Terms of use for the “FERCHAU TOUCH” appli­ca­tion

Preliminary remarks

FERCHAU GmbH, Steinmüllerallee 2, 51643 Gummersbach, Germany (“FERCHAU”), together with its affiliated companies FERCHAU Automotive GmbH, Steinmüllerallee 2, 51643 Gummersbach, Germany, FERCHAU Management GmbH, Steinmüllerallee 2, 51643 Gummersbach, FERCHAU Austria GmbH, Hafenstraße 2a A-4020 Linz, Austria, FERCHAU Spain S.L.U., C/. Miguel Faraday, 20-22, Parque Empresarial La Carpetania, E-28906 Getafe, Madrid, Spain and FERCHAU Poland Sp.zo.o, ul. Puławska 145, 02-715 Warszawa, KRS 0000450550, Poland (all together individually and collectively “FERCHAU”) under the top-level domain https://touch.ferchau.com and under various subdomains and aliases of this domain, an application on which users can enter their data (in particular name, contact details, career, etc.) and search for projects to be filled (hereinafter "APPLICATION”).

The following terms of use apply to the use of the application, which the respective user (hereinafter referred to as "USER”) confirms by registering.

The USER can call up, print or save these Terms of Use at any time via his access to the APPLICATION and also request them from FERCHAU by e-mail at touch@ferchau.com.

1. object of the APPLICATION

1.1 The APPLICATION enables the USER to enter his/her data (in particular name, contact details, career, etc.) and to search for jobs/projects to be filled. The USER can offer or apply for any job/project shown in the APPLICATION by clicking on a button with the data he has entered. When making an offer or applying for a specific project or job, the USER may have to provide additional data (e.g. desired remuneration and availability). When the USER makes an offer for a specific project or job, FERCHAU receives a notification from the APPLICATION with the data entered by the USER (in general and for the specific project or job). On the basis of this information, FERCHAU will evaluate the USER's offer for the specific project and, if necessary, forward a qualification profile or performance profile (pseudonymized) with this evaluation for information to the FERCHAU customer for whom FERCHAU wishes to purchase the USER's services. When applying for jobs, FERCHAU will use the data entered to initiate the application.

1.2 Before using the extended functions of the APPLICATION, it is necessary for the USER to set up and activate the account by logging in for the first time. In doing so, the USER creates a user name and a password. The password can be changed by the USER at any time after logging in to the APPLICATION for the first time. By logging in to the APPLICATION and creating an account, the USER declares his express consent to the data entered by him being transferred by FERCHAU to other FERCHAU-internal third-party systems, such as SAP, Salesforce or another FERCHAU-internal database, by actively ticking a box (opt-in) during the registration process.  The consent also includes the statistical evaluation of this data. Data will not be passed on to third parties outside the processes described in section 1.1.

1.3 If the USER wishes to change the data he has entered, he can change this himself at any time in the APPLICATION. The USER can also delete his account at any time.

1.4 The use of the APPLICATION is free of charge for the USER - apart from the usual connection charges for Internet use.

1.5 With the APPLICATION, FERCHAU merely offers the USER a platform to search for suitable projects and jobs and to offer or apply for them via the qualification profile or application to be created by FERCHAU. FERCHAU only provides the technical possibilities for this, creates the assessment profile and forwards this to the client of the project in question.

1.6 The APPLICATION is aimed at USERS who are to be regarded as entrepreneurs within the meaning of Section 14 (1) of the German Civil Code (BGB) and natural persons who apply for a job advertised by FERCHAU.

2. access rights and restrictions

2.1 In accordance with the terms of this User Agreement, FERCHAU shall endeavor to make the APPLICATION available to the USER for access via the Internet to enable the USER to access the APPLICATION remotely and to use it exclusively for interaction as described in Section 1 (“PERMITTED USE”). The USER acknowledges that 100% availability of the APPLICATION is not technically feasible. In particular, maintenance, security or capacity issues as well as events beyond FERCHAU's control (e.g. power outages, hacker attacks, public communication network failures, etc.) may lead to temporary disruptions or temporary suspension of the APPLICATION.

FERCHAU may use its own IT systems and third-party IT systems to the extent permitted by data protection law.

2.2 With the exception of the limited rights expressly granted herein, no rights or legal claims to the APPLICATION are transferred within the scope of the user agreement. All rights of ownership and use not expressly granted to the USER under the Agreement are reserved by FERCHAU. FERCHAU is the owner of all rights, titles and claims to all copyrights, trademark rights, patent rights and other intellectual property rights or other rights to the APPLICATION.

2.3 The USER is prohibited from making the APPLICATION available to third parties. The USER is also prohibited from the following: 

1. copying, translating, disassembling, decompiling, reverse engineering or otherwise modifying any part of the APPLICATION;
2. the transmission of content, data or information that is unlawful, abusive, harassing, tortious, defamatory, vulgar, libelous, invasive of a third party's right to privacy or right of personality, or discriminatory toward any race or ethnic group or otherwise objectionable;
3. the infringement of the rights of a natural or legal person to the respective intellectual property;
4. Interference with or disruption of the software or systems that host the APPLICATION or are connected to the APPLICATION;
5. circumventing or disclosing user authentication or security features of the APPLICATION or any associated host, network or account;
6. access to the APPLICATION in order to create a competing product/service or to copy the functions or user interface of the APPLICATION;
7. the granting of access to the Cloud Service by a direct competitor of FERCHAU; or
8. use the APPLICATION in any manner that violates any applicable local, state, federal, international or foreign law or regulation.

2.4 Except for providing access to the APPLICATION as set forth in these Terms of Use, FERCHAU assumes no responsibility with respect to any transactions or interactions that occur between the USER and FERCHAU through the APPLICATION.

2.5 FERCHAU is entitled to block access immediately if there is reasonable suspicion that the data stored by the USER is unlawful and/or infringes the rights of third parties. Reasonable suspicion of illegality and/or infringement of rights exists in particular if courts, authorities and/or other third parties inform FERCHAU of this. FERCHAU must inform the USER of the block and the reason for it without delay. The block must be lifted as soon as the suspicion is invalidated.

3. confidentiality obligation

3.1 “CONFIDENTIAL INFORMATION” means 

1. the APPLICATION including the data that FERCHAU has stored in the context of the use of the APPLICATION;
2. the computer software on which the APPLICATION is based (both object code and source code);
3. techniques, concepts, methods, processes, designs and programming interfaces embodied in or related to the APPLICATION;
4. all system security and system architecture concepts related to the APPLICATION;
5. information that has been explicitly designated as confidential; and
6. Information which, given the nature of the information and the circumstances of disclosure, should reasonably be regarded as confidential.

3.2 The USER 

1. shall take all reasonable measures - i.e. those that the USER takes to protect its own internal and confidential information, and with at least reasonable care - to keep secret all CONFIDENTIAL INFORMATION of the users of the APPLICATION and of FERCHAU; and
2. shall not disclose any CONFIDENTIAL INFORMATION of FERCHAU to any person other than those whose access is necessary to enable the User to exercise its rights and/or obligations under the Agreement and who are subject to confidentiality obligations substantially equivalent to those of these Terms. If the USER is compelled by law or judicial/regulatory order to disclose CONFIDENTIAL INFORMATION, the USER must promptly notify FERCHAU of such compelled disclosure (to the extent permitted by law) and provide reasonable assistance to FERCHAU should FERCHAU wish to contest the disclosure.

3.3 The above restrictions on the use and disclosure of CONFIDENTIAL INFORMATION do not apply to CONFIDENTIAL INFORMATION that

1. independently developed by the relevant USER without reference to the Confidential Information or lawfully acquired without restriction from a third party authorized to provide such CONFIDENTIAL INFORMATION,
2. have become generally accessible to the public without any breach of the agreement by the respective USER,
3. were already known to the user concerned without restriction at the time of disclosure, or
4. are free from such restrictions with the written consent of FERCHAU.

4. data

4.1 The USER is obliged to implement technical and organizational measures that are necessary to comply with the respective requirements under the applicable data protection laws and to adequately protect the data processed via the APPLICATION against misuse.

4.2 The USER is responsible for the content of the data and the entry of this data in the APPLICATION. The USER undertakes to comply with all applicable laws, regulations, statutes, ordinances and rules with regard to the use of the APPLICATION.

The USER warrants that it has collected, maintains and will handle all user data in accordance with all applicable data protection laws, rules and regulations. The USER is solely responsible for assessing whether the APPLICATION is suitable for the USER's business activities and whether the USER is subject to any legal provisions that prohibit the USER from using the APPLICATION. In particular, the USER shall ensure that if personal data is entered - if necessary - all individuals concerned have previously given their consent to the possible processing of personal data or that another legal basis exists. The USER shall always remain the controller with regard to such personal data. The USER shall indemnify FERCHAU against all claims by the data subject and shall compensate FERCHAU for all damages incurred by FERCHAU as a result of the transmission of personal data in breach of data protection law, unless the USER proves that it is not responsible for the breach.

4.3 FERCHAU processes the User's personal data in order to 

1. to set up, operate, monitor, analyze and provide the APPLICATION;
2. to use the USER's data in accordance with the purpose of the contract as explained in Section 1 of the Terms of Use;
3. improve the use of the APPLICATION in other ways;
4. to enable contact with the user.

5 Warranties and exclusion of liability

5.1 FERCHAU declares that it will use commercially reasonable efforts to ensure that the Confidential Information provided by it is free from viruses, Trojans, cancelbots, "time bombs” or other malicious software designed to disable, delete or damage software, hardware or data. Except as otherwise provided in this User Agreement or in the agreement with the Licensee, the User acknowledges and agrees that the APPLICATION, including all updates and enhancements, is provided "as is” and "as available” without warranty of any kind, and that all other warranties are excluded.

5.2 In the event that FERCHAU's services are used by unauthorized third parties using the USER's access data, the USER shall be liable to FERCHAU for any resulting fees and damages within the scope of civil liability until the loss or theft is reported.

5.3 Claims for damages against FERCHAU are excluded, irrespective of the legal grounds, unless FERCHAU, its legal representatives or vicarious agents have acted with intent or gross negligence. FERCHAU shall only be liable for slight negligence if one of the essential contractual obligations has been breached by FERCHAU, its legal representatives or executive employees or vicarious agents. FERCHAU shall only be liable for foreseeable damage that can typically be expected to occur. Material contractual obligations are those obligations that form the basis of the contract, that were decisive for the conclusion of the contract and on the fulfillment of which the user may rely.

5.4 FERCHAU shall not be liable for the loss of data to the extent that the damage is due to the USER's failure to carry out data backups and thereby ensure that lost data can be restored with reasonable effort.

5.5 Notwithstanding the above limitations, FERCHAU shall be liable without limitation for damages caused intentionally or negligently by FERCHAU, its legal representatives or vicarious agents resulting from injury to life, limb or health. Liability arising from guarantees and liability under the Product Liability Act and other mandatory statutory provisions shall also not be limited.

5.6 The above restrictions and limitations shall apply equally to breaches of duty committed by organs and vicarious agents of FERCHAU and equally to claims for reimbursement of futile expenses.

6. reservation of right of amendment

FERCHAU reserves the right to change the services offered in the APPLICATION or to offer different services. The registered USER will be notified of changes to the terms of use by e-mail. They shall be deemed to have been accepted by the USER if the USER does not object to the changes within two weeks of receipt. Timely dispatch of the objection within the aforementioned period shall suffice.

If this is unreasonable for the USER, he can delete his account himself at any time or request deletion by sending a message to FERCHAU (see section 1.4).

7 Term and termination; declarations

7.1 This agreement shall apply from the start of use of the APPLICATION by the USER. It may be terminated by either party at any time with one month's notice to the end of the month.

7.2 In addition, FERCHAU may deactivate the user's access data and/or temporarily block access to the APPLICATION or a part thereof if FERCHAU determines that the continued use of the APPLICATION may lead to damage to the APPLICATION, including the systems used, and to the infringement of the intellectual property rights of FERCHAU or other customers of FERCHAU or the rights of third parties. FERCHAU shall notify the USER of any such suspension or termination and the corresponding reason.

7.3 Any provisions which by their nature should survive termination (in particular those relating to confidentiality, data protection, liability, final provisions) shall survive the expiry, termination and rescission of this User Agreement and shall remain in full force and effect even after termination of the User Agreement.

7.4 Unless otherwise agreed, the USER may send all declarations relating to the APPLICATION to FERCHAU 

1. by e-mail to touch@ferchau.com or
2. by fax (+49 2661 3006-99) or
3. send a letter to FERCHAU. FERCHAU may send declarations to the USER by e-mail or by fax or letter to the addresses specified as the current contact details in the USER's account.

8. final provisions

8.1 No verbal collateral agreements have been made. Amendments, supplements and additions to this User Agreement shall only be valid if they are agreed in writing between FERCHAU and the User concerned. This shall also apply to any amendment to this written form clause.

8.2 Should any provision of these Terms of Use be or become invalid, this shall not affect the validity of the remaining Terms of Use. The invalid provision shall be deemed to be replaced by a valid provision that comes closest to the economic purpose of the invalid provision. The same applies in the event of a loophole.

8.3 The exclusive local place of jurisdiction for all disputes between FERCHAU and the USER arising from or in connection with this agreement shall be Gummersbach, Germany. This User Agreement shall be governed by the laws of the Federal Republic of Germany to the exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG).