Agreement on platform-based placement of technical personnel
between, PMR GmbH, hereinafter referred to as "PMR" and the Freelancer or Customer hereinafter referred to as "Customer or Freelancer" via the intermediation of technical personnel via the PMR operated platform www.tecorio.com . The following terms and conditions for the use of www.tecorio.com have been noted and accepted.
The PMR GmbH (hereinafter referred to as "PMR") offers on the domain www.tecorio.com (hereinafter referred to as "platform") an online marketplace for the placement of self-employed, highly qualified technical staff such as service technicians and Industry experts (collectively referred to as "freelancers"). The mediation is project-related for individual customers of the platform. For this purpose, customers of the PMR have the option of setting up a project with a description of the order on the platform. As part of standardized procedures, individual or multiple freelancers are proposed to the customer on the basis of the information provided by the users. These general terms and conditions are not only intended to regulate the legal relations between PMR and its customers, on the one hand, and the PMR and the freelancers, on the other hand. By agreeing to these Terms and Conditions, the Freelancers and Customers (collectively referred to as "Users") also mutually accept the validity of these Terms and Conditions as a framework for their business dealings on the Platform.
§ 1 Definitions
In these terms and conditions
present terms and conditions used by PMR;
the PMR GmbH;
the Website www.tecorio.com;
any functionalities that PMR provides to users on the Platform, whether provided on a paid or unpaid basis;
any natural or legal person who offers a project on the platform and is looking for freelancers;
any natural or legal person that offers its own services on the platform and is in search of projects through them;
depending on the context, either the PMR and the freelancer, the PMR and the client or all three in common;
depending on the context, either the freelancer or the customer;
together the freelancers and clients, unless they are authorized to use;
any natural or legal person except the users and the PMR;
the tasks assigned by the customer, including all related descriptions;
any information and files provided by the client in relation to the particular project, whether composed of text, video or audio files;
the process performed by the platform to identify competent freelancers;
the result of matching for users;
the fee due for a contractual brokerage of the Freelancer to a Client by the PMR;
the information users need to properly use the services of the Platform, including user ID and passwords;
the contract concluded under the terms of these GTC;
Account of the PMR for the fiduciary management of the customer's payments to the Freelancer.
§2 Purpose and Scope
These GTC regulate the services provided by PMR and used by the users. They apply directly between PMR and the customer as well as between PMR and the freelancer. Furthermore, the users undertake, with their consent to these GTC, to also accept these GTC among themselves, insofar as obligations of one party towards the other party arise from this. In the event of contradictions between these General Terms and Conditions and the General Terms and Conditions of Users, these General Terms and Conditions shall take precedence; PMR contradicts the validity of others than these General Terms and Conditions.
In the event of contradictions between these GTC and other GTCs or laws, the mutual rights and obligations of all parties result in the following order of precedence:
- mandatory applicable law;
- these terms and conditions, insofar as they are not superimposed by mandatory law;
- the general terms and conditions of the users, as far as they are not superimposed by these terms and conditions or mandatory law;
- other agreements of the parties, as far as they are not superimposed by these terms and conditions
§3 Scope of services through PMR
- Personnel and project acquisition
By setting up individual profiles, PMR offers users the opportunity to acquire personnel and projects as well as to advertise themselves in the business sector. As part of the matching process, PMR proposes projects or freelancers that appear mutually suitable to the users without obligation. The procedures for identifying such proposals are based on PMR's best knowledge and conscience, but PMR does not guarantee or warrant that the proposals will meet actual mutual requirements. Throughout the entire usage process, PMR acts without exception only as an intermediary for the content posted by users independently and on their own responsibility. PMR has no influence on whether a contract is concluded between a customer and a freelancer. PMR cannot oblige either the customer or the freelancer to conclude and execute a contract.
- Exclusion of warranty
If the customer intends to award a contract to a freelancer as a result of the suggestions, he will submit an appropriate offer to the freelancer. PMR provides the customer with a template that can be used for contract creation. The Freelancer is free to accept the offers of the customers or to enter into further contract negotiations.
- Exchange of services between customer and freelancer
If there are contractual relationships between customers and freelancers, the respective exchange of services between the parties takes place on their own responsibility and without interference by PMR. The activity of PMR is limited to the mere transfer of orders or the placement of freelancers. The PMR does not undertake any obligation to provide services or trades; it assumes no responsibility for the service or the work. PMR specifically assumes no warranty or guarantee of type and quality of services provided by the freelance services.
- Development of the platform
PMR reserves the right to continuously develop the platform and to expand, change, reduce or even completely discontinue the range of services. Under certain circumstances, this can lead to a change in the usual range of functions. Users are not entitled to the use of free services. PMR can change or limit the functional scope of free services at any time at its own discretion, without (warranty) claims for reduction or compensation. Insofar as the functional scope of chargeable services is changed or restricted, the parties shall proceed in accordance with § 12 (2).
- Maintenance work
PMR endeavors to make the services available to the user as comprehensively as possible. The availability can be guaranteed only within the scope of the technically possible and is in particular due to necessary maintenance, security and updating work on the platform or such third party systems that are required for the intended use of the platform. The User may assert rights only in so far as they are specified in § 12 due to impairments under this paragraph. In particular, there are no further claims for damages in this connection. Furthermore, the conditions specified in § 8 apply.
- business purposes
The use of the platform is for business purposes only, based on customer's own project needs. The use of the platform by professional project agents is inadmissible.
- Use and maintenance of the profile
PMR attaches the highest importance to the mediation of serious business relations. For this reason, when registering on the Platform, users must provide only those names, contact information and other materials that are current and factual in nature and that they may actually use. Should the information associated with the profile change in the meantime, the user must update the relevant information immediately. The use of the platform is not made by pseudonyms.
- Protection of the profile
The user takes all necessary and reasonable measures so that third parties can not unauthorized access the profile and use it for their own purposes, in particular the user does not pass on access data to third parties and refrain from any actions that affect the security of the profile or services. If a third party contradicts the use of the contact information in a profile, PMR is entitled to delete the profile. In cases of doubt, PMR will contact the user in question before deletion without any entitlement.
- Commandment of objectivity and neutrality
Users agree to hire only those materials during the use of the platform, which represent an objective and impartial description of the project or the knowledge and skills of freelancers. In particular, the parties refrain from posting such materials on the platform that affect the economic or other interests of PMR, other users or third parties. An impairment of the aforementioned interests is given in particular if the user discontinues such contents,
- where third parties have industrial property rights that affect or oppose the platform-based use of the materials, regardless of the nature of those intellectual property rights; in particular, any copyright, trademark, design patent, patent or other intangible property rights are included;
- who have a racist, insulting, violent, personality-violating, pornographic or other character capable of violating the rights of third parties or other users;
- which are likely to damage the public image of PMR, other users or third parties;
- containing business secrets of other users or third parties or
- which, in terms of design or content, do not meet the quality requirements or design requirements of PMR; in such a case, the parties endeavor to find a compromise that is economically viable for both sides.
If users violate the objective requirement of this article and provide content that does not conform to the requirements set forth, PMR may, at its sole discretion, request that the user adapt the materials or delete the content itself and terminate the contractual relationship extraordinarily. Relevant in this context are, in particular, the type and severity of the breach of duty, any prior forfeiture of the user and the recognizability of the breach of duty for the user. In any case, the PMR will inform the user concerned about the main reasons for doing so.
- Cooperation duties
In order to implement the brokering services, PMR relies in part on the participation of the parties, such as the selection and verification of the appropriate information, visual and video material or layouts and logos. The parties undertake to carry out these obligations to cooperate on their own responsibility and without any claim for separate reimbursement of costs.
After the platform has exchanged services, the users are given the opportunity to carry out a reciprocal evaluation. If this option is used, these ratings follow the requirement of objectivity. § 4 para. (4) applies accordingly.
- Grant of Rights
The parties provide materials to PMR in the use of the platform to describe their projects or the knowledge and skills of the freelancer. The parties guarantee that they have all rights of use required for this purpose, in particular to those designated in § 4 (4) (a). The parties hereby grant PMR the free, exclusive, time-limited and third-party transferable right to publish the content within the platform and other digital or analog media forms such as social networks or printed matter. This also includes the use and exploitation beyond media services in textual, pictorial or audiovisual terms for press and communication purposes in connection with other works.
Users are also prohibited from using the materials provided by other users for their own private or business purposes and to make them available to third parties - for example, with the removal of proprietary notices - or to assume their authorship.
- Intended use
The use of the platform is only permitted via the user interfaces and interfaces provided by PMR. A circumvention of the intended use mechanisms by script-based automated procedures is inadmissible.
The parties shall keep secret the trade secrets or other confidential information of the other party communicated or disclosed in connection with the contractual relationship to the other party, unless they are obliged to disclose for legal reasons. The parties undertake to also obligate all employees and other vicarious agents to confidentiality insofar as they deal with the aforementioned business secrets or confidential information. This obligation continues to apply after termination of the contractual relationship.
§5 Customer-related obligations
- Project description
The materials held by the client on the platform shall be sufficiently detailed and comprehensive that they allow the freelancer, on the one hand, the calculability of his services and, on the other hand, the final control of the services provided by the freelancer. The materials are regularly checked for up-to-dateness, completeness and accuracy. Customer shall promptly complete and update materials if deficiencies exist or if prompted by PMR. The customer deletes or deactivates the respective project within three days, if there is no longer a customer need.
- Work or service
Subject of the projects hired by the customer on the platform are exclusively time-limited, project-related services. The platform is not intended for the recruitment or placement of personnel to cover a permanent need for personnel at the customer, or to incorporate personnel into the operating or work organization of the customer or a third party company and to give instructions. The customer ensures that the freelancer is not integrated into the operating or work organization of the customer or a third-party company and the freelancer is not subject to any instructions as to the content, execution, time, duration and location of the activity.
- Information obligations towards PMR
The customer informs PMR without explicit request about all essential processes, to the knowledge of which PMR has a legitimate interest. These include in particular
- the essential contract information (so-called "Essentialia Negotii") about each contract and exchange of services with a freelancer and
- any irregularities or unprofessional behavior of a party in the context of the exchange of services within 14 days at the latest.
- Exchange of services with Freelancer
If it comes as a result of the proposals for the conclusion of a contractual relationship between customers and freelancers, the customer pays the remuneration due on the basis of its own contractual obligation. The terms of payment in § 7 are referred to. The customer provides evidence of the services provided by the freelancer and transmits these to PMR upon request.
The customer commits himself to the Freelancer, in addition to the agreed remuneration, to replace all expenses and incidental costs on the basis of the expenses of the competent tax office of the Freelancer such as travel costs, meals and overnight accommodation. Other incidental costs of the freelancer such as telecommunications costs will be replaced after actual occurrence.
§6 Freelancer-related obligations
- Profile Description
The Freelancer provides meaningful information about their qualifications, experience and other skills when setting up their profile. These include in particular contact data, capability description, machine knowledge as well as previous work experience. The Freelancer assures the accuracy and timeliness of the information provided by him. In the case of relevant changes, he updates his profile immediately - but at the latest after three days.
- Information obligations towards PMR
The Freelancer informs PMR without explicit request about all essential processes, to the knowledge of which PMR has a legitimate interest. These include in particular
- the essential contract information (so-called "Essentialia Negotii") about each contract and exchange of services with a customer
- its permanent or temporary lack of availability within three days, unless the freelancer has already noted them on the platform and
- any irregularities or unprofessional conduct of a party in the context of the exchange of services within fourteen days at the latest.
- Mediation of self-employed specialists
The Freelancer acknowledges that the platform is exclusively for the placement of self-employed professionals for time and content limited projects in the context of service contracts. The platform is not used for the placement of personnel, which covers a permanent staffing needs at the customer or in the Operational or work organization of the customer or a third-party company is incorporated and is subject to its instructions. The Freelancer is aware that the order is an independent activity and that, as a self-employed person, he is responsible for his own insurance cover and for the fulfillment of his tax obligations.
- Own provision of project funds
The freelancer guarantees that he fulfills all the necessary legal requirements to work on a project-related basis with customers. Subject to project-specific requirements (special tools or similar), the Freelancer guarantees that it has all the resources it needs to carry out the project, or that it can procure it promptly from third parties, which are typically required by technicians and technicians. The Freelancer is advised that it is its own responsibility to protect against recourse claims of the customer or third parties through, for example, professional indemnity insurance.
The Freelancer is bound by the hourly rates he has published in his profile. The due remuneration will be administered on a fiduciary basis by PMR after payment by the ordering customer. The transfer of statutory taxes to the responsible tax office is the responsibility of the freelancer. For the rest, reference is made to § 7.
§7 Remuneration and payment methods
- Scope of free use of the platform
The registration and use of the platform in the form of setting up projects and finding freelancers and projects is free. Fees for the use of the platform are only charged where they are explicitly stated.
- Commission for PMR
In the case of a contract between Freelancer and customers via tecorio.com PMR raises a commission fee to the Freelancer, this results in companies with more than 3 employees to 15% taking into account 2.5, and for companies up to 3 employees according to the following staggered model:
- less than 15000 € annual turnover: 15% on the compensation paid to the freelancer.
- between 1500 € and 25000 € annual turnover: 12.5% on the compensation paid to the freelancer.
- more than € 25,000 annual turnover: 10% of the fee paid to the freelancer.
- For individual projects over 35000 € to 100000 € the commission fee is capped at 3500 €.
- For individual projects with a project volume of more than € 100,000 we are happy to be personally available for further information
The same applies if the contract between Freelancer and customer is terminated prematurely; then the commission is calculated on the proportionate remuneration.
- The commission is also due, if
- an originally concluded contractual relationship is terminated before the exchange of services and, nevertheless, the exchange of services begins within one year; this applies regardless of whether the exchange of services is based on the originally terminated or a new contract and
- the parties did not inform PMR of a concluded contract; any penalties will not be charged.
- Prohibition of offsetting and retention
Customer may not hold any objection or defense to PMR between Customer and Freelancer. In particular, the customer has no right of retention and no right to offset for claims such as recourse or damage claims, which he has against the Freelancer.
- Right to assignment; assignment prohibition
PMR is entitled to assign all commissions and claims for damages as well as other rights under this contract to third parties. The assignment of all claims of the parties directed against the PMR - of whatever kind - is inadmissible.
§8 Liability and Warranty
- Exclusion of liability
PMR is not liable for any damage resulting from the use of the Services. This includes, in particular, any losses and lost profits.
The exclusion of liability for any damage caused as a result of intentional or grossly negligent conduct by employees, employees or other persons who are vicarious agents of PMR is excluded. The exclusion of liability is further excluded for damages that are based on the violation of essential contractual obligations and for liability under the Product Liability Act. Significant contractual obligations are in particular those of § 3 para. (1). PMR is also fully liable for any damage resulting from injury to life, limb or health.
The parties agree that PMR does not make any contractual or statutory warranty claims for such defects arising as part of the exchange of services between the customer and Freelancer.
§9 Optional: Contractual Penalty
The parties agree to a contractual penalty of 100% of the actual order volume and per violation, if they have negligently failed to inform PMR of the conclusion of a contractual relationship. The parties are jointly and severally liable for this contractual penalty. For the remaining details of the obligation to inform, reference is made to § 4 to § 6.
§ 10 Exemption
- Violation of §5 Abs. (2) and §6 (3)
In the case of violation or failure to comply with §5 (2), the customer indemnifies PMR from any claims and additional claims under social security and other tax law which PMR is obliged to pay by official or judicial determination as a result of qualification of the freelancer as an employee. Furthermore, the customer indemnifies PMR in case of violation or failure to comply with §5 (2) of any claims and subsequent claims of a freelancer for whose payment PMR is obligated to the freelancer by official or judicial decision as a result of qualification of the freelancer as an employee. This includes the costs incurred in pursuing a legal action. The non-fulfillment of the exemption obligation results in a corresponding claim for reimbursement or claim for damages.
- Further breaches of contract
At the first request, the users release PMR from any third-party claims asserted against PMR for alleged or identified infringement of their rights. These include a breach of duties under § 4 (3), (4) and (6), a violation of § 5 and § 6, § 8 and § 11. In detail:
- The claims to be exempted under § 4 (3) also include any claims arising from third parties to whom the users have given access data.
- The claims to be exempted under § 4 (4) also include any claims of third parties asserting them for infringement of their rights.
- The claims to be exempted under § 11 also include fines imposed by supervisory authorities against PMR as controller or processor for the unlawful processing, in particular storage of personal data.
§11 Data Protection
The parties affirm that they have collected and processed all materials and other personal data transmitted to the platform in accordance with applicable data protection regulations. The users set up appropriate organizational and technical protective measures to protect against unauthorized access by transmitted personal data.
- Ordinary termination
The minimum term of this contract is 2 years. The parties may terminate the contractual relationship in writing at the latest 3 months before the end of the minimum contract period or the extended contract period. If the contractual relationship is not terminated after expiry of the minimum contract term or after expiry of the extended contract period, it is automatically extended by two additional years.
- Extraordinary termination
The parties reserve the right to terminate the contract by extraordinary termination for good cause. An important reason is given in particular if the parties violate their respective essential contractual obligations. Significant contractual obligations are those whose fulfillment makes the proper execution of the contract possible in the first place and on the compliance of which the contractual partner can trust and also trust. Reasons that entitle to unilateral termination without notice are in particular
- the use of the platform for purposes other than those stipulated in § 4 para. (1);
- a delay by the contracting party to a reminder for due compensation claims of PMR of more than 14 days;
- the opening of insolvency or judicial settlement proceedings against a party;
- the use of the platform in violation of the behavioral obligations contained in § 4 para. (4);
- in the event of a change or reduction of the fee-based services by PMR, if this significantly changes the overall character of the platform to the detriment of the user, or;
- in the case of restriction of the functional scope by maintenance work, if thereby the scope of use is substantially impaired.
Termination requires written form.
§13 Applicable Law and Jurisdiction
These terms and conditions are subject to German law.
The parties agree as the place of jurisdiction for all disputes arising from or on the basis of this contract the relevant court in [...]. PMR also has the right to sue the parties before their general place of jurisdiction.
§14 Final Provisions
- Change of Terms
PMR reserves the right to change these terms and conditions at any time. PMR will inform the user about the change in text form at least 6 weeks before its planned effective date. If the user does not agree to the new terms and conditions of these terms and conditions, he will contradict them at the latest two weeks before the planned effective date. In this case § 12 para. (2) applies accordingly. Furthermore, in case of objection by the user, PMR has the right to choose whether to continue the contract under the old conditions or to terminate it on the effective date of the new regulations.
- Salvatory clause
Should a provision of this contract be wholly or partially invalid or unenforceable or lose the effectiveness or feasibility later, this shall not affect the validity of the remaining provisions. In lieu of the ineffective or unenforceable provision, the parties will agree on an appropriate arrangement that is economically closest to what the parties intended.