parties that allows direct contacts or conclusions about the Users’ or the third parties’ identity (e.g. name or company name, phone, fax or mobile number, email address, Internet addresses, articles or publications of any kind) in the User’s account or when publishing a Project Tender. Inappropriate information may be removed or blocked by GULP without comment at GULP’s own discretion.
Sec. 7 Invoicing
(1) GULP shall charge the commission pursuant to Sec. 5 to the User on a monthly basis.
(2) Invoices shall be payable within 14 days from the date of invoice. All bank charges for cross-border transfers shall be charged to the User.
Sec. 8 Term and Termination of the Contractual Relationship
(1) The contract for the “GULP Direkt” service shall be concluded for an indefinite period. Either Party may terminate the contract at any time with a one week’s notice period.
(2) A termination of the contract shall not affect:
- commission claims of GULP for all specialists placed or being negotiated
- the lock-up periods agreed pursuant to Sec. 5
- the obligation to respond to all inquiries pursuant to Sec- 6(4), Sec. 6(5) and Sec. 6(6)
(3) The right of termination for cause shall remain unaffected.
Sec. 9 Serious Breach of Duty, Penalty, Account Lockout
(1) In the event of the culpable breach of one of the User’s substantial obligations resulting from this contract (e.g. violation of the reporting obligations in case of project deployments, submission of false declarations or non-response to project-related inquiries and the like), each breach shall be subject to a penalty the amount of which is determined by GULP and which in the event of dispute shall be subject to judicial review. Any further claims for damages by GULP shall remain reserved.
(2) In the event of a breach pursuant to Sec. 9(1), GULP may deny the User to access the GULP Direkt-Account with immediate effect.
Sec. 10 Governing Law and Place of Jurisdiction
(1) These Special Terms and Conditions shall be governed by German law.
(2) Unless otherwise provided in a user contract, the exclusive place of jurisdiction shall be Munich (Germany).
Sec. 11 Final Provisions
(1) GULP reserves the right to amend these Special Terms and Conditions and/or the remuneration for the use of individual services at any time, but only in a manner that is reasonable for the user. GULP will take into account the interests of the user when making such changes. GULP shall offer the user the amendment of the Special Terms and Conditions at least six (6) weeks before the proposed date of the amendment taking effect. For the amendment to become effective for the respective user, an amendment agreement is required. Acceptance of the amendment by fictitious consent shall only be considered if the offered amendment concerns an improvement or extension of the scope of services of the service "GULP Direkt". The fiction of consent is excluded if the user has rejected the change offer within the six-week period. If GULP uses the fiction of consent, the user has a special right of termination, which will be pointed out to them.
(2) Each Party undertakes to keep secret the business secrets and confidential information that the Party has obtained from the other Party or has become aware of in connection with the contractual relationship, unless the receiving party is legally required to disclose such secrets or information or an exchange of information is required for the purpose of the fulfillment of the contractual relationship.
(3) GULP may transfer the payment claims against the User as well as all rights and obligations under the contractual relationship to third parties or assign individual claims to third parties without the User’s consent. In the event that all such rights and obligations are transferred, Sec. 11(1) shall apply accordingly with the proviso that the User, after receipt of the relevant notice of modification from GULP, shall be entitled to terminate the contractual relationship with effect from the effective date of the transfer. Users shall not be entitled to transfer their rights and obligations under the contractual relationship von GULP to third parties or allow third parties to exercise them without the consent of GULP and shall not be entitled to assign claims.
Created by GULP Information Services GmbH – as of 4 October 2022
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